*1 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE,
Plaintiff and Respondent, v.
JOHNNY DUANE MILES, Defendant and Appellant.
S086234 San Bernardino County Superior Court FSB09438
May 28, 2020 Justice Groban authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar, and Kruger concurred.
Justice Liu filed a dissenting opinion.
S086234 On March 17, 1999, a jury in San Bernardino County convicted defendant Johnny Duane Miles of burglary and first degree murder, first degree forcible rape, second degree robbery, and false imprisonment by violence of Nancy Willem. The jury found true the special circumstances that Willem was killed during the commission of the burglary, rape, and robbery (Pen. Code, § 190.2, subd. (a)(17)) [1] and that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). The jury also convicted defendant of 10 additional counts related to two separate incidents and found true the enhancement allegations relating to those counts. Following the penalty phase, the jury reached a verdict of death. After denying defendant ’s motion to modify the verdicts (§ 190.4, subd. (e)), the trial court sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
I. F ACTUAL B ACKGROUND A. Guilt Phase
1. Prosecution Case This case arises from three separate incidents occurring in February 1992: (1) the murder, rape, robbery, and false *3 imprisonment by violence of Nancy Willem and the burglary preceding her death; (2) the rape, robbery, false imprisonment by violence, and penetration by a foreign object of Christine C.; and (3) the robbery and false imprisonment by violence of Melvin Osburn and the rape, robbery, false imprisonment by violence, and penetration by a foreign object of Carole D.
a. Nancy Willem On February 4, 1992, Nancy Willem did not come home from work at the Behavioral Health Services Clinic in Rialto. That evening, her roommate, Kristen Schutz, started calling the clinic, but the clinic’s phone lines were busy. When Schutz was not able to reach Willem, Schutz drove to the clinic. After entering the building through an unlocked back door, she found the door to the clinic ajar.
As she entered the clinic, she saw the reception area had been ransacked. She followed the blood on the floor from the reception area into one of the offices. There, she found Willem’s naked body between a couch and a coffee table. There was a telephone cord tied to her wrist and a sweater wrapped around her neck. There was also a handwritten note found on top of her abdomen that read : “Feed the poor. Down with the goverenment [ sic ] .”
Schutz tried to call the police but realized that the telephone cords were missing. Once she reconnected one of the cords, she called 911. The police arrived and pronounced Willem dead on the scene. After securing the area and obtaining consent to search the clinic, the police collected blood and other bodily fluids from the reception area and office where Willem’s body was found. The police also recorded a video depicting the crime scene, which was played for the jury.
Dr. Nenita Duazo subsequently performed the autopsy on Willem’s body . Willem’s injuries were extensive. She had multiple lacerations of her scalp and forehead, a fractured jaw, a missing tooth, redness in her vagina, and a circular area that appeared to be a cigarette burn on her chest. She had bruising of her face, chest, back, arms, and legs, which, according to Dr. Duazo, indicated that Willem was alive when her injuries were inflicted. Internally, Willem had eight broken ribs, a tear in her left lung, two lacerations of her liver, and hemorrhage in her brain. These injuries were likely caused by the application of substantial and multiple instances of force while Willem was still alive. Willem also had hemorrhage in her eyes and neck, as well as a broken bone and broken cartilage in her neck, all of which indicated that she was manually strangled before her death. Dr. Duazo testified that Willem was killed by a combination of blunt force injuries and manual strangulation.
i. Physical evidence Several witnesses testified regarding the collection and analysis of blood and other bodily fluids found at the crime scene. In particular, two criminalists from the San Bernardino County Sheriff’s Crime Laboratory, David Stockwell and Donald Jones, testified concerning their analysis.
Stockwell testified that he conducted a serological analysis on items recovered from the crime scene. He concluded that the nonvictim blood and semen from the crime scene came from an individual who was likely African-American and a type AB secretor, which he defined as someone whose blood type is secreted into other bodily fluids. He testified that the genetic markers found in the nonvictim blood and semen would be expected in approximately one in 333 million African-American *5 men. Following this analysis, he received a blood sample from defendant, who is African-American. Stockwell testified that defendant is a secretor and his genetic markers matched the genetic markers found in the nonvictim blood and semen recovered from the crime scene.
Next, Jones testified that he conducted a DNA analysis on the samples recovered from the crime scene. He concluded that defendant ’s DNA profile matched the D NA profile from the crime scene. He testified that the DNA profile from the crime scene would be expected in approximately one in 180 million African-Americans (or one in 280 million African-Americans using his lab’s updated match criteria from around the time of the trial).
ii. Other evidence On the night of Willem’s death, her ATM card was used to withdraw $1,160 from an ATM in Pomona and another $300 from an ATM in Glendora. An employee from the bank’s investigations unit testified that ATM surveillance photographs showed a n individual wearing glasses and a “Red Dragon” hat at the time of the transaction in Glendora . The individual’s features could not be discerned from the photographs.
A couple of months after Willem’s death , the police briefly stopped an individual who identified himself as defendant and was walking no more than half of a mile from Willem’s office. During the stop, the police documented that defendant was an African-American man who was 25 years old, six feet, six inches tall, and 210 pounds.
As to the handwritten note found at the crime scene, the prosecution offered testimony by expert Glen Owens. He examined the note found on Willem’s body and certain inmate *6 forms written by defendant. He concluded that there were some indications that the writer of the inmate forms may have written the crime scene note but it was not definitive. An investigator testified that when defendant was served with a court order requiring him to provide a handwriting exemplar, he refused to comply.
An officer at the Rialto Police Department testified that during a search of defendant ’s car, the police found a note in it. That note read in part: “We’ll be wiped out by the governement [ sic ].” The note contained a misspelling of the word government, which was similar to the misspelling in the note found on Willem’s body.
b. Christine C. Christine C. was working alone at the Desert Communities United Way office in Victorville on the evening of February 25, 1992 when a man forced his way into the office. Christine C. described the man as African-American, over six feet tall, in his twenties, and of “slim build.” [2]
The man was wearing a ski-type mask and holding a silver handgun. Pointing the gun at her, he demanded money. She gave him cash from her purse and said that the office had no other money. He then ordered her to lie down on the floor while he searched the office. Once he returned, he directed her into a conference room, tied her arms behind her back with a telephone cord, and took her jewelry. When she looked at him, he told her, “Don’t look at me.” He also took an ATM card from her purse and asked her for the PIN, to which she said she did not know it.
After rummaging through the office, he returned to the conference room. He proceeded to pull up Christine C. ’s skirt and pull down her pantyhose, while she was lying on her stomach with her hands tied behind her back. He penetrated her vagina from behind, initially with his fingers and then with his penis. He ejaculated on her thighs and wiped her off with a tissue. He then tied her feet and hands together and tied her to the conference table with telephone cords, and he left the office. She untied herself and called 911. The police arrived on the scene, and she was taken to the hospital for a medical examination.
The San Bernardino County Sheriff’s Crime Laboratory analyzed semen on tissues left at the crime scene. Criminalist Stockwell testified that based on his serological analysis, the semen profile from the Christine C. crime scene matched the profile from the Willem crime scene and additionally matched defendant ’s genetic markers. Criminalist Jones testified that the DNA found on the tissues also matched defendant ’s DNA profile and would be expected in approximately one in 180 million African-Americans.
c. Melvin Osburn & Carole D. Therapist Melvin Osburn was in his office in San Bernardino on the evening of February 26, 1992 when a man later determined by the jury to be defendant entered the office wearing a ski mask and holding a silver handgun. [3] Defendant demanded Osburn’s wallet, threatening, “Don’t look at me or I’ll kill you .” After taking money from his wallet, defendant ordered *8 Osburn to lie down on the floor. Defendant then tied Osburn’s hands and feet with telephone cords and proceeded to rummage around the office, repeatedly asking whether there was a safe. Defendant also forced Osburn’s ring off his finger and asked Osburn about his ATM card, to which Osburn told him that there was no money on it. When it appeared defendant was getting ready to leave, O sburn’s next client, Carol e D., walked into the office.
She was met by defendant pointing a silver gun at her. [4] He directed her into Osburn’ s office, where he ordered her to lie down and not look at him. He asked whether she had any money or an ATM card, to which she replied that she did not. He took her wedding ring and tied her up with her purse strap and telephone cords. Next, he pulled her pants and underwear down and penetrated her vagina from behind, initially with his fingers and then with his penis.
Taking Osburn’s keys, defendant left the office and drove away in Osburn’s car , with his cellphone. Osburn freed himself and Carole D., and because the telephone cords were torn, he triggered the burglar alarm and eventually used his next client ’s phone to call the police. The police arrived, and Carole D. was taken to the hospital for a medical examination. The examining nurse testified that Carole D. showed signs of sexual assault. The police later found Osburn’s car abandoned in a nearby parking lot. His cellphone bill showed calls that he had not made.
The San Bernardino County Sheriff’s Crime Laborator y analyzed semen found on Carole D. ’s underwear . Criminalist Stockwell testified that this sample contained less serological information than the samples obtained from the other two crime scenes, but that the detectable genetic markers from the sample matched the semen profiles from the Willem and Christine C. crime scenes. He testified that the detectable genetic markers from the sample also matched defendant ’s genetic markers . As to the DNA, criminalist Jones was able to form only a partial DNA profile based on the sample, but he testified that the partial DNA profile matched defendant ’s DNA and would be expected in approximately one in 920 African-Americans.
2. Defense Case The defense called three witnesses. First, the defense called Dr. Thomas Rogers, a pathology expert, who testified that it was not possible to determine whether Willem’s injuries were inflicted when she was conscious or unconscious or to determine from any autopsy whether a deceased individual was tortured. Second, the defense called Dr. Jonathan Koehler, a research methodology expert, who testified regarding errors and probability statistics in DNA analysis. For the third witness, the defense called one of the investigating detectives, Detective Chester Lore. He testified that the police did not recover stolen property, bloody clothing, or a “ Red Dragon hat (which the individual who used Willem’s ATM card in Glendora appeared to be wearing) when they searched defendant ’s residence s and vehicle. Nor did the police recover any fingerprints from the crime scenes that matched defendant’s fingerprints. Detective Lore also testified that the police previously investigated someone other than defendant in connection with a “Red *10 Dragon” hat , but that individual was eventually cleared as a suspect.
B. Penalty Phase
After the jury returned its guilt phase verdicts, the trial court declared a doubt as to defendant’s competency , suspended proceedings, and commenced a competency trial before a separate jury. (The evidence presented in the competency trial is described further below [see pt. IV., post ].) Once defendant was found competent to stand trial, the trial proceeded to the penalty phase.
1. Prosecution Evidence
a. Defendant ’s criminal activity and prior convictions
The prosecution presented evidence in aggravation concerning defendant ’s unadjudicated criminal activity and prior criminal convictions.
i. January 6, 1992 incident Paula Yenerall testified that she was working alone at an accounting firm in Rialto on the evening of January 6, 1992 when defendant broke the window and forced his way into the office. He was wearing a stocking cap, jacket, and gloves and appeared “very calm. ” He pointed a chrome, semi-automatic gun at her and demanded money. When she told him that she had some money in her purse at her desk, he held the gun to her head and pulled her to her desk to retrieve the money. He repeatedly said, “Don’t look at me, bitch,” and at one point said, “I’m a murderer and I’ll kill you, too.” After taking $1,200 from her, as well as two rings and a gold necklace, he tied her hands behind her back with a telephone cord. He then instructed her to stay put and left.
ii. January 21, 1992 incident Janet Heynen testified regarding a January 21, 1992 incident in a psychologist ’s office in Upland. While she was working that evening, defendant appeared at the reception window. She described him as calm and wearing a brown beanie, jacket, and gloves. He pointed a chrome handgun at her face and demanded money. He told her not to look at him and appeared to be “pulling the [telephone] cords out.” After she gave him some cash, he briefly went into a back office for a couple of minutes and, once he returned, told her to not call the police and left.
iii. February 19, 1992 incident John Kendrick testified about a February 19, 1992 incident in Ontario. That evening, he was working in his accounting office with his clients Paul and Mary Crawford, when defendant entered the office. Defendant appeared “[v]ery calm” and was wearing a gray stocking cap on his head. Pointing a small chrome handgun at Kendrick, defendant demanded money. Kendrick and the Crawfords gave defendant several hundred dollars in cash, while defendant repeatedly said, “Don’t look at me, man. Defendant then instructed them not to call the police for 30 minutes, and he left.
iv. February 21, 1992 incident Arnold and Sharyn Andersen testified that they were working together in their insurance and investment office in San Bernardino on the evening of February 21, 1992. [5] After they heard crashing and shattering sounds, defendant appeared *12 in the office, pointing a small chrome, automatic gun at them. Defendant appeared calm and was wearing a beanie. He demanded money and told the Andersens to lie down on the floor, repeatedly telling them not to look at him. He then took some cash from Arnold ’s wallet and Sharyn ’s purse and, after Arnold went into his office to look for more money, defendant took a money clip with approximately $1,200 from him. As he was leaving the office, defendant grabbed a bunch of Kleenex and dabbed his hands where he had cut them from breaking one of the windows to enter the office.
v. June 16, 1992 crimes Bridget E. testified about defendant’s June 16, 1992 crimes in Torrance. She was working at an appraisal office that evening with her boss, Steve H., when defendant entered the office and pointed a gun at them. Defendant was wearing a red bandana over his lower face. He demanded money, so Bridget E. gave him some money from her purse. He proceeded to search the office, asking for the location of a safe. He repeatedly said, “Don’t look at me, man. Don’t look at me, man.”
Next, defendant tied Steve H. with telephone cords and computer cords, unzipped Bridget E.’s pants, and kicked Steve H. in the ribs a few times. Pointing the gun at Bridget E.’s head, defendant ordered Bridget E. to orally copulate Steve H. She told him that she was pregnant and asked him not to hurt her, so “[h]e said, just do what I say and you won’t get hurt — if you don’t want to get hurt.” Bridget E. proceeded to orally copulate Steve H. She could not recall whether she was tied up at that time. Defendant then penetrated Bridget E.’s vagina, initially with his fingers and then with his penis. Once he stopped, he told her to continue copulating Steve H. She recounted that her *13 hands and feet were tied up with cords at that time. After defendant eventually left the office, Steve H. and Bridget E. untied themselves and called the police.
vi. Defendant’s other c riminal convictions At the prosecution’s request, the trial court took judicial notice of 14 prior convictions, of which 13 were for first degree residential burglary and one was for second degree robbery.
b. Victim impact testimony The prosecution ’s penalty phase evidence also included victim impact testimony from Nancy Willem’ s father, mother, and younger sister. The family members described Nancy’s personality and interests, including her interest in singing and playing guitar. During her mother’s testimony, the prosecution played a videotape for the jury depicting Nancy singing at her youngest sister’s wedding a couple of years before her death. The family members further described how Nancy’s death affected them as a family and as individuals. The prosecution also offered a photograph of Nancy, which, according to her father, resembled how she looked around the time of her death.
The prosecution additionally offered victim impact testimony from Bridget E. She testified that after the June 16, 1992 crimes, she was tested “right away” for any diseases, and she was diagnosed with and treated for chlamydia. She also stopped working and by the time of the trial, had not had the opportunity to “get back into” the appraisal busines s. She suffered from nightmares for “a long time” and became “more suspicious of people” and a “more serious person.”
2. Defense Evidence
a. Defendant ’s t estimony Against the advice of counsel, defendant testified during the penalty phase, largely in a narrative form. He began by describing a time when he approached two people who had supposedly killed his cousin and his neighbor. He explained that the man who had killed his neighbor told him to testify about “Wilhelmena’s murder.” Defendant testified that by “Wilhelmena,” he meant Nancy Willem, and that Wilhelmena was “able to reveal the things that ha ppened at the time of the crime. ”
He then testified that ever since undergoing foot surgery when he was a teenager, he suffered from hallucinations and “ill angels,” which controlled his actions. He said that he suffered from these “ill angels” at the time of Willem’s death . As to her death, he said that “ [t]here was one rape ” and a beating of her head with an object, but there was no strangulation. He said that after he took her money and bank information, he raped her because the voices in his head told him that she wanted it. He described that the voices then grew louder and, in order to stop them, he beat, kicked, and stomped her. The voices next took over the left side of his body, causing him to write the note, saying, “Wake up goverenment [ sic ].” He testified that since that night, “Wilhelmena” helped him to control the “ill angels” and intervened to “save the lives of other females that were involved in this case. [6]
b. Evidence regarding defendant’s mental health Much of t he defense’s penalty phase evidence concerned defendant ’s mental health. Clinical psychologist Dr. Joseph Lantz testified that defendant’s intelligence fell within the borderline range, between mental deficiency and low-average, and in his opinion, defendant suffered from schizophrenia. Psychiatrist Dr. Richard Dudley testified that in his opinion, defendant suffered from schizo-affective disorder, which he defined as a combination of schizophrenia and a mood disorder. He further testified that defendant suffered from cognitive deficits and problems related to an invasive mass, which was near his brain and removed after his arrest. A social worker also testified about defendant visiting a psychiatric clinic in 1992.
In addition, Dr. Joseph Wu testified regarding a positron emission tomography (PET) scan of defendant’s brain , of which photographs and a video were displayed to the jury. Dr. Wu testified that while a PET scan cannot alone lead to a diagnosis, defendant ’s brain exhibited abnormalities consistent with a schizophrenia diagnosis. Dr. Ernie Meth testified regarding a SPECT (single-photon emission computed tomography) scan of defendant’s brain , of which photographs and a video were likewise displayed to the jury. Dr. Meth testified that based on this scan, defendant ’s brain exhibited abnor malities that were consistent with the results of Dr. Wu’s PET scan .
when asked by the prosecutor about specific robberies, defendant recalled raping Bridget E., robbing Yenerall, and robbing the Andersens, although he denied robbing Heynen (and was not asked specifically about robbing Kendrick or the Crawfords).
c. Other testimony One of defendant ’s childhood friends, Dwayne Washington, described defendant as a “great kid” with a tough home life and a love for basketball. He testified that defendant became depressed during his teenage years after he underwent foot surgery and was no longer able to play basketball. He testified that on a few occasions around 1984 or 1985, defendant acted strangely and appeared to believe that people were trying to get him. Washington’s mother, Sharon Mitchell, described defendant as a good kid with an “extremely negative” home life. She, too, recalled that defendant began suffering from headaches and memory lapses during his teenage years and recounted a few incidents in which defendant tried to hide under the table to prevent people from getting him. Washington’s aunt, Serette Mitchell-Hughes, testified about one of those incidents as well. These witnesses also testified about defendant later getting married and having a daughter.
Defendant’s former girlfriend, Terry Sylvester, testified that defendant lived with her and her three children around the late 1980 ’ s in Atlanta. She said that during that time, defendant worked and participated in family activities, but one day, he left for work and never returned. He later told her that he went back to California.
A retired correctional officer testified that should defendant be sentenced to life imprisonment, he could function within the constraints of the prison facilities and be safely imprisoned.
3. Prosecution’s Rebuttal In rebuttal, the prosecution offered testimony from two additional witnesses. First, Deputy Jonathan Billings testified *17 about a videotape that he said reflected defendant’s “normal” behavior in jail. The videotape, a portion of which was played for the jury, showed defendant watching television and playing chess with other inmates. Second, psychiatrist Dr. Rajesh Patel testified that when defendant claimed to be suicidal in jail, Dr. Patel examined him and concluded that he was malingering mental illness.
II. P RETRIAL I SSUES A. Prosecutor’s Use of Peremptory Challenges
Defendant contends that the prosecutor improperly
exercised peremptory challenges to excuse two prospective
jurors, who were African-American, in violation of
Batson v.
Kentucky
(1986)
1. Background
Jury selection for defendant ’s trial began on November 18,
1998. Following hardships and other dismissals, the remaining
prospective jurors filled out a 31-page questionnaire. Based on
the completed questionnaires, the parties questioned some of
the prospective jurors on their views regarding the death
penalty pursuant to
People v. Hovey
(1988)
The parties then commenced general voir dire. After the defense challenged an African-American prospective juror for cause and that prospective juror was replaced, the prosecutor proceeded to exercise peremptory strikes against Malinda M. (a Hispanic woman), Kevin C. (an African-American man), Michelle G. (a White woman), Simeon G. (an African-American man), and Ronald W. (a White man). After the prosecutor twice passed on exercising any peremptory strikes and the defense exercised three peremptory strikes, the prosecutor next struck Isabella B. (an African-American woman).
At this time, the defense raised a Batson/Wheeler objection and moved to quash the panel. The defense noted that the prosecutor had used three of his six strikes up to that point on African-American prospective jurors. The trial court found that a prima facie case had been established. The court stated that it understood the basis for striking Isabella B. based on her answers during Hovey questioning, but asked the prosecutor to explain the basis for striking Kevin C. and Simeon G. After hearing the prosecutor ’s reasons , the court found , “As to [Kevin C.] and [Simeon G. ], I think it’s certainly not as obvious, but I cannot say it is not legitimate. [¶] So, at this point in time, I will make a finding that there have been valid reasons to justify excusing those three prospective jurors pursuant to a peremptory challenge.
After the court denied the motion, the 12 prospective jurors seated in the jury box included nine White jurors, two Hispanic jurors, and one “American Indian / Caucasian” juror. *19 The prosecutor twice passed on exercising any peremptory strikes, and the defense exercised four peremptory strikes. The prosecutor then exercised a peremptory strike against Mary B. (an African-American woman). At this time, the defense renewed its Batson/Wheeler objection and motion to quash the panel, arguing that, although Mary B. expressed reservations about the death penalty, the prosecutor had exercised his peremptory strikes to compose an all-White jury panel. The trial court denied the motion, finding that Mary B.’s reservations about the death penalty justified the strike.
After the prosecutor peremptorily struck Richard L. (a Hispanic man), and the defense exercised one more peremptory strike, the parties accepted the main jury panel. The panel included 10 White jurors, one Hispanic juror, and one “ American Indian / Caucasian ” juror . The trial court then proceeded to the selection of six alternate jurors. The prosecutor repeatedly declined to exercise any peremptory strikes, except to strike Lynia B. (a White woman). The sworn alternate jurors included one African-American and five White individuals. Before the penalty phase of the trial, the African-American alternate juror replaced an excused juror and served on the jury.
On appeal, defendant renews his challenge to the prosecutor ’s peremptory strikes of Kevin C. and Simeon G. from the main jury panel. Defendant states that he “is not challenging” the peremptory strikes of Isabella B. or Mary B. As we examine defendant’s Batson/Wheeler arguments with regard to Kevin C. and Simeon G., we bear the above record in mind.
a. Prospective Juror Kevin C. Kevin C., who was African-American, was 32 years old at the time of jury selection. He was divorced with three children and worked as a coach operator. He had previously served in the military and had previously applied, but had not been selected, for other law enforcement positions. His former spouse was a correctional officer.
In his questionnaire, he revealed a degree of skepticism regarding the criminal justice system. He believed that people accused of crimes were treated “leniently if you rich harshly if poor.” He previously served as an alternate juror in a criminal case involving murder charges, and when asked how his jury service experience affected his views on the court system, he said, “ It let me know that no matter the crime or defendant the community selected [as jurors] is both white and blue collar workers.” He believed the biggest problem with the system was “racial coded prison [s] keep racism alive and create even larger bias.” And when asked whether he, any relative, or any close friend had ever been mistreated by a law enforcement officer, he checked “ yes ” and said , “pull [ed] over several times no good reason given no ticket given. ”
Asked whether he was upset by the O.J. Simpson verdict, he checked “ no ” and commented , “To [ sic ] hard to believe one man did it all, I believe biases created a lot of the circumstance [ sic ] evidence.” Also regarding the Simpson case, he said, “watch [ed] several days of the O.J. Simpson trial taught me [a lot] about law in response to whether he had read about, watched, or listened to any testimony regarding DNA evidence. Asked about his opinion on using DNA evidence in criminal *21 cases, he said, “I think it’s like a polygraph not a for sure certain.”
