People v. RhoadesPeople v. Rhoades
Defendant Robert Boyd Rhoades was convicted of the first degree murder of Michael Lyons, with special circumstances of murder in the commission of forcible sodomy, murder in the commission of a lewd act on a child, and murder by torture. He was sentenced to death for the crime. In this automatic appeal (
BACKGROUND
On May 16, 1996, eight-year-old Michael Lyons went missing after attending school in Yuba City. His body was found the next day on the banks of the Feather River. He had been stabbed to death sometime between the late afternoon of May 16 and the early morning of May 17. Defendant was tied to the crime mainly by physical evidence indicating that Michael was attacked in defendant‘s pickup truck, which was found stuck in the muddy river banks on May 17, and that the murder weapon was a fishing knife defendant kept in the back of his truck.
Defendant was charged in Sutter County with first degree murder (count 1;
After the Sutter County court granted a motion for change of venue, the case was tried in Sacramento County. The guilt trial began on April 14, 1998, and concluded with jury verdicts on June 17, 1998. The jury convicted on all counts except those charging kidnapping (counts 2 and 3) and forcible oral copulation (count 8), as to which it could not reach a verdict, and found true the special circumstances, except that for murder in
The first penalty trial ended in a mistrial on July 9, 1998, when the jury was unable to reach a verdict. The penalty retrial began on December 1, 1998, with selection of a new penalty jury and concluded with a verdict of death on March 19, 1999. On September 10, 1999, the Sacramento County Superior Court sentenced defendant to death for first degree murder with special circumstances, to life terms (stayed under
Guilt Phase Evidence
Michael Lyons lived in Yuba City with his mother, stepfather, and two younger sisters. He attended third grade at a school in their neighborhood. Various witnesses saw him leave school on the afternoon of May 16, 1996. Michael‘s teacher testified that Michael left the classroom when his last class ended at 2:50 p.m. Another teacher, who was on gate duty that day, testified that Michael left the school at 3:05 p.m. The teacher noted the time because Michael was the last student to leave, and she was anxious to get inside out of the rain. Sometime after 3:00 p.m., a neighbor of Michael‘s saw him walking by himself, carrying a stick, along C Street in Yuba City.
Two witnesses testified to a possible child abduction on the afternoon of May 16. Raymie Clark was standing on an apartment balcony overlooking C and Boyd Streets. From a
After school, Michael sometimes went to stay with his grandmother, who lived close to the school; otherwise, he was supposed to walk home. On May 16, Michael‘s grandmother was working late and never saw Michael, and he never arrived at home. A police-organized search for Michael began on the night of May 16, around 8:00 p.m., was suspended later that night, and resumed on the morning of May 17.
At around 11:00 a.m. on May 17, a search team found Michael‘s body in the “river bottoms” along the banks of the Feather River. The body was lying under some bushes in a wet, muddy area near the river. He was found naked from the waist down and with a dark green sweater pulled up over his head.
Between Michael‘s body and the river, which was 10 to 15 feet away, was a bloodstained blanket. Defendant‘s wife later told police the blanket appeared to be one defendant kept in his pickup truck. Under the body, police found a silver bracelet. Both defendant‘s wife and the owner of the bracelet later
Dr. James Dibdin performed Michael‘s autopsy. Michael had suffered a pair of deep cuts with a knife to the left side of his neck, one superimposed on the other, which would in themselves have been fatal. In addition, he had been cut across the right side of his neck and stabbed on the left side of his chest, puncturing his lung, and on the left abdomen through to his back (the latter two both deadly wounds). He also suffered defensive wounds to his hands. Dr. Dibdin found multiple lacerations to Michael‘s anus, one an inch long, internal bleeding associated with these lacerations, and abrasions and bruising on the buttocks. Dr. Dibdin opined that the cause of all these injuries was forcible sodomization with a penis. Rectal swabs and smears showed the presence of semen. Michael‘s lips were also bruised on the inside, having been forced against his teeth. The cause could have been a penis being pushed into his mouth, a hand placed hard over his mouth, or both. Finally, Dr. Dibdin described a group of shallow stab wounds below Michael‘s chin, caused by repeatedly jabbing with the tip of a knife, a set of straight line abrasions on Michael‘s face and buttocks, suggesting a serrated knife being scraped across the skin, and four stab wounds to Michael‘s buttocks and hip, one three and one-half inches deep.
The cause of death was multiple stab and incised wounds with contributing factors of anal penetration and repetitive minor injuries. From the degree of rigor mortis, Dr. Dibdin
On the morning of May 17, 1996, a party of volunteers searching the river bottoms for Michael had encountered defendant, who was wearing pants and no shirt and seemed nervous or shocked. Defendant asked for help getting his truck out, saying he was in a hurry to leave town. The volunteers continued their search.
Later that morning, a Sutter County Sheriff‘s Department patrol boat went to the site where Michael‘s body had been found, and from there proceeded south downstream looking for evidence or for other people in the area. Between a quarter-mile and a half-mile from where the body was found, the sheriff‘s patrol came upon defendant‘s truck, a white or beige pickup with a camper shell, stuck in the mud right at the river‘s edge. Despite the loud noise of the boat‘s exhaust system and its official markings, defendant, who was sitting motionless in the driver‘s seat, did not react to its presence until the boat came closer. Defendant made eye contact with the patrol sergeant, at which point he got out of the truck and stood on the bank. Defendant was wearing only a pair of wet blue jeans; despite the cold, breezy and intermittently wet weather he was shirtless, barefoot, and (it was later discovered) wore no underwear. According to the sheriff‘s sergeant, defendant also appeared unenthusiastic about encountering the sheriff‘s boat, even though his situation appeared somewhat perilous.
Defendant was brought aboard the boat and handcuffed. As officers took defendant north to the Yuba City boat ramp, they passed the scene of the body‘s discovery, where several
Defendant‘s truck was at the river‘s edge, partly in the water. The cable of a small come-along winch was wrapped at one end around the rear axle and at the other around a tree. On the open tailgate, there was a fishing knife, a thin bladed fillet knife with a serrated edge. The knife had blood underneath some sandy river soil in corners where the blade met the handle; DNA testing showed the blood was Michael‘s.
Footprints matching Michael‘s were found on the inside of the truck‘s windshield. Pubic hairs found on Michael‘s clothing (which could not have belonged to the eight-year-old victim) were consistent in color, shape, and structure with samples taken from defendant. On brushing defendant‘s pubic area, a criminalist found silty river-bottom soil and a green polyester fiber. The fiber matched a fiber from Michael‘s sweater in color, shape, diameter, fiber type, and internal structure. There was blood on Michael‘s sweater and on defendant‘s jeans and underwear. There was also a large bloodstain on defendant‘s shirt. The blood on defendant‘s underwear and shirt, which were found in his truck, was dilute. Examination of defendant‘s body after his arrest showed he had abrasions and scratches on his arm, hips, and inner thigh, and a possible bruise on his penis. Methamphetamine and a syringe were found in defendant‘s truck; defendant‘s blood tested positive for methamphetamine.
The prosecution presented witnesses to show defendant‘s whereabouts on the afternoon of May 16, 1996. Defendant‘s father, who ran a barbershop where defendant worked, testified defendant left the shop at around 11:00 a.m., saying he was
The prosecution introduced no statements by defendant to the police, but a Sutter County deputy sheriff testified to a statement defendant made during a recess in the preliminary hearing. After the time of death had been discussed in the proceedings, the deputy sheriff overheard defendant tell his attorney, “I can give them a better time of death than what they have.”
The prosecution also presented two witnesses to describe defendant‘s behavior on a Yuba City public bus on May 14, 1996, two days before Michael‘s killing. Alicia Tapia testified she saw an unkempt, dirty man, whom she later identified as defendant, get on the bus wearing a long knife in a sheath. The man then
Finally, the prosecution presented evidence of defendant‘s two prior sex offenses through the testimony of the victims. Sharon T. testified that in 1985, she became acquainted with defendant at the restaurant where she worked. After gaining entry to her apartment on a pretext, defendant put a large hunting knife to her throat, demanded money, handcuffed her, and forced her to orally copulate him. He then said he was taking her down to the river where he had to meet some people. As defendant drove her toward the river, he started laughing and said, “This is just like Bonnie and Clyde, but Bonnie‘s not going to make it.” When they neared the levee, Sharon opened the passenger door and, after a struggle, jumped from the moving car. Defendant backed up toward her, but she rolled under the open door, then ran to a nearby public building.
