People v. Garcia

S045696. Aug. [No. 2011.] PEOPLE,

THE Plaintiff and Respondent, GARCIA,

RANDY EUGENE Defendant and Appellant.

Counsel Hersek, Defender, Michael J. State Public under appointment by Supreme Court, Silten, Defender, and Peter R. State Public and Deputy for Defendant Appellant. Brown, Jr., Harris, General,

Edmund G. and D. Kamala R. Attorneys Dane Gillette, General, Hamanaka, Chief Assistant Attorney Pamela C. Assistant General, H. Attorney Keith John R. Sharlene Borjon, Gorey, A. Honnaka Lehman, General, Russell A. for Plaintiff and Deputy Attorney Respondent. Opinion

BAXTER, A Los found Angeles defendant jury Garcia Randy Eugene J. of crimes guilty stemming from two home invasions committed the night 1993, before Mother’s Day, same in Torrance. The neighborhood most incident, serious which victims—a married with couple children—were home during resulted for burglary, in convictions murder degree first Code, (Pen. (a)),1 Finzel subd. and the Joseph attempted premedi- § wife, tated (§§ 664.) murder his L. subd. (a), Related convictions 459), (§ (§ 211), involved burglary (§§ robbery attempted forcible rape (a)(2), 664), 288a, subd. (c)). and forcible copulation (§ oral subd. The jury also sustained circumstances that the oc- special providing Finzel murder curred in the commission of burglary, robbery, rape, oral attempted 190.2, (§ copulation. (a)(17).) subd. Additional were that findings defendant was (§§ armed (a)(1), used subd. personally handgun 12022.5, (a)), subd. he L. great bodily inflicted on personally injury (§ case, 12022.7). the other incident in this charged Kozaks, convicted of the home aof second burglarizing couple, who were out (§ 459.) of town vacationing time. trial,

After a fixed the at death. The penalty trial penalty (§ declined to trial et grant new denied automatic seq.), 190.4, (e)). motion to modify (§ death verdict subd. The court pronounced a death for the judgment circumstance murder. Sentence also was special counts, stayed life with the imposed felony including noncapital (Cal. for murder. automatic. possibility parole attempted appeal This Const., VI, 11, (a); art. subd. (b).) subd. § §

We find error be no at defendant’s trial. The will prejudicial judgment affirmed in its entirety. statutory except All are Penal Code further references to the as otherwise stated.

I. GUILT EVIDENCE Case A. Prosecution Crimes Charged Surrounding

1. Events friend, 8, 1993, defendant his Day, before Mother’s May day On Portland, Pierce, Oregon, car from drove in Pierce’s “Bruce” Edward Torrance, Torrance, George Aguirre, with stay they planned California. defendant’s, Oregon. later in for sale buy marijuana and to another friend in Aguirre’s “Mexican weed” that the trio sampled Pierce testified trial this confirmed account. day. Aguirre that apartment announced between 9:00 to Pierce and defendant Aguirre, According wanted to steal meaning do “a he that he wanted to night job,” 10:00 defendant, Pierce’s car. Defendant to drive something. using offered Aguirre shirt, He Nike shoes. also jeans and wore black on black turtleneck put a small contained around his waist. The fanny fanny pack carried pack and a of black gloves. chrome handgun pair later, time about mile from the defendant off one Aguirre

A short dropped he way, home. On the waited 15 minutes then drove apartment. Aguirre street, did have he not something defendant on the walking carrying saw closed with a Defendant bag rope. before—a multicolored leather-like held “a bunch of bag change.” entered the car and said again, leaving exited the car drove several blocks and defendant Aguirre time, at a end on over a wall dead 180th behind. This he bag jumped Street. one no more than hour arriving went home with an

Aguirre uneasy feeling, There, about all “cops he with Pierce Aguirre after left defendant. spoke did for alone if defendant not Oregon Pierce said he would leave around.” to the 3:30 a.m. return apartment Burglary The Kozak

2. left the time defendant first evidence established that between Prosecution bag him the multicolored carrying car and the time saw Aguirre to Archie and home burglarized belonging “change,” nearby and left for Las on Vegas Kozaks had locked the house Winona Kozak. The late May returned they Kozak testified that when May 1993. Mrs. finger- found no house had been ransacked. The police Mother’s Day, marks and fabric glove particles. prints—only Various coins, items were missing, including jewelry, collectable and a multicolored that bag pulled closed on Mrs. Kozak identified items top. these below, found, we trial. As discuss were they with other stolen along in defendant’s property, in where he a possession Oregon, was arrested few after the days crimes. charged

3. Crimes Finzel 8, 1993, Around 11:15 L. in the p.m. May was master bedroom her of Street, home on not 180th far from where last saw defendant exit the Aguirre bed, car and over a wall. L. was in after jump dozing turned the having lights off and left the bedroom television set on. The window blinds were closed. L. testified, however, in the anyone standing could see into the backyard bedroom in through the blinds. gaps husband,

L.’s Joseph, socializing elsewhere with a friend and was to return home soon. The expected only other in the person house was the Brinlee, infant a couple’s daughter, who was bassinet at foot sleeping Garrett, of the bed near L. son from Joseph’s prior lived marriage, Finzels, but was time elsewhere with his mother. spending noise,

Awakened aby banging L. movement looked sensing nearby, up and saw defendant standing a small She doorway, holding silver gun. identified him at positively trial. His face was visible in available clearly light.

Without defendant told warning, grabbed bassinet and L. not to scream outside, because he had an armed and because he “hurt the accomplice would clothes, Defendant wore dark black baby.” fanny He gloves, pack. carried cigarettes Camel his pack smelled pants pocket smoke.2 cigarette

In the first two such defendant forced L. sex acts. episodes, engage He made her her remove shorts and while orally him she sat on the copulate He bed. then told her to stand and insert his into her penis vagina so, behind. She tried not but could do because he not an comply did have in,” erection. he When asked if “it she “yes.” said [was] Next, There, defendant L.’s arm grabbed and took her into the he hallway. bedroom, the door of Garrett’s and was told L. that the room opened belonged to her who was not home. When returned to stepson, they 2 Aguirre cigarettes, he testified that defendant smoked had Camels in his 8,May possession on 1993. her bedroom, L. to remove her shirt expose told

master As from behind. a act of intercourse He second sexual “titties.” attempted erect, before, into her vagina. which was not L. to his penis, pretended place ordeal, it his hand or gun the either held the in placed defendant Throughout on bed. within his reach the visibly L., deadly. frenetic and events became more

According to subsequent “safe,” L. and “gun.” access the “money,” “jewelry,” Defendant demanded to safe, her watch him where to find gold there was but told money said no credit cards were located said that her wallet and and She also jewelry. from her finding Though sought Brinlee’s L. to diaper bag. prevent the said it was not on falsely .357 and Magnum handgun, husband’s At bedroom found the in a drawer. defendant nonetheless weapon premises, the L.’s and tied a around he stuffed sock into mouth pillowcase point, wrists feet behind together He also used a to bind her and nylons gag. pair her back. L. about her husband’s

Defendant then shifted his focus and asked (once loosened) whereabouts. L. indicated her was was gag Joseph Defendant the bedroom door so that only local restaurant. closed partially next L. was truck five-inch remained. The heard opening thing Joseph’s the the time at 11:30 p.m. outside house. She estimated inside, door, the and the turned on light, Once bedroom Joseph opened at L. bound and nude on bed him. Defendant stood facing looked the lying her, hand. behind .357 in his holding Magnum the slightly apparently pistol screamed, L. L. blood and each followed saw Suddenly, by gunfire. Joseph abdomen, and arm. and then felt in her stomach flowing pain Joseph’s had fled not to begged She too been shot. Defendant the room as L. him like Brinlee L. that defendant “leave us this.” cried her bassinet. testified across and hit shot over to baby Joseph.

Defendant Finzel home for two or three hours after stayed First, He three he shootings. reentered master bedroom times. disabled time, to be when L. tried to dial The second as she phone pretended 911. visit, dead, he on the third he raised and then her head. his tapped During Meanwhile, L., arm, L.’s dead.” she according “she’s saying dropped down her bullet wounds slow The bed—a bleeding. on pressed her entering waterbed—was She moved head water from leaking. prevent her nose. house, ties had wrist nylon the time defendant left the L. loosened

By weak, her face. and she crawled over from her gag away Dizzy pulled husband, and to the yard neighbor’s porch. stumbled house through door She knocked on the and collapsed. Nevilles, noises, neighbors, testified that they heard possibly L.,

gunshots, around 11:00 and found nude and bleeding, on their p.m., porch around 2:00 a.m. She told them about the robbery shooting, about Brinlee and next door. The Nevilles called Joseph 911. later,

When arrived a time police paramedics short L. was in shock home, near She death. was rushed to the At the Finzel was hospital. Joseph floor, found dead on the bedroom his body blocking door. His partially had been turned inside pants pockets out. Brinlee was unharmed. Her bassinet between his feet. resting Joseph’s leg, Murder Investigation the Scene 4. home, crimes,

The Finzels’ which was neat before the was in disarray cabinets, closets, afterwards. Torrance officers found police drawers open floor, in various rooms. L.’s was on living the room its contents purse strewn The back nearby. door stood A was in the ajar. bag backyard. Gates diaper a side were set yard One of car was found on the the open. keys ground near Another set the of the garage. was in Finzels’ Corvette. The car ignition was dead. battery

The investigation disclosed that a bullet fired inside from the master the bedroom door and in a through became room passed lodged living cabinet. Two near the bullets rested on or bed. In the near expended hallway bedroom, the master tested for and found police fingerprints, only glove marks. There were two cigarette Camel butts—one on the back and the porch, other rear at the of the near and crushed weeds. property, footprints missing from the Finzels’ home included L.’s watch and

Property gold other truck. Police later found the truck jewelry, Joseph’s near parked time. Aguirre’s where defendant was at the Credit cards apartment, staying to the were found the truck. retrieved a belonging Finzels inside Police Camel butt from beneath cigarette driver’s door. Return to Apartment Aguirre’s

5. Defendant’s a.m., 3:00 Between a.m. and 3:30 Pierce heard defendant enter Aguirre Defendant said he to hell.” was apartment. “going straight Aguirre recalled saying defendant also that he “shot two while Pierce people,” been word “killed” have used. Defendant thought might displayed .357 it “second handgun, attributed to his Magnum job,” expelled empty and another cloth casings onto floor. He a woman’s carrying purse a coffee He onto table. bag. dumped jewelry purse a.m. leaving by and Pierce same 4:00 Oregon night, Defendant left for defendant’s of the .357 dispose testified he declined request Aguirre Hence, he in the items defendant included the handgun. gun packed Magnum and the .25-caliber gun He also took the woman’s purse, jewelry, for trip. defendant his Pierce testified that tossed that he carried in fanny pack. items. included They a Los He the other Angeles freeway. kept onto purse watch, car. Pierce’s glove which defendant put compartment gold with Police Aguirre’s Cooperation

6. newscast on realized that watching Aguirre While television May Finzel He be linked to the crimes. contacted Torrance might the lead Detectives Mason began cooperating investigators, police, to admit he had driven defendant around town Though and Nemeth. reluctant crimes, all relevant information night Aguirre gave police those evidence in Such items consisted of left his physical possession. he Oregon, including defendant when for Aguirre’s apartment departed shirt, (turtleneck clothing bullets and black items casings, gloves, expended shoes), and Nike and Camel cigarettes. Return to Oregon

7. Defendant’s with hours of driving Oregon morning While Pierce to early May defendant described the that he had admitted before to both Pierce shootings he because and Defendant said shot male victim he saw Aguirre. face, and the female because she defendant’s that he shot victim “freak[ed] the .357 to Pierce. Pierce Oregon, Magnum handgun out.” In defendant gave to his mother. it gave Jackson, friend, in his Antoin Oregon,

On defendant contacted May house. On defendant communi- overnight and at Jackson’s stayed May Afterwards, nervous, someone and he seemed and cated with page phone. he statements to Jackson. said was “to incriminating going made Defendant he hell” and to for “life” because had “killed someone.” victims prison loud,” who who “walked in” while were a “bitch” too a man “scream[ed] that he in was a house. Defendant told Jackson stayed defendant burglarizing hours,” the time. for “a few and was “real at Defendant high” that house the .357 he handgun identified the murder as Magnum gave weapon Pierce, and admitted to steal a car the crime. trying during

Meanwhile, County, Oregon, sheriff’s detectives in May Washington case, and arrest had issued in learned that an warrant the present Hence, that day, in defendant. same sought Torrance police help apprehending Pierce, who in the investigation. detectives Oregon cooperated contacted Pierce disclosed defendant’s incriminating statements. Pierce also helped retrieve the gold watch and the .357 he had Magnum handgun obtained from defendant. All such evidence was to the lead given in investigators Torrance. Pierce,

Through friend, Oregon detectives contacted defendant’s Suely Caramelo. She them gave items she had received from defendant after his Torrance turn, that were trip—items given, to the Torrance police. They included a woman’s gold diamond and a ring multicolored cloth bag coins inside. Caramelo also said that defendant Jackson’s house.

Defendant was arrested short time later at Jackson’s house. Items found in his included a possession inside, with a fanny pack small chrome pistol bag jewelry. Defendant was wearing gold diamond at the ring time. Torrance,

After told being about the murder warrant and read his Miranda rights Miranda v. (see Arizona 384 U.S. 436 L.Ed.2d 1602]), 86 S.Ct. defendant remarked that he was the “wrong that he guy,” became involved with the “wrong and that had “threatened” people,” they station, him. the drive to the During sheriff’s defendant made similar statements that “four Mexican gang members” forced him to “take the gun near the jewelry” where “two were killed. spot people” Defendant denied victims, knowing about the anything and could including gender, not explain how Pierce and have Aguirre might such information. When told acquired that the female intruder, victim had survived and identified him lone said, turned breathed pale, “Shit.” deeply,

8. Physical Evidence recovered had been Property Oregon stolen not only during Kozak above, burglary, noted but also crime. The defend- during ring capital ant wore when arrested was Finzel’s It Joseph wedding ring. was on Joseph’s when he finger was shot. The defendant ring Caramelo was L.’s. L. gave officers, identified other items seized by arresting including watch gold that defendant left in Pierce’s car. tests,

Based on ballistics a criminalist with the Los Angeles County Sheriff’s determined that the Department found in expended casings Aguirre’s were fired from the apartment .357 retrieved Magnum handgun from Pierce The witness reached a Oregon. similar conclusion as to the expended bullets found in the Finzels’ bedroom. Medical Testimony

9. Dr. Carlos testified that Donayre emergency was surgery required save L.’s life after the One bullet entered the side of her shooting. body, bullet the arm. Another and exited through several vital organs,

penetrated state back, Because L.’s weak and exited the grazing spine. entered anesthesia, mild narcotics received only she the use of general prevented on the that she “wasn’t numb” L. confirmed the three-hour during procedure. shot.” table, “worse than being seemed surgery and that the pain operating Selser, examiner who autopsy Dr. the medical performed Susan wounds, which entered each of testified that he sustained two gunshot Joseph, aorta, and the the lung the chest and exited the back. One struck through other the heart. Both were fatal. pierced

B. Case Defense Defendant no evidence at the guilt phase. presented

H. PENALTY EVIDENCE A. Prosecution Case

1. Prior Conviction Felony crime, he defendant was convicted before committed capital theft, as an adult of a also known as stolen Oregon felony, receiving property. 2. Circumstances Crime Capital that one month before defendant and Pierce drove George testified Aguirre 8, 1993, occurred, defendant to Torrance on when the crime May capital there While one marijuana night, visited alone. Aguirre smoking said, He “I be like to a woman at wonder what it would rape gunpoint.” was said. seemed serious the time. more on Nothing topic L., at the was who other witness only prosecution penalty phase crime, the murder as follows: When described effects capital old, son, occurred, Brinlee, her was about two months daughter, Joseph’s Garrett, old when he died. He was was seven old. years years Joseph an child. His death devastated his only parents.3 love, and married in May

L. and met in March fell deeply Joseph To for marriage, they outdoor activities They enjoyed together. prepare 1992. court, lap in her on the witness prior ruling Consistent with a of the trial L. held Brinlee thereafter, identifying jury. Immediately evidently L. handed Brinlee stand while her to the (who standing nearby. It the child was then “bye-bye”) prosecutor, appears said to the who was given spectator located in the section of the courtroom. promptly to someone else trial, attended an weekend” with other “engagement At L. read a couples. letter that wrote that event. Joseph during

L. testified that she and time Joseph enjoyed with Garrett. spending Together, sometimes walked Garrett to and from couple school. Garrett role in their played key L. had wedding ceremony. fond memories of many were day. Wedding introduced at trial. photos L., According she and to have more children and to Joseph planned move where could ride country they horses and Mean- motorcycles. while, worked for a and L. Joseph was a homemaker. computer company, ran a small They business and a bringing children’s pets pony birthday parties. these events were introduced. Photographs

L. described the her support Joseph provided during pregnancy, including his room when Brinlee presence delivery was bom. The umbilical cord neck, around Brinlee’s medical wrapped treatment. requiring Joseph later, L. afterwards with red surprised roses. One month the family, Brinlee, including went Photos of together. camping family trips outings were introduced.