His questionnaire responses also suggested some hesitancy about the death penalty. Asked his opinion on it, he said, “there are members of soci ety who do bad things and don [’ t] deserve to be here, can I kill them? unkno wn at this time.” Asked whether he had a moral, philosophical, or religious objection to the death penalty, he checked “ yes, ” commenting, “God should decide life or death, but some don’t deserve [] life.” He identified himself as Christian and described his religion’s view as “thou should not kill . ” He said that he agreed with that view, although he added, “but if my child was being attack [ed] someone might die[]. ” As to whether he would vote to keep or abolish the death penalty, he said that he would not vote and remarked, “I like to decide who could stay in society but not decide who stays on earth (I’d like to sleep).” He believed that the death penalty was unfair but admitted , “mainly because I don’t know it completely.”
In spite of this, he said that his views on the death penalty had changed in the last 10 years, commenting, “at first against but now feel it is needed in special circumstances.” H e identified himself as belonging to Group 3, which wa s defined as “I neither favor nor oppose the death penalty. ” He said that his views on the death penalty were not such that he would never be able to personally vote for the death of the defendant under any circumstance. Nor would he be reluctant to vote for a sentence of death. But he said that he would be reluctant to sign the verdict form or state the verdict in court , commenting, “to look at someone not knowing why he did it would be hard.
During Hovey questioning, the prosecutor asked Kevin C. about his moral, philosophical, or religious objections to the death penalty. Kevin C. responded , “I feel where I live I should decide. Where I’m a Christian. I go to church, so I think, you know, I can’t. I think God should decide. But, you know, I think I should decide if I live in the community.” Following up on this response, t he prosecutor asked, “ Then you made a comment, though, on the next page. ‘I’d like to decide who could stay in society, but not decide who stays on earth.’ That m eans you feel comfortable [with] making a decision if somebody should be maybe incarcerated, but you feel less comfortable making a decision as far as life or death on an individual?” Kevin C. responded , “Well, of course I feel uncomfortable about life or death, but incarcerated for the rest of their life, if they don’t believe, I would probably go that way, you know. Just an assumption. But, again, I don’t think I’d have a big problem, depending on evidence of what is in front of me. If someone killed my daughter, then I could see it.” The prosecutor clarified that “of course we have a victim that you weren’t acquainted with” and “[y]ou don’t know her at all.” Kevin C. said, “Right, I’m just saying —”
The prosecutor then defined aggravating and mitigating evidence and asked, “But you’re going to hear, like you may hear some bad evidence, and you may hear some good evidence. But basically, if the bad outweighs the good — ” Kevin C. responded, “If the bad outweighs the good, then I don’t have a pro blem doing my job. ” Asked “[w]hich means you could, you could vote for a death verdict,” Kevin C. responded, “Yeah.”
When the trial court subsequently called the first 12 prospective jurors, including Kevin C., to the jury box, the court and the parties asked a series of questions to the jurors as a *23 group. Neither the prosecutor nor the defense asked Kevin C. any individual questions during general voir dire.
Following defendant’s Batson/Wheeler objection, the prosecutor stated his reasons for striking Kevin C.: “ [Kevin C.] in his questionnaire compared DNA to a polygraph. That it wasn’t a for sure thing. His answers on the questionnaire regarding the death penalty were much more tentative. He indicated questions like he wants to decide who is in society, but not [wh o’s ] on earth. He was very skeptical of the O.J. Simpson case. He stated biases created the circumstantial evidence in the O.J. Simpson case. This is a DNA case very much like that. It’s a circumstantial case. It’s a DNA case. Those, those are the main concerns that I had.” The prosecutor added, “I think that in person his, his statements about the death penalty didn’t rise to a level for cause; but, however, I think when you take the totality of his responses, I think, I mean those are essentially the reasons that I’m stating.” The court found that the prosecutor’s reasons for striking Kevin C. were legitimate and valid.
b. Prospective Juror Simeon G. Simeon G. was an unmarried, 24-year-old African-American man with no children at the time of jury selection for defendant ’s trial. He worked as a forklift driver. He had previously considered working in law enforcement to help others, and his father worked for the DEA.
In his questionnaire, he described himself as a leader rather than a follower and remarked , “I like my opinion over other peoples [ sic ]. He said that he had not previously worked with a group of people to make a decision, although he believed “it would be very interesting” to work wit h other jurors to reach *24 a verdict. He had not previously served on a jury. Asked whether he believed the jury system to be a fair method to judge a defendant charged with a crime, he replied affirmatively, commenting, “12 people have to come together to accuse someone. That[’]s 12 different opinions. Pretty impressive.”
He considered the biggest problems with the criminal justice system to be “A. The Court Backlog. B. Better ways of getting people through the judicial system.” He believed he could be a fair and impartial juror, stating, “I’m open to objectively listening to evidence from both sides to decide a fair verdict. ” He did not believe that testimony by law enforcement officers would be more truthful or accurate than testimony by civilians; he would not automatically accept the opinion of a psychiatrist or psychologist; and he could follow an instruction that if a defendant does not testify, jurors are not supposed to draw any conclusions from that fact.
Asked whether he could follow an instruction “ that a defendant is presumed innocent unless proven guilty beyond a reasonable doubt, ” he checked “ yes ” but commented, “If I have any feeling that he might not have done it, hes [ sic ] innocent.” In that response, it appears that he crossed out the word “doubt” and replaced it with the word “feeling.” Elsewhere, he indicated that he was not upset by the O.J. Simpson verdict (without providing any explanation); that people accused of crimes are treated fairly; and that he “really [didn’t] know anything about DNA evidence in criminal cases. He also favored the death penalty and said that he could vote for a death sentence.
During general voir dire, Simeon G. and two other prospective jurors did not arrive at the courthouse that morning, possibly due to a miscommunication. The defense insisted on *25 trying to locate these missing prospective jurors. The prosecutor objected to doing so, arguing that other prospective jurors in their group were present in court and thus inferring that the missing prospective jurors “voluntarily absented themselves.” It appears that the trial judge, seeing from Simeon G.’s questionnaire that he worked for Kmart Corporation, “called information and got the numbers of two Kmart stores in the Ontario area and [called] to try to locate Simeon [G.].” Simeon G. then called and spoke to the bailiff, and at the bailiff’s request, Simeon G. came to court that afternoon.
That afternoon, the prosecutor explained to the prospective jurors who were seated in the jury box, including Simeon G.: “[O]ne of the instructions you’re goin g to get in the case has to do with, essentially, reasonable doubt. There will be a definition that you’re going to get at the end of the case. It’s basically a doubt based on reason. And the duty is that if the case has been proved by the prosecution beyond a reasonable doubt, your duty is to return a guilty verdict. There’s [ sic ] also other principles that are, I don’t know how deeply we touched on them in the questionnaire, but the presumption of innocence. Of course, everybody who is charged with a crime is entitled to the presumption of innocence, and that is in existence right now. [¶] The question is, is if it [ sic ] at the conclusion of the case if the case has been proved beyond a reasonable doubt whether we can expect everybody to come back with a guilty verdict. ”
Immediately following this explanation, the prosecutor asked Simeon G., “ [I]n your questionnaire you mentioned something — and keep in mind I’m not intending to, you know, embarrass anybody or anything like that. It’s just, like I said, this is the only way we can get information quickly is to kind of be in a group at this point. [¶] You mentioned that if — [Simeon *26 G.], you mention in your questionnaire that if you had any feeling that maybe the defendant was [not] involved, then he’d be not guilty.” [7] Simeon G. replied, “I’m sorry?” The prosecutor explained, “In your questionnaire, you used the phrase that if you have a feeling that the defendant was [not] involved, that you’d find him not guilty. And you used the word ‘feeling’ instead of the word ‘doubt.’ You’d written ‘doubt’ and crossed out and written the word ‘feeling.’ Do you remember that?” Simeon G. replied, “I don’t quite remember it, but I’m t rying to understand your question. You’re saying if I had a reasonable doubt?”
The prosecutor responded, “Well, I’m not sure. I’m trying to understand what you meant by that. You indicated that if you had a feeling that he might not be involved, then he would be not guilty?” Simeon G. replied, “Well, I think what I was trying to say, if I’m correct, is that if the evid ence showed that there wasn’t — that there was some reasonable doubt, then I probably would not accuse him, because of the fact that, myself being in the same situation or anybody, I think that if the evidence didn’t totally prove that I did it, then there is some doubt. You know w hat I’m saying?” The prosecutor said, “Okay.” Simeon G. added, “So it wasn’t so much a feeling as it was if the evidence didn’t show.” When the prosecutor sought to clarify the answer , asking, “Okay. So you would base it on evidence? ” Simeon G. replied , “Basically, yes. I’m sorry.” The prosecutor commented , “I wanted to make sure , ” and Simeon G. *27 added , “I couldn’t tell you, tell you what I said, because I don’t have the paper to look at what I actually meant totally.” The prosecutor concluded , “Okay. Thank you.”
Following defendant’s Batson/Wheeler objection, the prosecutor stated his reasons for striking Simeon G.: “[Simeon G.] made statements on his questionnaire how he likes his opinions over others. He did make a statement, although he explained it differently in court, he made a statement on his questionnaire basically saying if I have a feeling he didn’t do it, he’s not guilty. And he had crossed out the word doubt, which led me to believe that he certainly wasn’t going to base it on evidence. [¶] And I, also, would note that this is an individual who the Court personally tracked down this morning. He didn’t have — he, unlike others in his group, didn’t show up for court this morning. I would be concerned about his responses in light of the fact that he was, he was single-handedly hunted down to be here this afternoon. So, I’m not sure that his responses in court should prevail over the answers he gave on his questionnaire. But certainly those statements on his questionnaire cause me some significant concerns.”
Seeking clarification, t he court asked, “His answer being that if he had a feeling the defendant was not guilty, that was the answer that bothered you?” The prosecutor responded, “Yes, based on — and he had crossed out the word doubt. And to me that made it sound like he was going to be basically basing it on a hunch, or a feeling, which was, as the presenter of evidence, I’m powerless to overcome. And that was the main concern on that.” The prosecutor then added, “Also, he was not upset by the O.J. Simpson verdict. If you’ll notice across the board, I’ve excused jurors I believe of Hispanic origin and Caucasian origin, and the common denominator, essentially, is that they were not, *28 were not upset by the O.J. Simpson verdict, which was a DNA, circumstantial case. And I think those, those raise significant concerns in my mind as a guilt phase juror and the type of case that I’m dealing with.”
Following the prosecutor’s reasons, d efense counsel stated that Simeon G. misunderstood whether “he was supposed to be here today or t omorrow” and, once it was clarified, he appeared. Defense counsel continued , “[Simeon G.] checked on his questionnaire with regard to the death penalty that he’s a Group 2, that he favors the death penalty, but would weigh and consider aggravating circumstances. [¶] He really doesn’t give any answers that suggest that he couldn’t be fair and impartial. He indicates that his father was a D.E.A. agent. [¶] With regard to DNA, he said he didn’t know anything about it.”
The court responded, “Well, I understand that there’s certainly not enough there to excuse him for cause, but that’s not the test that I have to utilize in this situation. I have to determine whether or not there are valid, legitimate reasons for the District Attorney dismissing three of the four Blacks that were called to the box. [¶] As I indicated, as to [Isabella B.], I understand his concern there. As to [Kevin C.] and [Simeon G.], I think it’s certainly not as obvious, but I cannot say it is not legitimate. [¶] So, at this point in time, I will make a finding that there have been valid reasons to justify excusing those three prospective jurors pursuant to a peremptory challenge. But I don’t need to remind counsel that we’re treading on thin ice in this area, and the consequences of falling through means we start all over again.”
2. Discussion
a. Applicable law
The United States and California Constitutions prohibit
the discriminatory use of peremptory challenges. (
Batson
,
supra
,
“ ‘The proper focus of a
Batson/Wheeler
inquiry, of course,
is on the subjective
genuineness
of the race-neutral reasons
given for the peremptory challenge,
not
on the objective
reasonableness of those reasons. . . . All that matters is that the
prosecutor ’s reason for exercising the peremptory challenge is
sincere and legitimate, legitimate in the sense of being
nondiscriminatory.’ ” (
People v. O’Malley
(2016)
“ ‘ “ ‘[T]he trial court is not required to make specific or
detailed comments for the record to justify every instance in
which a prosecutor’s race -neutral reason for exercising a
peremptory challenge is being accepted by the court as
genuine.’ ’ ” (
People v. Vines
(2011)
Where, as here, the trial court ruled pursuant to the third
stage of the analysis, we skip to that stage to examine whether
the trial court properly credited the prosecutor’s reasons for the
challenges. “Review of a trial court’s denial of a
Wheeler/Batson
motion is deferential, examining only whether substantial
evidence supports its conclusions. [Citation.] ‘We review a trial
court’s determination regarding the sufficiency of a prosecutor’s
justifications for exe rcising peremptory challenges “ ‘with great
restraint.’ ” [Citation.] We presume that a prosecutor uses
peremptory challenges in a constitutional manner and give
great deference to the trial court’s ability to distinguish bona
fide reasons from sham excuses. [Citation.] So long as the trial
court makes a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered, its conclusions are
entitled to deference on appeal.’ ” (
People v. Lenix
(2008)
Defendant, however, argues that the trial court’s findings are not entitled to deference here because the prosecutor’s reasons were “suspicious” and, after hearing them, the court credited them without much discussion on the record. We disagree. The trial court found that a prima facie case had been established and asked the prosecutor to explain the basis for striking Kevin C. and Simeon G. The prosecutor’s stated reasons were largely self-evident: It requires “ little additional explication ( Gutierrez , supra , 2 Cal.5th at p. 1171) to understand why an advocate would harbor a concern about a prospective juror’s stated preference for his own opinion over others’ or a prospective juror’s opinion on DNA evidence, the death penalty, or the O.J. Simpson verdict. Moreover, the prosecutor articulated why, specifically, some of the prospective jurors’ responses concerned him. The court also asked the prosecutor a question about one of his stated reasons for striking Simeon G. (See ante , at p. 26 [“ His answer being that if he had a feeling the defendant was not guilty, that was the answer that bothered you?”].) And the court listened to defense counsel’s comments on the prosecutor’s striking of Simeon G. [8] The trial *32 court acknowledged that “there’s certainly not enough there to excuse [Simeon G.] for cause,” but the trial court accurately explained that “that’s not the test” and instead it must determine whether there were “valid, legitimate” reasons to just ify the prosecutor’s peremptory challenges.
The court then acknowledged that the prosecutor’s stated
reasons for striking Kevin C. and Simeon G. were not as
“obvious” (as the reasons for striking another prospective juror,
Isabella B.). The court, howev er, concluded that the prosecutor’s
reasons for striking Kevin C. and Simeon G. were legitimate and
valid. The court added , “I don’t need to remind counsel that
we’re treading on thin ice in this area, and the consequences of
falling through means we star t all over again.” While the
discussion was brief, and while the trial court could have done
more to make a fuller record and itself acknowledged it was
making a somewhat close call, the record shows that the court
considered the prosecutor’s reasons and, as discussed below,
those reasons were plausible and supported by the record. In
these circumstances, while a more detailed colloquy may well
have been helpful, the prosecutor and the trial court adequately
developed the record, and on this record, we conclude that the
trial court’s findings are entitled to deference . (See
People v.
opn.,
post
, at p. 2.) We disagree. The fact that the trial court
did not “understand” the strikes as to Kevin C. and Simeon G.
—
before the prosecutor provided his reasons for them
— and
asked the prosecutor to explain those strikes does not mean that
the prosecutor’s reasons, once provided, were not self-evident.
Nor do we require that the prosecutor’s reasons be “obvious.”
Rathe r, the prosecutor’s reasons, once provided, “were either
self- explanatory or were explained at the hearing.” (
People v.
Smith
(2018)
i. Comparative juror analysis “Also relevant here, in light of defendant’s appellate arguments, are principles pertaining to comparative juror analysis, which, on a claim of race-based peremptory challenges, compares the voir dire responses of the challenged prospective jurors with those of similar jurors who were not members of the challenged jurors’ racial group, whom the prosecutor did not challenge. [Citation.] ‘[C]omparative juror analysis i s but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination.’ ” ( O’Malley , supra, 62 Cal.4th at pp. 975 – 976.) Comparative juror analysis is appropriately confined to the jurors defendant has specifically discussed in his appellate briefing. ( Winbush , supra , 2 Cal.5th at pp. 442 – 443.)
“ Where, as here, the comparative analysis was not made
at trial, ‘the prosecutor generally has not provided, and was not
asked to provide, an explanation for nonchallenges.’ [Citation.]
Therefore, ‘an appellate court must be mindful that an
exploration of the alleged similarities at the time of trial might
have shown that the jurors in question were not really
comparable.’ [Citation.] Wh en a defendant asks for
comparative juror analysis for the first time on appeal, we have
held that ‘such evidence will be considered in view of the
deference accorded the trial court’s ultimate finding of no
discriminatory intent.’ ” (
O’Malley
,
supra
,
In supplemental briefing, defendant takes issue with our approach to conducting comparative juror analysis for the first time on appeal. He argues that we should ignore some of the Attorney General’s efforts to distinguish challenged prospective jurors from those purportedly similar jurors whom the prosecutor did not challenge. Considering such distinctions, defendant argues, is inconsistent with recent decisions by the high court and “increases the risk that ra cial discrimination will persist in the criminal justice system.”
D efendant’s argument rests primarily on
Miller-El v.
Dretke
(2005)
We have recognized that “in judging why a prosecutor
exercised a particular challenge, the trial court and reviewing
court must examine only the reasons ac tually given. ‘If the
stated reason does not hold up, its pretextual significance does
not fade because a trial judge, or an appeals court, can imagine
a reason that might not have been shown up as false.’ ” (
Jones
,
supra
,
Absent further explanation from the high court, we do not
read
Miller-El
to require us when conducting comparative juror
analysis for the first time on appeal, to turn a blind eye to
reasons the record discloses for not challenging
other
jurors even
if those jurors are similar in some respects to excused jurors.
Reading
Miller-El
to restrict our review of the record in this
manner would seem inconsistent with the high court’s
subsequent statement that the high court in
Miller-El
“made it
clear that in considering a
Batson
objection, or in reviewing a
*36
ruling claimed to be
Batson
error, all of the circumstances that
bear upon the issue of racial animosity must be consulted.”
(
Snyder
,
supra
,
That said, we take the opportunity to clarify and to emphasize the following two points about our approach to comparative juror analysis.
First, comparative juror analysis is a form of circumstantial evidence that is relevant on the issue of purposeful discrimination. “ I f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise- similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson ’s third step.” ( Miller-El , supra , 545 U.S. at p. 241.) When a prosecutor states multiple reasons for challenging a juror, a comparison between the challenged juror and a similar nonchallenged juror in regard to any one of th e prosecutor’s stated reasons is relevant, but not necessarily dispositive, on the issue of purposeful discrimination. (See id . at p. 247, fn. 6 [“ The dissent contends that there are no white panelists similarly situated to [the challenged jurors] because ‘ “ ‘[s]imilarly situated’ does not mean matching any one of several reasons the prosecution gave for striking a potential juror — it means matching all of them.” ’ [Citation.] None of our cases announces a rule that no comparison is probative unless the situation of the *37 individuals compared is identical in all respects, and there is no reason to accept one”] .) [9]
Second, when conducting comparative juror analysis for
the first time on appeal, we need not turn a blind eye to reasons
the record discloses for not challenging other jurors. “This is so
because a party legitimately may challenge one prospective
juror but not another to whom the same particular concern
applies. [Citation.] ‘Two panelists might give a similar answer
on a given point. Yet the risk posed by one panelist might be
offset by other answers, behavior, attitudes or experiences that
make one juror, on balance, more or less desirable. These
realities, and the complexity of human nature, make a formulaic
comparison of isolated responses an exceptionally poor medium
to overturn a trial court’s factual finding.’ ” (
People v. Chism
*38
(2014)
However, “we bear in mind that comparative juror analysis is not simply an exercise in identifying any conceivable distinctions among prospective jurors. ‘A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters.’ [Citation.] Rather, because the ultimate question before us concerns the prosecutor’s motivations in exer cising the challenge in question, we must ask whether there were any material differences among the jurors — that is, differences, other than race, that we can reasonably infer motivated the prosecutor’s pattern of challenges.” ( O’Malley , supra , 62 Cal.4th at p. 977.) In determining whether there were any material differences among the jurors, we note that differences among the jurors generally will be more probative if they closely relate to reasons the prosecutor has stated for a peremptory challenge. Because in this case we rely on differences among the jurors that closely relate to reasons the prosecutor has stated for a peremptory challenge, we need not opine on whether differences among the jurors can be material even if they are wholly unrelated to reasons the prosecutor has stated for a peremptory challenge.
b. Prospective Juror Kevin C.
As a preliminary matter, defendant accurately points out
that the prosecutor questioned Kevin C. regarding the death
penalty but did not question Kevin C. regarding DNA evidence
or the O.J. Simpson verdict. (See
Smith
,
supra
, 4 Cal.5th at
p. 1152 [“an attorney’s failure to meaningfully examine a
prospective juror about a subject about which the attorney
*39
claims to be concerned can constitute evidence of pretext” ].) The
prosecutor ’s failure to question Kevin C. about “each and every
area of articulated concern, however, does not necessarily
demonstrate that those concerns were pretextual. (
People v.
Cowan
(2010)
Defendant also accurately points out that the prosecutor did not question other prospective jurors regarding DNA evidence or the O.J. Simpson verdict during voir dire. Defendant argues that this circumstance suggests that the prosecutor was not sincerely concerned about jurors’ views regarding these topics. Our review of the record confirms that *40 both the prosecutor and the defense asked very few questions during voir dire. [10]
However, our review of the record also indicates that, contrary to defendant’s argument, the prosecutor appeared interested in jurors’ views regarding DNA evidence and the O.J. Simpson verdict. For the questionnaire, the prosecutor proposed various questions regarding scientific evidence, even leading defense counsel to request modifications to those *41 questi ons because defense counsel “really [didn’t] like having blood and semen, DNA, and all that stuff repeated over, and over again in the questions as though it’s an important thing for [the prospective jurors] to be worried about in the case before they even hear what the evidence is.” During voir dire, the prosecutor also asked the prospective jurors as a group whether they would “have a problem applying basically the law, and finding circumstantial evidence is every bit as important as direct evidence.” The prosecutor later explained that he considered O.J. Simpson’s case to be similar to defendant’s case given that both relied on DNA evidence and circumstantial evidence. Keeping these and all relevant circumstances in mind, we proceed to examine each of the prosecutor’s stated reasons for striking Kevin C.
Regarding the prosecutor’s first reason, the prosecutor stated , “[Kevin C.] in his questionnaire compared DNA to a polygraph. That it wasn’t a for sure thing.” The prosecutor’s case relied heavily on DNA evidence. The prosecutor’s reason for striking Kevin C. is plausible, supported by the record, and race neutral. However, defendant argues that five other jurors (Jurors Nos. 10 and 11 and Alternate Jurors Nos. 1, 4, and 5) expressed similar reservations about DNA evidence yet were neither questioned nor excused by the prosecutor. Not so.