The other victim, Crystal T., testified that in 1993, when she was four years old, defendant—who was married to Crystal‘s grandmother—touched her vagina and put his penis in her mouth. Defendant was convicted of a lewd act with a child.
Defendant testified in his own defense. He denied any contact with Michael Lyons. On May 16, 1996, he went to work at his father‘s barbershop but left before noon so that his father, who needed the money, could have more work. Instead of having his truck repaired as he had intended, he bought $60 worth of methamphetamine from a friend and, after injecting a small amount, went to Rooney‘s Card Room. He arrived at 1:00 p.m., played poker for two and a half hours and left around 3:30 p.m. He then drove to various places in Yuba City and Marysville looking for another friend who had told him she needed a ride, but did not find her. Defendant drove home to the town of Sutter and stayed there about an hour, then came back to Yuba City and down to the river bottoms, where he could use drugs without fear of encountering his family, the police, or his parole officer.
After defendant drove around the river bottoms, fished, and did some dope, defendant‘s truck got stuck sometime around 8:00 or 8:30 p.m. He tried unsuccessfully to free his truck for a couple of hours, but realized he needed his come-along winch, which was back at his house. During the night, he walked out of the river bottoms to his father‘s barbershop, stopped there to inject more methamphetamine, then walked and hitchhiked to his house in Sutter. After retrieving the come-along, he walked and hitchhiked back to Yuba City and returned to his truck in the river bottoms. He probably walked 10 miles during the
Arriving back at his truck between 3:00 and 4:00 a.m. on May 17, defendant testified, he found it ransacked, with papers and tools strewn about. Though he thought he had locked the cab when he left, the camper shell did not lock and he found the sliding windows between the cab and the camper open. After freeing his truck with the come-along, defendant decided to head to the Shanghai Bend area of the river bottoms because he knew some people who stayed there. On the way there, his truck again became stuck in the mud. For the next eight hours, defendant tried but failed to free it. He did not seek help from his father because his father would have been angry at him for using drugs; he had various reasons not to contact other relatives or acquaintances. Though his truck was quite stuck, he believed he would eventually get it out by himself.
Defendant was not pleased to see the sheriff‘s patrol boat because he had drugs in his truck. On the boat, defendant saw the people who looked like astronauts working on the shore but was not concerned by it. He did not know why he was being arrested.
Defendant denied being on a bus on May 14 or behaving on the bus at any time as Tapia had described. That day, he was occupied with returning a boat to his father and getting his wife‘s car repaired.
Defendant testified that the scratches on his body and the blood on his shirt were from dragging logs while trying to free his truck from the mud. He did not know how much he was
In addition to presenting defendant‘s testimony, the defense presented evidence to discredit the testimony about the May 14 bus incident and to suggest that another person living in the river bottoms was involved in Michael‘s death. Defendant‘s father corroborated defendant‘s account of his activities on May 14, and the bus driver testified that had a passenger displayed a knife in a threatening manner she would have immediately reported the event to the police. The driver knew both Tapia and Buchanan and did not recall the events they described. Donald Dugger, who lived in a trailer in the river bottoms, testified that a couple of days after Michael‘s disappearance, Bobbie Lemmons—another bottoms resident, who had found Michael‘s shoes and pants while scavenging in the area—asked Dugger to provide him with an alibi for the night of May 16. Police found a pocket knife with “L” and “R” (defendant‘s wife‘s initials) engraved on its two sides in Lemmons‘s storage locker; he did not recall where he had gotten it. Defendant identified the knife as his wife‘s and a fishing pole found in the locker as one that had been in his truck. A man walking on the river bank around 4:15 p.m. on May 16 testified that he saw Michael (whom he did not know but later recognized from a photograph in the newspaper) playing there with another boy his age, and a woman who was fishing on the Marysville side of the river on May 16 (who also later recognized Michael from a photograph in the newspaper) testified she saw him with two men, one of whom she thought was defendant, on the Yuba City bank in the late afternoon.
On retrial of penalty after the first jury hung, the parties presented extensive evidence replicating that given at the guilt phase. In addition, Michael‘s aunt testified to the impact of Michael‘s death on her and on Michael‘s mother and sister. The prosecution also presented evidence that defendant had suffered convictions for check forgery in the 1980‘s, in addition to his convictions for the crimes against Sharon T. and Crystal T.
The defense presented three witnesses to support defendant‘s claim he had gone to a house looking for his friend on the afternoon of May 16, 1996. But of these witnesses, the only one who remembered seeing a man resembling defendant at the house was using drugs heavily at the time and had told the prosecution investigator she could not identify the man and did not really know what day he was there. The defense also presented evidence that Michael‘s stepfather had been convicted in 1995 of spousal abuse of Michael‘s mother and of evading a police officer, as well as the testimony of a forensic pathologist who disagreed with Dr. Dibdin‘s opinions in other cases but who had not reviewed any materials relating to Michael‘s death.
Defendant‘s father, mother, aunt, and sister testified about defendant‘s childhood and family life. Until defendant was about 10, his father gambled, drank, and cheated on defendant‘s mother, which caused a lot of turmoil in the family. After that, defendant‘s father returned to his religion, Seventh Day Adventism, and defendant was sent to a church school and was restricted in his activities. In his teens defendant fought with his father over the strict rules of their religion, over going to church, and over a boarding school he was sent to. Defendant‘s sister thought their father was overly strict and
James Park, a consultant on adult prison operations and prisoner classification, reviewed the records of defendant‘s prior imprisonments, from 1986 to 1990 and 1993 to 1994. Although defendant had four disciplinary actions, there were also work reports indicating he was productive, did not cause trouble, and could help train other inmates and assist the employee-supervisor. Park opined that defendant would make a positive adjustment to state prison confinement.
DISCUSSION
Guilt Phase Issues
I. In Camera Review of Medical and Psychological Records
The Federal Bureau of Investigation (FBI) conducted part of the investigation into Michael‘s death. Certain FBI interview reports produced before trial indicated that Michael had previously been molested by a relative. On several occasions both before and during trial, defendant subpoenaed and sought to compel production of various medical and psychological records concerning the prior molestation. On the basis of the FBI interview reports, defense counsel asserted the molestation may have continued to the time of Michael‘s death; counsel further argued that defendant had a due process right to the disclosure of the records because they might lead to development of exculpatory evidence. Seeking the records again before the second penalty trial, counsel also argued they were potentially relevant to impeach Dr. Dibdin, the autopsy
Before trial, the Sutter County Superior Court reviewed the records in camera, weighed their value to defendant‘s exercise of his constitutional rights against the various evidentiary privileges and privacy interests asserted, including the psychotherapist-patient privilege, and denied defendant‘s request to compel discovery of the records. Noting the documents were remote in time from Michael‘s murder, the court found nothing that would assist defendant in his presentation of a defense or confrontation of witnesses. The court denied the motion subject to renewal during trial if the material became relevant, however. During trial, the Sacramento County Superior Court also reviewed the materials and, on two occasions, again denied defense motions to compel their discovery on the ground that nothing in the records would assist the defense.