L. recalled the terror she felt during crime. While capital hospitalized afterwards, she had in her tubes throat and could communicate only by notes. She read the writing notes in court. murder,

After the L. and Garrett became L. has no estranged. permanent home and lives with different relatives. Medication have not therapy fear, eased her guilt, grief.

L. testified that she visits twice a week. The grave is Joseph’s cemetery near other such as the hotel where the their special places, couple spent headstone, She described on the well wedding night. markings as various mementos that were buried with on his later. grave Joseph placed

Following L.’s watched an 11-minute 45-second video- testimony, The shows L. from the shoulders in front of a tape. videotape up, talking Her also heard video and still gray describing voice plain backdrop. clips screen. Both the narration and concern photographs appear images married, L. and shared as a joy (e.g., getting raising Joseph couple children, home, outdoors), and the loss she relaxing enjoying turmoil, death from his emotional experienced (e.g., estrangement Garrett, and a visit with Brinlee on Christmas gravesite Day). from the format two foregoing only respects. videotape departs

First, screen, at the white on a black beginning, lettering silently appears and home on Mother’s to an “intruder” who entered L. Joseph’s

referring and the lives of family forever “altered” their lives and who Day Second, softly end of the a song plays friends. at the videotape, free” and a seconds, a “hero goes for 80 with about lyrics background [who] time, Finzels at that More images appear “villain goes jail.” [who] with a boy one of including Joseph sleeping puppy. Case

B. Defense relatives, friends, officials, and mental health juvenile justice Various He did not take the stand. testified on defendant’s behalf. professionals 1. Family History mother, Suszanne, married Garcia when she “Rudy”

Defendant’s Adolpho was 18 old. Defendant was one of three bom years boys fairly quick brother, However, older succession defendant his during marriage. Garcia, Fred are not related blood to and were each fathered Rudy, Garcia, men. son. biological different Teodi Only youngest boy, Rudy’s Defendant, fact until 13. age who was bom in did not learn this time were

By Rudy defendant started Suszanne kindergarten, children, divorced. had the three Though legal Suszanne Rudy custody decided to them with her. She and the several times over moved keep boys Idaho, Texas, Alabama, the next few years, living Washington. time, Suszanne had a her during including series of romantic this partners husband, brother, Teodi, second Frank Poleta. Defendant’s testified younger that Suszanne was a mother. loving

After defendant finished the third Suszanne left the children in grade, husband, at the home of her first who was their Georgia Rudy, “they thought wife, Cecelia, father.” lived with and his new for two Teodi They Rudy years. and Fred testified that Cecelia all three She made boys harshly. punished defendant, who wet the bed at stand outside his soiled night, wearing Once, head, on his that he was a bed wetter. holding sign stating underpants door, when defendant hit Cecelia’s hand with the car she accidentally slammed the door on his hand.4

As a fifth or sixth left home in grader, Rudy’s Georgia mother, had a new reunited with his Suszanne. She lived Oregon cross-examination, Rudy Filipino, On Fred Garcia noted that and Cecelia were both but Rudy opined “upbringing was raised in the United States and Cecelia not. Fred may styles, being “the one explained disparate parenting culture” have their with Cecelia the backbone.” Newton. Randy Suszanne testified that defendant partner, learning developed and became in class. The Ritalin eased his problems disruptive drug hyperki- netic and his school symptoms improved performance.

Before entered the seventh Suszanne met Tim who grade, Tugg, defendant, Fred, her became third husband. Tim had no interest in raising Teodi, children, son, Matthew, and doted on his own a whom he including had with Suszanne. Suszanne testified that Tim and emotion- “physically abusive to me and kids.” Tim and ally my Suszanne used marijuana home, cocaine at to children. Tim drank alcohol gave drugs every Tim told defendant that Garcia was not his father. That day. Rudy biological defendant stole night, was arrested. property father,

Defendant’s Patrick testified that he be- biological Grandchampt, came with defendant case. read acquainted during capital Grandchampt two letters from defendant a father-son seeking develop relationship. defendant, witness testified that he cared about and chose not to disclose his true earlier fear for identity “destroy[ing] everything.”

2. Juvenile Delinquency old, in when he Beginning was 13 defendant came under the years officer, A authority juvenile justice system Oregon. Larry probation Tomanka, testified that defendant’s homelife was dysfunctional, family succeed, was not and that outside the home counseling likely placement Walker, counselor, occurred.5 Steven a testified that eventually probation defendant behaved well confined in a juvenile while 1987. How- facility ever, he was from and his continued. Joan estranged his family, bed-wetting counselor, tense, a court found the to be McCumby, family guarded around Tim She believed the children had been mistreated especially Tugg. while Garcia and Cecelia in knew of no living Rudy Georgia. McCumby medical cause for defendant’s and learned that he had bed-wetting problem, been treated for as a child. An evaluation disclosed that hyperactivity updated the latter condition had and that medication was dissipated unnecessary.

3. Mental Condition Kowell, Dr. Arthur a a brain electrical neurologist, activity performed (BEAM) of defendant before trial. Defendant’s study mapping performance cross-examination, allegedly criminal that defendant On Tomanka disclosed certain acts juvenile. allegations following Some of these were dismissed defendant’s committed as vehicle, (e.g., burglary, unauthorized of a motor performance probation favorable use theft, assault, alcohol). adjudications guilt (e.g., trespass, criminal possessing Others led being runaway). Penalty considering evidence of prevented instructions felony aggravation prior force or violence or resulted in a crime in unless it either involved 190.3, (b), (c).) (See factors conviction. § areas,

in two visual and involving auditory showed responses, abnormality control, the frontal and lobes. Both affect temporal regions impulse among other These test results things. were consistent with attention deficit hyperac- (ADHD). disorder tivity

Dr. Nancy Kaser-Boyd, psychologist, interviewed defendant and various members, tests, school, family conducted and reviewed medi- psychological cal and probation records. In her defendant awas manic opinion, highly person, as an adult predisposed criminal acts and committing suffering from mental illness and abuse. Dr. drug determined that defend- Kaser-Boyd ant suffered from ADHD (evidenced, child his part, by bed-wetting), that the condition was inherited from likely his Patrick parents (including and that he suffers from an Grandchampt), adult version of the disorder (attention residual). deficit disorder Other risk factors for adult dysfunction abuse, included molestation, mental and as well as sexual physical as a child. On the latter Dr. point, Kaser-Boyd testified that she was told Fred Baumgarte, defendant’s that Garcia grandfather, had “touched” defend- Rudy ant’s “in a genitals sexual when way” defendant was three or four old. years Rudy Suszanne, was married to Fred’s daughter, at the time.6

C. Prosecution Rebuttal Fred Baumgarte confirmed that he saw a sexual incident similar to fondling the one However, that Dr. below, described. Kaser-Boyd as discussed further wife, both Fred and his Dorothy testified that did Baumgarte, not they remember York, the matter with discussing Dr. Kaser-Boyd. Amy a defense paralegal, before prepared trial report indicating defendant’s older brother, Garcia, Fred told her that Tim Tugg physically abused his wife only brothers, Suszanne—not defendant and his Fred and Teodi.

III. PRETRIAL ISSUES A. Grand Selection Jury Process

Defendant contends that the nomination judicial used in process long Los Angeles County select prospective grand jurors—a that led to the process random draw of and, grand juries indicted defendant presumably, countless other discrimination, persons—involved intentional and invidious and resulted in the substantial of women and underrepresentation Hispanics the grand The claim is based pools. clause of upon equal protection Kaser-Boyd Dr. alluded to another Rudy allegedly sex act that Garcia against committed details, Offering defendant as a child. few she noted that the incident differed from the one reported by Baumgarte, Fred that it involved oral copulation, that it was disclosed to her uncle, Reginald Baumgarte. Reginald defendant’s testify did not at trial. Defendant the Fourteenth Amendment of the United States Constitution. counts, reversal of the indicted murder. including seeks automatic capital view, our constitutional violation or reversible error occurred. no.

1. Trial Court Proceedings an of Los returned Angeles On June Grand Jury County court, indictment, filed defendant with the which was charging superior case, an filed on Finzel crimes.7 In a information was separate superior resi- the Kozak November defendant with charging burglary May dence. Both cases were consolidated for trial on 1994. 23, 1994, the indictment. writing

On defendant moved in dismiss May 4, 1994, At that the argued grand jury on November hearing and thus selection discriminated women against Hispanics, process of violated the Fourteenth Amendment protection by equal guaranteed Constitution, (1977) forth in Castaneda Partida United States as set (Castaneda). Defendant 430 482 L.Ed.2d S.Ct. U.S. 97 1272] [51 case, rebut, did not by claimed he had made a facie which prima People in Los Angeles that both were groups substantially underrepresented showing time, and that the nominating Grand Jury pools process over County 497.) The (Id. as at of abuse subjective” applied.” p. “highly “susceptible conflict, cases had that to the extent the two Castaneda prosecutor replied L.Ed.2d (1979) Duren 439 U.S. 357 been v. Missouri “superseded” exclusion (Duren), “systematic” which prohibits S.Ct. 664] from a fair to an drawn right impartial jury violation of Sixth Amendment insisted, 364.) (Duren, The community. p. prosecutor cross-section that, for however, Duren affected Castaneda’s nothing requirement has of defense the burden actually proving “the equal purposes, protection intentional discrimination.” witness (1) live hearing through evidence was admitted at

Extensive exhibits, materials that (3) other voluminous (2) documentary testimony, an criminal case.8 record in unrelated noticed from the court judicially counts allegations. The first six contained counts and related The indictment seven degree Finzel Joseph first of guilty we have described: murder ultimately produced verdicts II), I), (count burglary (count premeditated murder of L. attempted circumstances special IV), L. (count HI), (count rape of robbery attempted L. forcible residence of the Finzel (count VI). alleged an (count V), Count VII of the indictment copulation oral of L. and forcible at the against L. The latter count was dismissed copulation of forcible oral additional act People’s request at trial. They record consist appeal. in the instant on judicially noticed items are included The 5,000 from volumes, testimony documentary exhibits nearly pages, or of transcribed foremost,

First and two court Gloria Gomez and Juanita superior employees, testified about the Los selection Angeles grand jury Blankenship, process, follows:9

Unlike trial who are summoned from jurors, randomly Department rolls, registration Motor Vehicle lists and voter a grand jurors perform not, word, service and are voluntary “draftees” of the public Blankenship’s court. A full-time commitment involved. Grand serve for one is jurors year.10 meet four or five a They $25 week. a costs. days pay day, plus mileage alluded to certain for Blankenship statutory eligibility grand requirements Some, noted, service. she (e.g., also trial a citizen apply jurors being older, age 18 or knowing English no language, having felony However, convictions). have a only grand jurors residence one-year county and cannot hold requirement, elective office. witnesses, to both all are

According grand jurors first nominated judge. At the time of superior testimony, there were 238 Blankenship’s Los judges Angeles Court. Each is allowed County Superior judge However, nominate to two up persons year. nothing prevents any judge one nomination nominating only or no at all. person making made clear that are (1) there two to be nominated: Blankenship ways “be known to the judge or make known yourself to the ask to be judge (direct nominees), nominated” “volunteer to be candidate for a (volunteer nomination” candidates). Either the the way, completes person same standard which the application, nominating It judge eventually signs. the gives of race or applicants disclosing ethnicity, seeks a brief option statement. The biographical commissioner hands mails an jury or application to who can be every person one. It returned mail or in requests person.

For (as nominees), volunteer candidates to direct submission of an opposed meets, random, a application triggers formal interview The process. person with one of the on the judges serving grand court’s and trial committee juror People v. Vallarino (Super. BA027100). (which County, Ct. L.A. No. items Such include findings) generated period February no trial court were over a 14-month through April 1993. 9 Gomez personally manager juror testified in this case that she worked the of as services for Court, County the Angeles Superior Los was grand familiar with the manner in which both jurors and trial post years were selected. She had held that for about two and one-half before hearing. predecessor, Blankenship, management the juror Gomez’s ran the court’s division through testimony from 1988 1992. Blankenship’s judicially admitted in transcribed and noticed form. one-year period Angeles County July through The in Los runs from June 30. Defendant 3, 1993, during was indicted grand jury on June the 1992-1993 term. (Committee). The interview concerns statutory requirements qualifica- service, forth tions for as set in written grand jury guidelines promulgated addressing Committee.11 testified that guidelines, Blankenship skills, to lack office technical and clerical do not seek exclude who applicants noted bear on the degrees. Gomez that administrative skills jobs college interview, “civil After the Committee grand function.” jury’s interviewing form, a it on the rating, guidelines and notes as judge assigns provide. of all submitted candidates are distributed by volunteer Copies applications for As with direct nomination court. purposes every judge superior nominees, is one any signs a volunteer candidate nominated when judge form. list of nominees in the grand

A tentative is jury published newspaper, entire court to any objection. Blankenship’s circulated to the lodge superior rare, conflicts of objections such are involve experience, typically ante, interest, (See as when nominee is related to a sitting judge. such fn. this final list of nominees is 11.) compiled, Once process complete, filed, According grand jury typically and published. Blankenship, pool 150 to 175 are volunteer candidates.12 Many consists of nominees. draw wheel of names of 40 next is a random blind from a jury step The sheriff’s conducts department and 10 alternates. grand jurors

prospective The names nominees record checks of these 50 individuals. of those criminal wheel. random who this check are in the Another again placed jury survive first guidelines present Committee case. The Defendant introduced two sets of Nominees,” document, statutory Jury Selection of lists the called “Guidelines Grand [for the] service, background check. These grand jury including for a criminal eligibility requirements grand jurors, guidelines required such also describe time and service commitments term, during their the need for political campaigns personal restriction on involvement duties, grand any job if demands would conflict employer written release from July, and the meetings miss inability grand jurors take extended vacations or to document mileage such attendance. The last item in this paid fee and costs for modest (e.g., relatives appear would to raise a conflict interest groups describes whose nomination officers). sitting peace nominating judge, county employees, or and active of Jurors,” document, Grand advises Interviewing Prospective for The second “Guidelines service, time, grand jurors, the pay and for and about be told about the standards candidates knowledge of the suggests questions check. on the candidate’s background It further criminal affairs, function, community special grand responsibility and level of jury past experience service, (e.g., accounting, jury specific qualification grand for and skills interest in or communications, the interviewer is asked to rate writing, interviewing). and The report candidate, (i.e., “well “exceptionally qualified,” well rating application the on the and to note “uncertain”). qualified,” “qualified,” and 12 instance, (excluding the every who for term applied candidate 1990-1991 For volunteer interview) grand year, juror. as a That was nominated those later withdrew or missed who pool. comprised percent such 40 volunteers

727 blind draw then occurs to select the actual Gomez testified that grand jury. alternate grand Angeles there are 23 and four in Los jurors jurors County. Both and described the Gomez court’s Blankenship superior ongoing recruit a broad of Los grand from cross-section campaign jurors Angeles words, In residents. “substantial affirmative efforts” are County Blankenship’s made to attract and members of other Hispanics minority groups. Every year, release circulates to over 100 and media press organizations, newspapers most Public announcements run including outlets. service Spanish-language in both and on television radio stations. Recruitment English Spanish officials, letters are sent and consulates community public county- groups, wide. Judges personally community consult with on the Hispanic groups issue.13 vein,