Unlike Kevin C., these other jurors did not express a
negative opinion on DNA evidence. Rather, when asked about
DNA evidence, Juror No. 10 replied, “s hould be admitted if can
show + prove accuracy; ” Alternate Juror No. 1 replied, “All
evidence if more conclusive than not should be considered; ” and
Alternate Juror No. 4 re plied, “No opinion . In addition,
although Alte rnate Juror No. 5 replied, “It[’] s ok but shouldn’t
be only evidence used” and stated elsewhere, “ seems it could be
*42
accurate, ” this response merely emphasized his preference to
consider all evidence, a concept that he repeated elsewhere in
his questionnaire. Lastly, Juror No. 11 responded, “OK if it[’] s
true evidence. This response might suggest that some DNA
evidence may not be “true” evidence, but even if so, this response
was less negative than Kevin C.’s response, which characterized
all DNA evidence as “like a polygraph not a for sure certain.” Thus, the prosecutor “could plausibly have distinguished”
among these views regarding DNA evidence in deciding to strike
only Kevin C. (
People v. Mills
(2010)
As to the second reason, the prosecutor accurately
characterized Kevin C.’s questionnaire responses re garding the
death penalty as “tentative.” “A prospective juror’s views about
the death penalty are a permissible race- and group-neutral
basis for exercising a peremptory challenge in a capital case.” (
People v. McDermott
(2002)
Kevin C.’s questionnaire responses indicated that he was uncertain whether he could vote for a death sentence and that he had religious reservations about the death penalty. He *43 wrote, “there are members of s ociety who do bad things and don [’] t deserve to be here, can I kill them? unknown at this time.” He believed that the death penalty was unfair and said that he would be reluctant to sign a verdict form for a sentence of death or state the verdict in court. He identified himself as a Christ ian who generally agreed with his religion’s view that “thou should not kill.” Asked whether he had a moral, philosophical, or religious objection to the death penalty, he checked “ yes, commenting, “God should decide life or death, but some don’t deserve [] life.” He also wrote, “I like to decide who could stay in society but not decide who stays on earth (I’d like to sleep).”
It is true that Kevin C. said during
Hovey
questioning that
he could vote for a death sentence, and when asked about his
religious objection to the death penalty, he explained, “ I feel
where I live I should decide. Where I’m a Christian. I go to
church, so I think, you know, I can’t. I think God should decide.
But, you know, I think I should decide if I live in the
community.” But the prosecutor acknowledged this, stating, “I
think that in person his, his statements about the death penalty
didn’t rise to a level for cause; but, however, I think when you
take the totality of his responses, I think, I mean those are
essentially the reasons that I’m stating.” Given “ [t]he totality
of” Kevin C.’s responses regarding the death penalty , the record
amply supports the prosecutor’s stated concern. (See
Lomax
,
supra
,
Defendant nevertheless contends that the prosecutor’s reason was pretextual because Kevin C.’s reservations about the death penalty mirrored those of Jurors Nos. 2, 5, 6, 8, and 9 and Alternate Jurors Nos. 1 and 4, whom the prosecutor did not strike. Unlike Kevin C., none of the jurors identified by defendant expressed a religious objection to the death penalty. (Cf. Winbush , supra , 2 Cal.5th at p. 436 [upheld peremptory challenge where “[t]he trial court o bserved [the prospective juror’s] statement that only God can take a life expressed a ‘startling and dramatic’ reservation about the death penalty based on what appeared to be the juror’s strongly held religious beliefs [and] [t]he court observed that no other juror had expressed such a strongly held view”].)
Instead, most of these jurors merely expressed a degree of unfamiliarity or slight discomfort with the death penalty. For example, Alternate Juror No. 4 appeared unfamiliar with the death penalty, indicating that she did not know whether the death penalty was used too often or too seldom or whether it was fair or unfair, and stating, “I would have to decide based on the evidence + the judge [’] s instructions regarding [the] death penalty.” Juror No. 5 had “mixed emotions” about the death penalty, but she believed the death penalty was fair, she would vote to keep it “[j]ust in case,” and she would not be reluctant to vote for a sentence of death, sign the verdict form, or state the verdict in court. Juror No. 9 stated, “I have mixed emotions. I must know that someone is actually guilty, I feel the death penalty is fair.” She also would vote to keep the death penalty, believed it was used too seldom, and would not be reluctant to vote for a sentence of death, sign the verdict form, or state the verdict in court. And, while Alternate Juror No. 1 made clear that her opinion on the death penalty “depend[ed] on the crime,” *45 she also confirmed that she believed the death penalty was fair and would not be reluctant to vote for a death sentence, sign the verdict form, or state the verdict in court.
Some of the jurors identified by defendant, however, expressed more significant reservations about the death penalty. Juror No. 6 commented, “insecure about my feelings. I do believe in the death penalty but do not know how I feel about administering it. ” But, she, too, said that she would vote to keep the death penalty, that it was fair and used too seldom, and that she would not be reluctant to personally vote for a death sentence, sign the verdict form, or state the verdict in court. She also identified with Group 2, which was defined as “I favor the death penalty, but will not always vote for death in every case of murder with special circumstances.” During Hovey questioning, she said that she might be reluctant to sentence somebody to death, but asked whether “feeling guilty” in her “heart” might “affect the way [she] act[s] on the way [she] feel[s] in [her] head,” she confirmed , “No, I can truthfully say, no, I would not. No. It’s just my own feelings, I should say.” She confirmed that she could follow the law, she could sign a verdict form for a death sentence , and although she “wouldn’t feel good about it,” she could state the verdict for a death sentence in court.
In addition, Juror No. 8 identified with Group 4, which was defined as “I have doubts about the death penalty, but I would not vote against it in every case.” He believed the death penalty was used too often and said that the death penalty “should be reserved for only the most heinous of crimes . ” But he characterized the death penalty as fair and would vote to keep it because it is a “necessary evil. He said that his views were not such that he could never vote for a death sentence, *46 explaining, “if the situation proved to warrant such a punishment, I would vote for it. He also said that he would not be reluctant to personally vote for a death sentence, sign the verdict form, or state the verdict in court, although he “would not automatically seek the highest punishment.” During Hovey questioning, Juror No. 8 said, “I used to really be for the death penalty, but since then I’ve changed my views to I’m not totally against it, but I’m not totally for it either.” He acknowledged that he viewed life imprisonment as a more suitable punishment. But, asked whether this view might cause him to favor that sentence regardless of the evidence, he replied, “Not necessarily. That’s my personal view, you know, depending on the evidence, you know. I would choose what I thought was right.” He confirmed that he could follow the law and could vote for a death sentence.
We find that Juror No. 6’s responses and Juror No. 8’s responses were not so similar to Kevin C.’s responses regarding the death penalty as to cast doubt on the trial court’s acceptance of the prosecutor’s reason for striking Kevin C. While Juror No. 6 expressed some discomfort and reluctance with voting for a death sentence, she made clear that she supported the death penalty and she ultimately confirmed that she could vote for a death sentence. And while Juror No. 8 believed that the death penalty should be reserved for “only the most heinous of crimes,” he made clear that he supported the death penalty and could vote for it in those circumstances. By contrast, among Kevin C.’s tentative and vacillating respons es about both his view on the death penalty and his ability to vote for a death sentence, Kevin C. indicated that he had a religious objection to the death penalty and agreed with his religion’s view that “thou should not kill.” These responses called int o question the fundamental *47 propriety of the death penalty and differed from Juror No. 6’s belief in the death penalty and Juror No. 8’s opinion that the death penalty was a “necessary evil” for the “most heinous of crimes.”
Lastly, Juror No. 2 stated, “I am no t in favor of the death penalty, ” and believed that it was not fair and was used too often. He believed the purpose of the death penalty was “supposedly to deter crime.” Asked whether he had a moral, philosophical, or religious objection to the death penalty, he checked “ yes ” and elaborated, “I do not believe it deters crime . ” He did not refer to any religious beliefs, and he subsequently said that he did not have a religious preference or affiliation. Although he initially said that he “[ w]ould not vote to decide whether or not to keep the death penalty, he subsequently said that he probably would vote to keep the death penalty. In addition, he said that his views were not such that he could never vote for a death sentence, explaining, “I would and could follow the law.” He said that he would not be reluctant to personally vote for a death sentence or personally sign a verdict form for a death sentence, although he would be reluctant to stand up in court, facing the defendant, and state the verdict for a death sentence. He identified himself as belonging to Group 4, which was defined as “I have doubts about the death penalty, but I would not vote against it in every case.” During Hovey questioning, the prosecutor asked, “I think one of your concerns is you were kind of skeptical that maybe it doesn’t deter crime, if that’s the purpose of it . . . . [W]ould you be able to return, personally vote for a death verdict if you felt it was, if it felt [ sic ] the evidence supported, and the law supported it?” Juror No. 2 replied , “Yes.”
We find that Juror No. 2 made clear that he did not support the death penalty, and that Juror No. 2’s responses regarding the death penalty were similar in some respects to Kevin C.’s responses regarding the death penalty. We agree with defendant that the comparison between Juror No. 2 and Kevin C. has some probative value. That said, we also find that, unlike Kevin C., who gave tentative and vacillating responses about his view on the death penalty and his ability to impose it, Juror No. 2 was more clear and consistent in both respects: Juror No. 2 more clearly and consistently said that he did not support the death penalty, but Juror No. 2 also more clearly and consistently said that he could impose it. When the prosecutor asked Juror No. 2 whether he would be able to personally vote for a death verdict even though he was “kind of skeptical that maybe it doesn’t deter crime,” Juror No. 2 replied, “Yes.” Juror No. 2’s responses differed from Kevin C.’s more tentative and conflicted responses: “there are members of society who do bad things and don[’] t deserve to be here, can I kill them? unknown at this time” and “I like to decide who could stay in society but not decide who stays on earth (I’d like to sleep) . ” In addition, unlike Kevin C., Juror No. 2 did not invoke a religious objection to the death penalty. Thus, comparing the totality of their respective responses regarding the death penalty, we find some similarities as well as some differences, and we conclude that the comparison has probative value within our inquiry as to whether the prosecutor’s stated reason for striking Kevin C. was pretextual.
We additionally note that, in stark contrast to Kevin C., who believed DNA evidence was “ like a polygraph not a for sure certain and who was not upset by the O.J. Simpson verdict because he found it “hard to believe” Simpson was solely *49 responsible for the crimes and suggested “biases” created much of the evidence, Juror No. 2 believed that DNA evidence was “accurate” and was upset by the O.J. Simpson verdict because “[Juror No. 2] believe[d] it was proven beyond a reasonable doubt that [Simpson] was guilty .” By noting these differences between Juror No. 2 and Kevin C., we do not intend to suggest that the similarities between Juror No. 2 and Kevin C. in regard to the death penalty are irrelevant within our analysis or that defendant must identify an exactly identical juror to prove purposeful discrimination. (See ante , at pp. 35 – 37.) Rather, “because the ultimate question before us concerns the prosecutor’s motivations in [striking Kevin C.], we must ask whether there were any material differences [between Kevin C. and Juror No. 2] — that is, differences, other than race, that we can reasonably infer motivated the prosecutor’s pattern of challenges. ” ( O’Malley , supra , 62 Cal.4th at p. 977.) Considering these and all relevant circumstances, we ultimately find no adequate basis to overturn the trial court’s ruling.
As to the prosecutor’s final reason, Kevin C. checked “ no when asked whether he was upset by the O.J. Simpson verdict
and said , “To [
sic
] hard to believe one man did it all, I believe
biases created a lot of the circumstance [
sic
] evidence.” We have
previously held that a prospective juror’s opinion of the O.J.
Simpson trial is a nonbiased ground for a peremptory strike.
(See
Smith
,
supra
, 4 Cal.5th at p. 1153;
Vines
,
supra
,
51 Cal.4th at pp. 851 – 852;
Mills
,
supra
,
The NAACP Legal Defense & Educational Fund, Inc. (LDF), however, has filed an amicus curiae brief arguing that asking about a prospective juror’s opinion of the O.J. Simpson verdict is a proxy for race because most Black people support the verdict and most White people do not. LDF refers to studies *50 finding, in 1995, that approximately 22 percent of Black people and 79 percent of White people believed Simpson was guilty. In response, the Attorney General argues, inter alia, that public opinion regarding the Simpson verdict is less clear than LDF suggests. The Attorney General refers to studies finding that “the number of Blacks who believe Simpson was guilty more than doubled to 45% by 2007 and became a majority view of 57% by 2015, and thus “selection of Miles’s jury occurred at a time when the percentage of Whites who believed Simpson guilty was decreasing and the percentage of Blacks who believed him guilty was increasing .”
LDF’s argument that more Blacks than Whites support
the Simpson verdict, “even if factually correct, doe s not establish
that the criterion is not race neutral.” (
Melendez
,
supra
,
We assume that LDF’s argument is factually correct, and we consider this circumstance to be relevant to our inquiry as to whether the prosecutor’s reason was sincere and not merely *51 pretextual. However, the record here does not show that the prosecutor’s reason was pretextual. The voir dire in this case began in Southern California approximately three years after the Simpson trial in Los Angeles, making it likely that the prospective jurors were familiar with and had formed opinions about that case. The prosecutor specifically expressed concern about the prospective jurors’ opinions of the Simpson verdict because the prosecutor considered Simpson’s case to be similar to defendant’s case given that both cases relied on DNA evidence and circumstantial evidence. And it appears that the prosecutor was not alone in considering Simpson’s case to be similar in some respects to defendant’s case. For example, while discussing the draft jury questionnaire regarding scientific evidence, the court commented, “I’m assuming part of [the prosecutor’s] concern is whether there’s a juror that just says, I absolutely would not believe anything that involved DNA evidence based on my daily watching of the O.J. Simpson trial or something of that nature.” For another example, while questioning the prospective jurors about DNA evidence during voir dire, defense counsel twice referred to the O.J. Simpson case, including to comment that “there’s been a lot of publicity about [DNA] [and] most people are familiar, to some degree or another, wi th the O.J. Simpson case.”
In addition, the prosecutor struck several non-African-
American prospective jurors who were not upset by the verdict,
suggesting that the prosecutor’s concern was sincere and not
merely a pretext for excusing African-American prospective
*52
jurors. (Cf.
People v. Woodruff
(2018)
Finally, contrary to defendant’s argument, comparing Kevin C.’s response to other jurors’ responses does not undermine the credibility of this reason. Unlike Kevin C., who was not upset by the O.J. Simpson verdict because he found it “hard to believe” that Simpson was solely responsible for the crimes, and suggested that “biases” created much of the circumstantial evidence, Alternate Juror No. 5 simply checked “ no ” when asked whether he was upset by the verdict and expressed no further thoughts regarding it. Similarly, while Juror No. 6 checked “ no ” to the same question but commented, “evidence not clea r, ” Juror No. 6’s response was more measured than and dissimilar to Kevin C.’s response. (See Vines , supra , 51 Cal.4th at p. 851 [responses by two prospective jurors “dissimilar” where one said, “the Simpson trial ‘restored’ his ‘faith’ ” and the other said, “ ‘ It raised my concerns on jury selection and impact of televising a trial ’ ].) Neither Alternate Juror No. 5’s response nor Juror No. 6’s response resembled Kevin C.’s harsh rebuke of the prosecution’s evidence in the O.J. Simpson case , nor did they inject the concept of “bias es ” into the result.
In short, each of the prosecutor’s reasons is supported by the record, and considered together, they provide ample, nonbiased grounds for striking Kevin C. Substantial evidence therefore supports the trial court’s conclusion that the prosecutor struck Kevin C. for reasons other than his race.
c. Prospective Juror Simeon G.
The first reason offered by the prosecutor was that Simeon
G. liked his own opinion over other people’s opinions. In his
questionnaire, Simeon G. described himself as a leader, rather
than a follower, because he liked his opinion over other people’s
*54
opinions. Although Simeon G. did not assert in this or other
questionnaire responses that he would be unwilling or unable to
deliberate with fellow jurors, the prosecutor reasonably could be
concerned that Simeon G. might have difficulty considering
other opinions and deliberating with fellow jurors — particularly given that Simeon G. had not worked with a group
of people to make a decision before. (Cf.
Lenix
,
supra
, 44 Cal.4th
at p. 623 [“[a]n advocate is entitled to consider a panelist’s
willingness to consider competing views [and] openness to
different opinions”];
People v. Gutierrez
(2002)
The dissent does not attach any import to Simeon G.’s response, positing that “[e]veryone likes his or her opinion over other pe ople’s.” (Dis. opn., post , at p. 5.) But the prosecutor was not required to interpret the response as the dissent does. It is not only that Simeon G. said he liked his opinion over other people’s ; it is also that he made this statement in order to explain why he would describe himself as a “leader” rather than a “follower.” The prosecutor could reasonably have understood this response, in context, to suggest that if another person had a different opinion, Simeon G.’s view of leadership would cause him to prefer his own opinion “over” the opinion of the other person. It was not unreasonable for the prosecutor to ascribe some significance to Simeon G.’s response.
That said, we recognize that the prosecutor did not ask
Simeon G. during voir dire about his stated preference for his
own opinion over other people’s opinions. The prosecutor’s
failure to engage Simeon G. on each concern, however, is not
conclusive in determining whether the prosecutor’s reasons
*55
were pretextual. (See, e.g.,
Cowan
,
supra
,
Despite this, defendant contends that a comparative juror analysis between Simeon G. and Juror No. 1 discredits the pros ecutor’s reason. It does not. Juror No. 1 identified herself as a leader, rather than a follower, and elaborated, “I like to make my own decisions.” Although Juror No. 1’s response was similar in some respects to Simeon G.’s response , the prosecutor could reasonably have found Juror No. 1’s response to be less concerning in context than Simeon G.’s response. Jurors are expected to make their own decisions after deliberating with fellow jurors — which Juror No. 1 previously had done to reach a verdict in a separate case. The prosecutor thus could have concluded that Juror No. 1’s statement that she liked to make *56 her “own decisions” did not call into question her openness to considering other opinions before returning a verdict. Simeon G. ’s response , by contrast, could reasonably cause concern about his openness to considering other opinions, and unlike Juror No. 1, he had not previously served on a jury or worked with a group of people to make a decision. (See Chism , supra , 58 Cal.4th at p. 1321 [where a juror, similar to two challenged prospective jurors, lacked supervisory work experience, the fact that the juror had previously served on a separate jury in a capital case “substantiall y distinguishe[d] him from [the two challenged prospective jurors]”] ; Vines , supra , 51 Cal.4th at pp. 851, 852 [comparative juror analysis rejected where answers were “dissimilar” and “significant differences in life experiences” existed between jurors].) [12]
Thus, we find some similarities as well as some differences between Simeon G. and Juror No. 1 in regard to the prosecutor’s first reason for striking Simeon G., but we ultimately conclude that their respective responses were not so similar as to cast doubt on the trial court’s acceptance of the prosecutor’s reason for striking Simeon G. We additionally note that Juror No. 1 did not raise any of the other concerns the prosecutor raised in explaining his reasons for the strike. Unlike Simeon G., Juror *57 No. 1 expressed that she was upset with the O.J. Simpson verdict because she “believe[d] he was guilty , ” and she did not suggest that she might rely on her feelings in reaching a verdict in the guilt phase.
As to the second reason for striking Simeon G., the prosecutor expressed concern that Simeon G. might rely on hunches or feelings, rather than evidence, in reaching a verdict in the guilt phase since he replaced the word “doubt” with the word “feeling” and said in his questionnaire that if he had a feeling the defendant did not do it, the defendant was not guilty. The record shows that when asked whether he could follow an instruction that a defendant is presumed innocent unless proven guilty beyond a reasonable doubt, Simeon G. checked “ yes; commented, “If I have any feeling that he might not have done it, hes [ sic ] innocent;” and in this comment, replaced the word “doubt” with the word “feeling.”
When asked about this response, Simeon G. did not “quite remember” replacing the word “doubt” with the word “feeling.” The dissent posits that Simeon G. “most likely” recognized a double negative in his original comment and replaced the word “doubt” with the word “feeling” in an effort to correct it. (Dis. opn., post , at p. 8.) This is a possible explanation. But Simeon G. did not provide this explanation. And had he intended to correct the double negative, he could have revised his comment in multiple ways, including, for example, by crossing out the word “not” or by replacing the word “doubt” with the word “belief.”
But Simeon G. replaced the word “doubt” with the word “feeling,” and as revised, his statement read that if he had “any feeling” that the defendant “might” not have done it, the *58 defendant was innocent. T he word “feeling” is ordinarily used to mean “[a]n idea, belief, or sense (especially a vague or irrational one) that a particular thing is true; an impression that something is about to happen or is the case; an intuition about something” or “[t]hat which a person feels in regard to something; attitude, esp. emotional attitude, sentiment; opinion or belief based on emotion or intuitio n and not solely on reason.” (Oxford English Dict. Online (3d ed. 2015) <https://oed.com/view/Entry/68981?rskey=QkM9MC&result=2 &isAdvanced=false#eid> [as of May 22, 2020].) [13] To the prosecutor, Simeon G.’s response that if he had “any feeling” that the de fendant “might” not have done it, the defendant was innocent “made it sound like [Simeon G.] was going to be basically basing it on a hunch, or a feeling, which was, as the presenter of evidence, [the prosecutor was] powerless to overcome.”
The prosecuto r’s concern was plausible and supported by the record. We acknowledge that Simeon G.’s questionnaire response may be interpreted in multiple ways and that his other questionnaire responses did not indicate that he would rely on his feelings in reaching a verdict in the guilt phase. However, the prosecutor was not obliged to accept the most innocuous interpretation of Simeon G.’s questionnaire response and could be legitimately concerned about his response for the reasons the prosecutor specifically articulated. (See People v. Mai (2013) 57 Cal.4th 986, 1050, 1051 [where the prospective juror’s remarks “might be taken more than one way,” the prosecutor *59 “was not obliged to accept [ the defendant’s] precise interpretation of [the juror’s] ambig uous remarks, and [the prosecutor] could reasonably be concerned about [these remarks]”] .)
It is true, however, that Simeon G. explained his questionnaire response differently during voir dire. During voir dire, the prosecutor explained to the prospective jurors, including Simeon G., that “if the case has been proved by the prosecution beyond a reasonable doubt, your duty is to return a guilty verdict” and the question is if “at the conclusion of the case if the case has been proved beyond a reasonable doubt whether we can expect everybody to come back with a guilty verdict.” Immediately after this, the prosecutor asked Simeon G. about his questionnaire response. Simeon G. did not “quite remember” his questionnaire response, but when asked what he meant by it, Simeon G. explained, “Well, I think what I was trying to say, if I’m correct, is that if the evidence showed that there wasn’t — that there was some reasonable doubt, then I probably would not accuse him, because of the fact that, myself being in the same situation or anybody, I think that if the evidence didn’t totally prove that I did it, then there is some doubt. You know what I’m saying?” Simeon G. added, “So it wasn’t so much a feeling as it was if the evidence didn’t show.” Asked whether he “would base it on evidence,” Simeon G. responded, “Basically, yes. I’m sorry.” He added, “I couldn’t tell you, tell you what I said, because I don’t have th e paper to look at what I actually meant totally.”