Defendant contends the trial court‘s refusal to order production of the medical and psychological records deprived him of his rights to due process, to confront witnesses, and to present a defense. Without access to the materials, defendant acknowledges he cannot argue their specific relevance, but he asserts they may have been relevant to show the existence of “other molestations and suspects” and to impeach “the rosy picture painted of Michael and his family in the victim impact portion of the penalty phase.” He requests that this court review the materials, which are under seal, to determine if any of them should have been produced. The Attorney General does not oppose the request, and we agree that review of the sealed materials is appropriate to determine what relevance, if any,
After our own review of the sealed records, we agree with the two superior courts that considered the issue: the records contain nothing of significance to the defense. As the lower courts observed, most of the materials relate to events remote in time from Michael‘s murder, and nothing in them casts suspicion for that crime on any person. Nor do the materials contradict Dr. Dibdin‘s testimony that he found no indications on Michael‘s anus or rectum of scarring from a previous molestation, or Tina Lyons‘s testimony that Michael‘s murder had taken away a part of Michael‘s mother, Sandra, and rendered her “lifeless,” no longer carefree and happy as she had been before. We therefore find no error in denial of defendant‘s motions to compel discovery. (People v. Webb, supra, 6 Cal.4th at p. 518.)
II. Admission of Hearsay Statements Made by Defendant‘s Wife
Defendant‘s wife, Lynnette Rhoades, invoked her marital privilege not to be called as a witness against her spouse. (
On appeal, defendant contends admission of the hearsay statements violated his federal confrontation and due process rights. He argues that neither of the hearsay exceptions cited by the trial court as a basis for admission (namely, spontaneous statement (
The Attorney General defends the application of both hearsay exceptions but concedes that the statements—which were made in response to questioning by law enforcement officers seeking information to be used at a criminal trial—were testimonial and therefore barred under Crawford. The Attorney General maintains, however, that defendant forfeited his confrontation clause claim by failing to object on that ground at trial and that, in any event, admission of Lynnette‘s statements was harmless beyond a reasonable doubt.
We reject the Attorney General‘s forfeiture argument. Because defendant‘s trial preceded the decision in Crawford, his claim of a confrontation clause violation was preserved despite the absence of an objection on that ground. (People v. Rangel (2016) 62 Cal.4th 1192, 1215 [concluding that “in a case
We further agree with both parties that Lynnette Rhoades‘s statements were testimonial and were inadmissible under Crawford. At an in limine hearing on their admissibility, Sergeant Johnson testified that he and an FBI agent interviewed Lynnette at her family home in Stockton on May 20, 1996. She told them she had just spoken to defendant‘s attorney and would not talk to them unless they could show her that defendant had committed a crime. They told her the victim‘s footprints had been found inside defendant‘s truck. She became extremely upset, crying, hyperventilating, and even vomiting. After about five minutes, she calmed down somewhat, though she was still crying, and agreed to talk with them. She then answered their questions in detail, including identifying the bracelet and blanket, and signed a written statement. Statements made to law enforcement officers in an interview primarily designed to obtain evidence of a past crime are considered testimonial. (Davis v. Washington (2006) 547 U.S. 813, 829–831; Crawford, supra, 541 U.S. at p. 53, fn. 4; People v. Cage (2007) 40 Cal.4th 965, 984.) As defendant had no opportunity to cross-examine the declarant, Lynnette‘s statements were inadmissible under the rule of Crawford.
Defendant argues the hearsay statements were particularly damaging in that they tended to show Lynnette had “turned on” defendant and believed him guilty, but in comparison to the physical evidence tying the murder to defendant such an implication bore little if any significance. Admission of Lynnette‘s statements, though error under the confrontation clause, was harmless beyond a reasonable doubt.
III. Admission of Defendant‘s Remark Overheard by Deputy
As noted, Sheriff‘s Deputy Carlton Dinwiddie testified that during a recess in the preliminary hearing, he overheard defendant say to his attorney, “I can give them a better time of
Deputy Dinwiddie testified at an in limine hearing to the circumstances in which he overheard the remark: Dinwiddie and another deputy were assigned to transport and guard defendant at the preliminary hearing. During a recess after testimony about the time of Michael‘s death, defendant, his attorney, and the defense investigator went into the jury room to confer. Each sheriff‘s deputy sat by one of the two open doors of the room; Dinwiddie was about 10 or 15 feet from defendant. At first, Dinwiddie could not hear what defendant or the others were saying, but at some point defendant stood up, raised his voice and said, “I can give them a better time of death than what they have.” Defendant‘s attorney told him to be quiet, noting that the walls, or in this case the doors, have ears. The three men continued their conversation, but Dinwiddie could not hear what more they said.
Defendant‘s statement was not a confidential communication protected by the attorney-client privilege. (
While defendant may be correct that he had no choice of locations for consulting with his attorney, he did have a choice about how loudly to speak. He chose to do so in a manner that the deputy, who was openly and permissibly present, could overhear. The facts show there was no need for the defendant to make the reported remark so loudly: For most of the remainder of the conversation, the parties had spoken so quietly that Dinwiddie was unable to hear their words, and after defendant made the overheard remark his attorney told him to speak more quietly. (See People v. Urbano, supra, 128 Cal.App.4th at pp. 402–403 [trial court “found that Urbano had no need to speak in a voice ‘loud enough for individuals in the audience to hear,’ as his attorney was sitting right next to him in the jury box, but nevertheless made his communication in a way that ‘clearly disclose[d] it to third persons’ “].) And while defendant alludes to the deputies’ “unnecessary proximity” and argues they were “essentially spying” on him, he refers to no evidence to support those characterizations. The deputies were 10 to 15 feet away by the open doors of the jury room; the record does not suggest they deliberately positioned themselves so as to overhear defendant or his attorney.
IV. Admission of Evidence of Defendant‘s Prior Offenses
Through in limine motions, defendant contested the admissibility of defendant‘s prior crimes against Sharon T., the acquaintance whom defendant sexually assaulted in her home, robbed, and drove toward the river bottoms, and Crystal T., the four-year-old relative whom defendant molested. The trial court ruled evidence of both crimes admissible under
The facts of the Sharon T. and Crystal T. incidents, as outlined in the People‘s motion papers arguing for their admissibility, were as follows: In 1985, defendant telephoned Sharon and said he wanted to discuss a piece of real estate with her. He came to her Marysville apartment and she let him in. After they talked for a while in her living room, he moved to sit beside her, pulled out a six- or seven-inch knife and put it to her
Defendant handcuffed Sharon, ordered her into the bedroom, took off her clothes, and forced her to orally copulate him until he ejaculated. Then, after loosening one of the handcuffs, he told her to get dressed, saying they were going for a ride to Riverfront Park. He wiped down surfaces in the apartment, remarking that “people who make mistakes get caught.” Taking her car keys, he told Sharon he had a gun and would kill her if she tried to run. During the ride down to the river, he compared the two of them to Bonnie and Clyde, but noted that Bonnie “isn‘t going to make it.” Sharon, believing defendant would kill her if they got to the river, jumped from the moving car. After evading defendant‘s attempt to recapture her, she ran to a nearby building for help.
In 1993, defendant molested Crystal T., the granddaughter of his wife, Lynnette. Crystal and her mother (Lynnette‘s daughter) lived in the same trailer park as defendant and Lynnette. After Crystal‘s mother left her with a babysitter in the trailer park, defendant telephoned the sitter and told her to send Crystal to his trailer. When the mother came home, Crystal was still in defendant‘s trailer. That evening, Crystal said that “Grandpa made me put his pee in my mouth and it was yucky.” The same evening, she repeated the report to a police detective, adding that defendant “rubbed his pee on my pee and butt.”
The trial court properly admitted defendant‘s sexual offenses against Sharon and Crystal under
Defendant argues that the trial court abused its discretion in admitting the Sharon T. and Crystal T. incidents because they were unduly prejudicial. We find no abuse of discretion.