In a related record includes “Nomination Form.” sample Consistent with the form testimony, asks Blankenship’s grand jury applicants “Black,” “Caucasian,” to disclose their race or (e.g., ethnicity “Hispanic,” “Asian,” “Other and states that Minority”), such information “optional” The “voluntary.” “Recent following explanation appears nearby: Supreme Court added decisions on the ethnic of the place makeup emphasis pool which Grand Jurors are drawn. Your answer will assist of the Judges Court in full establishing these decisions.” On an compliance adjacent line, are asked to whether applicants were “Male” or “Female.” specify they

In addition to information about nominating defendant intro- process, duced statistical evidence. women in the one Regarding grand chart jury pool, that, census, indicated based on the 1990 women 50 of the comprised percent of Los population Angeles years older. Another chart showed County the gender grand nominees from the term jury 1986-1987 through term. The 1993-1994 of women in the from a percentage ranged low of pool However, year, one to a of 50 another percent high for five percent year. of the eight years, other nominees grand were 40 to female. percent measure, At the hearing, defense counsel an “absolute used which disparity” calculated difference between of adult women in the percentage of women in the population percentage Such grand jury pools. extreme, ranged from zero to at each disparity percent otherwise hovered in the 5 mostly to 10 range. percent efforts, evidence, Regarding these outreach among the trial court admitted into other Jurors, County Grand things, a of a Seeks photocopy newspaper announcement titled dated

Monday, qualified apply November persons upcoming 1989. item invites for the term, service, grand jury lists the basic conditions and describes how to obtain an addition, application. presiding judge Angeles County then of the Superior Los Court is “ ” quoted seeking grand jury pool makeup’ county, diverse ‘reflects] “ ” ‘[B]lack, urging Hispanic interested or Asian’ citizens to volunteer. admitted, three in tran- by Finally, demographic testimony experts form, the grand scribed and noticed in judicially concerning Hispanics jury sources, used on the 1990 census other the witnesses Relying pool. measures, their different calculations methodologies, assumptions, results. Dr. Bolton found an absolute Notably, varying Nancy produced the of adult citizens in 9.7 between disparity percentage Hispanic percent the and the average county’s Los Angeles County percentage Hispanics Dr. over between 1986 and Bolton grand jury pools five-year period 1991. candidates were also found that 73 of the volunteer who percent Hispanic nominated, court were compared only interviewed superior judges inferred She that the were judges of their White counterparts. percent the of nominees. “enriching” pool Hispanic from the testi- gleaned certain absolute disparity figures

By comparison, of Dr. Dr. Dennis Willigan—11.4 William Clark—10.5 mony percent—and to, than, Dr. Bolton’s figure. similar but somewhat higher percent—were the Los Dr. Clark and Dr. based these results on the Willigan percentage were citizens and who voting age who Angeles County Hispanic population or (as to those “some” only English “well” who English spoke spoke opposed the well”). Both of these witnesses also used “veiy who spoke English to calculate the average percentage from 1986 six-year period through Dr. Willigan in Los Grand Angeles County Jury pools. opined of Hispanics be attributable to not might judges knowing, that the various disparities He not from “certain racial or ethnic nominating, groups.” therefore persons admitted, however, in the nomination goes process,” that “whatever on does, I don’t know.” why “how or it evidence, the the the trial court rejected grand

After considering foregoing facie case the defendant had not challenge presented prima ground In authorities describing discrimination. principles of unconstitutional decision, court “agreed People’s to make this used explicitly the court on the above described arguments parties, Based position.” Castaneda, Duren, that 439 U.S. supra, “superseded” believed apparently extent, but retained burden to some defense U.S. event, under the latter case. “intentional” discrimination of proving distinctive groups were Hispanics after women acknowledging declined to decide whether court entitled constitutional protection, of women and difference between meaningful percentage there was of women and and the grand percentage nominated jurors, Hispanics Instead, under “third for such service. eligible Hispanics population “any found no evidence of being of the test applied, prong” Hence, the court.” motion discriminatory system place superior was denied. the indictment dismiss

729 2. Claim Analysis Constitutional of

On defendant renews his that Los appeal, argument judges Court violated Angeles County Superior guarantees by equal protection women and nomi- discriminating selecting purposefully against Hispanics for the nees from which his drawn. We first summarize jury pool grand which this and which rise to the statutory regulates scheme process, gave scheme, law, The codified has challenged grand which procedures. jury prior 1959, 501, (See been effect for decades. et ch. 888 added Stats. seq., § 2, 2443; 501, 2458; 1959, 20, see Stats. ch. v. also p. p. People Superior § § 430, (1973 Jury) (1975) Court Grand 13 Cal.3d 436 & fn. 5 Cal.Rptr. [119 (1973 531 P.2d Grand Jury).) 761] Each must have at least one drawn county grand jury and impaneled Const., 905; I, (§ see year. 23.) Cal. art. consists of every grand jury § “the number of returned required persons citizens of county a court before of and to competent jurisdiction,” sworn into both inquire the county offenses” within matters of “public civil concern.” “county 888; (§ see 888.2 [specifying “required grand number” based on jurors § size]; county see also [authorizing 904.4-904.8 “additional” grand juries §§ on county size].) This over depending general authority both criminal and civil matters three (1) involves functions: charges criminal weighing whether deciding present (§ 917), (2) indictments misconduct evaluating claims against officials and seek public deciding whether their formally (§ 922), (3) removal from office as the acting public’s “watchdog” by 919-921, investigating local upon government (§§ affairs. 925 reporting et see McClatchy seq.; Newspapers Superior (1988) Court 44 Cal.3d 1170 751 P.2d Cal.Rptr. (McClatchy).) In counties with a 1329] that single grand one jury, (See all three body performs functions. 76 182 Ops.Cal.Atty.Gen. [concluding grand additional jury authorized by statute restricted to criminal matters and not may perform functions].)14 civil oversight California,

In unlike other jurisdictions, grand most often 1162, 1170; the civil oversight role. 44 Cal.3d plays (McClatchy, see 430, 436, 1973 Grand Jury, supra, 13 Cal.3d fn. federal [distinguishing juries do grand they affairs].) insofar not on report Many statutes public functions, identify specific its topics inquiry.15 performing grand 915, 924.2, 939; jury operates [oath].) secret. see It (E.g., may §§ § 14 Gomez, managed jury superior hearing who services for the court when the instant occurred, not, time, “second,” Angeles County testified that did Los at that maintain a additional, grand jury providing option. under statutes instance, accounts, grand jury investigates For and reports operations, and records county (§ 925), 914.1), departments (§ (§ housing and districts unindicted prisoners auditors, (§ 926), retain other has appraisers experts subpoena power 939.2; term, (§ records]). see At the of its end public § [access a to of the must issue final the grand jury report presiding judge superior 933, 916; 1973 (§ (a)), (§ all see documenting findings court subd. therein. 430, Jury, Grand 13 Cal.3d 434 report].) [interim here, As the citizens 18 grand shown must be testimony jurors age older and resided in the at least county year immediately have for one 893, (§ (a)(1).) before their service subd. A who serves on this begins. person also must sufficient the knowledge English language perform have of body (id., (a)(3)), be “in of his natural jury the function subd. and grand possession faculties, of fair of of sound and character” ordinary intelligence, judgment, fee, (id., a and (a)(2)).16 grand daily subd. The modest county pays jurors costs, 890, (§§ the court. reimburses the order of mileage superior upon 890.1.)

The has the court with for responsibility vested Legislature superior 430, Jury, supra, 1973 Grand (See 13 Cal.3d selecting grand members. jury & fn. 8 close between and [noting statutory relationship grand jury 438 court].) the fiscal the court Shortly year begins, before convening county of for an order the number that estimating grand jurors required year. makes Thereafter, 895.) “the select (§ grand required by court shall jurors for the of whether ascertaining they possess interview purpose personal (a) (§ subdivision of Section 893.” prescribed qualifications If, met, court,” are (a).) “in the of the these opinion qualifications subd. a that he be available” for selected must statement “will sign declaring person (Ibid.) “number hours” of required grand jurors county. of selected, it makes a has grand jurors gives court “list” prospective (§ (b).) subd. it to the commissioner. jury grand the list of jurors, jury

After receiving filing prospective circulation, it in a general along commissioner newspaper publishes 900.) (§ each on the The jury name of the who selected list. judge person ” “ box,’ jury draws the names from ‘grand commissioner then randomly (b) (Id., (a) paper], one of two methods. subds. using slips [folded (§ 920), (a)), (§ (b)), joint powers land transfers cities prison conditions subd. subd. 925a), (§ 927), county (§ needs of county officials administrative agencies salaries (§ 928). offices serving he a trial Conversely, eligible grand juror not to act as if or she is as someone is year, been convicted of a discharged grand juror preceding within the has juror, has been as offense, (§ (b).) serving public as an elected official. subd. felony or other or is specified regulating those grand jury service similar to exemptions apply and excuses also Certain Proc., 894; see, jurors].) as (§ peace officers jurors. e.g., Code Civ. § [restrictions trial drawn, markers].) grand Once is “certified and sum- jury [numbered 905; (§ moned” 906), (§ see grand jury impaneled. § [before drawn satisfied are “accepting” anyone grand they must be juror, “duly qualified”].)17 record,

Against this and based on the statutory backdrop, evidentiary defendant contends the trial court erred he failed to concluding present grand facie case that the prima jury nomination violated federal process He protection guaranties. insists all essential elements were equal present Castaneda, supra, wit, under U.S. substantial underrepresentation (women time, of a distinct class over Hispanics) grand pool and a that highly subjective nominating was of abuse. process susceptible shown, Defendant that whether or not “overt racism” was the argues any evidence he raised below an inference of presented intentional purposeful discrimination, which the now consider Castaneda did not rebut. We People some in detail. Castaneda,

In defendant Partida was indicted and convicted of a in felony Texas, Hidalgo the County, near Mexican border. In a trial seeking new in court, state he claimed his federal rights had been denied equal protection because of the historical of on underrepresentation Mexican-Americans grand juries county when he was in indicted 1972. Besides about testifying area, racial discrimination in the Partida introduced evidence from the 1970 census that showing 79.1 percent county’s was Mexican- population American, the was various group underprivileged by socioeconomic measures. Partida also showed that the average of Mexican- representation Americans on over grand lists an from jury 11-year 1962 to was period, rebuttal, percent. the offered state no evidence to show that alleged the not underrepresentation discrimination had occurred. the Ultimately, denied, motion for a new trial was and the conviction was affirmed on appeal. (Castaneda, supra, 485-489.) 430 U.S.

Partida renewed his claim on equal protection habeas in federal corpus time, district court. This the state outlined some of the used to procedures select in grand juries as follows: A state district Hidalgo County, judge grand jury (4 An procedure “alternate” nomination Epstein, exists. Witkin & Cal. (3d 2000) Procedure, 48.) system, Criminal Law ed. to p. Introduction Criminal In this § commissioner, jury court, the applying adopted by majority written standards of the superior judges annually jurors.” furnishes the “a list persons qualified grand of to serve as list, 903.1.) (§ who, majority may judges persons opinion,” From this of select “in their jurors, grand provided they by should serve as required are “suitable and as law. competent,” However, (§ 903.3.) the judges required any “are not select from to names the list returned Rather, jury (§ 903.4.) they may, judgment commissioner.” “if in their the due administra justice any requires, among body tion make all or from in persons selections (Ibid.) county competent grand jurors.” suitable and as to serve turn, commissioners, from three to five commissioners. The jury appointed list grand selected 15 to from which the actual comprise 20 persons court, was drawn. When on the list summons jury persons appeared determined whether statutorily qualified state district were judge they serve, voting age, them under oath on issues such examining citizenship, character, mental and moral and criminal record. As soon soundness literacy, as the they grand as the court found 12 were qualified persons, impaneled Also, 482, 484-485.) (Castaneda, district judge 430 U.S. the state jury. man” system-testified who these rules—called a “key applied number Mexican- (including commissioners greater appointing ethnic other he advised them on Americans than groups), persons However, there service. related exemptions grand jury qualifications themselves, form, was no evidence in from the commissioners including (Id. list. grand on the manner in which they compiled 490-491.) pp. habeas relief on corpus grounds

The federal district court declined to grant weak, and rebuttal had facie case of sufficient prima discrimination racial that the evidence overstated the occurred. The court surmised statistical lists, it role of Mexican- and that grand jury ignored imbalance a who held “governing prominent posts Americans as local majority” 482, 491-492.) (Castaneda, theory The latter 430 U.S. supra, community. time, that, a of Mexican- to the fact at the relevant large percentage referred commissioners, served, as among prospective Americans other things, jury case. and trial in Partida’s jurors actual grand jurors, grand jurors, However, this rejected the court of appeals analysis federal circuit weight decision. The court of little appeals placed reversed the district court’s found that Partida’s the otherwise “governing majority” approach, had of violation not been adequately facie a constitutional showing prima 482, 491-492.) (Castaneda, 430 supra, the U.S. rebutted State. by certiorari the by a for United Court Supreme granted petition States Texas, the County, challenging equal of Hidalgo State the Sheriff through of in federal court of had the on which Partida prevailed protection theory decision, dissenting three In a accompanied by opinions, five-to-four appeals. the state’s invalidating court ruling Court lower upheld Supreme 492, 501; see (Castaneda, supra, 430 U.S. selection grand process. of see also id. (dis. at id. (dis. J.); C. 507 p. opns. Burger, at p. opn. J., Powell, Stewart, J.).) outset, that equal notion Castaneda embraced venerable

At issued tried under an indictment being a defendant from precludes protection ” “ been or color’ have ‘of his race a from which persons grand jury “ ” (Castaneda, supra, race or color.’ 430 U.S. excluded ‘because of that decisions, 492.) observed that such conduct “is Reviewing its court prior not unconstitutional because it has a racially impact.” solely disproportionate (Id. Rather, omitted.) at clause of the p. italics equal protection that is and “inten- targets Fourteenth Amendment discrimination “purposeful” (Castaneda, supra, 493), tional” and that grand jurors U.S. at selects p. “ ” (id. 494). ‘racially non-neutral’ at way p. how the evaluating key-man system Hidalgo County, applied Castaneda set forth the that a criminal defendant must meet in requirements order to establish a facie violation. first is to “The prima equal protection step class, that the one that recognizable, establish is a distinct group singled laws, out for different treatment under the written or as applied. [Citation.] Next, degree must be underrepresentation proved, by comparing total to the called to proportion group population proportion serve as grand jurors, significant over of time. . . . Finally, period [the noted], a selection that is of abuse or is not procedure susceptible racially neutral supports discrimination raised statistical presumption (Castaneda, supra, 482, 494, showing.” omitted.) U.S. citations & fn. made, Once the showing has been and a facie requisite case of prima discriminatory “the then burden shifts to the State to rebut purpose appears, (Id. that case.” 495.) p. Castaneda test, held,

Under this Partida had facie case. presented prima (Castaneda, First, Mexican-Americans were “a identifiable class.” clearly 482, 495.) U.S. This rested conclusion on the common use of surnames in the Spanish on the socioeconomic group, disadvantages its had members endured. long

Second, Castaneda found the statistical sufficient for showing clearly facie case prima standards. Partida had established 40 disparity percent the between of Mexican-Americans in the percentage county’s population the average of percentage Mexican-Americans as prospective summoned (Castaneda, supra, over an grand jurors before he was indicted. 11-year period 482, 430 U.S. The 495-496.) court indicated further that the constitutional of the would significance not to the extent the disparity change relevant limited, evidence, could be based on the available statistical to population (Id. 486, who were as persons statutorily eligible grand to serve at jurors. pp. fn. that of [noting 6 exclusion noncitizens resulted in “negligible]” 3 only decrease in the number Mexican-Americans in percent the county popula- 488, tion], fn. 8 a 26 between [finding percent Mexican-Americans disparity literate, 25 or older years who have “some and are schooling,” presumably grand Mexican-Americans in jury pools].) Third, grand of Mexican-Americans in the substantial underrepresentation Castaneda to address the final did not end the jury pools inquiry. proceeded it as on the establishment facie bearing prima factor had identified court noted case—the nature of the selection itself. The grand jury process that, was inherently as a not general key-man system proposition, unconstitutional, had facial chal- against that it been upheld repeatedly However, the court charac- to Texas in lenge. referring system particular, terized it both of abuse as subjective” applied.” “highly “susceptible (Castaneda, context, In such seemed 497.) 430 U.S. criticisms supra, directed evidence court had described no indicating at previously known or the manner in which the commission- regulated methods standards (Id. event, 490-491.) In without ers lists. at compiled grand jury pp. discussion, an inference of intentional discrimina- further court found that (Id. arose, 497-498.) at tion which the was to required dispel. pp. state Castaneda determined that the state did not rebut the analysis, In the final had The discrimination that Partida made. court showing of intentional the “barren” state of the record as to both “motivations emphasized (Castaneda, supra, U.S. methods of commissioners.” grand jury on the 499.) grand jury of the gross underrepresentation Hispanics light lists, as to rebuttal some required court indicated proper explanation “the other for qualifications grand jurors how commissioners determined in state district court. to the time for statutory testing qualifications” prior (Id. devised the federal 498.) at Nor did the governing majority theory p. high willing fill the not evidentiary district court gap. discriminate of one definable would never group assume that members It did not matter in the same likewise against group. other persons were County prominent persons Hidalgo court that certain local officials (Id. reasons, Castaneda con- 499.) at For all these Mexican-American. p. in the had a denial of selection protection cluded that there been equal case. in Partida’s grand jury Castaneda, has referred