Reviewing this colloquy in the appellate record, the dissent views Simeon G.’s responses to have “left no ambiguity about the issue. (Dis. opn., post , at p. 9.) To be sure, Simeon G. gave answers du ring voir dire that, from the prosecutor’s *60 perspective, were less concerning than Simeon G.’s questionnaire response and helped to explain his questionnaire response. However, in this colloquy, Simeon G. also said that he did not “quite remember” his ques tionnaire response, and because he did not have a copy of the questionnaire, he could not tell the prosecutor “what [he] actually meant totally” by it. Simeon G. referenced that if the evidence “didn’t totally prove” that the defendant did it, “then there is some doubt.” And when asked whether he “would base [the verdict] on evidence,” he responded, “[b]asically,” yes. These portions of Simeon G.’s answers may not have been entirely reassuring to the prosecutor, who was concerned that Simeon G. would rel y “on a hunch, or a feeling, which was, as the presenter of evidence, [the prosecutor] was powerless to overcome.” Thus, reviewing this colloquy in the appellate record — unaided by Simeon G.’s tone or demeanor — we do not conclude that Simeon G.’s respon ses “left no ambiguity” and necessarily mollified any prosecutorial concern about his questionnaire response. (Dis. opn., post , at p. 9.)
Moreover, when providing his reasons for striking Simeon
G., the prosecutor acknowledged that Simeon G. explained his
questionnaire response “differently in court.” Nevertheless, the
prosecutor told the trial court that Simeon G.’s explanation
during voir dire did not eliminate the prosecutor’s concern about
Simeon G.’s questionnaire response . The prosecutor explained
that he was still concerned about Simeon G.’s responses “in light
of the fact that he was, he was single-handedly hunted down to
be here this afternoon. So [the prosecutor was] not sure that his
responses in court should prevail over the answers he gave on
his questionnaire. The dissent seems to contend that the
prosecutor was obliged to abandon his concern about Simeon
*61
G.’s written response because Simeon G. explained that
response differently in court under oath and “left no ambiguity
about the issue.” (Dis. opn.,
post
, at p. 9.) We disagree. Faced
with seemingly different responses, the prosecutor was not
obliged to abandon his concern about Simeon G.’s written
response, which was signed under penalty of perjury, in light of
Simeon G.’s oral response — and in fact, the prosecutor made
clear to the trial court that he did not. (Cf.
Vines
,
supra
,
The trial court was “ ‘ best situated ’ to assess Simeon G.’s
responses in court and the prosecutor’s stated concern in light
of those responses. (
People v. Armstrong
(2019)
It is by no means clear from the record that if he had been
selected, Simeon G. would have relied on his feelings in reaching
a verdict in the guilt phase. But “ [o]ur task is not to determine
whether we would have shared the prosecutor’s concerns ; the
only question before us is whether substantial evidence supports
the court’s ruling that the prosecutor described legitimate
reasons for the challenge and that he challenged [Simeon G.] for
those reasons, not because of [his] race.” (
Smith
,
supra
,
We find that t he prosecutor’s concern here is plausible, supported by the record, and race neutral. Contrary to defendant’s argument, his comparative juror analysis between Simeon G. and Juror No. 5 does not undermine the sincerity of the prosecutor’s concern. Asked whether she could follow a *63 presumption-of-innocence instruction, Juror No. 5 checked “ yes and wrote , “Try to follow instructions.” Reading this statement to suggest that she could not or would not follow the instruction is strained, and we decline to do so. The record therefore provides no adequate basis to overturn the trial court’s ruling.
For the final reason, the prosecutor said that Simeon G. (like Kevin C.) was not upset by the O.J. Simpson verdict. As discussed, a prospective juror’s opinion regarding the Simpson case can be a nonbiased ground for a peremptory challenge. Defendant and LDF, however, argue that this reason was a proxy for race or, alternatively, pretextual. As discussed, we assume that LDF’s argument that more Blacks than Whites support the Simpson verdict is factually correct, and we consider this circumstance to be relevant to our inquiry as to whether the prosecutor’s reason was sincere and not merely pretextual. In this particular case, however, it is plausible that the prosecutor — tasked with securing a conviction in San Bernardino County approximately three years after the Simpson trial took place in the adjacent Los Angeles County — was sincerely concerned about the prospective jurors’ opinions regarding the Simpson verdict becaus e the prosecutor considered Simpson’s case to be similar to defendant’s case given that both cases relied on DNA evidence and circumstantial evidence. Also as discussed, it appears that the prosecutor was not alone in considering Simpson’s case to be similar in some respects to defendant’s case because both the trial court and defense counsel referred to Simpson’s case at various points when discussing DNA evidence. (See ante , at p. 50.) In addition, four of the five non- African-American prospective jurors whom the prosecutor struck were not upset by the O.J. Simpson verdict, suggesting that the prosecutor’s concern was sincere and not merely a *64 pretext for striking African-American prospective jurors. (See ante , at pp. 50 – 51.)
That said, we find that the credibility of the prosecutor’s concern here is undermined to some degree by the prosecutor’s failure to ask Simeon G. or other prospective jurors about the O.J. Simpson verdict during voir dire. In his questionnaire, Simeon G. indicated that he was not upset by the O.J. Simpson verdict but left blank the follow- up request to “[p]lease explain why or why not.” To be sure, we recognize that one might infer from this response that Simeon G. was not upset by the O.J. Simpson verdict because he simply agreed with the verdict, requiring little explanation. But we also recognize that a prospective juror may not be upset by the O.J. Simpson verdict for a variety of reasons. While the prosecutor’s failure to question Simeon G. or other prospective jurors about the O.J. Simpson verdict does not necessarily demonstrate that the prosecutor’s concern was pretextual, we consider this circumstance to be relevant to our inquiry as to whether the prosecutor’s concern was pretextual here. (See Smith , supra , 4 Cal.5th at p. 1152 [“an attorney’s failure to meaningfully examine a prospective juror about a subject about which the attorney claims to be concerned can constitute evidence of pretext” ].)
When the prosecutor gave this reason for striking Simeon G., the prosecutor stated, “If you’ll notice across the board, I’ve excused jurors I believe of Hispanic origin and Caucasian origin, and the common denominator, essentially, is that they were not, were not upset by the O.J. Simpson verdict, which was a DNA, circumstantial case. ” Defendant argues that the prosecutor’s statement meant that “he had struck all prospective jurors who were not upset with the O.J. Simpson verdict” and “this is not *65 what the record shows at all” beca use the prosecutor did not strike Juror No. 6 or Alternate Juror No. 5. [15] Contrary to defendant’s argument, the prosecutor’s statement is fairly read to mean that the prosecutor had struck prospective jurors “across” different races, including a Hispanic p rospective juror and a Caucasian prospective juror, who were not upset by the O.J. Simpson verdict. And at the time of the statement, the prosecutor indeed had struck three non-African-American prospective jurors, two of whom — Malinda M. (a Hispanic woman) and Ronald W. (a White man) — were not upset by the Simpson verdict.
Nevertheless, d efendant’s comparative juror analysis between Simeon G. and Juror No. 6 and Alternate Juror No. 5 has some probative value and is more convincing than it was with respect to Kevin C. [16] As noted, Simeon G. checked “ no as *66 to whether he was upset by the Simpson verdict but did not explain why. His response was thus identical to Alternate Juror No. 5’s response and less detailed than Juror No. 6’s response , which noted, “evidence not clear.” We find that the credibility of the prosecutor’s concern regarding Simeon G.’s opinion on the O.J. Simpson verdict is undermined to some degree by defendant’s comparative juror analysis. (See Miller-El , supra , 545 U.S. at p. 241 [“If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson ’s third step”].)
We recognize that jurors need not be identical in all respects for a comparison among them to be probative, and we continue to consider defendant’s comparisons to be relevant and probative on the issue of purposeful discrimination here. (See ante , at pp. 35 – 37.) However, we additionally consider as part of our inquiry into the prosecutor’s motivations for striking Simeon G. that Juror No. 6 and Alternate Juror No. 5 were dissimilar from Simeon G. in regard to the prosecutor’s other two stated reasons for striking Simeon G. (See ibid .)
Neither Juror No. 6 nor Alternate Juror No. 5 indicated that they might have difficulty considering the opinions of or deliberating with others when asked whether they considered themselves leaders or followers and why. Juror No. 6 considered herself “[ b]oth a leader and a follower “depend[ing] on what agreed with that verdict, Juror No. 4, Juror No. 7, and Alternate Juror No. 4 explained that they were not upset by the verdict because they had limited information about the case. These explanations likely assuaged the prosecutor’s concern.
interest” she had, and she had experience working with a group of people to make a decision. Alternate Juror No. 5 considered himself a leader because “like to learn, intelligent, people tend to follow my lead.” While his response reflected some self - assuredness, he also said in his response that he “like[d] to learn,” and he had “daily” experience working with a group of people to make a decision and “fe[lt] that there would be no problem working with others. Additionally, neither Juror No. 6 nor Alternate Juror No. 5 indicated that they might rely on their feelings in reaching a verdict in the guilt phase when asked whether they can follow an instruction that a defendant is presumed innocent unless proven guilty beyond a reasonable doubt. By contrast, Simeon G.’s opinion on the O.J. Simpson verdict may have raised more concern about him as a guilt phase juror in this case given that he liked his opinion over other people’s opinions, had not previously worked with a group of people to make a decision, and said that if he had “any feeling” that the defendant “might” not have done it, the defendant was innocent.
Considering these and all other relevant circumstances, we view the issue to be close but ultimately find no adequate basis to overturn the trial court’s ruling under the applicable standard of review. We find that each of the prosecutor’s reasons for striking Simeon G. is plausible, supported by the record, and race neutral. Considering the prosecutor’s reasons tog ether and reviewing the trial court’s determination regarding the sufficiency of those reasons with great restraint (see Lenix , supra , 44 Cal.4th at p. 613), we conclude that substantial evidence supports the trial court’s conclusion that the prosecutor struck Simeon G. for reasons other than his race.
In sum, we find substantial evidence supports the trial
court’s denial of defendant’s
Batson/Wheeler
motion. Although
defendant argues that Kevin C. and Simeon G. were favorable
prospective jurors for the prosecution, “the question is not
whether a prosecutor should or should not have excused a
prospective juror. It is whether this prosecutor excused [them]
for an improper reason. The record provides no sufficient reason
to so conclude or for this court to overturn the trial court’s
ruling” here. (
Hardy
,
supra
,
B. Excusal of Two Prospective Jurors for Cause Defendant contends the trial court erroneously excused two prospective jurors based on their views about the death penalty. We disagree.
“Under
Wainwright v. Witt
(1985)
As a preliminary matter, defendant contends that
deferring to the trial court’s findings o n jury selection issues is
improper for two reasons. First, he argues that such deference
is inappropriate on direct appeal in light of the high court’s
holding in
Greene v. Georgia
(1996)
Second, defendant argues that deferring to the trial court’s
resolution of inconsistencies or ambiguities is contrary to the
high court’s holdings in
Adams v. Texas
(1980)
1. Prospective Juror No. 44 Prospective Juror No. 44’s (Number 44) r esponses to the approximately 31-page jury questionnaire signaled a degree of uncertainty and discomfort regarding the death penalty. She said, “I don’t feel one way or another” on whether the death penalty is fair or unfair, and “I don’t have an opinion” on whether the death penalty is used too often or too seldom. Asked whether the sentence of death or life imprisonment without the possibility of parole was more severe, she responded, “Depends — for me Life w/o parole — for others — I don’t know.” But she also said that she did not like the death penalty, that it made her “uncomfortable,” and that she would vote to abo lish it. She identified herself as belonging to Group 4, which was defined as “I have doubts about the death penalty, but I would not vote against it in e very case.”
She said that her feelings about the death penalty were not such that she “would ref use to find the defendant guilty of first degree murder and/or would refuse to find the special circumstance true, solely to avoid having to make a decision on the death penalty, ” and that she was “ willing to weigh and consider all the aggravating and mitigating factors that will be presented to [her] before deciding the penalty in this case. However, she indicated that she would be reluctant to vote for a *71 death sentence, to sign the verdict form for a death sentence, or to state that verdict in court before the defendant, commenting, “The day I am not reluctant to look a person in the face and sentence them to death will be the day I no longer belong to the human — or should I say humane — race.” As to whether her feelings about t he death penalty were such that she “would never be able to personally vote for the death of the defendant under any circumstances” and “would always vote for a sentence of life without [the] possibility of parole,” she declined to check either the yes or no box. Instead, she commented, “I don’t know — I’ve done a few things I thought I would never do.”
During Hovey questioning, the prosecutor asked whether her identification as belonging to Group 4 (that she has doubts about the death penalty but would not vote against it in every case) was accurate “about the way [she] feel[s] on the death penalty. She responded, “ You know, it’s really hard to say exactly what you would do when you’re not in the situation. I would have — I would never know exactly what I would do until I’m put in that situation. So, yeah, I would have doubts.” The prosecutor then explained that in the penalty phase, the court will provide an instruction listing mitigating and aggravating factors to consider and “essentiall y if you find the aggravating factors outweigh the mitigating factors, then death is the appropriate verdict, if you find that. ” T he prosecutor asked, “Do you think that — can you say for sure, I guess is my question, that if placed in that position with the aggravating factors weighing more heavily, could you personally make the vote?” She responded, “I know, I know what you’re looking for, and I’m sorry. I can’t help you with it, because I don’t know, because there have been too many — I’m 39, and ther e have been too many times that I’ve said I’d never do this, or I’d always do that, *72 and then I’ve done the other. So, I just cannot tell you, unless I’m placed in that situation, unless I’ve gone through it. . . . I just don’t make judgments until I’m in that situation. I just don’t.” Seeking to clarify her answer, the prosecutor asked if she found the aggravating factors weigh heavier than the mitigating factors, “you can’t guarantee me that you could step up to the plate, so to speak, and make a vote f or death?” S he repeated, “I can’t guarantee anything. I don’t deal in hypotheticals , and I just — no, I cannot guarantee you what I would do until I am in that situation, no.”
Defense counsel subsequently explained, “ [T]he Court at the end always gives instructions to jurors about what the law is, and how they’re supposed to carry out their duties. . . . And in a death penalty case, there are certain things that the law allows jurors to consider in deciding whether to select death or life, assuming you were in that position. They’re called aggravating factors, mitigating factors.” Defense counsel then asked, “if you’re selected and sworn as a juror, could you commit yourself under oath to follow what the Judge told you the law was? Or do you thin k there’s something else that might interfere with your ability to do that?” S he responded, “I don’t think there’s anything that would interfere with my ability. And I can’t tell you, and I don’t know if I could follow the law. There’s — I’m — there’s just a good chance that I would or I wouldn’t. You’re going to have to pick me and have me sit here and see, because I just don’t know.”
At the close of this questioning, the prosecutor challenged her for cause. The trial court initially stated, “ She technically comes within the Wainwright [v.] Witt standard. She’s not saying her views are such that it would substantially interfere with her ability to follow the instructions and her duty, she just *73 says she doesn’t know, because it’s such an emotional issue. ” Citing two cases, the prosecutor argued that jurors who insist they do not know or cannot say if they could impose a death sentence are properly excused. Defense counsel responded that Number 44 did not say that she could not or would never impose a death sentence ; “[s]he just felt that she didn’t know under what circumstances. ” The trial court commented, “She was probably an extremely honest juror who really couldn’t give us a definite answer, ” and took the challenge under submission.
Later, after reviewing the record and the authority cited by the prosecutor, the trial court found, “[M]y memory is refreshed that her answers basically were that she could not say whether she would be able to impose the death penalty, and it was not just that she didn’t know whether in this case she could impose the death penalty, because obviously she wouldn’t know until she got — she heard the evidence and the law. But in any situation, basical ly, she didn’t know until she was put in that situation whether she could do it, or whether she could follow the Cou rt’s instructions in this area. . . . I would agree with [the prosecutor ] that that’s sufficiently equivocal. Her ‘I don’t know’ responses are sufficiently equivocal to warrant a challenge for cause, so I will order that she be excused.
The trial court did not err in excusing Number 44.
Number 44 said in her questionnaire and during
Hovey
questioning that she did not know whether she could vote for a
death sentence. Certainly, a juror’s decision as to whether to
vote for a death sentence can be weighty and difficult. “ [E]ven
a juror who ‘might find it very difficult to vo te to impose the
death penalty’ is not necessarily substantially impaired unless
he or she was unwilling or unable to follow the court’s
instructions in determining the appropriate penalty.” (
People v.
*74
Merriman
(2014)
Number 44 further expressed uncertainty as to her ability
to follow the trial court’s
ins tructions regarding the
consideration of aggravating and mitigating factors in deciding
whether to impose a death sentence. Although she said in her
questionnaire that she was willing to weigh and consider all the
aggravating and mitigating factors before deciding the penalty
in this case, she then responded to a similar question during
Hovey
questioning by saying , “I don’t know if I could follow the
law. There’s — I’m — there’s just a good chance that I would or
I wouldn’t. You’re going to have to pick me and have me sit here
and see, because I just don’t know.” “Given the juror’s own
recognition that [she] did not know whether [she] could follow
the law or ever vote for the death sentence, the trial court did
not commit
Witherspoon/Witt
error when it found the juror was
*75
substantially
impaired.”
(
People v. Spencer
(2018)
Nevertheless, defendant compares Number 44 to Juror
White in the high court’s
Adams
opinion and argues that
Number 44’s responses were insufficient to justify her excusal.
“But using
Adams
as a reference point for evaluating the excusal
of [Number 44] is inapt because
Adams
concerned the particular
statutory scheme in Texas, whereby ‘ “[p]rospective jurors sh all
be informed that a sentence of life imprisonment or death is
mandatory on conviction of a capital felony. A prospective juror
shall be disqualified from serving as a juror unless he states
under oath that the mandatory penalty of death or
imprisonment for life
will not affect his deliberations
on any
issue of fact.” ’ [Citation.] As the
Adams
court explained, the
statutory scheme is inconsistent with the standard demanded
by the federal Constitution because ‘neither nervousness,
emotional involvement, nor inability to deny or confirm any
effect whatsoever is equivalent to an unwillingness or an
inability on the part of the jurors to follow the court’s
instructions and obey their oaths, regardless of their feelings
about the death penalty.’ ” (
People v. Thompson
(2016)
Defendant additionally compares Number 44 to Juror
Bounds in the high court’s
Gray
opinion. “ Although the
voir dire
of member Bounds was somewhat confused, she ultimately
stated that she could consider the death penalty in an
appropriate case and the judge concluded that Bounds was
capable of voting to impose it.” (
Gray
,
supra
,
In short, we decline to find error in the trial court’s decision to excuse Number 44 for cause.
2. Prospective Juror No. 63 Prospective Juror No. 63 (Number 63) did not reveal much hesitation regarding the death penalty in his questionnaire *77 responses, but he neglected to answer several questions on the topic. [18] He said that he did not have any moral, philosophical, or religious objection to the death penalty and that he believed the death penalty was fair, noting in part , “If you kill you be killed. ” He said that his feelings about the death penalty were not “such that [ he] would refuse to find the defendant guilty of first degree murder and/or would refuse to find the special circumstance true, solely to avoid having to make a decision on the death penalty; ” that his feelings about the death penalty were not “ such that [he] would never be able to personally vote for the death of the defendant under any circumstances ” and “would always vote for a sentence of life without [the] possibility of parole; ” and that he would not be reluctant to sign the verdict form for a death sentence or state that verdict in court. Inexplicably, however, he failed to respond to several other questions, including, among others, what his general feelings were about the death penalty, what he believed to be the purpose of the death penalty, whether the death penalty was used too often or too seldom, and whether he would vote to keep or abolish the death penalty. Nor did he identify which one of five defined groups most accurately described his opinion regarding the death penalty.
Separately, and without explanation, he checked “ no when asked whether he thought he could be a fair and impartial juror in this case and when asked whether he was “ willing to *78 weigh and consider all the aggravating and mitigating factors that will be presented to [him] before deciding the penalty in this case. ”
During Hovey questioning, Number 63 said that he did not have strong feelings about the death penalty, but that he would not feel comfortable voting for a death sentence and that he would be reluctant to do so. The prosecutor asked , “Do you think your feelings about that might affect the way you judge the guilt or innocence of the defendant?” H e said, “It might.” The prosecutor then asked , “Do you think that your feelings might also affect the way you look at the C ourt’s instructions about the death penalty ?” He again s aid, “It might . He also confirmed that sitting on this type of case might be difficult for him based on his feelings.
The defense subsequently asked, “[D]o your feelings about the death penalty, are they based on a religious or ethical thing, or is it just your own personal feelings about it?” Number 63 responded, “You could say both.” The defense then asked, “If you were to be asked to judge which penalty to impose, and the Court gave you what the rules are, here’s how you decide. You look at all the aggravating factors, and they are 1, 2, 3, 4, 5. You look at all the mitigating factors, 5, 6, 7, 8, 9. Whatever they are. You decide whether the aggravating factors weigh more than the mitigating factors. If they do, then you vote for death. If they don’t, you vote for life without possibility of parole. [¶] Would you be able to follow that instruction?” Number 63 responded, “I don’t know.” T he defense asked, “ What gives you — what is your concern about following that instruction?” Number 63 responded, “ T he way I feel.” To clarify, the defense asked , “Which is that you wouldn’t want to vote for death?” Number 63 responded, “Nope.” Again seeking to clarify, the *79 defense asked , “No, you wouldn’t want to vote for death?” Number 63 responded, “I don’t think so. I’m saying, no, I’m not, but I don’t think so.”
The prosecutor challenged Number 63 for cause “based on his answers, ” and the defense said , “Submit it.” The trial court excused Number 63 for cause.
“Jurors are not required to like the law, but they are
required to follow it .” (
Armstrong
,
supra
,
Here, Number 63 said in his questionnaire that he did not have any moral, philosophical, or religious objection to the death penalty, his feelings were not such that he “would never be able to personally vote for the death of the defendant under any circumstances, and he would not be reluctant to sign the verdict form for a death sentence or state that verdict in court. But he said during Hovey questioning that his feelings about the death penalty were based both on “a religious or ethical thing . . . and [his] own personal feelings,” he “[didn’t] think” he wanted to vote for a death sentence, and he would be reluctant and not feel comfortable doing so.
As with Number 44, a generalized recognition that it would be difficult to impose a death sentence does not mean that a juror is necessarily substantially impaired. (See Merriman , supra , 60 Cal.4th at p. 53.) But Number 63 said more. He indicated in his questionnaire that he was not “will ing to weigh *80 and consider all the aggravating and mitigating factors that will be presented to [him] before deciding the penalty in this case. And when asked during Hovey questioning whether he would be able to follow the court’s instruction regarding considering and weighing the aggravating and mitigating factors, he said that he “[didn’t] know” due to “[t]he way [he] feel[s].” [19]
“ ‘[A prospective] juror’s inability to set aside h is or her
personal views and follow the law, need not be demonstrated
with unmistakable clarity. ’ ” (
People v. Jones
,
supra
, 3 Cal.5th
at p. 615.) Here, Number 63’s written and oral responses could
have left the trial court with “the definite impression that [he]
would be unable to faithfully and impartially apply the law.”
(
Wainwright v. Witt
,
supra
, 469 U.S. at p. 426.) That defense
counsel merely submitted the question to the trial court
[20]
further “suggest[ s] counsel concurred in the assessment that the
juror was excusable.” (
People v. Cleveland
,
supra
, 32 Cal.4th at
p. 735; cf.
Witt
,
supra
,
C. Standard for Excusing Prospective Jurors for Cause
Defendant challenges the standard
for excusing
prospective jurors based on their views of the death penalty.
“ ‘ Under the applicable state and federal constitutional
provisions, prospective jurors may be excused for cause if their
views would prevent or substantially impair the performance of
their duties.’ ” (
People v. Gonzalez
(2012)
III. G UILT P HASE I SSUES A. Denial of Defendant ’s Motion to Suppress Pursuant to a search warrant, the police collected, among other items, a sample of defendant ’s blood and the note from his truck. Before trial, defendant moved to suppress this evidence. The trial court denied his motion. Defendant contends the court erred because the search warrant affidavit contained misrepresentations and omissions that were intentionally false or made in reckless disregard for the truth. The trial court did not err.