On the prejudice side of the scale, although defendant‘s prior sexual crimes were certainly capable in themselves of causing emotional reactions in jurors, neither was especially inflammatory in comparison with the charged offenses. Because defendant had already been convicted in both incidents, there
Defendant points out that his kidnapping of Sharon was not itself a sexual offense as defined in
Again, the facts showed that defendant gained control over Sharon by telling her that he wanted to talk to her about a real estate project. He then sexually assaulted her and kidnapped her by threatening her with a long knife to her throat; en route to the river, he indicated he intended to kill her there. This evidence tends to prove that defendant harbored the same lethal intent when he abducted Michael, whom he later killed by cutting his throat with a long knife. (See Daveggio, supra, 4 Cal.5th at p. 827; People v. McCurdy (2014) 59 Cal.4th 1063, 1098; People v. Soper (2009) 45 Cal.4th 759, 779, fn. 15.) In addition, the similarities between Sharon‘s kidnapping and threatened murder and Michael‘s kidnapping and murder in choice of weapon (long knife) and location (driving victim to river bottoms area) are sufficient to make the prior incident relevant to show a common design or plan, which was in turn relevant to show Michael was in fact kidnapped. (See Ewoldt, supra, 7 Cal.4th at p. 403 [“To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.“]; see also ibid. [prior molestation of victim‘s older sister relevant on common plan where molestations occurred at similar time and place and the defendant offered a similar excuse for his actions
Defendant next contends the admission of his prior crimes under
V. Exclusion of Evidence of Witness‘s Prior Conviction
Defendant‘s next claim of error concerns the trial court‘s exclusion of evidence that defense witness Bobbie Lemmons had suffered a prior conviction. Lemmons, a river bottoms resident who testified to finding the victim‘s shoes and pants, had been convicted in 1992 of annoying or molesting a child, a misdemeanor. (
In an
Court and counsel revisited the issue after Lemmons‘s testimony. Defense counsel now argued the conviction was admissible not as impeachment but on a theory “likened to 1108 or 1101 conduct, which is relevant to show the possibility of another person committing the crime . . . .” The trial court adhered to its exclusion ruling, explaining that
The trial court‘s ruling of inadmissibility was correct under the Evidence Code. By its terms,
Defendant contends exclusion of the conviction showed judicial bias amounting to a due process violation. He argues it was unconstitutional to admit his own convictions while excluding that of a third party on whom he wished to cast suspicion for the crimes: “If propensity evidence was admissible against appellant, it violated due process to exclude the same with respect to Mr. Lemmons.”
Defendant failed to establish the foundation for his claim of constitutionally unequal treatment. At trial, defendant did not argue for admission of Lemmons‘s conviction on the constitutional ground he now asserts.8 The record therefore contains neither the full factual basis for a balancing of prejudice and probativeness under
VI. Guilt Phase Prosecutorial Misconduct
Defendant contends the prosecutor committed egregious misconduct in examining witnesses and in closing argument, depriving defendant of a fair trial in violation of his due process rights.
Prosecutorial misbehavior “violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ’ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” (People v. Espinoza (1992) 3 Cal.4th 806, 820; accord, People v. Hill (1998) 17 Cal.4th 800, 819.) We conclude there was no prejudicial misconduct under either federal or state law.
First, defendant asserts the prosecutor improperly insinuated to the jury that defendant acted immorally and created a threat to the Yuba City community by habitually and illegally driving his truck over the river levees, potentially causing them damage. The relevant exchange occurred during defendant‘s testimony. After defendant agreed with the prosecutor‘s supposition that going over the levees is illegal “because it tears up the levees and might cause the levees to break,” the prosecutor continued: “Is there some reason you persist in doing this when it‘s dangerous to the whole community?” A defense objection (“speculation“) was sustained as to the form of the question, and the prosecutor rephrased: “Is there some reason you[,] when you know this is dangerous[,] that you continue to do it?” Defendant answered that it is “not necessarily dangerous” and that “everybody does it.” When the prosecutor continued with a question about a levee break and flood that occurred in 1996, defense counsel objected on grounds of relevance, and the prosecutor withdrew the question, but went on to say: “[W]ell, I guess what I‘m getting at is you just don‘t care about other people.” The court sustained a defense objection to the form of the question and the prosecutor moved on to another topic.
In this series of questions, the prosecutor explored a legitimate area for cross-examination: the nature of defendant‘s activities in the river bottoms. On direct, defendant had testified to his affinity for the river bottoms and for driving his four-wheel drive truck in the area, describing activities that were either innocent or, at least, had no direct victims: driving
Second, defendant maintains the prosecutor committed misconduct by eliciting an answer from Sheriff‘s Sergeant Harris, who was on the patrol boat when defendant was arrested, to the effect that given defendant‘s situation—stuck as he was in the mud with a rising river—Harris thought defendant should have been happy to see the patrol boat. In an earlier hearing out of the jury‘s presence, the court had ruled that Harris could describe defendant‘s reaction to the boat‘s arrival and could relate his own observations about the rising water, but could not say defendant‘s reaction went against his expectations. After establishing that defendant seemed to Harris unenthusiastic about the boat‘s arrival, the prosecutor asked, “Did it appear to you that he was in any kind of predicament at that point?” Harris answered: “Yes. Under the circumstances, his lack of enthusiasm caught my attention due to the fact he was in quite some peril there and his pickup being
There was no prosecutorial misconduct. Although Harris‘s answer may have gone beyond the limit set by the court, the prosecutor‘s question did not call for Harris to give such an answer and there is no indication the prosecutor instructed or expected Harris to give it. (Cf. People v. Warren (1988) 45 Cal.3d 471, 482 [prosecutor who expects witness may give an inadmissible answer must warn witness].)
Third, defendant contends the prosecutor exceeded the scope of proper rebuttal in his final argument to the jury by expressing skepticism that defendant could have walked around 10 miles in wet conditions, wearing old, “cruddy” shoes, without getting blisters on his feet. We disagree. Though defense counsel spent most of his closing argument pointing to purported weaknesses in the prosecution case and suggesting that someone else (for example, Bobbie Lemmons) might have been the killer, he also maintained that defendant‘s testimony was consistent and believable. And since defendant had no alibi for the period of Michael‘s killing, the defense claim of innocence depended critically on the believability of defendant‘s account of his actions during that time. It was fair rebuttal for the prosecutor to point out implausible aspects of that account.9
VII. Instruction on Circumstantial Evidence
Defendant contends a reference to “innocence” in a standard instruction on evaluating circumstantial evidence (CALJIC No. 2.01) improperly suggested to the jury that it was his burden to prove his innocence rather than the People‘s burden to prove guilt beyond a reasonable doubt.10 We have
Penalty Phase Issues
VIII. Mistrial Motion after Outburst by Victim‘s Stepfather
During defendant‘s testimony at the penalty phase of trial, Billy Friend, the victim‘s stepfather, suddenly shouted out, “You‘re going to die you slimy son of a bitch.” The court immediately recessed, giving the jury its ordinary admonition not to form an opinion or discuss the case. Defendant moved for a mistrial, describing Friend‘s outburst as, in effect, testimony that the defense had no opportunity to impeach with Friend‘s prior convictions and evidence of “rancor” in the family before Michael‘s death. The court found Friend in contempt, ordered him to refrain from any more untoward conduct, and denied the mistrial. When the jurors and alternates reentered, the court addressed them as follows:
“All right. The Court will note for the record that all of the jurors have now entered the courtroom. And first of all, the
“If you‘ll recall both before, during, et cetera, any time I‘ve had contact with you, I‘ve indicated time and time again that your judgment in the case is to be based on only evidence that comes from that witness stand and such documentary or physical evidence that the Court admits into evidence. Obviously I did not say that includes any outburst from somebody in the larger area of the courtroom.
“I run a public courtroom as long as I have, and so long as I can do it within my power this is going to be a public courtroom and anybody can come in. And they‘re supposed to act like ladies and gentlemen. When they don‘t, we have the kind of thing that occurred here today.
“The assurance I want from all 16 people in front of me is that you‘re not going to let that matter influence your decision in any way. And in that regard I‘m instructing you you‘re not to allow it to influence you in any way.
“Now any one of the 16 of you who feel you could not follow that direction fully, I want you to please raise your right hand.
“Court sees no hands.
“Now also, this outburst can affect people in different ways. And any of you feel that either the outburst or anything up to right now has so badly affected you that you can‘t continue to be jurors and treat all parties to this litigation fairly? If you feel anything‘s happened in that regard, again please raise your hand.
“I see no hands. When I ask these questions I sometimes have a feeling that maybe jurors think well, I‘m not supposed to
“All right. I see no hands, and I thank you very much. And at this juncture I believe we should continue with the examination of Mr. Rhoades.”