The United States Court Supreme decided, had it and has no years U.S. since was sparingly man” under “key system its to a analysis occasion to apply protection equal Nevertheless, court has high there. circumstances other than those issue that Castaneda involved the contexts, Fourteenth reaffirmed, related closely and invidious discrimination. against purposeful Amendment’s prohibition Hillery Thus, L.Ed.2d Vasquez U.S. 260-264 a error where 617], declined to harmless standard adopt 106 S.Ct. the court guaranties. of protection had been selected in violation equal the grand jury cases, fundamen- court that such a a line of observed long Consistent with of the conviction. in reversal compelled tal structural flaw the proceedings said, as engaging were as the court state grave, Few errors constitutional (Id. of race. at because their grand of jurors in the “intentional” exclusion

735 262; Rose v. Mitchell (1979) see 443 L.Ed.2d p. U.S. 551-559 [61 S.Ct. analysis].)18 99 2993] [similar this we are not certain of the elements of

Against backdrop, entirely facie to shift the violation sufficient burden of prima equal proof protection hand, defense, from the and to rebuttal from state. On the one require Castaneda, supra, U.S. of the broadly speaks “presumption,” inference, of intent raised discriminatory constitutionally by significant (id. 494), a distinct time at over underrepresentation group p. ” such that underlying by for inference selection “support^ provided process (ibid.), is or “not “highly of abuse” neutral” and of the “susceptible racially subjective” and malleable nature of the in key-man system Texas particular (id. manner, 497). Read its most p. literal and absolute such language arguably that mere statistical official implies some disparity, coupled sufficient, more, discretion in the of grand selection without jurors, always to raise a facie case of prima intentional discrimination. hand,

On the it other is difficult to conceive of a grand selection jury one less unfettered and more than system—including objective Castaneda’s— in which no discretion which meaningful guides nominating process, view, would survive constitutional scrutiny foregoing assuming under the requisite showing statistical was made. As reflected by statutory require nominees, ment of for personal grand interviews the individual jury here, ized that the it in the screening process county used seems inherent itself, schedule, grand in its civic and strict that role oversight nominated selected persons to that be only eligible not body qualified serve, but that also be and able to do so. For they willing this pragmatic noted, Castaneda echoed older cases that As asserting equal a defendant required an protection challenged claim to show procedure underrepre resulted the substantial grand jury sentation in the “of pool group belongs.” his race or of the identifiable which he (Castaneda, However, supra, 494.) Campbell v. Louisiana 430 U.S. under U.S. 1419], Campbell, longer L.Ed.2d this apply. S.Ct. limitation no seems to a White guilty degree challenged found second murder on the his conviction foreman, ground came, grand jury that the grand jury and the venire which he were Castaneda, product protection guaranties of intentional equal discrimination violation of argued, 430 U.S. dispute, person 482. The defendant and the did not state no Black grand had served jury foreperson long though minority over a period even a substantial court, registered community Reversing voters in the were high Black. state held standing that the equal protection challenge against defendant had raise an to discrimination persons grand of another race selection jury. of his court said that “whether [or not] protection rights grand a white equal defendant’s own are when the composition violated of his against jury is tainted discrimination could persons,” black he invoke “the well-established equal protection rights persons grand jury of black not to be excluded from service the basis (Campbell, supra, 398.) of their race.” 523 U.S. at p. 736

reason, Castaneda that are not uncon- recognized systems perhaps, key-man se, evidence or of intent discriminatory stitutional absent inference per 482, 497.)19 (Castaneda, U.S. supra, “as 430 applied.” now determine motion to dismiss the indictment We whether defendant’s denied. We the that women begin by noting agreement was properly parties’ Duren, (Castaneda, supra, 357, (see 364), supra, 439 U.S. Hispanics 482, 495), as a class for 430 U.S. each distinct qualify equal protection Hence, the of facie” test is met. first Castaneda’s prong “prima purposes. to Castaneda’s second facie” as which consider- “prima Regarding prong, below, the of defendant’s statistical able evidence was admitted significance Amendment, Here, clear. under the the United States is less Sixth showing on either the which Court “has not means yet spoken definitively Supreme limit of be measured or the constitutional may permissible dispar- disparity (Bell, 502, 527-528, omitted.) The showed supra, 49 Cal.3d fn. exhibits ity.” in the absolute adult women various disparities comparing population in Los over several While Angeles years. women in grand jury pools 19 ignore intervening developments complicate application could of We also cannot case, high held facie noted court in this court prima Castaneda's test here. As trial Castaneda, 482, Duren, 357, years supra, after 430 U.S. that the Sixth supra, 439 U.S. two allowing automatically women to prevented Amendment fair-cross-section rule Missouri from establishing this jury prima from service. The test for facie Sixth exempt themselves trial Duren, violation, all but one which and was not rebutted in similar in Amendment arose grand establishing prima equal protection for Castaneda’s test for facie violation respect to disproportionate juries. prong, as to the automatic and exclusion Specifically, the third law, no juries “systematic” requiring inherent in state women from trial was deemed a flaw 366-367, 364; (Duren, discriminatory supra, p. pp. see id. at showing of intent. 439 U.S. 26.) 368 & fn. Duren, this deciding whether the element exists under the Sixth Amendment and latter showing a mere statistical of substantial “speculate]]” court has declined “infer]]” venires, process jury plus in trial identification of feature the selection underrepresentation process that a flaw affected the selection might produced disparity, have constitutional 502, 1, (1989) P.2d Cal.Rptr. Bell 49 528 778 disparity. (People [262 or caused such v. Cal.3d 524, gender- (Bell); [hardship granted on and race-neutral pp. see id. at 529 excusáis 129] however, Here, above, anomaly apparent not face grounds].) for reasons stated we need context, thereby making it easier to protection indulging speculation equal in such show, facie, it nominating grand jurors than discrimination in prima intentional and invidious (See Burney systematic People Amendment. v. merely exclusion under Sixth is to show Amend, 203, 348, [assuming that (2009) Cal.Rptr.3d 212 P.3d 6th 639] Cal.4th 222-227 47 context]; (2009) People grand jury Carrington requirement applies in fair-cross-section [same].) has appears high It 211 P.3d Cal.Rptr.3d 177-178 [97 617] Cal.4th Bell, supra, much like engage under circumstances those in speculation in similar declined U.S. __, __ [176 (See S.Ct. Berghuis L.Ed.2d v. Smith Cal.3d 502. Duren, merely U.S. where defendant [finding prima under no facie case 1395] “ ‘systematic’ for “laundry might cause]]” that a of factors” have been assumed list court, county’s felony lone venires in underrepresentation of African-Americans “ ” misde- alleged ‘siphoning’ of African-Americans to including hardship excusáis and courts].) meanor

737 difference at one it otherwise was either zero or spiked point, between ranged Likewise, 5 and 10 there was no percent. consensus expert concerning absolute between disparity and Hispanics county population Hispanics in grand with each and jury pools, witness such defining measuring groups 526, for statistical (See id. at fn. 12 purposes differently. must p. [defendants use available cases].) “jury-eligible figures fair-cross-section population” Some of the more relevant absolute for disparity figures ranged Hispanics from 9.7 to 11.4 percent percent. bottom,

At none of the shown for either women or disparities Hispanics Castaneda, this case the 40 mark in supra, approaches percent 430 U.S. 482. Nor do show substantial they over time underrepresentation outside the more modest limits that courts have assumed are (See constitutionally permissible. Bell, 502, 528, supra, Cal.3d fn. 15 cases that deemed absolute [reviewing “insufficient,” of 4.5 to disparity 11.49 and that percent reached “seemingly” result as to 14 opposite (2003) see also People Burgener percent disparity]; 833, 747, Cal.4th 856-857 62 P.3d Cal.Rptr.2d to [declining [129 1] decide effect of 10.7 claim].) on fair-cross-section percent disparity

However, we need not resolve these statistical issues. The same true to whether defendant has met Castaneda’s third facie” “prima prong by that showing the grand jury selection was “not neutral” procedure racially (Castaneda, 482, 430 U.S. 494), or was “highly subjective” of abuse as (id. “susceptible to women applied” 497). The Hispanics p. Castaneda, reason is that even assuming facie case prima exists under evidence admitted and considered the trial court is more than sufficient to inference “dispel [any] of intentional discrimination” and to show no (Id. violation equal protection 497-498.) occurred at pp.

To recap process, grand are selected jurors randomly from a group nominated persons judges Los Angeles County Superior Court. The original for pool nomination includes both applicants volun teers from the community individuals known to the personally judges. superior determines “by interview” whether personal prospective grand jurors 893, meet under eligibility requirements section subdivi (a). (§ sion (a).) subd. Section (a) subdivision ensures such have, other persons among the basic things, capacity perform grand Elsewhere, juror function. the scheme defines such function in terms of the responsibility conduct criminal and civil most of concern inquiries, which financial, administrative, on the investigating reporting affairs legal of government agencies and officials. The relevant statutes further assume service, that this which is largely demands a level of uncompensated, high Thus, commitment personal from those sworn to it. in addition to perform function, determining eligibility qualification perform grand jury must that nominees can and will work the hours. necessary the court ensure (§ (a).) are neither uncommon nor statutory subd. These requirements (See Carter v. U.S. Jury unconstitutional. Commission inherently 518]; 331-337 L.Ed.2d S.Ct. 1 Wharton’s Criminal Procedure 4:4, 2010) 4-42.) (14th ed. 4-30 to pp. § in that Angeles

The evidence this case showed the Los County Superior had and written to adopted guidelines implement Court standard procedures rules. the same to all application The commissioner foregoing jury gave or were who wanted to serve as whether not grand they persons jurors, used to grand to interview nominate any judge. Similarly, system known to was not limited to known to the but was extended judges, jurors persons To all and inter- who volunteered to ensure that everyone apply. applicants manner, were a uniform the court used viewees evaluated in and proper rules, relevant statutory background on guidelines focusing eligibility written time Nominating and and and service requirements. responsibility experience, bench, the entire court which consisted at the relevant was shared superior time in different of 238 in courthouses located communities judges serving Angeles Los throughout County. view, or autho- nothing to defendant’s in these rules

Contrary procedures rized, in a grand that nominated encouraged, jurors or established judges women, discriminated distinct any that other against Hispanics, manner Rather, race to nominees were gender criteria used select group. neutral, to any to test without reference clearly qualifications sought exclude of Far to members subjective seeking factor. impermissible nominees, court under from the of the superior operated minority groups pool in a recruit grand It policy. engaged widespread campaign prodiversity efforts These county volunteers from all segments population. (See Burney, supra, and other minority People targeted Hispanics groups. Amend, challenge Orange 6th fair-cross-section Cal.4th [rejecting efforts” to made “exhaustive Jury Grand where County superior pool “invite Asian-Americans apply”].) vein, Angeles selection criteria used Los

In a related the neutral Court, and its own statutory guidelines, of consisting requirements Superior who fiinction. The grand jury pool persons related to the rationally were was not jurors to serve as willing grand eligible, qualified, were traits, Hence, nominees, considered any the court evaluating unlimited. skills, its conducting would assist the grand jury experience these indicated that testimony its reports. investigations preparing did eliminate based inclusive and not seek to persons were broadly standards (1999) 75 (See People Cal.App.4th or education. v. Brown on occupation to selection challenge [rejecting equal Cal.Rptr.2d protection 589] Francisco Court in San judge Superior where grand jury foreperson presiding “race-neutral,” decision].) related” factors to make “job used the Los Angeles Superior the screening process, Finally, implementing duties in selecting grand Court was aware of its constitutional evidently “ that no one be excluded ‘because jurors, including requirement [their] ” 482, 492.) (Castaneda, can 430 U.S. Such awareness race or color.’ form to all grand jury applicants, be inferred from the written given court, (at candidates) of volunteer to the entire distributed least in case Further, it the law in this regard. appears “full announcing compliance” voluntarily racial or similar information background provided and outreach diversity form was used in manner consistent with policy Indeed, efforts we have described. the evidence showed that application candi- and interview was not used to eliminate volunteer Hispanic process dates, than were because were nominated at a rate Whites who they higher screened the same manner. Castaneda, relies,

Thus, unlike on which defendant so heavily record of the is filled with—not devoid of—evidence nondiscrimina present of the officers tory “motivations methods” who selected judicial 482, 499.) (Castaneda, we 430 U.S. grand jury pool. Accordingly, conclude that the Los for the nomination Angeles County procedure allowed, or inten neither nor prospective grand jurors produced, purposeful tional We therefore reject discrimination women against Hispanics. Amendment, defendant’s claim that his indictment violated the Fourteenth and that the motion to dismiss was denied. erroneously

B. Trial Jury Selection Process cause, Defendant for maintains the trial court erred by excusing, prospec- views, tive who his claims that juror by rejecting expressed “pro-life” three female were excusáis of prosecutor’s peremptory prospective jurors All contentions lack merit. gender motivated bias. such improperly 1. Overview

We summarize the used to select the trial in this case—context jury process that defendant fails to such on challenging procedures appeal. provide After a screening, with 160 process began prospective jurors. prehminary of 75 grounds, which resulted in numerous excusáis hardship pool All 75 an question- remained. prospective jurors persons completed 18-page naire, which were to under The written they sign perjury. required penalty between the court and were the of substantial collaboration product questions About 25 of the concerned the death penalty. counsel. percent questions box, Voir dire with 18 inside the began prospective jurors jury representing the 12 needed for the actual and the six needed persons jury persons alternate The court examined each Counsel on both jurors. panelist length. matters, sides asked for sensitive voir followup questions. Except personal bench, dire occurred in court.20 At the exercised challenges open parties cause, for followed When were by peremptory challenges.21 only people box, left in the the court called more names to create a new 18-person This occurred a total of seven times to select the panel. process 12-person A similar four each jury. involving five was used procedure panels persons choose six alternate jurors. Cause Challenge for

2. Defendant claims the trial court erred in chal- granting prosecution’s D.G., for cause to who of the lenge was one first voir persons undergo here, below, dire. He much as he did violated argues ruling Wainwright Witt S.Ct. 469 U.S. L.Ed.2d 844] (Witt), him of due an and a fair thereby deprived process, impartial jury, Sixth, determination under the and Fourteenth Eighth, reliable penalty Constitution, Amendments of the federal and under parallel provisions state Constitution. We disagree.