1. Background On June 16, 1992, the police received a report that a “black male wearing a white T- shirt armed with a small handgun” had just committed a robbery and rape at a nearby office building in Torrance. (See ante , pt. I.B.1.a.v.) Within minutes of the report, and in the general vicinity from which the suspect may have attempted to flee, two officers spotted defendant in his truck, appearing very nervous and matching the suspect’s general description. The officers unsuccessfully attempted to stop defendant, a chase ensued, and the officers shot and arrested him. Once Detective Lore learned about the arrest, he sought a warrant to search defendant, his residences, and his vehicle.
a. Detective Lore’s affidavit in support of the search warrant
Detective Lore’s 11-page affidavit, dated June 18, 1992, began by describing Willem’s death in Rialto and its apparent connection to other, similar rapes and robberies committed throughout San Bernardino and Riverside Counties. He described two such similar incidents: the Christine C. incident in Victorville and the Osburn and Carole D. incident in San Bernardino. In both incidents, the suspect bound the victims with telephone receiver cords. In the Christine C. incident, “a suspect was described as a tall Black male adult, late 20’s to early 30’s, armed with a sma ll caliber handgun, and in the Osburn and Carole D. incident, the description of the suspect “matched the description of the suspect in the Victorville crime.” Forensic specialist David Stockwell performed a chemical analysis for the three incidents and concluded that “the same suspect that committed the homicide/rape in the Rialto [ sic ], committed the rape in Victorville, [and] was also responsible for the robbery/rape in the City of S an Bernardino.” Based on *83 Stockwell’s analysis, “the subject that was sought after in these series of crimes, is believed to be a Black male that is an ABO type, AB secretor.”
Detective Lore next summarized a series of similar robberies. “The robberies included professional business suites in the late evening hours on Mondays, Tuesdays and Wednesdays, very similar to that of the time of the rapes mentioned previously. The robberies also included a male Black that matched the physical description of the one that was described in two of the rape incidents. The subject was armed with a small caliber semi-automatic handgun at the time of these robberies. During some of the robberies, the victims were bound with telephone receiver cords. During the follow-up interviews with the victims in these cases, it was revealed that in most of the cases the suspect had made some specific comments. The most prevalent being, ‘Don’t look at me.’
Elaborating with respect to a related robbery, Detective Lore said that Arnold and Sharyn Andersen were working at their business when they were “confronted by a tall Black male adult, armed with a small caliber han dgun.” “The suspect made both victims lie on the floor. The subject robbed the victims of approximately $1,600.00 in cash and fled out the same door where he had forced entry. ” Detective Lore continued, “ The investigation by San Bernardino Police Department revealed that the suspect smashed out a small window over the locking area of the door, which led into the rear portion of the business suite. When doing this, the suspect cut himself on the glass and had grabbed a box of Kleenex that was sitting on a counter near the back door to stop some of the bleeding. The Kleenex box was collected and linked to the suspect.”
Detective Lore then noted that four robberies in Riverside “had similar suspect descriptions .” The San Bernardino County Sheriff’s Department also created a sketch of the suspect, which “seemed to be the consensus of most of the victims that saw the suspect during the robberies.”
Next, Detective Lore explained that in June 1992, he learned that the Torrance Police Department had arrested defendant for committing a robbery and rape , during which “the suspect tied both victims with telephone receiver cords, had a chrome handgun, spoke very softly in a calm voice, and had made vaginal penetration with his finger and penis from behind. The suspect also said to the victims, ‘Where is the money’ and ‘Don’t look at me.’ ” According to Detective Lore , “All of the above M.O. traits are consistent with the crimes in the Inland Empire from January through March of 1992.”
Detective Lore then proceeded to describe defendant. According to the Torrance Police Department, he has AB positive blood, which “is the same type of blood that the suspect in the Rialto homicide and the two other rapes in Victorville and San Bernardino [has] .” He “is further described as being very clean with virtually no body fat. The physical description provided by his Calif ornia Driver’s License is 6’6”, 210#, Blac k hair and brown eyes .” “Mr. Miles criminal history from the State of California [citation] describes him also as being a Black male, 6’5”, 200#.” In addition, Detective Lore listed his residences, noting that he listed with the DMV an address in Compton as of March 23, 1992 and that the “crime spree stopped in the Inland Empire on 3/8/92, before the suspect moved to Compton, CA.” Detective Lore concluded, “[b]ased on my experience as being a policeman for approximately 20 years, Mr. *85 Miles displays the physical characteristics as described by the majority of the victims in these cases.”
Detective Lore added, “A photographic line -up with the suspect’s photograph in position #2 was tentatively I.D.’d by victim Heynen, one of the victim’s [ sic ] in the Upland robbery which occurred on 1/21/92. The victim pointed to position #2 (suspect Miles) and said, ‘It could be him.’ ”
Near the end of the affidavit, Detective Lore summarized, “With the exception of the homicide, the suspect in each crime is described as articulate and soft spoken. Witnesses to the robberies described the suspect as being Black male adult, 25-35 years, 6’ - 6’4”, thin build, large dark eyes, dark hair, wearing a dark blue or black watch cap, dark blue or black Levi type pants, an[d] at times was described as having a thin moustache. Information derived from his driver’s license history, criminal history and booking information reveals his physical description of 6’6”, 210#, black hair and brown eyes.” Detective Lore believed evidence from these crimes would be located during searches of defendant, his residences, and his vehicle and listed the items sought and described the places and person to be searched. Judge Gunn issued the warrant.
On appeal, defendant contends that the affidavit contained misrepresentations and omissions regarding the Kleenex box , Heynen’s identification, and the suspect descriptions. Before trial, Detective Lore testified regarding his affidavit, the search warrant, and the searches conducted pursuant to the warrant. As to the three purported misrepresentations or omissions challenged on appeal, he testified as follows.
First, Detective Lore testified twice about the Kleenex box statement. Initially, the defense elicited the following testimony: “Q. Then you state the Kleenex box was linked to the suspect; is that correct? A. Yes, sir. Q. In what way was the Kleenex box linked to Mr. Miles? A. It was sent to the San Bernardino Crime Lab, but unfortunately the box had been wiped off, and there was nothing of use taken from the box. Q. The purpose of that statement was to assert to the Magistrate, again as a basis for probable cause, that somehow or another there was a scientific link that had been made between the substance on that box and Mr. Miles; is that correct? A. Yes, sir. Q. And that wasn’t true, was it? A. No, sir.”
The prosecutor subsequently recalled Detective Lore to testify about this statement again. At this time, the prosecutor asked whether there were some things in his affidavit “which ultimately were found not to be correct” including “a Kleenex box alleged to have been analyzed and linked to the defendant through scientific evidence.” Detective Lore replied, “Yes.” Asked whether he was aware that this statement was not true at the time of his affidavit, Detective L ore replied, “N o. ” Asked whether he intentionally made this statement with the intent to deceive the magistrate judge, Detective Lore again replied , “N o. Asked to explain why he included this statement, he testified, “ It was my belief at the time that [the] San Bernardino Police Department had collected the Kleenex box, along with the blood stained Kleenexes, that were placed into evidence and they were going to be shipped to the Crime Lab.” He was not sure whether at the time of the affidavit, he anticipated that the items “were going to go [to the lab], or that they were already there.” He acknowledged, though, that at the time of the affidavit, he did *87 not have information that the box had been analyzed or that any comparison had been made.
Second, Detective Lore testified that Heynen had identified another individual during an earlier photographic lineup, but he did not include this information in his affidavit. He said that he orally informed the magistrate judge that he had sought and obtained search warrants with regard to other suspects in this case and that the warrant sought here was “either the fourth or fifth search warrant” sought in this case.
Third, Detective Lore testified that the suspect descriptions in his affidavit were based on the ATM photographs captured after Willem’ s death, police reports, and victim interviews. Regarding the ATM photographs, he explained that he had visited the same ATM camera, and by comparing himself to the photographed suspect, he had estimated that the suspect was approximately six feet, five inches tall or six feet, six inches tall. As to the police reports, the defense pressed Detective Lore, asking him to confirm the height and weight descriptions reported by the victims. [21] When the defense asked whether any *88 of the victims described the suspect as six feet, six inches tall, Detective Lore testified that when he interviewed Arnold, he “said around 6’6”,” explaining that “ [Arnold] was 6’4”, and that he actually had to look up to the suspect .”
Asked by the defense whether he meant to imply “that basically all of these people had similar descriptions” by stating that the robber ies “included a male b lack that matched the physical description” of the Christine C. and Osburn and Carole D. suspect, Detective Lore replied affirmatively. The defense then asked whether, in his opinion, someone who is six feet, 150 pounds “matches” defendant’s height and weight. Detective Lore replied, “After 25 years of law enforcement, you begin to realize that people are not very good with heights and weights.” When the prosecutor subsequently questioned Detective Lore, he confirmed that by the word “matched,” he did not mean to suggest that each victim ’s suspect description exactly mirrored defendant ’s height and weight. Rather, he meant that “[t]he descriptions given by the different witnesses and victims in this case, [were] within a couple of pounds or a couple of inches. And when I say a couple of pounds, 10, 20, 30.” He also confirmed that he included defendant ’s height and weight in the affidavit to make the magistrate aware that discrepancies existed.
b. Trial court’s ruling The trial court evaluated defendant’s contentions with respect to each of the three purported misrepresentations or omissions challenged on appeal.
First, regarding the Kleenex box statement, the trial court reasoned that it could be interpreted in one of two ways. The first possible interpretation was that the “blood on the box had been scientifically matched to the suspect’s bl ood. In this case, *89 Mr. Miles.” By this interpretation, the statement would be false because no tes ting had in fact been done. “H ad the affiant known this at the time that he prepared the affidavit, there would be no question that he made a knowingly and intentionally false statement; and at the very least, he made a statement with a reckless disregard for the truth since he had no information that was the case .” The second possible interpretation was “that the box being linked to the suspect merely meant that the authorities collected the evidence, [and] believed the blood on the box was that of the suspect when he forced entry into the building. ” Or put differently, the affiant at the time that he prepared the affidavit “ believed there was a Kleenex box with blood on it, possibly the suspect’s blood; and that box was taken into evidence to be analyzed. He did not mean to suggest that the analysis had been done and that the blood on the box was that of Mr. Miles.”
The trial court found that this second interpretation was consistent with the surrounding facts in the affidavit and was consistent wit h Detective Lore’s testimony, in which he explained that he had later learned the Kleenex box could not be analyzed because it had been wiped off. The trial court concluded , “[b] ased on the Court’s reading of the affidavit, and having heard the affiant testify on both occasions as to his intentions in including that information, the Court cannot say that he knowingly and deliberately included false information for the purpose of deceiving the Magistrate, nor can the Court find a reckless disregard for the truth on [the] affiant’s part. At most, the Court would find a negligent mistake in drafting the affidavit in such a way that a Magistrate could mistakenly assume there was a scientific link, or failing to include the information that the box was to be analyzed later.
Further, the trial court found that even if the Kleenex box statement were omitted from the affidavit, the affidavit would nevertheless establish probable cause. “The affidavit contained substantial information that the same person likely committed the Willem, [Christine C.], [Carole D.]/Osburn crimes, including serological evidence. There was also information presented that Miles has the same blood type as that found at the Willem crime scene. And finally, there was information that Miles was arrested as a suspect in a similar robbery/rape in Torrance.”
Second, a s to the purported omission of Heynen’s earlier identification, the trial court found , “The identification by Miss Heynen is, at the very least, equivocal and falls short of a positive identification. I can assume that the Magistrate came to the same conclusion, and that the additional information would not have led to a different result or have added anything of substance to the affidavit.”
Third, regarding the suspect descriptions, the trial court “[did] not find this information to be misleading or false, and [did] not find that defendant ha[d] met his initial burden of showing a knowing or intentionally false statement, or reckless disregard for the truth.”
Finally, the trial court found that “the affiant and the executing officers had an objective good faith reliance on the warrant, and the good faith exception to the exclusionary rule would apply in this case.”
2. Discussion
“ ‘ In reviewing a search conducted pursuant to a warrant,
an appellate court inquires “ whether the magistrate had a
substantial basis for concluding a fair probability existed that a
se arch would uncover wrongdoing.” [Citation. ] “ The task of the
*91
issuing magistrate is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the
affidavit befo re him [or her], including the ‘ veracity ’ and ‘ basis
of knowledge ’ of persons supplying hearsay information, there
is a fair probability that contraband or evidence of a crime will
be found in a particular place.” [Citation. ] The magistrate’s
determination of probable cause is entitled to deferential review.
[Citation.] ’ [Citation.] Probable cause sufficient for issuance of
a warrant requires a showing in the supporting affidavit that
makes it substantially probable that there is specific property
lawfully subject to seizure presently located in the particular
place for which the warrant is sought. ” (
People v. Scott
(2011)
“ A defendant has a limited right to challenge the veracity
of statements contained in an affidavit of probable cause made
in support of the issuance of a search warrant. The trial court
must conduct an evidentiary hearing only if a defendant makes
a substantial showing that (1) the affidavit contains statements
that are deliberately false or were made in reckless disregard of
the truth, and (2) the affidavit’s remaining contents, after the
false statements are excised, are insufficient to support a
finding of probable cause.
Innocent or negligent
misrepresentations will not support a motion to traverse.
[Citations.] A defendant who challenges a search warrant based
on
omissions
in the affidavit bears the burden of showing an
intentional or reckless omission of material information that,
when added to the affidavit, renders it insufficient to support a
finding of probable cause. [Citations.] In either setting, the
defendant must make his showing by a preponderance of the
evidence, and the affidavit is presumed valid. (
Scott
,
supra
,
On appeal , “[w]e defer to the trial court’s express and
implied factual findings if supported by substantial evidence,
but we independently determine the legality of the search under
the Fourth Amendment.”
(
People v. Eubanks
(2011)
First, the trial court’s reading of the Kleenex box statement to mean “that the authorities collected the evidence, [and] believed the blood on the box was that of the suspect when he forced entry into the building” (but not to suggest “that the analysis had been done and that the blood on the box was that of Mr. Mil es”) is supported by the record. Indeed, the affidavit’s first several pages detailed the series of robberies and rapes, referring throughout to the “suspect” or the “subject” of those crimes, and made no mention of defendant or his arrest. Reading this statement’s reference to the “suspect” of the Andersens crime to mean defendant is thus strained, as the trial court found.
That said, Detective Lore’s testimony about his own statement necessarily complicates the analysis. At one point, Detective Lore confirmed that the purpose of his statement was to assert that there was a “ scientific link between the Kleenex box and defendant. When later questioned by the prosecutor, however, Detective Lore said that he believed only that the “San Bernardino Police Department had collected the Kleenex box, along with the blood stained Kleenexes, that were placed into evidence and they were going to be shipped to the Crime Lab.” He also confirmed that at the time of his statement, he was not aware that the statement was untrue, and he did not make it with the intent to deceive the magistrate judge. Faced with this inconsistent testimony, and with the opportunity to assess *93 Detective Lore’s demeanor and credibility, the trial court found that his statement was not intentionally false or made with a reckless disregard for the truth. Though the testimony is less than clear, there was certainly substantial evidence to support the trial court’s finding. (See People v. Troyer (2011) 51 Cal.4th 599, 613 [“ on appeal from the denial of a motion to suppress, we are bound by the trial court’s resolution of disputed facts and inferences as well as its evaluations of credibility . . . where (as here) the findings are supported by substantial evidence”].) Simply put, the trial court was entitled to credit Detective Lore’s clarification that he meant to convey in his affidavit that the Kleenex evidence was merely being shipped to the crime lab and that he in no way intended to deceive the magistrate.
In any event, even assuming that this statement was intentionally false or made with a reckless disregard for the truth, and accordingly was excised from the affidavit, the affidavit would nevertheless establish probable cause. The affidavit catalogued the similarities among the series of rapes and robberies, including that the crimes occurred on weekday evenings at professional offices, that several of the victims were bound with telephone cords, and that the suspect was described as a tall, Black man who was armed. In addition, the affidavit described the consistencies between these incidents and the rape and robbery for which defendant was arrested and described defendant as a tall, Black man with AB blood, which was consistent with the suspect descriptions and the forensic analysis.
Second, we turn to the affidavit’s statement about Heynen’s lineup identification . The affidavit stated that Heynen “tentatively” identified defendant in a photographic *94 lineup by saying “ ‘It could be him . ’ ” Although the affidavit did not state that Heynen had identified another individual during an earlier photographic lineup, Detective Lore testified that he orally informed the magistrate judge about prior warrants obtained during the investigation for other suspects. It is conceivable that overstating the certainty of identifications made by victims or selectively including details about such identifications may be substantially misleading in some circumstances. But here, the affidavit described Heynen’s identification of defendant as tentative and quoted her equivocal statement that “ ‘ It could be him .’ The omitted fact of Heynen’s earlier identification, when added to the affidavit, does not render the affidavit insufficient to support a finding of probable cause. As described above, the affidavit contained ample information to establish probable cause, including but not limited to the similarities among the series of rapes and robberies and the consistencies between these incidents and the rape and robbery for which defendant was arrested. [22]
Finally, substantial evidence supports the trial court’s finding as to defendant’s third contention regarding the suspect descriptions. The affidavit plainly stated the range of the suspect’s height as described by the victims, and in the immediately following sentence, set forth defendant ’s actual height and weight. The affidavit therefore made clear the discrepancies between the suspect descriptions and defendant ’s *95 characteristics, as Detective Lore testified he intended to do. Considering this, the fact that he elsewhere in his affidavit summarized the suspect descriptions as similar or matching does not show that he made a false statement, much less made a false statement with an intent to deceive or a reckless disregard for the truth. Similarly, his opinion that, based on his experience as a policeman, “Mr. Miles displays the physical characteristics as described by the majority of the victims in these cases” does not amount to an intentional or reckless falsehood, particularly since he testified that his experience as a policeman indeed taught him that victims were not always accurate in describing suspects. Nor do we find an intentional or reckless omission of material information regarding the suspect descriptions that, when added to the affidavit, renders the affidavit insufficient to establish probable cause. [23]
For these reasons, the trial court did not err.
B. Instruction Regarding Motive Pursuant to CALJIC No. 2.51, the jury was instructed as follows: “Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may *96 tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty. Defendant contends this instruction impermissibly lowered the prosecution’ s burden of proof for the murder by torture charge and the penetration by a foreign object charges in violation of his federal constitutional rights because, according to defendant, motive wa s “effectively” an element of those crimes. We disagree.
1. Murder by Torture The trial court instructed the jury that murder by torture requires in relevant part “a willful, deliberate , and premeditated intent to inflict extreme and prolonged pain upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose.” Defendant argues that this “purpose” element was effectively negated by instructing the jury that motive was not an element of murder by torture.
We previously rejected that precise argument in
People v.
Whisenhunt
(2008)
Nor does defendant’s reliance on
People v. Maurer
(1995)
2. Penetration by a Foreign Object The trial court instructed the jury that penetration by a foreign object under section 289, subdivision (a) requires in relevant part that “[t]he penetration was done with the purpose and specific intent to cause sexual arousal, gratification or abuse.” The trial court further instructed the jury that “ the ‘ specifi c intent to cause sexual abuse,’ as used in this instruction, means a purpose to injure, hurt, cause pain or to cause discomfort. It does not mean that the perpetrator must be motivated by sexual gratification or arousal or have a lewd *98 intent.” Here, again, defendant argues that this “purpo se and specific intent ” element was effectively negated by instructing the jury that motive was not an element of this offense.
We have made clear, however, that motive is not an
element of an offense merely because the offense requires a
particular purpose or intent. (See, e.g.,
Hillhouse
,
supra
,
27 Cal.4th at pp. 503 – 504.) Accordingly, motive was not an
element of the penetration by a foreign object charges simply by
virtue of the charges requiring a particular “purpose and specific
intent.” (Cf.
People v. White
(1986)
C. Instruction Regarding Intent to Kill Defendant contends that the jury was not properly instructed regarding the intent-to-kill requirement of the torture-murder special circumstance and therefore the jury’s finding on this special circumstance violates state and federal law and must be reversed. The trial court instructed the jury pursuant to CALJIC No. 8.80.1 that if it found defendant guilty of first degree murder, the jury must determine if one or more of the following special circumstances are true: “the murder was committed by the defendant while in the commission of, or attempted commission of a robbery, rape or burglary; or the murder was intentional and involved the intent to inflict torture. . . . Unless an intent to kill is an element of a special circumstance, if you are satisfied beyond a reasonable doubt that the defendant actually killed a human being, you need not *99 find that the defendant intended to kill in order to find the special circumstance to be true.”
Regarding the torture-murder special circumstance, the trial court instructed the jury pursuant to CALJIC No. 8.81.18, over the defense’s objection : “To find that the special circumstance, referred to in these instructions as murder involving infliction of torture is true, each of the following facts must be proved: [¶] 1. The murder was intentional; and; [¶] 2. The defendant intended to inflict extreme cruel physical pain and suffering upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose. Awareness of pain by the deceased is not a necessary element of torture.”
Defendant argues that CALJIC No. 8.81.18 ’s directive
that “[t]he murder was intentional” did not adequately instruct
the
jury as to the intent-to-kill requirement of the
torture-murder special circumstance. He acknowledges that in
some cases, CALJIC No. 8.81.18 may adequately instruct the
jury as to this requirement. But he argues that where, as here,
the jury was presented with multiple theories of first degree
murder — specifically, premeditation and deliberation, torture,
and felony murder — and two of those theories did not require
an intent to kill, CALJIC No. 8.81.18’s directive that “[t]he
murder was intentional” did not necessarily require the jury to
find that defendant intended to kill but rather required the jury
simply to find that defendant intended to inflict torture or
intended to commit the crime of rape, robbery, or burglary. In
support of this argument, defendant relies on
People v. Pearson
(2012)
In
Pearson
, the trial court included torture in the list of
felonies on which the jury could base a felony-murder special
circumstance and as to which the jury needed to find only that
defendant, if not the actual killer, acted as a major participant
and with reckless indifference to human life. (
Pearson
,
supra
,
We were unable to conclude beyond a reasonable doubt
that “the court’s instructional error, the omission of an intent -
to-kill requirement for an accom plice’s liability under the
torture- murder special circumstance, was harmless.” (
Pearson
,
supra
,
Defendant’s reliance on Pearson , however, is misplaced. Unlike in Pearson , the instructions here did not include torture in the list of felonies on which the jury could base a felony-murder special circumstance, or as to which the jury needed to find only that defendant acted with reckless indifference to human life. In addition, Pearson addressed CALJIC No. 8.81.18 as it applied to an aider and abettor, not the actual killer.
“In determining whether a legally inadequate theory was
conveyed to the jury here, we must ask whether there is a
‘ “reasonable likelihood” ’ that the jury understood the [relevant
theory] in a legally impermissible manner. [Citation.] In doing
so, we consider the instructions provided to the jury and
counsel’ s argument to the jury.” (
People v. Canizales
(2019)
The instructions here informed the jury that it need not
find that defendant intended to kill in order to find a special
circumstance to be true
unless
an intent to kill is an element of
the special circumstance, and that in order to find the torture-
murder special circumstance to be true, it must find that “[t]he
murder was intentional.” W here, as here, defendant was the
actual killer, CALJIC No. 8.81 .18’s requirement that “[t]he
murder was intentional” adequately instructed the jury as to the
intent-to-kill requirement of the torture-murder special
circumstance. (Cf.