Defendant does not maintain that the People were responsible for Friend‘s outburst. In this circumstance—a spectator outburst not attributable to either party—a mistrial is called for only if the misconduct is so inherently prejudicial as to threaten defendant‘s right to a fair trial despite admonitions from the court. Prejudice is not presumed. (People v. Chatman (2006) 38 Cal.4th 344, 368–370; People v. Cornwell (2005) 37 Cal.4th 50, 87–88.) The situation here did not call for a mistrial. The hostile outburst by a family member of the victim exposed the jury to no information except the very fact of Friend‘s hostility, which would not have been surprising in itself, and Friend‘s inability to maintain the decorum of the courtroom. The court‘s careful admonition and inquiry elicited no suggestion any jurors would be unable to set aside the event in their deliberations. Under these circumstances, the court did not abuse its discretion in denying a mistrial.
IX. Racially Discriminatory Use of Peremptory Challenges
Defendant contends the prosecution intentionally used its peremptory challenges to remove all African-Americans from the penalty retrial jury in violation of Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258. The trial court concluded defendant failed to make out a prima facie case of discrimination and thus did not require the prosecutors to explain their reasons for the challenged strikes. Defendant contends this was error. And because the trial was conducted in 1999, he contends it is now too late to ask the prosecutors to explain why they struck the challenged prospective jurors. Defendant contends he is therefore entitled to reversal of the penalty judgment. We conclude the contention lacks merit.
“Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based on group bias, such as race or ethnicity. (See Batson v. Kentucky[, supra,] 476 U.S. [at p.] 97 [(Batson)]; People v. Wheeler[, supra,] 22 Cal.3d [at pp.] 276–277 (Wheeler).) When the defense raises such a challenge, these procedures apply: ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted; see also People v. Lewis [(2008)] 43 Cal.4th [415,] 469.)” (Davis, supra, 46 Cal.4th at p. 582.)
The trial court here denied defendant‘s Batson-Wheeler motion at the first stage, finding he had not established a prima facie case. “Though proof of a prima facie case may be made
A. Background
Each prospective juror for the penalty retrial completed a 162-question, 44-page questionnaire. On January 11, 1999, after hardship excusals, voir dire by the parties, and challenges
Defendant made his first Batson-Wheeler motion after the prosecutor struck three African-American women: Shirley R., Adrienne A., and Alice S. Noting that the prosecution had also used peremptory challenges against two White prospective jurors and that “there are a number of other jurors in the venire in the courtroom,” the court denied the motion without prejudice to its renewal. The prosecution then excused two more White prospective jurors and a fourth African-American woman, Alicia R. The strike prompted a renewed defense motion.
Addressing the second Batson-Wheeler motion, the trial court noted that the prosecution had exercised four of its eight peremptory challenges against African-Americans. The court asked defense counsel what other circumstances supported his motion. Counsel responded that based on the juror questionnaires and voir dire, there were “no other discernable differences” between the struck jurors and those still in the box. Prosecutor Nolan replied, “Oh, I think there are significant differences,” but when the court asked her to elaborate, she declined on the ground that the defense had not yet made a
The court denied defendant‘s second Batson-Wheeler motion under “the authority of this Howard case,” but cautioned the prosecutors “that any further matters of this kind will weigh heavily on this Court.” The court continued: “I‘m very close, I‘m going with Howard for the time being, but if I see very much more of this, I‘m going to indicate to you, you may well have a
Although the trial court did not explicitly say so, it appears from the lack of any contrary statement that at the time of defendant‘s second motion no other African-Americans were seated in the jury box; the Attorney General agrees on this point. Beyond that, the record does not make clear how many other African-Americans remained in the jury pool (the questionnaires do not record race or ethnicity), though the trial court‘s warning to the prosecutors against engaging in “any further matters of this kind” or “very much more of this,” and its earlier remark that “there are a number of other jurors in the venire in the courtroom,” suggest that the court believed some of the remaining prospective jurors were African-American or belonged to another racial or ethnic minority.
We briefly sketch the relevant questionnaire and voir dire answers given by the disputed prospective jurors:
In her juror questionnaire, Shirley R., a 60-year-old administrative assistant, declined to answer several questions about the death penalty, but indicated she had strong opinions about it; she thought the Biblical verse “an eye for an eye” has been “grossly misinterpreted and misused“; and she considered life in prison without the possibility of parole to be “more of a punishment than the death penalty.” She responded “yes” to a question asking whether, given the choice between life in prison without parole or death for a person convicted of first degree
Under questioning by defense counsel, Shirley R. said that while she had strong opinions about the death penalty, “I would truthfully be able to consider both penalties after hearing the evidence.” Asked by Prosecutor Schroeder whether she agreed that the death penalty was the appropriate punishment in some cases, she answered, “No, I can‘t truthfully say that,” and explained, “I try to lead a Christian life, and my Bible says thou shalt not kill. It doesn‘t say give me any exceptions . . . .” On further questioning by the prosecutor, however, she backed off from an absolute position and agreed that the death penalty might be appropriate sometimes and she could impose it in what the prosecutor described as “just really a horrible case.” Neither side challenged Shirley R. for cause.
Adrienne A., a 26-year-old customer service representative, stated she did not believe the death penalty served any purpose; that in “some or most” cases it is unnecessary; that she had not supported its reinstatement because “I can‘t support actions to kill a human as a sentence even if that individual has killed someone“; and that if she were making the laws, there would not be a death penalty. She nonetheless thought the death penalty was appropriate for premeditated murders and would not always vote for life without parole (or death) for a person convicted of first degree murder with special circumstances.
In answer to defense counsel‘s questions, Adrienne A. explained that while she had not seen the purpose of the death penalty in cases she had heard about, if she actually heard all the evidence and found it “the just verdict,” she would vote for
Alice S., a 36-year-old budget analyst, was the mother of a six-month-old infant. She raised doubts as to whether caring for her baby would interfere with her ability to serve, noting that her husband travels “so I get very stressed at times.” She also thought serving in this case would touch on “a very sensitive area” for her because her brother had been convicted of a sexual offense; Alice S. believed her brother was innocent but due to his alcoholism “had no accountability the day of the alleged crime.” On questioning by Prosecutor Nolan, Alice S. clarified that she believed her brother had not committed the crime with which he was charged. His alcohol use had resulted in his being “pretty much homeless,” and as a result he “basically had no accountability.” If a person actually committed the crime, though, “they should be held responsible if there was alcohol or drugs and they‘re convicted.” Asked whether she could vote for a death sentence if she believed, after hearing all the evidence and the instructions on the law, that it was the appropriate sentence, she first said, “I can‘t really answer that.” But when the prosecutor clarified that she was not being asked whether she would vote for death in this case but only whether she could in a case where she thought it was the appropriate verdict, she answered, “Yes.” There was no challenge for cause.
Alicia R., the final African-American prospective juror struck by the prosecution, was 36 years old and worked in customer service. In answers to the juror questionnaire, Alicia R. indicated that she had no strong opinions about the death penalty. But asked about the Old Testament verse, “an eye for
In voir dire Prosecutor Schroeder asked whether, if Alicia R. “made that kind of mental decision that . . . the death penalty objectively appears to you to be the correct decision,” she “would” vote for it. She replied, “I suppose.” Neither side challenged Alicia R. for cause.
B. Analysis
The trial court in this case applied the “strong likelihood” standard from Howard to determine that defendant had not established a prima facie case of discrimination. At the time the trial occurred in 1999, there was some confusion in the case law as to how, if at all, this standard differed from the “reasonable inference” standard articulated in other California cases. A few years after defendant‘s trial, this court granted review to resolve the issue in People v. Johnson (2003) 30 Cal.4th 1302, 1306, 1313–1318. In that case we ruled that both terms “refer to the same test, and this test is consistent with Batson.” We went on to elaborate: “Under both Wheeler and Batson, to state a prima facie case, the objector must show that it is more likely than not the other party‘s peremptory challenges, if unexplained, were based on impermissible group bias.” (Id. at p. 1306.)