The record discloses that D.G. expressed personal opposition capital on her indicated that she She punishment questionnaire. “strongly agree[d]” murder, with the statement commits murder “[ajnyone who attempted and sexual never the death her assaults should She get penalty.” explained one her general answer to this other questions—including soliciting views on the death “I do not believe in the Death writing, penalty—by She wrote that no one “should die at the hands of the Death also Penalty.” and that her outcome in cases violent crimes Penalty,” involving preferred which the death was for life.” When asked to cases in “jail identify penalty trial, At the time of Code of Civil Procedure former section 223 stated: “In a criminal case, However, may prospective jurors. the court shall conduct the examination of cause, good examination permit parties, upon showing supplement to such shall, jurors where inquiry proper any prospective further as it deems .... Voir dire of cases, death presence jurors including occur in the of the other in all criminal practicable, 115, voters, 5, (June 1990).) (Added by Prop. approved by Primary Elec. penalty cases.” 2001, 1, January give party expanded, the statute amended to counsel for each an Effective was unlimited, jurors through questioning. direct oral though right prospective not to examine Proc., However, (Code regarding group unchanged. voir dire remained Civ. provision 2216.) p. as amended Stats. ch. § § 21 Here, trials, people to and the to 20 capital as in other defendant was “entitled id., Proc., (Code (a); [allowing challenges.” see each side peremptory Civ. subd. § § called”].) jurors jurors many challenges to the alternate as there are alternate peremptory “as below, challenges choosing in peremptory its allotment of party As indicated neither exhausted jurors. alternate the actual and view, wrote, with this she “all Consistent not she cases.”

was appropriate, blank, case, circum- identify the answer when asked listed no and left the death was stances which penalty appropriate.22 dire, D.G. held views strong On voir the trial court first whether inquired said, I don’t “Right. just her D.G. Echoing on punishment. questionnaire, that D.G. had circled in the death When the court noted believe penalty.” death or life imprison- to written about rejecting “NO” response questions cases, exclaimed, “Oh, can vote for I ment without she parole appropriate can you The court next whether there were circumstances “any life.” asked D.G. think death be imagine you might appropriate.” replied—again, her tracking questionnaire—“no.”

An then occurred in which the trial court exchange explored possible death in case. When to D.G.’s refusal exceptions apparent impose Manson, killer,” acknowledged trial court mentioned “Charlie serial D.G. television, said, “I don’t know” in about the case on but twice hearing to the about the D.G. was court’s response question appropriate punishment. also vote to the death on Jeffrey asked whether she could impose penalty Dahmer, another notorious serial killer who assaulted and tortured sexually victims, indicated that she familiar his other D.G. among things. case, “No, Dahmer but I couldn’t I am one that just replied, [impose death]. don’t believe in the death The court then its final penalty.” posed inquiry [sz'c] lines, these whether it was life along asking reject “possible” imprisonment without and vote for death if the evidence aggravating substantially parole evidence. D.G. answered in the outweighed essentially nega- mitigating tive, to, know, as follows: “It would be hard for me vote that But you way. I I don’t believe in the death That belief. again, just just my penalty. otherwise, believe that we are here on this earth to remain here unless you put know, here. I from an illness or some other act we are taken away just can’t see it. I don’t believe in it.” just

Defense counsel’s examination consisted of series of followup “yes” outset, “no” At the D.G. when asked if she affirmatively answered questions. understood that defendant was entitled to who held a jurors diversity case, views, in a that the law did not to vote for death any juror given require showing might apply her responses Less adamant were certain written how D.G. instance, sentencing capital in a case. For she answered “no” when asked if she would views regardless “always” imprisonment parole penalty, vote life or for the death either for without evidence, degree involving felony-murder special in a first murder case circumstance. deciding of the case before She indicated that she would consider all of circumstances death penalties, rejecting between the two available and that she could not see herself or, conversely, gave case.” D.G. penalty imprisonment parole appropriate life without “in the identify significant meaningful deciding appropriate no when or factors in answer asked to penalty. and that must set aside their views and jurors law personal apply Thereafter, consistent with the court’s instructions. D.G. continued to say when “yes” counsel asked whether she could follow the court’s instructions to set aside her and render an under personal opinions verdict impartial law, and whether she could consider the death and follow the law if penalty However, instructed to do so in certain cases. ex- midway through this law, D.G. remark: “I would change, interjected following follow the I still would—don’t believe in the death although penalty.” a few All them prosecutor posed only confirmed D.G.’s questions. that she could not vote for the death personal feelings regardless penalty conference, the circumstances of the case. At a sidebar the prosecutor challenged D.G. for cause. Defense counsel on the D.G. objected ground to, i.e., gave answers “walked counsel’s appropriate through,” questions instructions, about the law and following the death considering penalty. The trial court “I don’t think disagreed, she walked it. She saying, through [so], was carried it ... . Even she out a little burst of through slipped [(J[] there that she was not in favor of the death I independent thought penalty. think her are to interfere with feelings clearly strong enough following court’s instruction.” The for cause to D.G. as a challenge result. granted

Based on the foregoing contends D.G. developments, bias, cause, showed no and should not have been disqualifying excused for because her to the death would not have personal opposition penalty pre- vented her from death “under circumstances.” Defendant relies imposing here, below, on defense counsel’s examination of D.G. heavily v. Illinois Witherspoon (1968)

In U.S. L.Ed.2d 510 [20 1770], 88 S.Ct. court held that a death sentence cannot constitution high (id. be a tribunal to return a verdict of death” at ally imposed by “organized is, 521), that that excluded veniremen for cause because p. by jury “simply voiced to the death or conscien they general objections penalty expressed (id. tious or its infliction” 522 & fn. 21 religious against scruples p. would “automatically” it be clear” the must [suggesting “unmistakably person Witt, 412, 424, supra, death]). U.S. the court reject “clarified]” held Witherspoon, that a be excluded for cause juror may prospective “ his would either because views substan capital punishment ‘prevent ” the under the and the of his duties instructions tially impair’ performance Witt, Thus, oath. under to the death serve as may persons opposed penalty aside if “state are set jurors only they clearly they willing temporarily v. Avila (People (2006) their beliefs and follow the law.” 38 Cal.4th own 1076], Lockhart v. McCree 133 P.3d Cal.Rptr.3d citing 529 [43 words, 1758].) In other such 476 U.S. L.Ed.2d 106 S.Ct. an to aside ability must demonstrate persons “persuasively put personal and mitigating reservations, aggravating and consider weigh properly concerning appropri- determination evidence, difficult very and make that 425, 33 Cal.4th v. Stewart (People a death sentence.” ateness of 656, 271].) P.3d Cal.Rptr.3d [15 views vein, juror’s findings regarding prospective trial court

In a related deference on appeal. are entitled substantial punishment on capital Hence, 491, on Avila, given where answers 529.) 38 Cal.4th v. (People supra, trial court’s evaluation conflicting,” dire are or voir “equivocal v. (People court. reviewing binding state of mind is generally person’s 896], 896, 1, P.3d (2007) 42 Cal.4th Cal.Rptr.3d DePriest demeanor, of assessing is in the cited.) “unique position The trial court cases tone, assessing ‘critical firsthand—factors of importance and credibility ” (Ibid., Uttecht v. quoting jurors.’ attitude and qualifications potential 2218].) As noted L.Ed.2d 127 S.Ct. (2007) 551 U.S. Brown 9 [167 that the itself, “definite be left with the impression” the trial judge may Witt he has not the law even though cannot faithfully impartially apply person (Witt, 469 U.S. supra, absolute clarity. his views with expressed 425-126.) here, evidence to we find support this deferential standard ample

Applying determination to the death penalty that D.G.’s opposition the trial court’s ” “ least, of her would, at the very ‘substantially impair’ performance dire, (Witt, of voir 424.) At every phase as a 469 U.S. supra, duties juror. were they or in and whether writing, her answers were given orally whether stated, counsel, in almost talismanic D.G. the court or repeatedly solicited form, also communicated in the death She that she did “not believe penalty.” voir dire that her and during remarkable clarity questionnaire cases, could conceive in all she death penalty inappropriate The latter a different result. could or would reach no case in which she the circumstances no matter how vile held true evidently principle crime in aggravation. or how the evidence strong in her clearly,” D.G. never what

Contrary implies, “state[d] words, views and able to aside these personal that she set willing own wa.s Avila, v. (People supra, without a sentence of life imprisonment parole. reject demon- 491, 529.) does the record otherwise “persuasively 38 Cal.4th Nor a death sentence. the law and consider imposing strate” an to follow ability Rather, Stewart, led her 447.) after counsel 33 Cal.4th (People seemed to she sentencing, or “no” on instructions, “yes” a series of through questions her D.G. into lapsed notion of law following accept refrain, the death Upon . . believe in penalty.” “I still . don’t repeated demeanor, view trial court found this her seeing voice and D.G.’s hearing sincere, be strong, unyielding. 744 cases,

As in where the prior prospective jurors’ answers arguably seemed more here, equivocal less absolute than those issue we decline to second-guess trial court’s on finding (See, appeal. e.g., v. Solomon People (2010) 792, 244, Cal.4th 49 831 234 P.3d Cal.Rptr.3d [112 [upholding 501] excusal for cause based on prospective juror’s statements that she though “ ” “ ” ‘[theoretically’ death she opposed could vote penalty, ‘probably’ “ ” cases, for death in some but would so]; find it difficult’ to do ‘extremely 1, v. People (2009) 1, Friend 47 Cal.4th 61 211 P.3d Cal.Rptr.3d [97 520] “ result where one admitted prospective juror being [same schizo- ‘slightly ” death, and unsure phrenic’ about for voting while another prospective juror “ ” for apologized ‘vacillating’ did penalty likewise not know whether death].) view, she could in our impose Accordingly, no error in excusing D.G. for cause occurred.

3. Wheeler/Batson Claim Defendant insists the trial court erred in his motion for denying a mistrial after the prosecutor bias allegedly displayed gender her first three by using here, peremptory female challenges against He prospective jurors. argues as below, that such conduct violated the state constitutional to a right represen tative jury (1978) 890, v. Wheeler 22 (People Cal.3d 258 Cal.Rptr. [148 (Wheeler)), 583 P.2d and the federal constitutional guaranty 748] equal (Batson 69, of the laws. protection (1986) 476 Kentucky U.S. 79 L.Ed.2d [90 (Batson); 106 S.Ct. see (1994) J. E. B. v.Alabama ex rel. T.B. 511 U.S. 1712] 1419]; L.Ed.2d S.Ct. v. Jurado People [128 Cal.4th 400].) 131 P.3d Cal.Rptr.3d noted,

As after the 75 members of the their jury pool completed question- naires, the court called 18 of them into the box. voir jury During ensuing dire, woman, K.M., to excuse one based on her parties stipulated past with violent crime and the court experience system. also prosecutor cause, D.G., dismissed another woman for as discussed above. The parties then took turns exercising the 16 peremptory challenges against prospective use, time, left on the jurors Critical here is the at that panel. prosecution’s M.E., T.B., and peremptory challenges against N.F.—all three of whom were counsel, turn, women. Defense struck one male and one female prospective Seven more were called juror. into the box. The court and counsel people them, G.C., bench, one of who answered at the questioned mostly outside of other hearing jurors. box, after G.C. returned

Immediately to the before shortly court session ended for the day, moved for mistrial. Citing Wheeler, said, 22 Cal.3d defense counsel three “The simply that were exercised were all peremptories women.” prosecutor] [the However, the motion the trial denied urged prosecutor, The court that while had been made. noted because “no facie showing” prima the in such the for record” it to state their reasons usually People “invite[d] occasion, cases, the this because apparently no action was “appropriate” the time to for the had arrived. The court then dismissed adjourn day them back the morning. ordered jurors prospective continued When dire resumed the next the court counsel day, voir the near the the had been seated in box newly who questioning panelists session, of this the end the G.C. including During process, parties prior female and a female juror, to the excusal of one stipulated prospective acted on called in the box. The court also was replacement questioned the remain- challenges against several for Once challenges cause. peremptory exercised excused a The ing prosecutor defendant woman. panelists began, M.D., a next fourth who was overall—against challenge—her peremptory man. his Wheeler motion from counsel by

Defense responded “renewing” Batson, supra, also 476 U.S. When invoking 79. previous day, who court noted the difference between M.D. and three women gender strikes, M.D., that one of were the of counsel like subject prior replied women, i.e., those to a Hispanic, belonged “cognizable group[].” before, the trial court found no Wheeler/Batson violation because there As However, consistent with its “clearly prior no facie case.” prima [was] motions, invited handling comments about such the court the prosecutor As “list reasons” for the strikes discussed further anyway. disputed [her] below, of with this to two prosecutor complied request women, N.F., male, However, M.E. and and as to M.D. Hispanic T.B., given the third woman in the excused no reasons were regarding group, found, facie violation is must prosecution offer permissible nondiscrimi natory reasons for the Wheeler/Batson (i.e., strikes the second of a stage Nor must the challenge). trial court decide whether the defendant has carried his burden of showing use of discriminatory (i.e., such strikes the third Wheeler/Batson stage). Johnson v. California, (See supra, 545 U.S. at Rather, 168.) p. below, as the trial court correctly assumed prosecutor not excusáis, to disclose required reasons for the and the court was not them, to evaluate (People Carasi required until a facie case was made. prima v.

(2008) 1263, 44 265, Cal.4th People v. 616]; 1292 Cal.Rptr.3d 190 P.3d [82 Zambrano 1082, (2007) 297, 41 Cal.4th 1104-1105 & fn. 3 Cal.Rptr.3d [63 4].) 163 P.3d

Other core guide manner in which principles we review a finding arose under Wheeler/Batson. no facie First, in Johnson v. case prima California, supra, 162, 545 U.S. the United States Court reversed Supreme v. Johnson People (2003) 1, 30 Cal.4th 270], 1302 71 P.3d in Cal.Rptr.3d [1 which we confirmed that the relevant California standard—even if it some “ ” Johnson, times had been (People as ‘reasonable expressed inference’ v. at 1312-1313)—was pp. to show that it was “more likely than not” that (Id. purposeful discrimination had occurred. 1318.) at p. high this disapproved standard for federal exacting constitutional purposes, said that a facie burden prima involves simply evidence sufficient “producing 23 Though not mentioned in appeal, his briefs on defendant made six other Wheeler/Batson motions, all but one of which involved jury selection of the 12-member rather than the six jurors. alternate Such motions concerned the prosecutor’s peremptory challenge persons V.D., backgrounds, with various ethnic including coming whom defense counsel described as time, “from a Baltic state.” Each the trial court denied the finding prima motion after no facie case. At one point, prosecutor complained about the numerous males excused defense, including and Hispanic Asian men. The court viewed the latter comment as “warning” Wheeler/Batson motion possible about a prosecutor—a motion that was Wheeler, 258, (See 282, supra, 22 Cal.3d never made. People right fn. 29 have the same as [the a criminal defendant peremptory challenges to contest the misuse of impartial and to obtain an jury drawn from a community].) fair cross-section peremptory Defendant used 16 (10 challenges selecting against women), against actual men and six plus two more (one challenges choosing against woman). against alternates a man and one

747 (Johnson v. inference” of discrimination. the trial to draw an judge to permit Where, here, it is not clear which California, supra, 170.) as 545 U.S. p. used, whether the record we decide the trial court independently standard dis- jurors prohibited excused an inference that prosecutor permits Carasi, 1263, 1293; v. supra, (People Cal.4th criminatory grounds. Zambrano, 1082, 1105.) People v. 41 Cal.4th Second, whether determining this review and conducting independent exists, “the entire we have the benefit of such an inference impermissible 93, v. Yeoman (People Cal.4th (2003) voir record” created on dire. [2 law, several interrelated 1166].) Under settled 72 P.3d Cal.Rptr.3d in this as follows. regard, circumstances are relevant contends, no case arose to what defendant facie Contrary prima challenges present based on the sheer number of underlying peremptory “ Here, elsewhere, WheelerlBatson size of claim. ‘absolute th[e] “ ” ” Bonilla v. (People (2007) such ‘small.’ sample’ scrutiny undergoing (Bonilla), P.3d quoting Cal.4th 342-343 Cal.Rptr.3d 84] Bell People 151 P.3d 40 Cal.4th Cal.Rptr.3d 597-598 [54 292].) we grounds, While no be struck on juror may improper prospective “ ” matter, it to draw the requisite have found as a ‘impossible,’ practical a of a have been only cognizable inference where few members group (Bonilla, supra, 41 excused and no indelible discrimination appears. of pattern case where Cal.4th at of no facie finding prima 342-343 pp. [upholding African-Americans, two none in the leaving 78-person excused prosecutor Bell, supra, where 40 Cal.4th at result 597-598 pool], quoting pp. [same in excused two of three African-American women the 47-person prosecutor the instant ruling Similar concerns us from pool].) rejecting simply prevent the at the start of selection. jury because excused three women prosecutor WheelerlBatson A the broader statistical view also undermines present case that no facie arose claim. We declined disturb recently ruling prima of of entire that the where our review the record showed percentage the in did not exceed the which percentage by strikes issue prosecutorial on actual relevant either in the or the group represented jury pool jury was Bonilla, 313, (See 344 “no [finding that 41 Cal.4th was impaneled. general, Hispanic basis all to infer discrimination” against at Hispanics, women, all women where excused three prosecutor Hispanic particular, 10 of and where jury pool, “Hispanics comprised approximately percent 78), challenges used 10 of its (eight percent of pool prosecution 30), 10 (three of final was Hispanics jury roughly percent Hispanic Indeed, of members of the (one 12)”].) jury of ultimate inclusion on “ ” in faith’ the use ‘good discrimination indicates allegedly targeted by group that no under all the circumstances challenges, of show peremptory may 748

Wheeler/Batson v. Ward (2005) 186, violation occurred. (People 36 Cal.4th 114 P.3d similar Cal.Rptr.3d [reaching conclusion as to 717] numerous prosecutorial against strikes African-American women where “five African-Americans, out the 12 sitting jurors of were and four out those of five women”]; accord, were People v. Turner jurors 8 Cal.4th 168 [32 [same, 878 P.2d where Cal.Rptr.2d used four of six prosecutor 521] African-Americans, that, peremptories against but as “ulti jury” “accepted included five mately impaneled,” African-Americans].)