People v. Pensinger
(1991)
D. Felony-Murder Special Circumstances
Defendant contends that the felony-murder special
circumstances are unconstitutional because they do not require
a finding of a culpable mental state when the defendant is the
actual killer. “We have repeatedly held that when the defendant
is the actual killer, neither intent to kill nor reckless
indifference to life is a constitutionally required element of the
felony- murder special circumstance.” (
People v. Jackson
(2016)
IV. C OMPETENCY P HASE I SSUES Admission of Defense Counsel ’s Testimony Regarding Counsel’s “Strategies and Tactics” After the guilt phase, the trial court declared a doubt as to defendant’s competency , suspended proceedings pursuant to section 1368, and commenced a competency trial before a separate jury. Defendant was appointed a different attorney from the public defender’s office , David Negus, to represent him in the competency trial. At the competency trial, the defense argued that defendant was not able to rationally cooperate with his trial counsel, Joseph Canty, and thus was not competent to stand trial. Canty testified on behalf of the defense, and over the defense’s objection, the prosecutor cross-examined him. Defendant contends that the trial court erred in allowing the prosecutor to cross-examine Canty about his “trial tactics and motive for seeking a competency hearing” because this testimony was irrelevant, prejudicial, and protected from disclosure by the attorney-client privilege and attorney work product doctrine. We examine eac h of defendant’s contentions in turn.
1. Competency Trial
a. Defense evidence Five doctors testified on behalf of the defense. Dr. Dudley testified that defendant suffered from schizo-affective disorder and cognitive deficits and was not able to rationally cooperate with his counsel. Dr. Wu testified that defendant ’s PET brain scan showed abnormalities that were consistent with schizophrenia, and Dr. Meth testified that defendant ’s SPECT brain scan showed abnormalities, which were consistent with those shown in the PET scan. Dr. Shoba Sreenivasan, a clinical *104 psychologist, testified that defendant was not able to rationally cooperate with his counsel. Dr. Lantz testified that he diagnosed defendant as schizophrenic undifferentiated, determined defendant’s intelligence to be below average, and did not believe that defendant was able to rationally cooperate with his counsel as a result of his mental illness.
In addition to these doctors, Canty testified. Before he did, the trial court evaluated whether he could testify without obtaining an attorney-client privilege waiver from defendant and to what extent the prosecutor could cross-examine him. The trial court concluded that Canty could testify without obtaining a waiver since it was not clear that defendant was capable of waiving the privilege. The trial court refrained, however, from defining the scope of permissible cross-examination at the outset, suggesting instead that counsel request to approach the bench should the testimony near Canty’s “strategy, motive, trial tactics.”
Canty began his direct testimony by describing his experience with capital cases and his relationship with defendant. He proceeded to chronicle his concerns about defendant’ s decision-making in the case, detailing, among other things, defendant’s refusal to consider a potential plea deal, his desire to testify in the guilt and penalty phases, and his wish to present no mitigating evidence during the penalty phase. Canty testified that he did not believe defendant could rationally cooperate with him.
On cross-examination, Canty acknowledged that his obligation in representing defendant was to exhaust every legal remedy that avoids the death penalty. The prosecutor then inquired into prior occasions on which Canty had voiced *105 concerns about defendant’s competency in this case. With respect to one occasion, earlier in this case, Canty confirmed that defendant ultimately waived his right to a competency jury trial and that “a number of factors” went into that decision, including a “tactical” consideration in seeking to avoid pretrial publicity.
The prosecutor next asked whether the guilt phase jurors were “in limbo” pending the ou tcome of this competency trial, to which Canty confirmed that they were told to “potentially” come back later that month. The prosecutor asked , “And the effect of a finding of incompetency in this particular trial would mean that that jury would be discharged, would it not?” Canty responded, “That would be up to the Judge.” When the prosecutor directed Canty’ s attention to a statutory provision (section 1368) — which, according to the prosecutor, provided that the jury would be discharged upon a finding of incompetency — Canty said he was not familiar with that provision. [25] The prosecutor then asked , “Well, if there is a finding of incompetency, I’m sure you would be arguing that the jury should be discharged, would you not?” Canty replied, “That’s hard to know, because you have to know what the proposed treatment plan is going to be. And I don’t know what the Judge will feel about keeping the jury.” The prosecutor followed up, asking, “Frequently there’s a, there’s a tactica l advantage in death penalty cases to have a second, separate jury *106 impaneled for the penalty phase that did not hear the guilty phase; is that correct?”
The defense immediately asked to approach the bench. Outside the presence of the jury, the defense st ated, “It sounds like we’re getting into Mr. Canty’s tactical decisions. I realize thus far it’s been expressed just in the abstract, but [it would] appear that we’re starting to focus in on it in this particular case.” T he defense objected to the line of questioning as irrelevant and prejudicial. In response, the prosecutor explained th at he intended to show that Canty’s motive for this competency trial was to obtain a new penalty phase jury. The trial court took the matter under submission. It ultimately ruled that the prosecutor could bring before the jury “this question of motivation” for the competency trial. The trial court instructed the prosecutor, however, that he otherwise should probably “stay away” from asking about “what’s going on in [Canty’s] mind .
Back in the presence of the jury, the prosecutor returned to his question as to whether “ [f]requently it’s a defense tactic in capital cases to seek a new jury for the penalty phase.” Canty testified , “I can’t answer that yes or n o. I would think that depending upon the status of the case and a given case, I could conceive that counsel might wish to have another jury handle the penalty phase, and there would be a variety of reasons for that.” Asked about another capital case where he had tried the penalty phase before a jury, Canty confirmed that he had moved for a new penalty phase jury in that case. The prosecutor’s remaining, and relatively extensive, questioning regarded Canty’s concerns about defendant’s decision -making in the case.
On a brief recross-examination, Canty confirmed that in determining defendant’s sentence, the penalty phase jury would consider evidence it had heard during the guilt phase. In the event of a new penalty phase jury, he explained that the witnesses who testified in the guilt phase would either be recalled, or counsel would stipulate as to their testimony. Finally, the prosecutor asked whether Canty had previously told the prosecution in this case that he may move for a new penalty phase jury . Canty responded, “I — if I — I don’t remember making that statement. I wouldn’t say that I didn’t. I don’t remember saying that.” The prosecutor followed up, asking, “It’s possible? And by that I mean, motion for a separ ate penalty phase jury?” Canty responded, “Yes. If that’s — that’s the question I’m answering, yes.” The parties subsequently stipulated that Canty “has not made a motion for separate juries for guilt and penalty phase in this case.
b. Prosecution evidence A forensic psychologist, Dr. Lee Guerra, testified that defendant was competent to stand trial and that he suspected defendant was malingering mental illness. A psychiatrist, Dr. Jose Moral, likewise testified that defendant was competent to stand trial and that he, too, suspected defendant was malingering mental illness. [26]
An investigator testified that when he served defendant with a court order for a handwriting exemplar, defendant refused to comply. The investigator believed that defendant understood the request but considered it to not be in his best *108 interest to comply with it. A videotape showing defendant watching and playing chess with other inmates in jail was also played for the jury, and Deputy Billings testified that defendant’s behavior on the tape was generally consistent with his behavior in jail. [27]
2. Discussion
a. Whether the testimony was irrelevant and unduly prejudicial
Only relevant evidence is admissible. (Evid. Code, § 350.)
Relevant evidence is defined as “evidence, including evidence
relevant to the credibility of a witness or hearsay declarant,
having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) “ The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
*109
prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352.) “ ‘ Prejudice, ’ as used in Evidence Code
section 352, is not synonymous with ‘ damaging. ’ [Citation.]
Rather, it refers to evidence that uniquely tends to evoke an
emotional bias against the defendant as an individual, and has
little to do with the legal issues raised in the trial. ” (
People v.
McCurdy
(2014)
“A trial court has ‘considerable discretion’ in determining
the relevance of evidence. [Citation.] Similarly, the court has
broad discretion under Evidence Code section 352 to exclude
even relevant evidence if it determines the probative value of
the evidence is substantially outweighed by its possible
prejudicial effects. [Citation.] An appellate court reviews a
court’s rulings regarding relevancy and admissibility under
Evidence Code section 352 for abuse of discretion. ” (
Merriman
,
supra
,
Here, defendant argues that the testimony about Canty’s “strategy and tactics” was irrelevant and unduly prejudicial. Defendant “recognizes that in many cases, evidence of a testifying witness’s motivation might be useful to assessi ng the credibility of the witness, but he argues, with little explanation, that Canty “was a sworn officer of the court [and] testifying under penalty of perjury. ” Defendant additionally argues that “the prosecutor’s theory that Mr. Canty’s state of mind would shed light on [defendant’s] mental health required the exact type of speculative inference condemned by this court.” In *110 response, the Attorney General argues that Canty’s testimony was relevant both to Canty’s credibility and to show “the potential benefits of faking incompetence” since the prosecutor argued that defendant was faking incompetence for an ulterior purpose.
We conclude that the trial court did not abuse its
discretion under Evidence Code section 352 when it permitted
the prosecutor to cross-examine Canty about his possible motive
for seeking a competency trial. As noted, Canty was a witness
during the competency trial and did not represent defendant for
purposes of that trial. Whether the guilt phase jury would be
discharged upon a finding of incompetence, whether there were
advantages to impaneling a new penalty phase jury, and
whether Canty previously considered seeking a new penalty
phase jury in this case is evidence relevant to his credibility as
a witness in this competency trial. (Cf.
People v. Turner
(2004)
As to Canty’s testimony that he previously sought a new penalty phase jury in another capital case, defendant did not raise a timely and specific objection to this particular testimony. Although we acknowledge that defendant objected to the prosecutor’s overall efforts to show that Canty’s motive for the competency trial was to obtain a new penalty phase jury in this case, we find that defendant forfeited any claim of error as to this particular testimony regarding the other capital case. Even if we assume for the sake of argument that this portion of his claim was preserved and admitting this testimony was error, however, we would find any such error harmless in light of Canty’s other, properly admitted testimony , including his testimony that he “could conceive that counsel might wish to have another jury handle the penalty phase, and there would be a variety of reasons for that” and that it was “possible” that he told the prosecution that he may move for a new penalty phase jury in this case.
b. Whether the testimony was protected by the attorney-client privilege and attorney work product doctrines
The attorney-client privilege protects from forced
disclosure “ a confidential communication between client and
lawyer.” ( Evid. Code, § 954.) The Evidence Code defines
“confidential communication between client and lawyer” as
“information transmitted between a client and his or her lawyer
in the course of that relationship and in confidence by a means
which, so far as the client is aware, discloses the information to
no third persons other than those who are present to further the
interest of the client in the consultation or those to whom
disclosure is reasonably necessary for the transmission of the
information or the accomplishment of the purpose for which the
*112
lawyer is consulted, and includes a legal opinion formed and the
advice given by the lawyer in the course of tha t relationship.”
(Evid. Code, § 952.) The “ ‘fundamental purpose’ ” of the
attorney- client privilege is “ ‘to saf eguard the confidential
relationship between clients and their attorneys so as to
promote full and [frank] discussion of the facts and tactics
surrounding individual legal matters.’ ” (
Los Angeles County
Bd. of Supervisors v. Superior Court
(2016)
Defendant contends that admitting Canty’s testimony
regarding his “tactical decisions” violated the attorney-client
privilege. Canty’s challenged testimony, however, did not
violate the attorney-client privilege because it related primarily
to general legal principles and publicly available facts. For
example, his testimony about the procedural effects of an
incompetence finding or the potential advantages in impaneling
a new penalty phase jury spoke to legal concepts in nonspecific
terms and did not disclose the content of any confidential
communications between Canty and defendant. (Cf.
People v.
Clark
(2016)
Admittedly, a couple of the prosecutor’s questions came closer to potentially eliciting privileged information. First, the prosecutor asked whether Canty would argue for a new penalty phase jury upon a finding of incompetency in this case (putting aside any applicable statutory provision). Although this question moved beyond the more general line of questioning, Canty’s noncommittal response to this hypothetical question that it was “hard to know” and that he did not know “what the Judge [would] feel about keeping the jury” fell short of revealing any privileged information. Second, the prosecutor asked whether Canty previously told the prosecution that he was considering moving for a new penalty phase jury in this case, again going beyond the abstract and into the specifics of this case. However, information communicated to the prosecution would not have remained privileged. And in any event, Canty testified that, although it was possible, he did not recall whether he in fact told the prosecution that. Thus, despite these closer calls, none of his testimony ultimately disclosed any privileged information.
As to the attorney work product doctrine, section 1054.6 currently provides in relevant part that “[n]either the defendant nor the prosecuting attorney is required to disclose any materials or information which are work product as defined in subdivision (a) of Section 2018.030 of the Code of Civil Procedure, or which are privileged pursuant to an express statutory provision, or are privileged as provided by the Constitution of the United Stat es.” [29] Code of Civil Procedure *114 section 2018.030, subdivision (a) in turn provides: “A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” Code of Civil Procedure section 2018.030, subdivision (b) separately provides that “[t]he work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” The policy behind the work product doctrine is to “[p]reserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases [and to] [p]revent attorneys from taking undue advantage of the ir adversary’s industry and efforts.” (Code Civ. Proc., § 2018.020.)
Defendant contends that admitting Canty’s testimony
regarding his “tactical decisions” not only violated the attorney-
client privilege but also violated the absolute attorney work
product doctrine. Defendant argues that admitting this
testimony violated the attorney work product doctrine,
regardless of whether the work product was reduced to writing
or not, because “despite the arguably contrary language of
California’s absolute work product statute, the privilege also
applies to non- written work product.” Disagreeing, the Attorney
General argues that “[t]he prosecutor’s questions to Canty did
Procedure former section 2018, subdivision (c), which then
stated the absolute work product protection now stated in Code
of Civil Procedure section 2018.030, subdivision (a).” (
People v.
Zamudio
(2008)
not relate to any writing reflecting his impressions, conclusions, opinions, legal research or theories and thus could not have impinged any valid work product privilege.” The Attorney General further argues that “Canty was not asked to, and did not, divulge any otherwise privileged or confidential information; instead, his testimony regarded matters disclosed to the prosecutor or in public records, and consisted of evasive responses that “did not disclose any unique impressions, conclusions, opinions, or theories.”
We need not decide whether Canty’s oral testimony
qualified as attorney work product or whether admitting it
violated the attorney work product doctrine. Even if we assume
that error occurred, it was not reversible. The Attorney General
and defendant disagree as to which standard of prejudice
applies here. Regardless, we would find it harmless under
either standard. (See
People v. Watson
(1956)
V. P ENALTY P HASE I SSUES A. Admission of Evidence of Crimes Committed as a Juvenile
Over the defense’ s objection, the trial court took judicial notice of 14 of defendant’s prior convictions. Eight of these convictions were for crimes that defendant committed when he was 17 years old. Defendant contends that considering those convictions violated his rights under the Eighth Amendment to the United States Constitution. This contention fails.
If a defendant committed an offense while under the age
of 18 , but was tried and convicted as an adult, “the conviction
would be admissible at the penalty phase under section 190.3,
factor (c).” (
People v. Williams
(2010)
B. Admission of Evidence of Unadjudicated Offenses
The prosecution devoted part of its case in aggravation to unadjudicated criminal activity and presented testimony concerning four incidents involving Yenerall, Heynen, Kendrick, and Arnold. Defendant, however, contends that permitting Yenerall, Heynen, Kendrick, and Arnold to testify violated his state and federal constitutional rights to a reliable penalty phase, due process, a fair trial, and confrontation, and to present a defense because the state lost or destroyed the following evidence relating to those four incidents: information as to which suspect sketches Yenerall and Heynen saw; a photo lineup in which Yenerall recalled identifying defendant; the Steven Dyer photo lineup shown to Heynen; the Randy Winters photo lineup shown to Kendrick; and the Roger Egans photo lineup shown to Arnold. [31] We disagree.
1. Background
a. Yenerall Following the January 6, 1992 incident, Yenerall viewed a photo lineup in which she identified a man named Orlando Boone. That lineup was provided to the defense. She subsequently attended a live lineup that included Boone, but she did not identify him. After that, there is disagreement as to whether she viewed another photo lineup: She recalled viewing *118 another one and identifying defendant in it, but the police had no record of any such lineup and believed she misremembered it.
In addition, she viewed a sketch of the suspect. The police composed several suspect sketches during the investigation, and it appears that those sketches were provided to the defense in this case. As to which sketch she personally saw, she did not recall, but Detective Lore testified that she saw one of two specific sketches. The defense argued, however, that “ [a]lthough [Detective Lore] believed [Yenerall was shown] one of two composites in evidence, he did not know which one was shown to Yenerall and so that evidence is unavailable to the defendant.” Later, she identified defendant during a live lineup and at the preliminary hearing.
During the penalty phase of the trial, she identified defendant in the courtroom, testifying , “I’m certain” as to that identification. She also testified about previously identifying defendant during the live lineup and during the preliminary hearing. Regarding the live lineup, she explained that she did not write a number on the lineup identification card but instead directly informed one of the detectives about her identification and was “very certain” about it. On cross-examination, she admitted that her hesitancy to write down a number on the card reflected “[s]ome” uncertainty but explained that she chose not to write down a number because she was not obligated to do so.
Also on cross-examination, she confirmed that she previously viewed a photo lineup in which she identified an individual other than defendant and expressed “ some great degree of certainty as to that identification. Asked whether she identified an individual named Orlando Boone, she testified that *119 she did not recall the name of the individual but that this individual subsequently attended a live lineup, where she did not identify him or anyone else.
b. Heynen Heynen testified that she saw at least four photo lineups after the January 21, 1992 incident. She recalled possibly pointing to someone as close in three lineups but did not recall identifying anyone. According to Detective Lore, Heynen later was not sure whether she actually saw that many lineups.
Detective Lore testified that Heynen viewed three photo lineups and one book containing parolee pictures. The first photo lineup, shown on March 12, 1992, included an individual named Steven Dyer. Detective Lore testified that Heynen did *120 Heynen] are unidentifiable.” Later, she identified defendant during a live lineup and at the preliminary hearing.
During the penalty phase of the trial, Heynen identified defendant in the courtroom, testifying that she was “[v]ery certain” regarding her identification. She testified that she had previously identified defendant during a live lineup and during the preliminary hearing as well. On cross-examination, she said that she had previously viewed photo lineups on “[a]bout” four occasions. Asked whether on two of those occasions she selected anyone in the lineup, she responded, “That appeared to be close.” She explained that in those two selections, the individuals could have been the perpetrator, but she was not sure. Asked whether she selected a picture of defendant and said it could be him, she testified that she was never told whether any of the pictures were of defendant.
c. Kendrick After the February 19, 1992 incident, Kendrick recalled viewing two photo lineups. He testified that he did not identify anyone in either of these lineups. However, Detective Lore testified that in one of these lineups, on March 26, 1992, Kendrick identified an individual named Randy Winters with a certainty of eight out of ten. This photo lineup was disassembled and not available to the defense. The prosecution, however, provided the defense with a copy of Winters’s DMV picture, which was not the picture used in the disassembled lineup.
In addition, Kendrick saw a sketch of the suspect and assisted the police in creating another sketch of the suspect, both of which were provided to the defense. Later, Kendrick identified defendant during a live lineup and at the preliminary hearing.
During the penalty phase, Kendrick identified defendant in the courtroom and testified that he had previously identified defendant during the live lineup as well. He further testified that he had previously viewed two photo lineups but did not identify anyone in them. The defense did not cross-examine Kendrick.
d. Arnold Andersen Arnold Andersen testified that he viewed photo lineups on several occasions after the February 21, 1992 robbery, but he did not recall identifying anyone in them. Detective Lore testified that Arnold viewed two photo lineups. As to one of these lineups, Detective Lore testified that Arnold did not identify anyone but said that one individual was close. As to the other, Sergeant Howard Woods testified that Arnold said an individual named Roger Egans was the closest, with an 80 percent certainty, on May 21, 1992. Once Egans was eliminated as a suspect, this lineup was disassembled. The prosecution gave the defense a copy of Egans ’ s DMV photo, but the photo was not the one used in the disassembled lineup.
Arnold also saw a sketch of the suspect that his wife, Sharyn, assisted in creating. He subsequently identified defendant during a live lineup and at the preliminary hearing as well.
During their penalty phase testimony, both Arnold and Sharyn identified defendant in the courtroom. They testified that they had previously identified defendant during a live lineup, too. Regarding the photo lineups, Arnold testified that he had previously viewed two or three photo lineups but did not identify anyone in them. The defense did not cross-examine either Arnold or Sharyn.
e. Trial court ’s ruling
The prosecution originally filed an information that
included charges relating to the January 6, January 21,
February 19, and February 21, 1992 incidents.
[32]
Following the
preliminary hearing, the defense moved to strike identification
testimony by certain witnesses under
Brady v. Maryland
(1963)
Later, the defense moved to sever the counts involving
eyewitness identifications from the Willem, Christine C.,
Osburn, and Carole D. counts on the ground, inter alia, that
severance was an appropriate sanction under section 1054.5 due
to the missing evidence related to the eyewitness counts. The
defense simultaneously moved again under
Brady
,
supra
,
Before the penalty phase, the defense moved to exclude evidence of these severed, unadjudicated offenses or alternatively, to have them tried by another jury. The trial court found that the “confusion that underlies” the identifications could be brought before the jury without the missing evidence. The court also found that there was no “willful , purposeful, malicious intent on the part of the police in destroying evidence that could have bee n helpful to Mr. Miles,” explaining that “these were line -ups that were put together early in the investigation, substantially prior to Mr. Miles being a suspect, ” and in those cases where the police followed up on photo lineups shown to the vict ims and “found that the person could not have been the perpetrator,” the police “probably felt that there was no longer a need to keep those photo line- ups intact.” The court denied the motion.
2. Discussion
The Attorney General frames defendant’s cont entions
regarding the lost or destroyed evidence under
Trombetta
,
supra
,
Contrary to defendant’s argument, t he circumstances here are unlike those in Gardner , supra , 430 U.S. 349, on which defendant heavily relies. In Gardner , the high court vacated a death sentence where the trial court sentenced the defendant to death due in part to information in a presentence investigation report, portions of which were provided to the trial court but not disclosed to the defendant. ( Id . at pp. 351, 353, 356, 362.) By contrast, no evidence in this case was provided to and relied on by the trial judge, but not disclosed to the defense.
Indeed, we have previously rejected an argument relying
on
Gardner
,
supra
, 430 U.S. 349 in circumstances like those
here. In
People v. Rodrigues
(1994)
First, as to the suspect sketches viewed by Yenerall and Heynen, defendant argues on appeal that “although various composite sketches were available, since police could not recall which sketch had been shown to [Yenerall or Heynen], whatever value there was in the sketches was gone.” The defense , however, implicitly acknowledged having received the suspect *125 sketches, and the defense could ask Yenerall and Heynen about them. Second, as to a photo lineup in which Yenerall recalled identifying defendant, the police did not believe any such lineup ever existed, and Yenerall recalled identifying defendant , not someone else, in it. Although defendant suggests that this missing lineup may explain how she initially identified Boone yet later identified defendant, this theory, too, is speculative. It also ignores that between her photo identification of Boone and her identification of defendant, she attended a live lineup where she did not identify Boone, making her later identification of defendant less sudden than defendant suggests. Moreover, the defense cross-examined Yenerall about her earlier identification in a photo lineup of an individual other than defendant, and about her hesitancy to write down a number on the card when she identified defendant in a live lineup.