The United States Supreme Court, in turn, granted review to consider the issue and disapproved People v. Johnson‘s ” ‘more likely than not’ ” standard. (Johnson v. California, supra, 545 U.S. at p. 168.) The high court explained that under Batson, the trial judge should “have the benefit of all relevant circumstances, including the prosecutor‘s explanation, before deciding whether it was more likely than not that the challenge was improperly motivated.” (Johnson v. California, at p. 170.)
Because the trial in this case predated this court‘s decision in People v. Johnson, it is unclear whether the trial court understood the “strong likelihood” standard to mean “more likely than not.” Nonetheless, the trial court presumably understood the standard to be somewhat more demanding than the “reasonable inference” standard, for which defendant had argued. In the category of cases involving jury selection before the high court clarified the prima facie case standard in Johnson v. California, this court has adopted a mode of analysis under which, rather than accord the usual deference to the trial court‘s no-prima-facie case determination, we “review the record independently to determine whether the record supports an inference that the prosecutor excused a juror on a prohibited discriminatory basis.” (People v. Kelly (2007) 42 Cal.4th 763, 779; accord, People v. Reed (2018) 4 Cal.5th 989, 999 (Reed); Davis, supra, 46 Cal.4th at pp. 582–583; Bell, supra, 40 Cal.4th at p. 597.)
Here we consider whether the record supports an inference the prosecution excused one or more of the African-
We consider the showing defendant made at his second or renewed motion, as that presents the fuller record of facts and argument. Looking to the pattern of the prosecution‘s
Exercising our independent review on appeal, we are nonetheless persuaded that the totality of the circumstances surrounding the prosecution‘s use of peremptory challenges
Furthermore, the record does not reveal any apparent disparities in the nature or extent of the prosecutors’ questioning of the African-American prospective jurors versus prospective jurors of other racial and ethnic backgrounds. And, finally, the record discloses readily apparent, race-neutral grounds for a prosecutor to use peremptory challenges against each of the four prospective jurors at issue. (See, e.g., Reed, supra, 4 Cal.5th at pp. 999–1000.)
By referring to “readily apparent” grounds for the strikes, we do not mean merely that we can imagine race-neutral reasons the prosecutors might have given if required to do so at the second step of the Batson inquiry. As defendant and
But our cases have also recognized that where the record reveals ”obvious race-neutral grounds for the prosecutor‘s challenges to the prospective jurors in question,” those reasons can definitively undermine any inference of discrimination that an appellate court might otherwise draw from viewing the statistical pattern of strikes in isolation. (Davis, supra, 46 Cal.4th at p. 584, italics added; accord, People v. Taylor (2010) 48 Cal.4th 574, 616.) Put differently, when the record of a prospective juror‘s voir dire or questionnaire on its face reveals a race-neutral characteristic that any reasonable prosecutor trying the case would logically avoid in a juror, the inference that the prosecutor was motivated by racial discrimination loses force. Therefore, as we have said, an appellate court may take into account “nondiscriminatory reasons for a peremptory challenge that are apparent from and ‘clearly established’ in the
Here, the record reveals readily apparent reasons for the strikes that dispel the inference of bias. In particular, Shirley R. and Adrienne A. each expressed strong views against the death penalty on their questionnaires and in voir dire. On her questionnaire, Shirley R. wrote that she considered life in prison
Comparisons to the seated jurors the prosecution accepted do not negate the force of these readily apparent reasons for peremptory challenge.17 It is true that both Juror No. 4 and
As to Prospective Juror Alice S., there were, as the Attorney General posits, two main “causes for concern” for a prosecutor: her uncertainty whether she would be able to serve as a juror while caring for her six-month-old infant (often on her own while her husband was away), and her belief that her brother had been wrongly convicted of a sexual offense. Both are readily apparent bases for objection from a prosecutorial view that tend strongly to dispel any inference of bias. While the jury being chosen would decide only penalty, the issue of lingering doubt remained one the jury would face; the jury was ultimately instructed it could consider lingering doubt and the defense argued for the lesser penalty partly on that basis. The penalty trial accordingly lasted about two months, during which the prosecutors asked the jurors to absorb and follow the evidence of guilt, most of it physical and circumstantial, in sufficient detail that they would not have lingering doubts as to defendant‘s responsibility. Having spontaneously expressed doubts about whether her need to care for her six-month-old infant would allow her to complete her jury service if selected, Alice S. was clearly not a good choice for this task.
With regard to her brother, Alice S. expressed the belief he was innocent of the crime and had been convicted only because, due to his alcoholism and resulting lack of housing, he could not account for his activities at the time of the crime. Given the evidence of defendant‘s substance abuse during the relevant timeframe and the nature of his lingering doubt defense, this response would have raised concerns for any reasonable prosecutor trying the penalty phase of this case.
Finally, Prospective Juror Alicia R. indicated on her questionnaire that her views on the death penalty were influenced by the highly publicized case of Karla Faye Tucker, a late Texas death row inmate who was well-known for having committed a capital crime while battling an addiction to drugs, and who had become a Christian while in prison; in Alicia R.‘s view, Tucker “proved that some people can change.” Answering a question seeking general information about prospective jurors’ views on the death penalty, Alicia R. indicated that “an eye for an eye” is wrong because “Christ died on the cross for everyone‘s sin.” She tended to agree with the statement “[a] defendant who is convicted of sexual assault and murder of a child should receive life in prison without possibility of parole regardless of the facts and circumstances of his background or mental state,” while remaining noncommittal regarding her view of imposing the death penalty in such a case. Asked whether she would have a death penalty if she were making the laws, Alicia R. responded, “can‘t say.” Alicia R.‘s responses revealed a view of
Defendant points to no other juror whom the prosecution accepted who appeared to hold similar attitudes toward the death penalty, particularly for a crime like defendant‘s. Seated Juror No. 4 did write that the death penalty might be inappropriate for some people convicted of sexually assaulting and murdering a child because “some persons may benefit from rehabilitation.” But in contrast to Alicia R., Juror No. 4 also indicated that she disagreed with the statement “[a] defendant who is convicted of sexual assault and murder of a child should receive life in prison without possibility of parole regardless of the facts and circumstances of his background or mental state.” Furthermore, Juror No. 4—unlike Alicia R.—had specifically identified the “[k]illing of a child” as a crime for which she believed the death penalty might be the appropriate sentence.
Only one other seated juror, Juror No. 7, expressed even qualified agreement with the statement that a defendant convicted of sexual assault and murder of a child should be sentenced to life without parole regardless of the circumstances. But unlike Alicia R., Juror No. 7 also said that such a defendant should be sentenced to death regardless of the circumstances. Juror No. 7‘s attitudes toward the appropriate penalty for this type of crime were further revealed by her responses to other questions: Unlike Alicia R. (but like Juror No. 4), Juror No. 7 specifically identified “[k]illing of a child” as a crime for which the death penalty may be appropriate. Finally, unlike Alicia R.,
The dissent stresses that the prosecution here did not challenge Shirley R., Adrienne A. or Alicia R. for cause, questioning how we can then find their anti-death-penalty views to be obvious grounds for their excusal by peremptory challenge. (Dis. opn. of Liu, J., post, at p. 15.) The two questions, though, are entirely distinct. “Unlike a for-cause challenge . . . , the issue here is not whether a juror held views that would impair his or her ability to follow the law. Unimpaired jurors may still be the subject of valid peremptory strikes.” (People v. Armstrong (2019) 6 Cal.5th 735, 773.) A prospective juror‘s attitude toward the death penalty is a common basis for both cause and peremptory challenges, and an advocate who finds a juror undesirable on that basis but is unable to have him or her excused for cause is expected to use a peremptory challenge to remove the juror. (See People v. Coleman (1988) 46 Cal.3d 749, 767–770.) It is entirely plausible that the prosecutors believed they were unlikely to succeed with for-cause challenges here, but felt nonetheless that the three women‘s views on the death penalty made them undesirable jurors in a penalty trial.