Here, the to the prosecution’s (females) approach cognizable seems group even more favorable than in the cases. Women foregoing comprised (42 of the 75). of also percent jury pool of the They represented percent (13 18), first called into the box of panel jury of same percent after challenges (11 16).24 for cause occurred of panel By comparison, smaller used a prosecutor of substantially percentage peremptory challenges women against when the actual of jury—seven or 50 choosing percent. however, that the vast Most majority jury female, telling, final wit, exceeds female or 83 This percent. figure representation Thus, other stage process. ultimate composition predomi- female nantly modest number jury, along relatively of prosecution selection, strikes used against women throughout makes it difficult to infer Wheeler/Batson.25 discrimination under purposeful

Finally, record contains gender-neutral reasons each of the supporting three challenges contested on her peremptory appeal. explaining dismissal M.E., woman, disclosed, young noted that Hispanic M.E. prosecutor both orally and in been writing, numerous friends had killed violent activities; other gang friends were confined at the time on charges serious murder; stemming from driveby shootings, including that her attempted on was and that her had ex-boyfriend jailed pending drug charges; brother been accused the falsely by drug and was police possession eventually a of the Such by crime. contacts with the acquitted jury potentially negative criminal the justice gave reason to excuse M.E. system prosecutor ample v. (See her People Lewis Oliver regard (2006) without to gender. 39 970, Cal.4th 1010-1011 140 P.3d Cal.Rptr.3d [prosecutor [47 775] 24 panels Women also outnumbered men on all but the into the one of other six called undergo high box to voir dire. At the end were the fifth and such which groups, sixth each the spectrum 18-person started with women six men. At other end of the was the third i.e., men, group, equal held an nine Men which number women each. never any panel. outnumbered women on six, panel surprisingly, jurors largely Not the of six alternate was also female. Four defense, or percent, prosecution peremptory were women. Like the the exercised two Thus, the challenges selecting jurors, only alternate of which a one involved woman. as with jury, only prosecution peremptory challenges against the actual the used half of its female prospective jurors. alternate whose male dismissing race-neutral for African-American grounds

expressed incarcerated, by police and who reported being stopped half brother had been on false pretenses].) stated reasons discriminatory see nothing prosecutor’s

We likewise N.F., juror This a Caucasian woman. excusing 57-year-old prospective for dire, she had with her that previously stated voir consistent questionnaire, case. She felony that deadlocked over “intent” a served on a jury the jury, for hung that she one of the acknowledged persons responsible was deliberations, and that she felt harassed other during that she by jurors the views of others. from that to avoid being swayed learned experience N.F. court death penalty, When asked trial about imposing N.F. “intent” role in her decision. again key indicated that could play it be to for than might further indicated that “easier” vote life imprisonment for death even where evidence evidence. aggravating outweighed mitigating short, concern we see no bias in gender express prosecutor’s the death about N.F.’s closemindedness reluctance impose possible Bonilla, supra, (See, 41 Cal.4th dismissal penalty. e.g., [upholding who who on deadlocked juror previously jury, of female served prospective adhere her if faced situation again, said she “would views” same be and who was unsure when a death sentence should generally imposed].) T.B., reach similar whose juror We conclusion as prospective Bonilla, (See had no chance to challenge peremptory prosecutor explain. record 41 Cal.4th 346-349 reasons [finding gender-neutral jurors for excusal of numerous female where prospective prosecutor trial no facie one such strike and court found only prima explained Wheeler/Batson Panah People case]; 35 Cal.4th 439-442 [same].) 107 P.3d On her T.B. identified Cal.Rptr.3d questionnaire, 790] as a herself Caucasian woman with school who worked young high diploma bank. she for “totally” in a in a She wrote that was neither nonmanagerial job “not the death that she was sure” what against penalty, punishment court was for defendants who “hurt T.B. told trial appropriate people.” answers, her she “okay” reflected in written despite any uncertainty However, in a case. when with deciding penalty capital appropriate decision, asked T.B. said she “couldn’t might what factors affect the death When the asked whether she could ever say.” impose prosecutor “Well, say T.B. I’m wouldn’t that I would never say not—I penalty, replied, So, no I leave it that I could to that.” We have found say yes no. would open vague bias the views on were as mixed and penalty where group person’s card,” have her “a wild T.B.’s. The could seen as readily prosecutor (Bonilla, “for to sex.” used a reasons unconnected challenge peremptory [her] supra, 348.) 41 Cal.4th at p. factors, of all these light including nondiscriminatory reasons dire, Wheeler/Batson

elicited voir on the trial court denied the properly M.E., T.B., motion linked to the challenges against exercised peremptory and N.F. As framed at both trial and on such claim is appeal, “particularly weak as it of little more an than assertion a number of consists] jurors from a had prospective cognizable been excused. Such a bare group claim falls far short” of what law to establish facie case. requires prima Panah, (People 395, 442.) 35 Cal.4th

IV. PENALTY ISSUES

A. Victim Evidence Impact Defendant claims the trial court erred in victim evidence. admitting impact He asserts violations of rights his to due effective process, representation, Sixth, a fair and reliable determination under penalty Eighth Constitution, Fourteenth Amendments of the federal and under parallel of the state Constitution. No provisions error occurred.

In January after the guilt verdict was returned and before the penalty trial began, moved to limit victim orally writing impact evidence on to grounds constitutional similar those on raised He also appeal. claimed the evidence was under unduly Evidence Code section prejudicial motion, 352. At on the on hearing which occurred at various times different days, evidence underwent The proffered review. court and counsel watched the entire which was L. around videotape, prepared by Certain were then frame January 1994. rerun frame. parts prosecutor described, detail, also she testimony, and documents photographs, L. on the sought through stand. present sides,

After on both the trial denied the considering argument motion. The court with defendant disagreed victim evidence was impact irrelevant and because it not inflammatory limited circumstances after the event.” The occurring “right court also defendant’s claim rejected that L.’s and the testimony were cumulative. videotape Focusing specific features the court two encountered videotape, only instances “dramatization,” echo an effect heard the Finzels’ namely, during wedding (when “until do us ceremony says, death Joseph part”), background about a “hero” and “villain” that at the song end played videotape. However, the court found that the videotape was not more substantially than noting that it seemed “less emotional” than L.’s prejudicial probative, later, When asked reconsider testimony guilt ruling shortly its phase. case-in-chief, before the evidence in its prosecution began presenting court declined to do so.

751 720, 808, 830 L.Ed.2d (1991) 501 U.S. Payne v. Tennessee [115 overruled Booth v. the States Court 111 S.Ct. United (Payne), Supreme 2597] 440, 2529], as 107 S.Ct. insofar (1987) 482 U.S. L.Ed.2d Maryland 496 [96 cases. evidence in death penalty barred admission of victim Booth the impact not conclude that the could that the state could Payne properly explained and blameworthiness” the defendant’s “moral meaningfiilly culpability assess 825.) (Payne, harm” he had caused. at p. unless it was aware of “specific “ ‘counteracting a interest in legitimate reasoned that the state has Payne in, by reminding entitled evidence which the defendant is to put mitigating individual, as an as the murderer should be considered the sentencer that just a loss an individual whose death represents unique so too victim is ” Thus, federal Constitution (Ibid.) and in family.’ his society particular it as to render unduly evidence if is so only prejudicial bars victim impact (Ibid.) trial unfair. fundamentally in this “Unless it invites regard.

State law consistent with federal law effect of a jury, devastating capital irrational from purely response crime on loved ones and the is relevant and admissible community Oliver, crime . Cal.4th (People supra, circumstance of the .. .” v. Lewis 39 787, 970, 1056-1057, (1991) 54 Cal.3d 835-836 citing v. Edwards People [1 696, 436].) P.2d 819 Cal.Rptr.2d related evidence Defendant challenges testimony first penalty “ it was not limited to the ‘immediate injurious L. because

presented ” crime, “known reasonably or effects or apparent” impact’ capital view, it this victim to defendant the time was committed. Under impact evidence that exceeds such bounds is where impermissible, particularly death.” events occurred before after the victim’s “many years here. We before and do so rejected again have similar claims Oliver, 970, 1057, cited.) and cases v. Lewis and 39 Cal.4th (People “ life the murder histor[y] are entitled to People present ‘complete [of ” 43 (2008) to death.’ v. Zamudio (People childhood early victim] evidence, 327, 289, 105].) which Cal.4th 181 P.3d Such 365 Cal.Rptr.3d [75 victim, they those loved murder shows “how comes from who typically Boyette (2002) in their v. having (People missed lives.” person] [that 544, 391]; People Verdugo P.3d see v. Cal.4th Cal.Rptr.2d [127 P.3d [many 50 Cal.4th 296-299 Cal.Rptr.3d 1035] [113 victims, and lives two murder teenage witnesses testified about vibrant died]; the day heard that one victim finished she jurors songs recording 574, 645-647 Taylor (2010) 48 Cal.4th Cal.Rptr.3d People [108 victim’s death P.3d witnesses described effects elderly [many 12] she had of her and on with whom generations family community groups four volunteered]; (2009) 45 Cal.4th v. Hamilton 923-927 People 752 286, P.3d

Cal.Rptr.3d 200 witnesses [many described emotional toll of 898] murder on victim’s and children surviving long over the spouse 16-year retrial].) period preceding penalty case,

In the present evidence was a challenged by presented single witness, L.—a of direct victim surviving defendant’s violent acts. She traits, summarized the favorite close positive and pastimes, relationships, future of her murdered aspirations spouse. portraying Joseph “unique” 808, 825), individual 501 U.S. (Payne, L.’s and supra, testimony videotaped evidence took no than three more hours to present, compared multiple covered days the defense case in victim evidence mitigation. impact was not irrelevant or excessive in our view.

We also certain that details were too disagree and inflammatory prejudicial instance, to include in valid victim L. For could impact presentation. describe the concern showed properly Joseph during Brinlee’s hospital birth, that arose at that including any complications time. Such evidence bond, showed nature of of family and loss corresponding Joseph (See 472, aas husband and father. Hartsch Cal.4th People (2010) v. 49 508-509 232 P.3d of extreme [allowing evidence Cal.Rptr.3d [110 663] murder victim hardship experienced by life].) earlier his Nor was the trial court to exclude evidence burial required concerning gravesite. and Joseph’s circumstances, These which comparison evi paled mourning process cases, dence allowed in other shed on the permissible light family’s grief. 547, 570, (See (2010) v. 50 Cal.4th People Brady 579-581 Cal.Rptr.3d [113 P.3d of slain memo [testimony videotape officer’s police 312] services, church, rial funeral casket in attendance including flag-draped 4,000 mourners, uniformed and other police officers motorcade miles, stretched for to gravesite]; v. bagpipe procession People Verdugo, Cal.4th 296-297 of funeral [testimony photographs victims, of two murder of two including service release doves teenage coffin]; act id. at kissing child’s see p. 297 [photographs observance for slain victim at months after birthday teenage cemetery several murder].) claims the trial erred in

Finally, defendant admitting videotape because such evidence contained effects” that jury “special prejudiced trial, him. as he did at against He much about appeal, “repeated complains flashbacks to scenes wedding, montage, Jo[seph] photo L[.]’s as a one with him fast on a including Jo[seph] young boy, asleep pictures music; effects; next to a echo and voiceovers.” couch sleeping puppy; lyrics; be may used for victim impact purposes capital Videotapes said, however, trial courts take care in trials. We have must penalty evidence, an creating assist in may because “the medium itself such admitting Prince (People (2007) v. . .” . . emotional impact upon [undue] 1015].) case-by- Under this 156 P.3d Cal.4th Cal.Rptr.3d tributes to little difficulty videotaped case we have had approach, upholding 1221, 1240-1241 Bramit (E.g., People 46 Cal.4th murder victims. 574, victim’s humble [depicting upbringing P.3d Cal.Rptr.3d 1171] People Mexico].) the one. v. (E.g., Some took more time to than play present Zamudio, 327, supra, 43 Cal.4th videotape spanning 363-368 [14-minute gravesite]; People Kelly lives of married from childhood to elderly couple (Kelly) 171 P.3d (2007) 42 Cal.4th Cal.Rptr.3d 548] 794-799 [68 victim infancy through age female showing videotape [20-minute died].) when she

Kelly seems There, convicted of relevant here. the was highly Sara, woman, a Native a who was robbing, 19-year-old murdering raping, a home. had as infant into Caucasian At American and who been an adopted her the life and the death Sara’s mother described Sara’s penalty pain phase, had the objection, caused friends. Over defendant’s family prosecution also a 20-minute that mother had It played prepared. Sara’s videotape life, with the consisted of video and still Sara’s clips spanning photographs music voice of her mother The narrating background. events calmly video, of the but the volume was soft Enya played through most screen, On was with a school singing were faint. Sara seen lyrics group, “You Other showed her including song, My Life.” Light Up images family horseback with and friends. Near swimming, riding, interacting end dwell on the mother stated that she does not videotape, Sara’s (Kelly, supra, 797.) “terrible 42 Cal.4th video ended a crime.” view of followed a horseback in gravestone, riding Sara’s clip people Alberta, to Canada—the “kind of heaven” in which Sara was said belong. (Ibid.) Kelly claims, held because the the defendant’s that

Rejecting contrary permissible. (Kelly, emotional, was relevant and not it was unduly presentation 763, 797.) 42 Cal.4th noted that even the mother’s though We similar testimony and the covered ground, they videotape supplemented, rather another. The was that the videotape than one reason duplicated, (Ibid.) in a live could not do. “In testimony “humanized” Sara way away to that defendant took see particular, videotape helped activities, to contribute to the unique victim’s her favorite ability enjoy . family society framework of her . . fulfill promise (Ibid.) can loving bring.” someone with such stable and background most, music At two elements emerged—the background only questionable Kelly made clear that scene from Canada. Enya horseback-riding not such is as it sentimentality impermissible long show “what helps [the murder (Kelly, supra, was like.” 42 Cal.4th 798.) We acknowl- victim] that the edged challenged features seemed to “theatric” role in play mostly (Ibid.) Sara’s case because they little “additional relevant material.” imparted However, there no reason to decide whether the trial court abused its intact, discretion in admitting with these features videotape because any error such was harmless beyond reasonable doubt. In this making point, Kelly relied on the routine use of music and effects in special videotapes, overall, nature factual of Sara’s and the nature of the videotape aggravating (Id. 799.) evidence whole. as a penalty p.