As to the remaining missing evidence (the Dyer, Winters, and Egans photo lineups), defendant’s contention s pose a closer call but ultimately, too, fall short. There is conflicting testimony as to whether Heynen, Kendrick, and Arnold made any identifications in the lineups, and the lineups took place before defendant was a suspect. In addition, the prosecutor provided the defense with pictures of Dyer, Winters, and Egans, and while those pictures were not comparable to the missing lineups, the defense could ask Heynen, Kendrick, and Arnold about those pictures and about their identifications. Indeed, the defense cross-examined Heynen about having viewed photo lineups on “[a]bout” four occasions and having selected persons who “appeared to be close” on two of those occasions; the defense had the opportunity but declined to cross-examine Kendrick or Arnold. In these circumstances, we find no error and conclude *126 that admitting the testimony of these four witnesses did not violate defendant’s state or federal constitutional rights.
Even assuming for the sake of argument that admitting
this testimony was error, it was not reversible. “ [E]rror in the
admission of evidence under section 190.3, factor (b) is
reversible only if ‘ there is a reasonable possibility it affected the
verdict, ’ a standard that is ‘ essentially the same as the harmless
beyond a reasonable doubt standard of
Chapman v. California
[,
supra
,]
C. Admission of Victim Impact Evidence Regarding Prior Crime
Over the defense’s objection, Bridget E. testified about the
effects of the June 16, 1992 incident on her health, career, and
personality. Defendant contends that the trial court erred by
admitting her testimony because, according to defendant,
admitting victim impact evidence for prior crimes under section
190.3, factor (b) is improper and unconstitutional . Defendant’s
argument relies on five out-of-state decisions, a textual
*127
distinction between section 190.3, factors (a) and (b), and
People
v. Boyde
(1988)
We have previously found unpersuasive the five out-of-
state decisions upon which defendant relies. (See
People v.
Davis
(2009)
D. Admission of Victim Impact Evidence Related to Capital Crime
Over defendant’ s objection, the trial court admitted victim
impact evidence related to Willem’s murder consisting of
testimony from her family members, a short videotape depicting
her singing, and a photograph of her that resembled how she
looked around the time of her death. We have previously
permitted the admission of similar victim impact evidence (see,
e.g.,
People v. Brady
(2010)
E. Asserted Juror Misconduct Defendant contends that the trial court erred when it declined to discharge Juror No. 12 after he saw newspaper headlines about defendant’s competency trial. We disagree. We conclude that there was no substantial likelihood of juror bias and there was no violation of defendant’s federal or state constitutional rights.
1. Background After the trial court declared a doubt as to defendant’s competency and suspended proceedings, the trial court met individually with each of the guilt phase jurors and informed them that there was an issue — about which the court could not reveal the details — that would cause a significant delay before beginning the penalty phase. The court individually admonished each of the jurors to avoid discussing or reading about the case in the interim. When the court met individually with Juror No. 12, the court instructed Juror No. 12, “ [P]lease don’t discuss what we’ve talked about with any of the other jurors. And i f there’s anything in the newspaper about this case, please don’t read that.”
Several months later, the guilt phase jurors returned for the penalty phase. At the defense’s request, the jurors filled out a supplemental questionnaire concerning whether they had read, heard, or discussed anything about the case since rendering the verdict. The first question asked, “Have you read anything in a newspaper about this case since rendering your verdict on March 18, 1999?” Juror No. 12 checked “ yes ” in response to this question and commented , “I have read the headlines, but not the article itself.” Juror No. 12 checked “ no ” in response to the remaining two questions, indicating that he had not heard anything about the case from any other source or discussed the case with any of the other jurors since rendering the verdict.
The trial court and counsel inquired further into Juror No. 12’s responses. Juror No. 12 explained that he had seen “ [p]robably like two or three ” newspaper headlines. Asked whe ther he “[j] ust saw the headlines, recognized it was about the case, and then didn’t read anything further?” he replied, “That’s right.” He said that there was not anything about what he had read that caused him to come to any opinions or conclusions or that would affect or influence his ultimate decision in this case. He acknowledged, however, that from these headlines, he knew that a competency trial took place and knew its result. Asked about his reaction to this information, he responded , “All I knew is that I would be coming back. That’s about all I thought about it. ” Asked to explain, he said that he had assumed he probably would not be returning if the competency trial had ended differently because the competency trial “was a part of the sentencing or whatever . He confirmed that he had not discussed any of this information with anybody else.
The defense moved to excuse and replace Juror No. 12. The trial court denied the motion, reasoning that Juror No. 12 had neither violated the court’s order by seeing the newspaper headlines nor formed any opinions or conclusions based on them. The trial court found, “The impression I g et was that in going through the newspaper, naturally in skimming the headlines you can see that this is something about the case, and at that point he stopped reading and did not read the content. . . . I didn’t tell them not to read the papers. I just t old them not to read anything about the case. I don’t think he violated the Court’s order.” The trial court continued, “I didn’t get the impression from anything that he said that he had formed any opinions or conclusions. In fact, he said he didn’t, an d that it wouldn’t affect his decision in this case.”
2. Discussion
“A defendant accused of a crime has a constitutional right
to a trial by unbiased, impartial jurors.” (
People v. Nesler
(1997)
“ [W]hen misconduct involves the receipt of information
from extraneous sources, the effect of such receipt is judged by
a review of the entire record, and may be found to be
nonprejudicial. The verdict will be set aside only if there
appears a substantial likelihood of juror bias. Such bias can
appear in two different ways. First, we will find bias if the
*131
extraneous material, judged objectively, is inherently and
substantially likely to have influenced the juror. [Citations.]
Second, we look to the nature of the misconduct and the
surrounding circumstances to determine whether it is
substantially likely the juror was actually biased against the
defendant. [Citation.] The judgment must be set aside if the
court finds prejudice under either test.” (
In re Carpenter
(1995)
In reviewing the trial court’s ruling, “[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination.” ( Nesler , supra , 16 Cal.4th at p. 582.)
We need not decide whether juror misconduct occurred
here because, in any event, we find no substantial likelihood of
juror bias. (See
People v. Thomas
(2012)
Nor was it substantially likely that Juror No. 12 was
“actually biased” against defendant. Defendant does not
contend that Juror No. 12 was actually biased, and nothing in
the record suggests such bias existed. Mindful of the trial
court’s admonitions to avoid news coverage of the case, Juror
No. 12 did not read any newspaper articles about the case but
promptly informed the trial court that he had seen a few
headlines. He made clear that he did not form any opinions or
conclusions based on the headlines, nor did he discuss them with
anyone. His only reaction to the information was that he “would
be coming back. That’s about all [he] thought about it.” The
trial court found his representations credible, and substantial
evidence supports this finding. (See
People v. Stanley
(2006)
Having found no substantial likelihood of juror bias, we
reject defendant’s assertion that Juror No. 12’s exposure to
these headlines impeded his ability to fairly weigh defendant’s
mitigating evidence in violation of his federal constitutional
rights. Defendant characterizes
Caldwell v. Mississippi
(1985)
Here, there was no evidence to suggest that Juror No. 12
was unable to consider defendant’s mitigating evidence or felt
any less responsible for making a penalty determination after
seeing these headlines — much less that he was misled to
believe himself to be so. (See
People v. Montes
(2014)
*134
F. Instruction to Alternate Jurors The trial court excused two of the seated guilt phase jurors and replaced them with two alternate jurors before the penalty phase began. The court then instructed the jury that “[f]or the purposes of this penalty phase of the trial, the alternate jurors must accept as having been proved beyond a reasonable doubt those guilty verdicts and true findings rendered by the jury in the guilt phase of this trial.” [34] Defendant objected to having the two alternate jurors try the penalty phase but did not object to this specific instruction. He now contends that this instruction violated his federal and state constitutional rights to a fair *135 penalty trial, reliable sentencing decision, equal protection, due process, and effective assistance of trial counsel.
Assuming defendant’s claim was not f orfeited, it fails on
the merits. (See § 1259 [preserving claims of instructional error
affecting substantial rights despite lack of objection below].) We
have made clear that “[a]s a matter of law, the penalty phase
jury must conclusively accept [the guilt phase jury’s] findings”
as to t he defendant’s guilt and the truth of the special
circumstance allegations beyond a reasonable doubt. (
People v.
Harrison
(2005)
Nor do we find
People v. Kaurish
(1990)
In short, we discern no error in the trial court’s instructions here.
VI. O THER I SSUES A. Challenge to California’s Death Penalty Law as
Not Adequately Narrowing the Class of
Death-Penalty Eligible Defendants
Defendant urges that California’s death penalty law
violates the Eighth Amendment because it does not sufficiently
narrow the class of death-eligible defendants, based on statistics
drawn primarily from published decisions of this court and the
Court of Appeal, as well as unpublished decisions of the Court
of Appeal, First District, between 1988 and 1992. We have
repeatedly rejected similar statistics-based arguments claiming
that the multiplicity of the statute’s special circumstances fails
to sufficiently narrow the class of death-eligible defendants.
(See, e.g.,
People v. Beames
(2007)
B. Other Challenges to California’s Death Penalty Law
Defendant raises numerous challenges to California’s death penalty law that we have repeatedly rejected and continue to reject as follows.
Section 190.3, factor (i) (the age of the defendant) is not
unconstitutionally vague. (
Tuilaepa v. California
(1994)
C. Cumulative Prejudice
Defendant contends the combined errors require reversal of his convictions and death sentence even if the errors are not prejudicial when considered individually. We have assumed errors but found no prejudice. Considering these assumed errors altogether, we conclude that reversal is not warranted.
VII. D ISPOSITION We affirm the judgment.
GROBAN, J. We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
S086234
Dissenting Opinion by Justice Liu
Defendant Johnny Duane Miles, a black man, was
sentenced to death for raping and murdering Nancy Willem, a
white woman. During jury selection, the prosecutor removed
the first three black jurors available for peremptory challenge.
Miles objected to the strikes as racially motivated under
Batson
v. Kentucky
(1986)
At the time of the ruling, the prosecutor had used three of his first six peremptory strikes to remove every black juror in the jury box who had not been excused for cause. At the end of jury selection, no black juror was seated on the main panel. Among the six alternate jurors, only one was black. As a result, the black defendant in this case, charged with raping and murdering a white woman, was tried and convicted by a jury that included no black member.
On appeal, Miles challenges the prosecutor’s strikes of two black prospective jurors, Kevin C. and Simeon G. I agree that Miles has not shown purposeful discrimination with respect to the strike of Kevin C. in light of his ambivalent responses regarding the death penalty and the two other reasons given for his excusal. (Maj. opn., ante , at pp. 37 – 52.) But the record shows that each of the prosecutor’s stated reasons for striking Simeon G. was implausible or unsupported by the facts. I would
Liu, J., dissenting thus conclude “it was more likely than not that the challenge was improperly motivated.” ( Johnson v. California (2005) 545 U.S. 162, 170 ( Johnson ).) Because the “[e]xclusion of eve n one prospective juror for reasons impermissible under Batson and Wheeler constitutes structural error,” the judgment must be reversed. ( People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 ( Gutierrez ).)
I. Today’s opinion accords deference to the trial court’s ruling on the Batson motion, but it is unclear what this court is deferring to. “A trial court’s conclusions are entitled to deference only when the court made a ‘sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.’ ( Gutierrez , supra , 2 Cal.5th at p. 1159.) A “reasoned” attempt requires the trial court to “reject [the prosecutor’s] reason or ask the prosecutor to explain further” when the reason is “not borne out by the record.” ( Id. at p. 1172.) Where “the prosecutor’s reason[s] for [the contested] strike[s are] not self - evident and the record is void of any explication from the court, we cannot find . . . that the court made a reasoned attempt to determine whether the justification was a credible one.” ( Ibid. )
Here, the trial court expressly acknowledged that the prosecutor’s proffered reasons for striking Kevin C. and Simeon G. were not self-evident. During discussion of the Batson motion, the trial judge told the prosecutor: “I don’t understand [the strikes] as to [Kevin C.] and as to [Simeon G.]. You’ll [have to] explain those.” After hearing the prosecutor’s reasons, the court concluded: “As I indicated, as to [another struck juror], I understand [the prosecutor’s] concern there. As to [Kevin C.] and [Simeon G.], I think it’s certainly not as obvious, but I
Liu, J., dissenting cannot say it is not legitimate.” That was the ext ent of the trial court’s explanation for upholding the strikes.
At one point, the court did ask the prosecutor to clarify his explanation for striking Simeon G. (Maj. opn., ante , at p. 26 [“ ‘His answer being that if he had a feeling the defendant was not guilty, that was the answer that bothered you?’ ”].) But the court did not probe any of the prosecutor’s stated reasons for the strikes, even though they were difficult to reconcile with the record, as discussed below. Nor did the court explain why it c redited the prosecutor’s justifications. It merely made a global finding that the stated reasons were “valid” and “legitimate.” (See maj. opn., ante , at p. 31 [“the trial court could have done more to make a fuller record and itself acknowledged it was m aking a somewhat close call”].)
Our requirement of a “ ‘sincere and reasoned effort to evaluate the nondiscriminatory justifications offered’ ” ( Gutierrez , supra , 2 Cal.5th at p. 1159) demands more than what is apparent from the record here. I do not doubt that the trial court was sincere and listened to the parties’ arguments. But because the record does not indicate whether it engaged in a reasoned evaluation of the prosecutor’s explanations for the strikes, I see no basis for deference to the trial cou rt’s ruling.
II. In addressing Miles’s Batson claim, our task is to determine whether “it was more likely than not” that the prosecutor’s strikes were racially motivated. ( Johnson , supra , 545 U.S. at p. 170.) It is important to keep in mind the applicabl e standard of proof. The “more likely than not” standard does not require a fact to be established beyond a reasonable doubt, nor does it call for “ a finding of high
Liu, J., dissenting probability” as required by the clear and convincing evidence standard. ( In re Angelia P. (1981) 28 Cal.3d 908, 919.) It “ ‘simply requires the trier of fact “to believe that the existence of a fact is more probable than its nonexistence.” ’ ” ( Id. at p. 918.)
“The function of a standard of proof is to instruct the fact
finder concerning the degree of confidence our society deems
necessary in the correctness of factual conclusions for a
particular type of adjudication, to allocate the risk of error
between the litigants, and to indicate the relative importance
attached to the ultimate decisi on.” (
Conservatorship of
Wendland
(2001)
At the time of jury selection, Simeon G. was a 24-year-old forklift driver. He had studied business for three years in college and had plans to continue his education in the future. Simeon G. had characteristics that might be considered favorable to the prosecution. On the questionnaire, he wrote that his father was a Drug Enforcement Administration agent and that he had considered becoming a police officer. He indicated that he “favor[ed] the death penalty” and would have
Liu, J., dissenting been willing to personally impose it. He believed the purpose of the death penalty was “to match the seriousness of a crime with a life for a life” and thought it “should be an option” for serious crimes. He considered the death penalty law in California to be fair and wrote that he would vote to keep the death penalty because “it may be an appropriate punishment” in some cases. He also indicated that he had no moral, philosophical, or religious objections to the death penalty.
The prosecutor gave several reasons for striking Simeon G. The first was that Simeon G. “made statements on his questionnaire how he likes his opinions over others.”
When asked on the questionnaire whether he would describe himself as a leader or a follower, Simeon G. wrote that he thought of himself as a “leader” because “I like my opinion over other people’s.” In People v. Gutierrez (2002) 28 Cal.4th 1083, we said that a juror’s comment that “he would not be influenced by anyone’s opinion but his own” gave rise to a reasonable concern that the juror “wo uld not be able to consider the opinions of his fellow jurors.” ( Id. at p. 1125.) But Simeon G. said that he liked his opinion over other people’s, not that he would not consider other people’s views. His statement is actually somewhat of a tautology: Everyone likes his or her opinion over other people’s; to have an “opinion” is to prefer that view to other views. Just because a person favors one view does not mean he or she “might have difficulty considering other opinions and deliberating with fellow jurors.” (Maj. opn., ante , at p. 53.) Indeed, Simeon G.’s other responses on the questionnaire indicate that he was interested in working with other jurors to reach a verdict. When asked how he felt about working with 11 other jurors to make a decision , he wrote: “I believe it would be very interesting.” When asked whether he
Liu, J., dissenting believed the jury system was a fair way to determine a defendant’s guilt, he checked “yes” and explained: “12 people have to come together to accuse someone. That[’s] 12 differ ent opinions. Pretty impressive.”
The prosecutor did not ask Simeon G. about these
responses, nor did the prosecutor question him or any other
jurors about their ability to work with others. As the high court
has observed, “ ‘[t]he State’s failure to eng age in any meaningful
voir dire examination on a subject the State alleges it is
concerned about is evidence suggesting that the explanation is
a sham and a pretext for discrimination.’ ” (
Miller-El v. Dretke
(2005)
The prosecutor’s explanation is even more suspicious in light of the fact that he accepted Juror No. 1, who also described herself as a “leader” and wrote, “I like to make my own decisions.” Today’s opinion attempts to distinguish “decisions” from “opinions” in parsing the responses of Juror No. 1 and Simeon G. (Maj. opn., ante , at pp. 54 – 55.) But the key point is that Juror No. 1’s response gave no more indication than Simeon G.’s response that she would consider other people’s
Liu, J., dissenting views in making a decision. Both “opinions” and “decisions” can be and often are informed by other people’s points of view, and a juror who “likes my opinion over other people’s” seems just as likely to consider other people’s views as a juror who “like[s] to make my own decisions.” It is true that Simeon G., unlike Juror No. 1, indicated that he had not previously served on a jury or worked with a group to make a decision. But that was not the prosecutor’s stated reason, and in any event, Simeon G.’s other questionnaire responses suggested he was interested in and willing to do both.
The prosecutor’s second reason for striking Simeon G. was that “he made a statement on his questionnaire basically saying if I have a feeling he didn’t do it, he’s not guilty. And he had crossed out the word doubt, which led me to believe that he cer tainly wasn’t going to base it on evidence.”
When asked on the questionnaire whether he could follow the reasonable doubt instruction, Simeon G. checked “yes” and wrote: “If I have any doubt feeling that [the defendant] might not have done it, he[’s] innocent.” During the Batson hearing, the prosecutor noted that Simeon G. originally wrote “doubt” on his questionnaire response, then crossed it out and replaced it with “feeling.” According to the prosecutor, this suggested that Simeon G. would have relied “on a hunch, or a feeling” instead of evidence to decide Miles’s guilt. While acknowledging that Simeon G. “explained [his questionnaire response] differently in court,” the prosecutor said he was “not sure that [Simeon G.’s] responses in court should prevail over the answers he gave on his questionnaire.” The prosecutor said he was especially concerned about those responses in light of the fact that Simeon G. “didn’t show up for court” that morning and appeared in the
Liu, J., dissenting afternoon after being “single -hande dly hunted down” by the trial judge.
Considering the record as a whole, I do not find the prosecutor’s stated concern very plausible. Simeon G. first wrote on the questionnaire: “If I have any doubt that [the defendant] might not have done it, he[’s] innocent.” On a moment’s reflection, it is clear that the double negative makes no sense: If a juror had doubt that the defendant might not have committed the crime, then the juror’s inclination would be to find guilt, not innocence. It is unsurprising that Simeon G., most likely recognizing the error, crossed out “doubt” and replaced it with a different word, “feeling”: “If I have any feeling that [the defendant] might not have done it, he[’s] innocent.” To draw an inference that Simeon G. intended this to convey that he would rely on his feelings as opposed to evidence to decide the defendant’s guilt seems like a stretch.
But even assuming Simeon G.’s response was ambiguous, the prosecutor probed this issue during voir dire, and Simeon G.’s answers clarified any ambiguity. The prosecutor said: “In your questionnaire, you used the phrase that if you have a feeling that the defendant was [not] involved, that you’d find him not guilty. . . . You’d written ‘doubt’ and crossed out and written the word ‘feeling.’ . . . I’m trying to understand what you meant by that.” Simeon G. responded: “Well, I think what I was trying to say, if I’m correct, is that if the evidence showed that there wasn’t — that there was some reasonable doubt, then I probably would not accuse him, because of the fact that, myself being in the same situation or anybody, I think that if the evidence didn’t totally prove that I did it, then there is some doubt. . . . So it wasn’t so much a feeling as it was if the evidence didn’t show.” The prosecutor asked: “Okay. So you would base
Liu, J., dissenting it on evidence?” Simeon G. responded: “Basically, yes. I’m sorry.” The prosecutor had no further questions on this topic.
Today’s opinion says that when faced with inconsistent responses, the prosecutor is not obligated to accept the least objectionable one. (Maj. opn., ante , at pp. 57 – 58.) That is true, but it is not the situation here. At voir dire, the prosecutor expressly said that his questioning of Simeon G. was intended to clarify the “ doubt fe eling” issue, and Simeon G. — in response to an open-ended, non-leading question posed by the prosecutor (“I’m trying to understand what you meant by that”) — clarified that he would make decisions based on “the evidence,” not a “feeling.” His voir dire a nswers, given under oath, left no ambiguity about the issue. The court makes much of Simeon G.’s comments that he did not “quite remember” his questionnaire response and could not tell the prosecutor “what [he] actually meant totally” by it. (Maj. opn., ante , at p. 59.) But what those statements show is that he was attempting to be a scrupulous juror. When asked to explain the “ doubt feeling” issue, Simeon G. was careful to qualify that he did not recall his exact response on the questionnaire because he did not have a copy to review during voir dire. These comments in no way undermined Simeon G.’s clear and consistent assertions that he would rely on evidence rather than his feelings to reach a verdict.
Moreover, the rest of Simeon G.’s questionnaire i ndicated that he would have carefully considered the evidence presented in the case. When asked whether he could be a fair and impartial juror, he wrote: “I’m open to objectively listening to evidence from both sides to decide a fair verdict.” When aske d if he could follow the instruction that jurors should not draw any conclusions from the fact that a defendant does not testify, he
Liu, J., dissenting checked “yes” and explained that he would “[j]ust deal with the facts and other testimonies.” When asked whether he believ ed the testimony of law enforcement officers would be more truthful or accurate than civilian testimony, he checked “no” and wrote that “[n]obody’s testimony should be more or less due to the fact that they are all under oath.” When asked whether he would automatically accept the opinion of a psychiatrist or psychologist, he checked “no” and explained that “[w]hat they say would have to make sense.” All of these responses, like Simeon G.’s answers during voir dire, show that he would have been a conscientious juror who makes decisions on the basis of facts and evidence, not hunches or feelings. The prosecutor’s fixation on one questionnaire answer, to the exclusion of all of Simeon G.’s other relevant and consistent answers, is suspicious.
Today’s opinion says the prosecutor was not required to accept Simeon G.’s sworn voir dire responses at face value. At the Batson hearing, the prosecutor said “this is an individual who the Court personally tracked down this morning. . . . I would be concerned about his responses in light of the fact that he was single- handedly hunted down to be here this afternoon.” In evaluating this statement, today’s opinion explains that “[t]he trial court was ‘ “best situated” ’ to assess Simeon G.’s responses in court and the pr osecutor’s stated concern in light of those responses.” (Maj. opn., ante , at p. 60.)
But what exactly is the court deferring to? The trial court made no specific findings regarding Simeon G.’s responses or demeanor when it denied the Batson motion. Nor did it ask the prosecutor to explain why Simeon G.’s tardiness to court would cast doubt on the credibility of his voir dire answers. The court only asked the prosecutor, “His answer being that if he had a
Liu, J., dissenting feeling the defendant was not guilty, that was the answer that bothered you?” I have no doubt that the trial court “listen[ed] to the prosecutor’s explanation and defense counsel’s comments” before “accept[ing] the prosecutor’s stated reasons for striking Simeon G.” (Maj. opn., ante , at p. 61.) But because its ruling is not accompanied by any reasons or analysis, there is nothing to defer to.