Notwithstanding the various circumstances tending to dispel any inference of discrimination in this case, defendant contends the high court‘s decision in Johnson v. California compels a prima facie case finding here. Defendant relies
To the extent defendant argues that Johnson v. California requires us to find a prima facie case based on the pattern of strikes alone, we are unpersuaded. It was not the pattern of strikes alone that gave rise to the inference of discrimination in Johnson v. California; context mattered as well. Johnson v. California, unlike this case, “involved the ‘highly relevant’ circumstance that a black defendant was ‘charged with killing “his White girlfriend‘s child.“‘” (Johnson v. California, supra, 545 U.S. at p. 167, quoting People v. Johnson, supra, 30 Cal.4th at p. 1326.) Although defendant suggests otherwise, nothing in the high court‘s opinion indicates any disagreement with the proposition that the racially charged nature of a case may properly inform an appellate court‘s consideration of whether a pattern of strikes establishes a prima facie case of discrimination.20 Nor does the high court‘s opinion suggest that
Defendant and our dissenting colleague argue that the high court in Johnson v. California did at least imply that such reasons are irrelevant by failing to address any of them. (Dis. opn. of Liu, J., at pp. 11, 15–16.) Although the trial court in that case had hypothesized certain race-neutral reasons for the peremptory challenges—“that the black venire members had offered equivocal or confused answers in their written questionnaires” (Johnson v. California, supra, 545 U.S. at p. 165)—the high court did not mention those reasons in addressing whether a prima facie case was established. But the omission is not significant, because the reasons themselves were not significant. Of the three disputed prospective jurors in Johnson v. California, one gave what the trial court described as a “‘rambling‘” response that suggested difficulty in understanding, the second answered a question according to her “’emotions and feelings,‘” and no reason was posited for the third. (People v. Johnson, supra, 30 Cal.4th at pp. 1307–1308.) It is neither surprising nor meaningful that the trial court‘s assessment that a prospective juror was “rambling” or acting on her “feelings” played no role in the high court‘s brief prima facie case discussion. Unlike jurors’ uncertainty or equivocation about their ability to apply the death penalty, this type of unsatisfactory response was not the sort of readily apparent reasons for a prosecutorial juror strike that would have
Nor, contrary to the argument made by defendant and the dissent, does the trial court‘s comment here (“I‘m very close, I‘m going to go with Howard for the time being, but if I see very much more of this, I‘m going to indicate to you, you may well have a serious problem on your hands.“) amount to a finding that the circumstances gave rise to an inference of bias. Although defense counsel had argued that only an inference of bias was needed for a prima facie case, the trial court never addressed that standard. And although Wheeler had used both phrases—“strong likelihood” and “reasonable inference” (Wheeler, supra, 22 Cal.3d at pp. 280–281)—our decision there did not identify them as different levels of proof. Nor did Howard, the decision by which the trial court was mainly guided. (See Howard, supra, 1 Cal.4th at pp. 1153–1157 [quoting Wheeler‘s strong-likelihood language without mentioning reasonable inference as an alternative].) The trial court‘s statement appears to have been intended as a warning to the prosecutors to be careful with their future peremptories, because additional strikes might lead to a finding of a prima facie case of discrimination. It is not clear the trial court meant
In sum, considering all the relevant circumstances, we conclude the record does not “support[] an inference that the prosecutor excused a juror on a discriminatory basis.” (Reed, supra, 4 Cal.5th at p. 999.) Although the prosecutors used half their peremptory challenges to excuse all the African-American prospective jurors seated in the box, this was not a case that raised heightened concerns about racial bias in jury selection. There were no apparent differences in the extent or manner of the prosecutors’ questioning of prospective jurors of different racial backgrounds. And, most importantly, the record discloses readily apparent grounds for excusing each prospective juror, dispelling any inference of bias that might arise from the pattern of strikes alone.22 Our independent review of the record leads to the conclusion that defendant failed to establish a prima facie case of unconstitutional discrimination.
X. Denial of Defense Challenge for Cause
Defendant contends the trial court erred in denying his challenge for cause to a juror who, he asserts, bore an impermissible bias in favor of the death penalty. Defendant contends the error deprived him of his right to an unbiased jury drawn from a cross-section of the community in violation of the federal Constitution. We hold defendant did not preserve the issue for appeal and that it lacks merit in any event.
On her questionnaire, Juror No. 10 wrote that a juror should “listen carefully” and not “make up your mind before all evidence is in,” and that she was willing to determine as best she could which sentence was appropriate, and to return that sentence. Asked generally for her opinions about the death penalty, she wrote: “I am in favor of it when it involves children.” If she were making the laws, she would have a death penalty. She agreed with the statement that a defendant convicted of sexual assault and murder of a child should receive the death penalty “regardless of the facts and circumstances of his background or mental state.”
On questioning by defense counsel, the juror reiterated her view that the death penalty was appropriate in cases involving children, but also indicated a willingness to consider evidence in mitigation even in such a case. When counsel asked whether she would “not consider” life without the possibility of parole in such a case, this colloquy ensued:
“A: It would be difficult for me to say, no, that they—life in prison. I couldn‘t go along with that always.
“Q: Why not?
“A: Because of it being a child involved. That‘s where I have my problem with this—
“Q: Okay
“A: —case
“Q: So then, honestly, as you sit there, because a child was involved, life without possibility of parole is not something that you could honestly, that you could honestly, honestly—
“A: Uh-hum.
“Q: —deep down, that you could honestly consider?
“A: Well, it would be difficult for me to do that.
“Q: You—so you couldn‘t consider it honestly?
“A: Well, honestly, I guess until I heard all the evidence myself, it would be difficult.
“Q: Do you think—go ahead?
“A: No. I‘m just, I would just—because it was a child involved, I‘d have to do a lot of thinking on that. But it depends on what the evidence is in their background.”
On further questioning by defense counsel, Juror No. 10 appeared to say that because a child was involved, the defense would have to prove to her that life without parole was the appropriate sentence, even if the court instructed the jury that the defense did not have to prove anything. The court, however, had counsel‘s question reread and asked the juror whether, having it in mind, she would follow the court‘s instructions. She replied, “Yes, I would.”
On renewed questioning by defense counsel, Juror No. 10 explained that while she was “leaning towards the death penalty” she “would have to listen to everything first before I
The trial court denied defendant‘s challenge for cause. The court concluded that while the juror tentatively favored the death penalty based on the case synopsis she had read in the questionnaire, her answers on voir dire showed she would consider all the evidence in reaching her ultimate verdict. Defendant did not exercise a peremptory challenge against Juror No. 10 and did not exhaust his peremptories, using only 16 of the 20 allotted.
The Attorney General maintains that defendant has failed to preserve the issue of his for-cause challenge because he did not exhaust his peremptory challenges or express dissatisfaction with the jury that was seated. We agree. “‘To preserve a claim of error in the denial of a challenge for cause, the defense must exhaust its peremptory challenges and object to the jury as finally constituted.’ (People v. Millwee (1998) 18 Cal.4th 96, 146.) Defendant did neither.” (People v. Hillhouse (2002) 27 Cal.4th 469, 487 (Hillhouse).) Defendant here had four peremptory challenges remaining when he accepted the jury, one of which he could have used to excuse Juror No. 10. At the
For the proposition that the issue of his challenge to Juror No. 10 must be deemed preserved, defendant relies on a single phrase in a United States Supreme Court decision on a different issue, United States v. Martinez-Salazar (2000) 528 U.S. 304. There the high court held that a defendant who does use a peremptory challenge to remove a prospective juror who should have been excused for cause has not been deprived of any right under federal court rules or the Constitution. (Id. at p. 307.) Rejecting the lower court‘s conclusion the defendant had been “compelled” to use a peremptory challenge against the prospective juror, the court stated that the defendant “had the option of letting [the prospective juror] sit on the petit jury and, upon conviction, pursuing a Sixth Amendment challenge on appeal.” (Id. at p. 315.)