No different is result warranted here. After we reviewing videotape, court, with the agree trial which conducted its own careful that there analysis, about the nothing objectionable manner which the was edited videotape The “flashbacks” to “were prepared. which objects simply shown,” in the of the trial photographs being words court. The complained-of somber, flat, “voiceover” is L. in a almost tone about scenes from speaking above, her everyday life with For the reasons discussed the Joseph. images themselves are L. Though factual relevant. is seen tears away wiping events, while some of these never describing she loses her composure tape. noted,

As two audio features the trial court’s echo caught attention—the the effect death do the “until us Finzels’ accompanying phrase part” the wedding “hero/villain” that the ceremony, song during played photo factual, at the the montage end of more dramatic than Though videotape. context, fairly these features seem unobtrusive in and do not fundamentally event, of the alter subdued tone we need not decide presentation. any true, whether the because error was harmless. For the contrary clearly above, Kelly, reasons set forth in Cal.4th and described there was “no reasonable these of the affected the possibility portions videotape (Id. 799.)26 determination.” p. penalty noted, briefly appeared began testifying As Brinlee on the stand when at the witness L. ante, here, below, 3.) (See phase. argues unsuccessfully Defendant as he did that

penalty fn. court, unduly presence prejudicial. there was no need for to be seen in and that her was Brinlee However, fleeting possibility Nothing we see no that event affected the verdict. reasonable this Also, that supports prosecutor way. defendant’s Brinlee in an claim ostentatious “cradlfed]” through prosecution testimony, photographs, videotape showed that Brinlee evidence victim, young one of be able Joseph, two children whom the murder would never to see grow up, challenges joys parenthood. could not have depriving thus him seeing it anything person discerned Brinlee in could not otherwise have inferred from evidence. Continuance

B. Request for him continuance denying erred in the trial court Defendant contends testimony by surrebuttal trial present near the end of penalty counsel, to present right of his He claims violations Kaser-Boyd. Dr. trial, determina- and to a reliable evidence, penalty and a fair to due process of the federal Sixth, Amendments and Fourteenth under the Eighth, tion Constitution.27 We Constitution, of the state and under parallel provisions claim. will reject Background

1. case-in-chief, the trial and outside jury’s presence, During People’s from testify- Dr. Kaser-Boyd to prevent court denied the request prosecutor’s Suszanne’s a child his mother fondled as sexually that defendant was ing claimed, the court husband, what the Garcia. Contrary prosecutor first Rudy incident, information namely, for this found sufficient evidentiary support Baumgarte, Fred grandfather, from defendant’s Dr. had obtained Kaser-Boyd concerns over The court fondling. explained prosecutorial who saw incident, conveyed which it was and the circumstances under the details of the her not the admissibility, affected “the weight,” to Dr. Kaser-Boyd, merely her challenge opinions as “ammunition” to expert could serve testimony, to “get that she hearing in court. The confirmed during planned prosecutor wife, here,” and his to call both Fred Baumgarte meaning, grandparents as rebuttal witnesses. Dorothy, noted, abuse the defense that child sexual

As Dr. testified for Kaser-Boyd an adult. in defendant as the risk of criminality dysfunction heightened “touched in that defendant was She “told” Fred being by Baumgarte reported cross-examination, at three or four. On age a sexual Garcia way” by Rudy admitted for defense had no written report Dr. she Kaser-Boyd prepared counsel, interviews with on her of memory and that her was based testimony or any violation of the federal Attorney argues that defendant never asserted General trial, preserve failed to such seeking and therefore has Constitution in a continuance state Here, law, disagree. in certain other instances in this we appeal. claims on Based on settled case, “(1) (e.g., to instruct sua appellate claim is of a kind failure appears it that either rights) required no trial affecting substantial sponte; erroneous instruction defendant’s it, (2) facts or arguments the new do not invoke preserve to or court action defendant merely apply, but assert legal the trial court itself was asked to standards different from those omission, actually presented to that wrong for the reasons that the trial court’s act or insofar as extent, court, legal consequence violating the Constitution. To that had additional Boyer (2006) (People v. arguments appeal.” are not forfeited on defendant’s new constitutional 581], citing People v. Partida 412, 441, Cal.Rptr.3d fn. 133 P.3d 38 Cal.4th 17 [42 merits, 765].) separate no P.3d On the Cal.Rptr.3d 37 Cal.4th 433-439 [35 needed, rejection a claim that the trial court given, is where constitutional discussion necessarily rejection constitutional to that court leads presented erred on issue theory here. raised for the first time various and on her persons handwritten notes. The witness recalled speaking with the twice—once in Baumgartes of their person presence daughter, Suszanne, August once over the in December phone 1994. described, Dr. Kaser-Boyd also elaborated on the incident that Fred namely, (at its location home Baumgartes’ visit during by defendant’s family), (defendant its nature stood on a table while touched Rudy defendant’s genitals), and Fred’s immediate (a reaction “funny Dr. feeling”). Kaser-Boyd testified that Fred Baumgarte said about nothing Rudy preparing bath, for a and that Fred “is hard of so hearing, him on the interviewing was difficult.” telephone very

During cross-examination of Dr. the trial Kaser-Boyd, court expressed concern over and the scheduling of the trial. length Outside the jury’s off, the court noted that “our time presence, estimate originally we way alternates, have lost two we are down to four . . . there a lot of [and is] restlessness on the squirming The court part jury.” promised [and] clear its calendar and to further prevent Counsel were told that delay. soon,

deliberations should that same begin week. preferably witness, After Dr. was excused as Kaser-Boyd the defense rested its case. The indicated that she prosecutor her case in prepared begin rebuttal. The trial court its for a “short” expressed preference presentation. recess, After witness, a 10-minute called her first rebuttal prosecutor Fred Baumgarte.

When asked about the incident fondling described Dr. Fred Kaser-Boyd, testified that he Baumgarte saw defendant at three or age four standing table without while held any underpants, Rudy defendant’s between his penis bath, thumb and have finger. Rudy may been defendant for a preparing Fred did not think the was sexual at the time. Fred realized that touching later, conduct was Rudy’s only after to media wrong years listening reports Also, about child sexual molestation. Fred recalled that the incident occurred home, when he and wife his visited defendant’s in their trailer rather family than when the visited the family house. Fred further testified Baumgartes’ that he remembered with Dr. in the meeting personally Kaser-Boyd presence of his wife and but did not recall to the daughter, talking doctor about incident either in or on the fondling he on person phone—a point repeated cross-examination, redirect examination. On after Fred confirmed he had a asked, defense counsel “Your wife talked to hearing problem, you and then said, wife talked back to the Fred your doctor?” “Yes.” The next rebuttal witness was Fred’s prosecution’s Dorothy Baumgarte, wife and defendant’s After the defense an grandmother. offer of sought proof, stated outside the that would prosecutor jury’s Dorothy testify presence on the Kaser-Boyd phone.” to Dr. talking

that “she doesn’t remember and that it in serious dispute that the matter was not Defense counsel replied Nevertheless, Dorothy difficult to court. to return Dr. Kaser-Boyd would be she, met husband and daughter, with her along was allowed to testify trial, did not recall Dorothy but that Dr. before Kaser-Boyd person defendant’s penis. Fred touch seeing Rudy ever to the doctor about talking attacks and cross-examination, suffered anxiety noted she Dorothy On be on the stand” that day. “wasn’t supposed matter, rested on a different the prosecution After another witness testified an defense counsel sought the jury’s its rebuttal case. Outside presence, her to confirm that Kaser-Boyd amount of time to locate Dr. unspecified Otherwise, counsel argued, with the did occur. Baumgartes conversations credibility testimony of Dr. “every single Kaser-Boyd’s underpinning” was in doubt. down the a continuance to the extent it would “shut

The trial court denied that, most, two infer that “we have trial.” The court noted would jury The court also who don’t remember the conversations.” elderly really people for several and that she days, observed that Dr. was on stand Kaser-Boyd both about her conversations with was examined thoroughly parties trial to in the The saw no reason to delay involved case. court everyone rehash what the witness “has stated.” already In the

A then ensued over exhibits and instructions. process, discussion Kaser-Boyd defense counsel said he believed that Dr. present time testify and that he needed to locate her so that she could courthouse Instead, the court urged The did not reject surrebuttal. request. her, closing began. counsel to “find her back in here” before get arguments matters, counsel After a brief recess and further discussions about other that he again conceded that he had unable to find Dr. Kaser-Boyd been order to do so. The court declined grant sought “slight delay” her, continuance, can let me but noted that “if at some find you you point we can do.” and we will where we are and if there is something know see instructions, finished After the received its and before prosecutor remarks, admit the court a defense granted request her closing presenting with the handwritten notes of her interviews into evidence Dr. Kaser-Boyd’s notes, bore the which on a sheet of single paper, Baumgartes. appeared names, number, and the date of the telephone their Baumgartes’ telephone circled, hard of hearing. and Fred was said to be call. name was Dorothy’s and Fred Baumgarte, of both Dr. testimony Kaser-Boyd Consistent with defendant, at three or age that Fred seeing the notes further indicated reported four, naked on a table while standing Garcia touched Rudy his private parts. Thereafter, resumed, closing arguments and the case was submitted to the for a jury decision. penalty

2. Analysis Defendant claims the trial court erred in not granting his for more request witness, time to find and call Dr. as a Kaser-Boyd after she was excused by defense, to rebut the Baumgartes’ testimony their contact with concerning her before trial. Defendant he insists was denied the to “rehabili- opportunity issue, tate” Dr. on Kaser-Boyd this and that her suffered as a credibility result. 1050,

A criminal trial be continued may (§ for cause only good (e)), subd. and the trial court has broad discretion in handling request. (2009) 390, v. Doolin (People 45 Cal.4th 198 P.3d Cal.Rptr.3d [87 11].) denied, In whether a continuance determining was the review properly circumstances, court examines the ing the benefits and specific including burdens of a trial that is postponing already v. Barnett underway. (People (1998) 17 Cal.4th 1125-1126 384].) P.2d Cal.Rptr.2d [74 such reality, have merit challenges rarely or cause reversal of the judgment (People Beames 40 Cal.4th appeal. Cal.Rptr.3d 955].) reasons, 153 P.3d For several these were standards not violated here. First, the trial court did not act arbitrarily managing proceedings. The defense was never barred from Dr. returning Kaser-Boyd to stand. Instead, the court declined to an merely grant continuance after open-ended near, it became clear that the end of was and that the testimony was anxious to deliberate. As defense counsel between the time predicted, that Fred and each testified for the Dorothy Baumgarte prosecution, located, Dr. could not be Kaser-Boyd and no surrebuttal testimony within reasonable of time. forthcoming period

Second, no ever arose in connection with the dispute continuance requested as to the substance of the that Dr. Kaser-Boyd information trial. relayed notes, The Baumgartes’ with Dr. confirm- testimony, along Kaser-Boyd’s ed her account that Garcia Rudy touched defendant’s when he genitals event, was a young Fred witnessed the and that boy, Baumgarte Dr. consulted with the Kaser-Boyd Baumgartes such preparing testimony. of Dr. Any concerned collateral matters as impeachment Kaser-Boyd purely to the circumstances under which the information was fondling conveyed, Thus, and the nature of details that Fred described at the time. peripheral while the whether the Fred prosecutor questioned closing argument act saw molestation,” amounted to “sexual no claim was made that Dr. Kaser-Boyd or fabricated their exaggerated conversations. reasons,

Third, would have no occurred. Jurors and for similar prejudice certain or misstated that even if Dr. misremembered Kaser-Boyd understood the substance Baumgartes, of her conversations with aspects We and at trial was never dispute. information she obtained therein relayed matters about claim that the collateral find no basis for defendant’s sweeping undermined her credibil- fundamentally which he now would have complains to which she testified about child sexual abuse or about other matter any ity Hence, a at trial. even if the trial court had continuance granted permit here, of a of the kind there was no testimony urged possibility surrebuttal more favorable verdict. penalty

C. Prosecutor’s Closing Argument misconduct in closing Defendant committed argues prosecutor due and confrontation rights, violated his argument, thereby process a fair and reliable determination. These claims rest on right his penalty Constitution, Sixth, and Fourteenth Amendments of the federal Eighth, of the state Constitution. disagree. We parallel provisions “Animal” References 1. much to focus argument asking prosecutor spent closing evidence, on the which she said was

rationally “overwhelming,” aggravating and to death because no basis for in defendant’s meaningful mercy impose or character was shown. After to dismiss background asking jurors not the to other defendant was “worst of worst” suggestion compared offenders, and them of defendant’s calculated violence reminding capital Finzels, held accountable for insisted he should be against prosecutor the end of her nearing his “animalistic action.” The who was prosecutor, times a a few more to defendant as an “animal” and argument, referred Meanwhile, who “sadistic defense counsel “predator” pursued passions.” and consti- twice at the bench that such objected argument “improper” tuted “misconduct.” Both were overruled. objections a attack”

Defendant now insists the waged “personal prosecutor improperly no other than him. The remarks served against challenged allegedly purpose before the degrade” jury. “denigrate include The claim lacks merit. Prosecutorial argument “may oppro Where are so they warranted the evidence. brious epithets [Citation.] to describe the we have condoned wide range epithets supported, Zambrano, (People supra, conduct.” “ v. nature of defendant’s egregious ‘evil,’ liar, ”]; see ‘sociopath’ Cal.4th [defendant “ Friend, little 47 Cal.4th is an ‘insidious People [defendant ” bastard,’ value,’ with ‘no social ‘without redeeming feeling’ being “ ”]; v. Farnam Cal.4th ‘sensitivity’ People 199-200 “ ‘monster,’ 47 P.3d is a an Cal.Rptr.2d ‘extremely 988] [defendant creature,’ violent and the ”].) ‘beast who walks upright’ Here, defendant broke into the Finzel home late at while armed with night, earlier, One month he had an gun. interest a woman expressed raping The evidence that he stood in the gunpoint. suggested backyard, smoking, and in the through bedroom blinds before house. peered gaps entering inside, After that L. was the lone adult he until her seeing, waited perhaps, most vulnerable moment to strike—while in bed with a her side. by baby L., After sexually assaulting defendant bedroom hog-tieing positioned soon, door to ensure that whom defendant knew be Joseph, might arriving would be shot with his own Defendant then L. to gun. shot surprise her from He house for hours prevent summoning help. stayed valuables, collecting on her condition and for her repeatedly checking waiting to die. The he from the stole included property couple wedding ring else found in tumed-out he finger anything his as Joseph’s pockets lay dead or on the floor. dying

The used were not unreasonable or unfair in epithets prosecutor of this evidence. We therefore conclude no misconduct occurred. light ”

2. Victim “Letters Near the end of referred to defense closing argument, prosecutor evidence at the that defendant had “two fathers”—his showing penalty phase Garcia, father,” and his “real Patrick “stepfather,” Rudy Grandchampt—with whom he could communicate. Jurors were reminded that defendant had Brinlee, Garrett and of the same benefit deprived youngsters, by murdering father, The the emotional their asked to consider Joseph. prosecutor to the letters that Garrett felt after his father’s murder. pain Referring trial Patrick defendant wrote also during Grandchampt, prosecutor how Garrett describe such “if he could jurors imagine might asked pain conference, and write a letter” to his father. Defense counsel a bench sought letter from Garrett was insisted that reference to hypothetical improper. resumed.28The The court overruled the objection, argument prosecutorial delivered, full, Dad, you Garrett letter was as follows: “Dear I love hypothetical meantime, day you again. But in the very you very much. I miss so much. I know some I’ll see you my buddy, you night, played how tucked me in at how we I remember how were best me, motorcycles together together, together, you and how wanted to ride with how camped wedding. And I remember you everything. included me in I remember Mom you my day took me to first of school. you. Christmas’s I remember when Mom [sic] there, Randy you away me one weekend when I always You were Dad. Then Garcia took if she “could might say then to consider what Brinlee jurors asked

prosecutor never known.29 write” a similar letter to whom she had Joseph, that the served to stir only On defendant complains prosecutor appeal, them to themselves jurors by asking position passions place He also harshly. suggests the murder victim’s children and to judge events, future were invited to about irrelevant jurors thereby speculate and to the trial consider matters outside record. have wide latitude in closing argument, asking jurors prosecutors Oliver, v. and Lewis (People inferences

to draw from the evidence. reasonable 970, lines, 1061.) “it at the 39 Cal.4th these Along proper penalty to invite the to themselves in the for prosecutor jurors put place phase v. suffering.” (People Slaughter (2002) victims and their imagine [murder] v. People Dykes 477, 262]; 27 Cal.4th 1212 47 P.3d see Cal.Rptr.2d [120 (2009) 46 Cal.4th P.3d asked to [jurors Cal.Rptr.3d [95 1] “ consider how murder victim felt in ‘a hot of lead tear having through piece chest, heart, ”].) his go his his his liver and come out his back’ through lungs, The same extends to the principle “unique pain” experienced by family members who are left to the murder victim’s death and to grieve experience (People Stitely that loss of life. 35 Cal.4th person daily 108 R3d to Cal.Rptr.3d encouraged jurors [prosecutor 182] victim, mother,” with both the murder who was a “wife and empathize her].) with the family who survived visiting my got say you, good-bye My real mother. I never Dad. That hurts real bad. heart any pain you aches so much I think it’s worse than I will ever know. Now never take will baseball, basketball, again. any games me to school You will never come and I play, watch soccer, school, school, graduate elementary high football. You will junior never see me from school, high college. you give gives or I won’t have the kind advice a me dad his son growing up. my girls boys while How will I talk to mother about kind of stuff? You will marry. my never be able to meet the you. woman that I She won’t even know And that breaks

heart, badly my And grandfather. Dad. it hurts so that children will never know their And what worst, grandfather you a wonderful thing would have been. But the that hurts the and it hurts earth, every day cry every day, you during my I I will never see life here a life that Dad, very long. you, you every could be I day. you will miss and I’ll think of I know know Dad, meet, you you way. how much I miss because I know miss me in the until I same So we you my love with all heart.” delivered, full, “Dad, The hypothetical sorry Brinlee letter was as follows: I am so got you. only get you I never even to know I will photographs to know from and stories that people you. only you things Mom and other tell me about I will know videos saved, you that Mom had but I know how much loved me. I can tell from those stories and photographs. you from those Mom’s made it clear how much loved me. I even had one wish I you Randy hour with that I could remember. But I have no memories at all because Garcia your lay by you my you took life as I bassinet. I at all. will never have to walk me to school you away I give my wedding. will never have to walk me down the aisle and to me You will Dad, my why Randy get never know children. to meet dad and have a does Garcia his relationship get with him when I’ll opportunity?” never that same We do not condone the tactic used necessarily particular prosecutor law, But, here. under relevant no constitutional error or miscon- prosecutorial duct occurred. The made clear the words and thoughts prosecutor attributed to Garrett and Brinlee had not been written uttered actually Instead, them. the “letters” in court were orally obviously being presented used as a rhetorical device to what the children “could write” about highlight crime. capital

Moreover, the substantive under the illustrated was point being permissible victim forth were draw set above. Jurors asked to impact principles simply reasonable inferences from evidence of close family’s relationship favorite murder activities about effects of on his long-term Joseph’s Indeed, children. threatened her into Brinlee in bassinet having peered bedroom, children defendant knew about when he Garrett’s both shot fatally “letters,” their father and tried to kill their mother. The which were not artful, contained no information that could not otherwise have particularly Hence, been to the we misconduct conveyed jury. reject present properly claim.