As to Simeon G.’s tardiness, a bit of context is important. The record shows there had been a miscommunication in the jury room, which may have caused several jurors not to appear in court that morning. After the court called Simeon G.’s workplace, he immediately called back and explained that he was confused and thought he was supposed to come the next day. Simeon G. then appeared in the afternoon for voir dire. The prosecutor was aware of this mix-up at the time of the Batson hearing, and there was no suggestion that the incident resulted from willful conduct by Simeon G. Nor was there anything in his background or questionnaire that suggested untrustworthine ss. To be sure, “having a judge call your workplace to locate you and have you come to court is unusual.” (Maj. opn., ante , at p. 61, fn. 14.) And it would be natural to infer that Simeon G. perhaps felt embarrassed when he appeared in court. But it is not clear why the incident would have cast doubt on the veracity of Simeon G.’s statement at voir dire that he would reach a verdict based on “the evidence” and not a “feeling,” especially in light of the consistent responses on his juror questionnaire.
T he prosecutor’s third reason for striking Simeon G. was that “he was not upset by the O.J. Simpson verdict.” Simeon G. indicated on the questionnaire that he was not upset by the O.J. Simpson verdict but did not explain why. He also wrote that he
Liu, J., dissenting “really [didn’t] know anything about” DNA evidence. At the Batson hearing, the prosecutor said: “If you’ll notice across the board, I’ve excused jurors I believe of Hispanic origin and Caucasian origin, and the common denominator, essentially, is that they were not, were not upset by the O.J. Simpson verdict, which was a DNA, circumstantial case. And I think those, those raise significant concerns in my mind as a guilt phase juror and the type of case that I’m dealing with.”
In evaluating this reason, it must be said at the outset that exercising peremptory strikes based on jurors’ attitudes toward the O.J. Simpson case — in the capital trial of a black man accused of murdering a white woman, occurring just three years after the Simpson verdict — seems like playing with fire. At the time of Miles’s trial, it would have been hard to think of any recent case in the American justice system more sensational and racially polarizing than the Simpson trial. (See O.J.: Made in America (ESPN Films 2016); Toobin, The Run of His Life: The People v. O.J. Simpson (1996).) Amicus curiae NAACP Legal Defense & Educational Fund, Inc. (LDF) cites a poll taken in 1995, when the Simpson case was decided, finding that 22% of black Americans and 76% of white Americans believed Simpson was guilty of murder. (See De Pinto et al., Poll: Only 27 Percent of Americans Think O.J. Simpson Will Regain Celebrity Status (Sept. 29, 2017) CBS News.) The Attorney General argues that the racial disparity was not so significant by the time of Miles’s trial and cites a different poll finding that 45% of black Americans in 2007 and 57% in 2015 believed Simpson was guilty. (See Ross, Two decades later, black and white Americans finally agree on O.J. Simpson’s guilt , Wash. Post (Mar. 4, 2016).) But the figures cited by LDF are more relevant because jury selection in this case occurred in 1998. Those figures are
Liu, J., dissenting actually corroborated by the poll cited by the Attorney General, which shows that 31% of black Americans and 82% of white Americans in 1997 thought Simpson was guilty. (See ibid. )
Thus, at the time of Miles’s trial, a practice of striking jurors who said they were not upset by the Simpson verdict would have resulted in disproportionate removal of black jurors. Although such disparate impact “does not turn the prosecutor’s actions into a per se violation of the Equal Protection Clause” ( Hernandez v. New York (1991) 500 U.S. 352, 361), it can be considere d “evidence that the prosecutor’s stated reason constitutes a pretext for racial discrimination” ( id. at p. 363). There is nothing wrong with probing prospective jurors’ views about DNA or circumstantial evidence in a murder trial. But surely there are less racially charged ways of doing so.
Also relevant is the fact that the prosecutor did not question Simeon G. or any other prospective juror about the Simpson verdict during voir dire. (Cf. maj. opn., ante , at p. 63 [“the credibility of the prosecutor’s concern here is undermined to some degree by the prosecutor’s failure to ask Simeon G. or other prospective jurors about the O.J. Simpson verdict during voir dire”].) The prosecutor’s lack of questioning is especially suspicious as to Simeon G. When asked on the questionnaire whether he was upset by the Simpson verdict, Simeon G. simply checked “no” without explanation. At the Batson hearing, the prosecutor said his main concern with this response was that it indicated Simeon G. might be skeptical about DNA evidence. But the prosecutor never asked Simeon G. whether his response to the O.J. Simpson question was related to his views on DNA evidence. Nor did he ask Simeon G. or any other prospective juror about DNA evidence.
Liu, J., dissenting
Comparative juror analysis also supports an inference of
pretext. (Cf. maj. opn.,
ante
, at p. 65 [“We find that the
credibility of the prosecutor’s concern regarding Simeon G.’s
opinion on the O.J. Simpson verdict is undermined to some
degree by defendant’s comparative juror analysis.”].) Like
Simeon G., eight seated and alternate jurors indicated that they
were not upset about the O.J. Simpson verdict. Some of those
jurors provided explanations that might have been more
acceptable to the prosecutor. But Alternate Juror No. 5, like
Simeon G., did not explain why he was not upset about the
verdict. Juror No. 4, Juror No. 7, and Alternate Juror No. 4
wrote that they were not upset because they did not know
enough about the details of the case, which seems just as neutral
as Simeon G. ’s response. Juror No. 6 wrote that the “evidence
[was] not clear” in the O.J. Simpson case, which if anything
seems less favorable to the prosecution than Simeon G.’s
response. In sum, the plausibility of the prosecutor’s
explanation “is severely underc ut by [his] failure to object to
other [jurors] who expressed views much like [Simeon
G.’s]. . . . The fact that [the prosecutor’s] reason also applied to
these other [jurors], most of them white, none of them struck, is
evidence of pretext.” (
Miller-El
,
supra
,
Today’s opinion finds these comparisons “relevant and probative” but ultimately downplays their importance by pointing out differences between the comparator jurors and Simeon G. (Maj. opn., ante , at p. 65.) The court notes that Juror No. 6 and Alternate Juror No. 5, while similar to Simeon G. on the O.J. Simpson question, did not indicate that they might have difficulty considering other people’s opinions or that they might rely on their feelings to reach a verdict. (Maj. opn., ante , at pp. 65 – 66.)
Liu, J., dissenting
This line of reasoning — undercutting the probative value
of juror comparisons by identifying other traits on which the
jurors differed — is a frequent maneuver in our
Batson
jurisprudence. (See, e.g., maj. opn.,
ante
, at pp. 55 – 56;
People v.
Hardy
(2018)
But the high court has expressly rejected this view. (See
Miller-El
,
supra
, 545 U.S. at p. 247, fn. 6 [“ None of our cases
announces a rule that no comparison is probative unless the
situation of the individuals compared is identical in all respects,
and there is no reason to accept one. . . . A
per se
rule that a
defendant cannot win a
Batson
claim unless there is an exactly
identical white juror would leave
Batson
inoperable; potential
jurors are not products of a set of cookie cutters.”].) In several
cases addressing
Batson
claims , “[t]he high court has repeatedly
drawn inferences of discrimination from comparative juror
analysis without regard to whether the comparator jurors
matched the struck juror in every respect identified by the
prosecutor.” (
Hardy
,
supra
,
Liu, J., dissenting
In
Miller-El
, for example, the prosecution gave three
reasons for striking a prospective black juror: he was
ambivalent about the death penalty, his brother-in-law had a
prior conviction, and the prosecution still had 10 peremptory
challenges left and could be liberal in using them. (
Miller-El
,
supra
, 545 U.S. at pp. 247 – 250.) The high court first compared
the death penalty views of the struck juror to those of three
accepted jurors. (
Id.
at p. 248.) It found the similarities among
the jurors’ views to be probative (
ibid.
), even though the
dissenting justices noted that the accepted jurors were not
similarly situated to the struck juror with respect to the other
reasons given by the prosecutor (
id.
at p. 290 (dis. opn. of
Thomas, J.)). The high court then conducted comparative juror
analysis with respect to the other two stated reasons, again
considering each reason separately. (
Id.
at pp. 249 – 250.) In
subsequent
Batson
decisions, the high court has consistently
followed this approach to comparative juror analysis. (See
Flowers v. Mississippi
(2019) 588 U.S. __, __ [139 S.Ct. 2228,
2248 – 2249];
Foster v. Chatman
(2016)
Today’s opinion says “ [t]he fact that the high court found single-issue comparisons to be highly probative of discrimination within the circumstances of a particular case is not inconsistent with our analysis here, which . . . recognizes that such comparisons are relevant but ultimately concludes, within all of the relevant circumstances, that substantial evidence supports the trial court’s denial of defendant’s
Liu, J., dissenting Batson/Wheeler motion.” (Maj. opn., ante , at p. 36, fn. 9.) But that assertion begs the crucial question: What is it about “the circumstances” of Flowers , Foster , Snyder , and Miller-El that makes single-issue comparisons highly probative in all of those cases, but not in the case before us? The court does not say — and thus leaves unexplained how its approach can be reconciled with high court precedent. (See Hardy , supra , 5 Cal.5th at p. 119 (dis. opn. of Liu, J.).)
III.
With today’s decision, this court extends its record of not
having found
Batson
error involving the peremptory strike of a
black juror in more than 30 years — despite the fact that “[t]he
high court’s opinion [in
Batson
] responded specifically to the
pernicious history of African Americans being excluded from
jury service, calling such exclusion ‘a primary example of the
evil the Fourteenth Amendment was designed to cure.’ ”
(
Hardy
,
supra
, 5 Cal.5th at p. 124 (dis. opn. of Liu, J.),
quoting
Batson
,
supra
,
Liu, J., dissenting
People v. Rhoades
(2019)
Here, the prosecutor’s reasons for striki ng Simeon G. do not withstand scrutiny. Although I cannot be certain that the prosecutor struck Simeon G. because of his race, certainty is not the standard. Considering all relevant circumstances, I believe it was more likely than not that the strike was improperly motivated. Because the trial court erred in denying Miles’s Batson claim, his convictions must be reversed.
LIU, J. *157 See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Miles
__________________________________________________________________________________ Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________ Opinion No. S086234
Date Filed: May 28, 2020
__________________________________________________________________________________ Court: Superior
County: San Bernardino
Judge: James A. Edwards
__________________________________________________________________________________ Counsel:
Cliff Gardner and Catherine A. White, under appointments by the Supreme Court, for Defendant and Appellant.
Sherrilyn A. Ifill, Samuel Spital, Kristen A. Johnson, Christopher Kemmitt and Daniel S. Harawa for NAACP Legal Defense & Educational Fund, Inc., as Amicus Curiae on behalf of Defendant and Appellant. Kamala Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens, Ronald A. Jakob and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion): Cliff Gardner
1448 San Pablo Avenue
Berkeley, CA 94702
(510) 524-1093
Christopher Kemmitt
NAACP Legal Defense & Educational Fund, Inc.
700 14 th Street, NW, Suite 600
Washington, DC 20011
(202) 682-1300
Seth M. Friedman
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-3199
Notes
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] Christine C. did not identify defendant in her testimony.
[3] Osburn did not identify defendant in his testimony, but he described the perpetrator as a Black man who was at least six feet, one inch tall and in his twenties.
[4] She did not identify defendant in her testimony, but she described the perpetrator as a Black man over six feet tall and in his twenties.
[5] For clarity, we will refer to Arnold and Sharyn Andersen by their first names.
[6] On cross-examination, defendant testified that the voices told him to rape Christine C. and Carole D. as well. He said that the voices “were there continuously through the robberies,” and
[7] It appears that the prosecutor initially misspoke and meant to say “ if you had any feeling that maybe the defendant was [not] involved, then he’d be not guilty.” The prosecutor subsequently clarified his question.
[8]
Disagreeing, the dissent argues that the prosecutor’s
reasons were not self-evident and, in turn, that the trial court
was required to do more than what it did here. The dissent
relies on
Gutierrez
,
supra
,
[9]
The dissent emphasizes that recent decisions by the high
court found “single -issue comparisons among jurors to be highly
probative of discrimination.” (Dis. opn.,
post
, at p. 16.) As
stated, we agree that a single-issue comparison among jurors is
a form of circumstantial evidence that is relevant. However,
such comparisons are not necessarily dispositive on the issue of
purposeful discrimination but rather, must be considered within
all of the relevant circumstances. (See
Flowers v. Mississippi
(2019)
[10] This may have been in part due to the circumstances leading up to voir dire. Before jury selection, defense counsel proposed that the parties should ask any questions of the prospective jurors — even questions that did not pertain to the death penalty — during Hovey questioning. Defense counsel and the prosecutor had “some confusion or disagreement” in this regard because the prosecutor anticipated asking questions pertaining only to the death penalty or to confidential matters during Hovey questioning and thus was “only selecting [prospective jurors] for possible Hovey voir dire who have questionable answers that need further questioning as to [the] death penalty.” The trial court ultimately agreed to follow the prosecutor’s approach for Hovey questioning and to provide the opportunity for the parties to question the prospective jurors regarding other matters during voir dire. The court, however, expected that “there’s not going to be a lot of questions” during voir dire since the parties had received “most of the information from the questionnaire.” Then, during Hovey questioning, the parties primarily questioned the prospective jurors regarding the death penalty but, at times, questioned the prospective jurors regarding other matters. After Hovey questioning, the court said, “I’m gathering that there’s not going to be a whole lot of individual questioning of these jurors, that you’ve pretty much covered those that you — the questions that you had from the questionnaires.” Defense counsel responde d that he did not “have a need to ask any further questions at all,” but if the prosecutor planned to ask any further questions, defense counsel might “do a couple things.”
[11] Also, the prosecutor did not strike Alternate Juror No. 2, who was African-American and was not upset by the O.J. Simpson verdict. The Attorney General argues that this fact tends to show that “the prosecutor was motivated by the jurors’ individual views instead of their race.” Alternate Juror No. 2 indeed checked “no” whe n asked whether she was upset by the Simpson verdict, but she explained, “The evidence was there which told me he was guilty.” In light of Alternate Juror No. 2’s explanation, it appears possible that she simply checked the wrong box when asked whether she was upset by the Simpson verdict. Because Alternate Juror No. 2’s answer could be interpreted in any number of ways on the cold appellate record, we find that it is of little help in analyzing the sincerity of the prosecutor’s reason.
[12] In his reply brief, defendant engages in an attenuated analysis concerning Juror No. 3 and Juror No. 4’s respective responses to the related question, “Have you ever worked with a group of people to make a decision?” But defendant’s attempt to parse that question from the related question concerning whether a prospective juror is a leader, and why , misses the point. Juror No. 3 and Juror No. 4 did not declare a preference for their opinion over other people’s opinions, making their responses fundamentally distinguishab le from Simeon G.’s response.
[13] All Internet citations in this opinion are archived by year, docket number, and case name at <http://www.courts.ca.gov/38324.htm>.
[14] The dissent states that “it is not clear why” the circumstances surrounding Simeon G.’s attendance in court would have caused the prosecutor to doubt Simeon G.’s responses in court. (Dis. opn., post , at p. 11.) The record shows that Simeon G. arrived in court only after the trial judge himself called his employer to try to locate him. (See ante , at p. 24.) By any measure, having a judge call your workplace to locate you and have you come to court is unusual. Whether these unusual circumstances affected Simeon G.’s responses in court — as the prosecutor suggested they did — is an assessment that the trial court was best positioned to make.
[15] At the time of the prosecutor’s statement, Juror No. 6 was seated in the jury box, but Alternate Juror No. 5 was not. Although defendant does not discuss this additional fact in his briefing, we not e that at the time of the prosecutor’s statement, others seated in the jury box had indicated that they were not upset by the Simpson verdict but had provided varying explanations that likely assuaged the prosecutor’s concern.
[16] Although defendant does not raise these comparisons, the dissent additionally compares Simeon G.’s response to the responses by Juror No. 4, Juror No. 7, and Alternate Juror No. 4. (Dis. opn., post , at p. 14.) Juror No. 4 was not upset by the O.J. Simpson verdict because “su[r] prised, based on media-given facts, but did not follow trial closely.” Juror No. 7 was not upset by the verdict “since I can only judge from T.V. I cannot give an honest opinion.” And Alternate Juror No. 4 was not upset by the verdict because “I did not hear the evidence.” While a prospective juror’s response that he or she was not upset by the O.J. Simpson verdict may suggest that the prospective juror
[17] Defendant repeats these comparisons in arguing that Prospective Juror No. 63’s responses were insufficient to justify his excusal. Those comparisons fare no better.
[18] Regarding the questionnaire’s introductory paragraphs about the death penalty, he checked “no” when asked to acknowledge that he read and understood those paragraphs. It is not apparent from the record whether he indeed failed to read or understand those paragraphs or simply checked “no” due to inadvertence.
[19]
Defendant notes that Number 63 was not directly “asked
if he would be willing to set aside whatever personal views he
had and follow the law given to him by the court.” “We agree
that the better practice is to ask such a question. But the focus
of our review is whether there is substantial evidence to support
a conclusion that the juror would not be able to set aside his or
her personal feelings and follow the trial court’s instructions
concerning the imposition of the death penalty.” (
People v. Jones
(2017)
[20]
We have since held that similar statements do not suffice
to preserve this objection on appeal. (
People v. McKinnon
(2011)
[21] During this line of questioning, Detective Lore confirmed the following: the Christine C. police report described the suspect as “Male — or black male. 25 to 27. 6 feet 1. 150 [pounds]”; the Osburn and Carole D. police report described the suspect as “6 feet. 150 to 160 pounds. I believe it’s brown hair. Brown eyes. And skin was medium”; the Yenerall police report described the suspect as “Male black. 30’s. 6 feet. Weight was medium”; the Heynen police report described the suspect as “Black male. Brown eyes. Height was 6 feet 1. Weight was 180 pounds”; t he Kendrick and Crawfords police report described the suspect as “25 years. Black male. Hair was black. Eyes were black. Height was 6’4”. Weight was 160”; and the Andersens police report described the suspect as “male black. 20’s. 6 feet. 170 [pounds].”
[22]
To the extent that defendant challenges any related
omission concerning earlier suspects in the investigation, “[t]he
fact that law enforcement had investigated other leads had no
bearing on whether probable cause existed to issue the warrant
to search [the defendant’s] home and car.” (
People v. Sandoval
(2015)
[23] Defendant also claims that Detective Lore previously detailed these suspect descriptions in earlier affidavits for two other suspects in the investigation and that Detective Lore’s inconsistent approach regarding the suspect descriptions within those affidavits and the affidavit here evidenced a lack of good faith in the affidavit here. But how Detective Lore presented the suspect descriptions in earlier affidavits for two other suspects does not alter our conclusion that the affidavit here contained no false statement and omitted no material information regarding the suspect descriptions.
[24] The prosecutor argued as follows: “Finally, we have a fourth special circumstance. The murder was intentional. Again, it has to be an, an intentional murder. Not an implied malice murder like with the first degree torture theory that we described earlier. Now we’re into the torture special circumstance. Again, I know there’s some overlapping words here, but to get to torture first degree murder, which is what I discussed a minute ago. [¶] Remember, the murder, it has to be murder, but there doesn’t have to be an intent to kill. To get to the special circumstance first you have to find that there was an intentional murder, and again we’ve established, through the method of death, the method of attack, the repetitive nature, again the strangulation, we know the murder was intentional. There’s no issue there.”
[25] Later in his testimony, Canty acknowledged that he subsequently reviewed the provision and that the prosecutor had accurately recited it. Canty testified that he did not recall the provision until the prosecutor had recited it, but acknowledged that he previously had discussed the impact of a finding of incompetency with his colleagues and the press.
[26] In rebuttal, the defense offered testimony from Dr. Ronald Roston to refute portions of Dr. Moral’s testimony.
[27] The prosecutor’s closing argument discussed Canty’s possible motivations for the competency trial, in approximately two transcript pages of the total 32-page closing argument. In relevant part, the prosecutor argued that Canty’s “role is to use every legal means to insure [ sic ] that Miles escapes the death penalty,” and reminded the jury that Canty previously moved for a new penalty phase jury in another capital case and that a finding of incompetence in this trial would guarantee the same result. The prosecutor urged the jury, “make no mistake that the competency issue is played as a tactic,” that Canty used that tact ic earlier in this case, and that “it is a tactic that gets played.” The prosecutor later repeated, “[c]onsider that [defendant’s] attorneys are doing the best they can and they’re going to use every legal means so that he avoids the death penalty.” The defense did not object during the prosecutor’s closing argument.
[28] Nor did it disclose the content of any legal opinions formed in the course of representing defendant, as defendant contends.
[29] When defendant committed his crimes and his trial took place, “Penal Code section 1054.6 referred to Code of Civil
[30]
Even where “[j]uvenile adjudications are inadmissible as
evidence in aggravation . . . because they are not ‘prior felony
convictions’ within the meaning of section 190.3, factor (c),”
violent “conduct underlying the adjudication is relevant to the
jury’s penalty determination and admissible as violent criminal
activity under [section 190.3] factor (b).” (
People v. Taylor
(2010)
[31] Although defendant initially contended that he also did not know whom Heynen identified in the Boone photo lineup, defendant conceded this point in his reply brief.
not identify Dyer in this lineup, but Detective Lore’s notes indicated that Heynen said, “it could be him . This photo lineup was disassembled and not provided to the defense. The prosecution, however, provided the defense with a picture of Dyer, although it was not the picture used in the disassembled lineup. The same day as that lineup, she viewed a book of parolee pictures and said that an individual named Damon Cooper looked familiar. The book was provided to the defense. The second photo lineup included Boone. She identified another individual in that lineup, and the lineup was provided to the defense. The third photo lineup included defendant, and Heynen said, “it could be” him. She also saw a suspect sketch and assisted the police in creating another sketch. As noted, it appears that the sketches were provided to the defense. The prosecutor declared that “all of the composites are available; ” however, the defense argued that “like those shown to [Yenerall], the composites [shown to
[32] Even earlier in the case, the defense successfully moved to quash an indictment on the ground that evidence regarding earlier identifications made by some witnesses had not been presented to the grand jury. At that time, the prosecutor acknowledged that certain exculpatory evidence indeed had not been presented.
[33] Defendant asserts that the trial court did not admonish Juror No. 12 to disregard the headlines, but the Attorney General accurately points out that the court incorporated its guilt phase jury instructions into its penalty phase jury instructions, including, “ You must decide all questions of fact in this case from the evidence received in this trial and not from any other source.”
[34] In full, CALJIC No. 17.51.1 provided as follows: “Members of the Jury: [¶] Two jurors have been replaced by alternate jurors. [¶] The alternate jurors were present during the presentation of all of the evidence, arguments of counsel, and reading of instructions, during the guilt phase of the trial. However, the alternate jurors did not participate in the jury deliberations which resulted in the verdicts and findings returned by you to this point. For the purposes of this penalty phase of the trial, the alternate jurors must accept as having been proved beyond a reasonable doubt, those guilty verdicts and true findings rendered by the jury in the guilt phase of this trial. Your function now is to determine, along with the other jurors, in light of the prior verdict or verdicts, and findings, and the evidence and law, what penalty should be imposed. Each of you who now compose the jury must participate fully in the deliberations, including any review as may be necessary of the evidence presented in the guilt phase of the trial.”
[35]
The trial court in this case gave CALJIC No. 8.85, which
we have held to sufficiently cover the concept of lingering doubt.
(See
People v. Enraca
(2012)