D. Victim Instruction Impact Defendant that the trial court erred in to instruct sua argues failing sponte on the use of victim evidence. He violations of his alleges proper impact Sixth, due under the and a reliable determination rights penalty process Constitution, and under and Fourteenth Amendments of the federal Eighth, of the state Constitution. No error occurred. parallel provisions At the the trial court standard instructions gave defining penalty phase, (CALJIC 8.85), No. describing process factors aggravating mitigating reach an verdict such factors in order to weighing appropriate penalty influenced bias or (CALJIC 8.88), No. from jurors being prohibiting or feelings defendant or against swayed by public opinion public prejudice (CALJIC 8.84.1). No. cases, on insists the trial court should out-of-state

Relying solely motion, on own as follows: “Victim have an additional instruction its given evidence is another method of about nature informing you impact simply the crime in You consider this evidence may and circumstances of question. However, deem the law does not an determining punishment. appropriate another; rather, than victim impact the life of one victim more valuable victim, defendant, like the is a individual. unique evidence shows that the into the must be limited to a rational inquiry culpability Your consideration a victim- defendant, Finally, to the evidence. emotional not an response punish- an opinion capital from expressing witness is precluded impact a witness’s therefore, and, no inference whatsoever must draw jurors ment in that regard.” silence a sub

However, regarding similar claims have considered we previously not, instruction, need and should that it and have concluded similar stantially Zamudio, accord, 368-370; v. given. (People supra, 43 Cal.4th be not v. Tate 234 P.3d People 707-708 Cal.Rptr.3d 49 Cal.4th Bramit, v. People 145, 198; Carrington, supra, v. People 428]; 47 Cal.4th First, to the extent supra, reasons exist. 1244-1245.) Several 46 Cal.4th as a relevant circumstance victim evidence it describes accurately impact decision, crime and allows its consideration penalty the capital informa jurors any “would not have instruction provided proposed instructions learn” from standard penalty properly tion did not otherwise they Zamudio, Second, (People 369.) at 43 Cal.4th p. court. given by it suggests “incorrect” insofar as instruction is misleading proposed consider, the murder affected for by, that the not be jury may sympathy (Ibid.) Third, members. the rest proposed victim and bereaved family instruction, more not deem one victim’s life that the law does advising jurors inference than them cautioning against drawing valuable another is “not a victim witness’s silence on capital punishment, impact (Id. 370.) to the of the case. necessary jury’s understanding” p. authorities, defendant’s and reject We adhere to these principles instructional claim. Penalty to Death Law Challenges Constitutional

E. law under the to the death challenges Defendant raises numerous penalty Constitution, Sixth, and to and Fourteenth Amendments to the federal Eighth, the manner in which it was to him. He seeks mainly preserve applied 240, v. Schmeck People (See (2005) 37 Cal.4th such issues later. litigate concedes, 397, 451].) we 118 P.3d As 303-304 Cal.Rptr.3d [33 here, before. do so as follows: again have all such claims We rejected 190.3, the circumstances of (a), factor consideration of allowing Section crime, arbitrary capricious imposition does not license capital 347, v. Gamache the death penalty. (People (2010) Cal.4th 406 48 [106 771, 342], cited.) R3d and cases 227 Cal.Rptr.3d thereon, law, are not instructions based The death and standard penalty doubt as to reasonable beyond fail to they require proof flawed insofar factors (2) the (1) aggravating factors were aggravating present, whether 764 factors,

outweighed (3) the mitigating factors were aggravating so sub- sentence, stantial as to warrant a death (4) or death is the appropriate penalty. Nor were written or findings as to unanimity factors aggravating required. decisions, such as Blakely High Washington (2004) v. 542 U.S. 296 403, 2531], L.Ed.2d 124 S.Ct. Ring (2002) v. 536 U.S. 584 [159 Arizona 556, 2428], L.Ed.2d 122 S.Ct. and Apprendi v. New Jersey (2000) [153 435, 530 2348], U.S. 466 L.Ed.2d 120 S.Ct. do not undermine these [147 Bell, (People v. 582, 620, cited; conclusions. supra, 40 Cal.4th and cases People Anderson (2001) v. 25 Cal.4th 589 22 P.3d Cal.Rptr.2d [106 347], and cited.) cases

There is no constitutional to instruct either on burden of requirement determination, persuasion regarding or on penalty any presumption life without is the favored or possibility parole appropriate penalty. v. 574, 662, (People Taylor, supra, cited.) 48 Cal.4th and cases Standard instructions are not flawed insofar as allow a death verdict if they is “so substantial” aggravation such compared mitigation, that death is v. Russell “warranted.” (People (2010) 50 Cal.4th Cal.Rptr.3d 68].) 242 P.3d A so advised need not also be told that life without (1) if parole mandatory mitigation outweighs aggravation, (2) or permis Tate, sible if even (People aggravation v. supra, outweighs mitigation. 635, 712, Cal.4th cited.) cases instructions,

Under the relevant law and the trial court did not err insofar as (1) factors, it failed to delete assertedly sentencing instruct as inapplicable to which factors are sentencing and which are aggravating mitigating, (3) instruct that the absence of mitigation certain statutory categories v. 514, 574, (People Stitely, not supra, aggravating. 35 Cal.4th and cases cited.) Use of the terms “extreme” and to describe certain “substantial” DePriest, v. factors is not (People supra, mitigating impermissible. Cal.4th 1, 60, cited.) and cases

California’s automatic is constitutional even it appeals process though Anderson, no v. affords intercase review. (People proportionality 543, 602.) Cal.4th does not defendants Equal protection require capital be afforded the same sentence review as other felons to whom the determi v. nate applies. (People Brady, supra, 590.) law 50 Cal.4th sentencing Elimination in California is not under interna capital punishment required Solomon, 792, 844, tional law or norms. (People supra, Cal.4th cited.) cases Error and Prejudice Cumulative

F. Defendant about the cumulative effect of errors at his complains alleged trial. We have his claims of error and/or have penalty individually rejected no more claims are Such error to be nonprejudicial.

found assumed (as assuming even together, considered when compelling prejudicial Chapman in standard does) beyond-a-reasonable-doubt defendant that the 824], We 87 S.Ct. applies. U.S. 18 L.Ed.2d (1967) 386 [17 California ground. death on this judgment will not reverse the

V. DISPOSITION affirmed in its entirety. is judgment Kane, J.,* J., J., Chin, J., J., Corrigan, Werdegar, C. Cantil-Sakauye, concurred. defendant’s judgment

KENNARD, J., I join affirming Concurring. because, I with the majority although agree death. I write separately merit, I reach lacks to the selection challenge grand jury process defendant’s a somewhat different analysis. that conclusion by using returned an indict- of Los Jury Angeles County In June the Grand with, the murder of other among things, Joseph ment defendant charging Thereafter, dismiss the indict- moved in court to Finzel. superior ment, discriminated used to select the grand jurors that the alleging process guarantee in violation of the equal protection women against Hispanics court held a Amendment. The trial of the federal Constitution’s Fourteenth evidence, and defendant submitted at which both hearing prosecution defendant argues denied the motion. On this appeal, after which the court ruling. the trial court erred so that defendant’s equal in the trial argued

Although prosecutor decision States Court’s Supreme claim is controlled United protection 664], S.Ct. in Duren v. Missouri L.Ed.2d 439 U.S. 357 [58 is controlling authority conceded that the this court the General has Attorney in Castaneda v. Partida (1977) 430 U.S. 482 court decision high controls, (Castaneda). I that Castaneda agree L.Ed.2d S.Ct. 1272] does the majority. Castaneda, claim regarding a defendant an raising equal protection

Under make a facie case purposeful must grand jurors prima selection is one that is to establish that the group “The first step discrimination. laws, class, treatment under the out for different singled distinct recognizable, Next, of underrepresentation the degree as written or as applied. [Citation.] District, assigned by the Chief Appeal, Appellate Court of Fifth * Associate Justice of the VI, of the California Constitution. to article section 6 pursuant Justice must be proved, by comparing proportion in the total group to the called population to serve as proportion grand over a jurors, significant of time. ... period selection that is procedure [Citations.] of susceptible [A] abuse or is not neutral racially of supports discrimination presumption raised the statistical Once the showing. defendant has shown [Citations.] substantial of underrepresentation his he has made out a facie group, prima case of discriminatory the burden then purpose, shifts to the State to (Castaneda, 482, rebut that case.” supra, 494-495.) 430 U.S.

Here, the it is “not majority says certain of the of entirely elements a prima ante, facie equal protection 735.) violation.” (Maj. at Because opn., p. of this uncertainty, declines majority to determine whether defendant made a facie case of prima discrimination purposeful either women or Hispan- (Id. 737.) ics. at I do not p. share the about the majority’s uncertainty elements of a facie case. prima As quotation previous paragraph shows, the distinct, facie case has prima two elements—the existence of a class, identifiable and a statistical of showing substantial underrepresentation over a significant (Castaneda, 482, of time. period 430 U.S. 494-495.) Proof of these two elements raises a of presumption discriminatory purpose, the burden thereby shifting of to the proof Evidence that the prosecution. selection neutral,” is of procedure abuse” or “not “susceptible racially not although case, as an additional required element of the facie prima “supports of presumption discrimination raised the statistical show- (Id. 494.) at ing.” p. distinct,

Both women and form Hispanics identifiable classes for purposes of so it equal protection analysis, is that defendant here undisputed estab- ante, lished the first element of the (See facie case. prima at maj. opn., p. that “the first

[stating of Castaneda's facie’ prong met”].) test is ‘prima element, the second Regarding statistical showing underrepresentation, not does decide whether defendant majority sufficient presented evidence. (Id. 737.) I conclude that p. defendant’s statistical was sufficient showing as to but not as to women. Hispanics women,

Regarding record shows that from 1986 to 41.2 percent women, of the grand nominees in Los Angeles were while County women constituted 50.6 This an percent translates to population. absolute which disparity 9.4 is insufficient to raise an inference of percent, (See discrimination. purposeful (1965) Swain v. Alabama 380 U.S.

208-209 L.Ed.2d 85 S.Ct. cannot say purposeful [13 824] [“We discrimination based on race alone is that an satisfactorily proved by showing 10%.”]; identifiable in a group community as much as underrepresented by see also v. Ramos 15 Cal.4th People Cal.Rptr.2d 938 P.2d numerous [citing decisions similar absolute finding disparities 950] reason, a that failed to establish

insufficient].) For this I conclude defendant women selection facie case of discrimination against purposeful prima time the relevant County during period in Los jurors Angeles of grand to 1994. 1986 1992, shows that from to 6.6 only the record 1986

Regarding Hispanics, were in Los County Hispanics, of the nominees grand jury Angeles percent who at least some consti English while citizens voting-age Hispanic spoke an These numbers reveal tuted to 19.4 of percent population. 19.1 a around 60 disparity absolute around 12.7 disparity percent comparative (see both absolute Considering comparative disparities percent. 1382, U.S. __, __ [176 130 S.Ct. (2010) v. Smith L.Ed.2d Berghuis 559 (2003) Burgener that tests are [recognizing “imperfect”]; People both 1393] [considering P.3d both Cal.4th Cal.Rptr.2d 1] a I conclude that defendant made absolute comparative disparities]), discriminatory sufficient statistical to raise of showing presumption purpose. that, evidence when the grand jurors This presumption supported selected, returned the Los Angeles who indictment were against of grand used selection that was abuse” County juror system “susceptible 482, 494) in that the (Castaneda, judges 430 U.S. the sense who discretion and were not grand given nominated were jurors complete Persons nominating to their decisions. to explain justify wanting required to fill that grand serve on were out an asked required application them to their their “race or identify Applicants ethnic derivation.” gender were then interviewed and rated of trial After by panel judges. reviewing which and the which revealed were applications, applicants Hispanic, each trial had discretion to ratings interview panel, judge complete nominate two met the minimum statutory Using who persons requirements. inclined, could this had been so or all of the have system, they judges or members of other racial or against discriminated purposefully Hispanics ethnic groups.

Nevertheless, I for abuse in the system, agree inherent despite potential that the majority the prosecution adequately proved underrepre- did of on the not result from grand jury any purposeful sentation Hispanics (1) is the substantial discrimination. evidence Particularly persuasive made to members of the community efforts were Hispanic apply persuade service; (2) from 1986 grand jury percentage Hispanic for nominated for was identical to the percentage Hispanics applicants reduce that the nomination did not showing process Hispanic grand jury, trial nominated 73 judges same during period, representation; who identified themselves “His- interviewed applicants percent who identified of interviewed only applicants panic,” compared percent Thus, themselves as “Caucasian.” I with the agree that the majority trial court did not err in defendant’s denying motion to the indictment. quash basis,

On this I concur in affirming judgment. for a

Appellant’s petition was denied rehearing October 2011. notes for her that she left her peremptory challenge. prosecutor explained not recall from the she could day independently previous “upstairs,” denied for “lack of she had excused T.B. The court defendant’s motion why facie case.” prima his He maintains Wheeler/Batson Defendant renews claim on appeal. women,” against of her challenges “all using early peremptory to a facie amounting created a “statistical” scenario prima prosecutor conclusion, trial reached a contrary Wheeler/Batson case. Because the for for or reasons soliciting prosecutor’s found no grounds analyzing strikes, all of insists we must either reverse the disputed judgment outright, remand the case to the trial court to conduct such However, further occurred, no proceedings. error and no remedial step any kind is warranted.23 At issue are the for requirements establishing facie case prima bias in the group use of peremptory challenges. this first stage “ Wheeler/Batson the defendant inquiry, must show that ‘the totality ” relevant gives facts rise to an inference of discriminatory purpose.’ (Johnson 545 U.S. L.Ed.2d 125 S.Ct. California Batson, 79, 96; accord, Wheeler, 2410], supra, quoting 476 U.S. Cal.3d 280-281.) which, To this is clarify, not case in after a prima

Case Details

Case Name: People v. Garcia

Court Name: California Supreme Court

Date Published: Aug 25, 2011

Citation: 129 Cal. Rptr. 3d 617

Docket Number: S045696

Court Abbreviation: Cal.