As we have previously explained, this passage does not establish that a California defendant can preserve a for-cause challenge issue without exhausting his or her peremptories and objecting to the panel. In Martinez-Salazar, “the high court interpreted federal law, specifically
We also reject defendant‘s claim on the merits. A challenge for cause under Wainwright v. Witt (1985) 469 U.S. 412, 424, requires the trial court to determine whether the prospective juror‘s views on the death penalty “would ‘“prevent or substantially impair“’ the performance of the juror‘s duties as defined by the court‘s instructions and the juror‘s oath.” (People v. Cunningham (2001) 25 Cal.4th 926, 975.) “‘On appeal, we will uphold the trial court‘s ruling if it is fairly supported by the record, accepting . . . the trial court‘s determination as to the prospective juror‘s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.’ (People v. Mayfield (1997) 14 Cal.4th 668, 727.” (People v. Barnett (1998) 17 Cal.4th 1044, 1114; accord, People v. Jenkins (2000) 22 Cal.4th 900, 987; People v. Winbush, supra, 2 Cal.5th at pp. 424–425.)
Juror No. 10‘s statements were at times ambiguous and conflicting. On the one hand, she generally thought the death
XI. Permissibility of Penalty Phase Retrial
Defendant contends the retrial of penalty before a new jury after the original jury was unable to reach a verdict on this issue, as provided for in
As in People v. Taylor, supra, 48 Cal.4th at page 633, defendant here cites statutory law from other United States jurisdictions to show that California is in the minority of death penalty jurisdictions allowing a penalty retrial and argues a retrial unfairly imposes double-jeopardy-type burdens on capital defendants. We rejected both arguments in Taylor: “Although we have never addressed the precise Eighth Amendment challenge defendant raises, we have determined that ‘California‘s asserted status as being in the minority of jurisdictions worldwide that impose capital punishment’ does not establish that our death penalty scheme per se violates the Eighth Amendment. [Citations.] Likewise here, that California is among the ‘handful’ of states that allows a penalty retrial following jury deadlock on penalty does not, in and of itself, establish a violation of the Eighth Amendment or ‘evolving standards of decency that mark the progress of a maturing society.’ (Trop v. Dulles (1958) 356 U.S. 86, 101.) [¶] Arguing points more typically raised in a claim of double jeopardy, defendant further contends that compelling a capital defendant to endure the ‘“embarrassment, expense and ordeal“’ (United States v. Scott (1978) 437 U.S. 82, 95) of a second trial on the question of whether he should live or die is inconsistent with Eighth Amendment principles. But, as defendant concedes, in Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 108–110, the high court held that the double jeopardy clause did not bar a penalty retrial after appellate reversal of the capital defendant‘s
In his reply brief, defendant acknowledges Taylor but urges us to reconsider that decision, arguing that by allowing “repeated attempts to convince a jury to return a death verdict,” our retrial procedure impermissibly “enhances the possibility that even though the defendant‘s crime warrants a life sentence, he may be sentenced to death.” As a matter of double jeopardy law, this argument fails because the government is entitled, in capital sentencing as in a trial of guilt, to one complete attempt to obtain the verdict sought, an opportunity not provided where a jury deadlock has resulted in a mistrial. (Sattazahn v. Pennsylvania, supra, 537 U.S. at p. 109; id. at pp. 120–121, 124 (dis. opn. of Ginsburg, J.).) Nor does defendant‘s cruel and unusual punishment claim persuade us to reconsider our decision in Taylor. As we explained in one of Taylor‘s recent progeny, it is true that the prosecution benefits from retrial, but the same “may be said about any case that is retried after the jury deadlocks . . . . [T]he high court has recognized that ‘“a defendant‘s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public‘s interest in fair trials designed to end in just
XII. Denial of Funding for Mitochondrial DNA Testing
Defendant contends he was deprived of due process and the constitutional right to present a defense when, before the penalty retrial, the court denied investigative funds to conduct mitochondrial DNA testing on the pubic hairs recovered from the victim‘s clothing. He also argues the trial court erred in later precluding comment on the lack of such testing. We find no deprivation of constitutional rights in the denial of funding and no error in the court‘s later ruling.
In September 1998, after the first penalty trial ended in a hung jury, defense counsel (recently appointed to replace counsel at the first trial) requested that the judge presiding over investigative funding requests (Hon. Timothy J. Evans) under
At an October 1998 hearing before the trial judge (Hon. Loyd H. Mulkey, Jr.), defense counsel noted that Judge Evans had denied his funding requests for additional DNA testing, including for mtDNA testing on the pubic hairs. On February 1, 1999, after the new penalty jury was selected and sworn but before opening statements were made, counsel asked Judge Mulkey to take notice his funding requests for DNA analysis had been denied and renewed the request, together with a request for a continuance to conduct the testing; in the alternative, counsel sought permission to present evidence and argue to the jury that the funding requests had been denied. The prosecutor objected to any evidence that the People had not ordered mtDNA testing, asserting he had never even heard of that technique “before last Monday” and could find no authority for its use in California criminal proceedings.
On February 8, 1999, Judge Mulkey rejected the renewed funding request on the ground that, as the trial judge, he had no authority to entertain confidential requests under
During the penalty retrial, the court made a final ruling that it would not allow either party to present evidence or comment in argument on the other‘s failure to conduct mtDNA testing. “I don‘t know what a DNA test would produce because I don‘t have one. [¶] So I‘m going to proscribe both sides from commenting in argument on [that or another unrelated matter]. That‘s going to have to be the ruling. If I‘m wrong, I‘m wrong. [¶] But I just, when I open it up, I just have to keep opening it up by stages.” If the People were to comment on the fact that the defense did not conduct such testing when, before trial, they had custody of the samples, the defense would respond that they later sought funding for testing but were denied it. “Then why were they denied? What does Judge Evans tell me is the reason? [¶] The reason is not in the minute order. So perhaps I have to bring him down here and testify.” The ruling applied to both evidence and argument.
Considering first the denial of funding for mtDNA testing of the pubic hairs, we conclude the trial court did not err. The September 1998 funding request failed to establish that mtDNA testing would likely produce admissible evidence. While California courts have since endorsed the admissibility of mtDNA evidence (e.g., People v. Stevey (2012) 209 Cal.App.4th 1400, 1414–1415), no published decision had done so at the time of trial. Although the record indicates that the trial court gave
Nor has defendant established that the trial court‘s ruling on funding resulted in deprivation of his constitutional right to present a defense. Defendant cites several federal decisions for the proposition that denial of expert assistance may deprive a criminal defendant of due process and the right to present a defense. But in those cases, which arose on habeas corpus, the courts could consider information outside the appellate record and, if necessary, remand for an evidentiary hearing on factual questions about the nature and impact of potential extra-record evidence. (See Wallace v. Stewart (9th Cir. 1999) 184 F.3d 1112, 1116, 1118 [remanding for an evidentiary hearing on claim of ineffective assistance of counsel in failing to fully inform psychiatrists of the defendant‘s background]; Dunn v. Roberts (10th Cir. 1992) 963 F.2d 308, 313 [denial of expert on battered woman syndrome deprived the defendant of opportunity to
Nor did the court err in precluding evidence or argument on the failure of either party to conduct mtDNA testing. Each party posited a reason for its failure to do so: the prosecution that it had been unaware of the mtDNA technique and was unsure of its admissibility; the defense that the
XIII. Prosecutorial Misconduct in Argument on Penalty
Defendant contends the prosecutor made several improper remarks in argument to the jury that, taken together, deprived defendant of his due process right to a fair trial.
In People v. Edelbacher (1989) 47 Cal.3d 983, 1033, we held the prosecutor acted improperly in arguing that the capital defendant‘s family background, introduced as mitigation under
Second, defendant contends that in his rebuttal argument, Prosecutor Schroeder falsely told the jurors they could not consider lingering doubt because they had not heard the entirety of the prosecution‘s guilt-phase case. On two occasions the prosecutor did indeed make such an argument, but in both cases the court sustained defendant‘s objection and admonished the jury to disregard the argument.28 At other points the prosecutor referred to witnesses who had testified at the guilt phase as
Despite the court‘s admonitions, defendant insists that the prosecutor‘s repeated suggestions that the penalty retrial jury was not in a position to consider lingering doubt because they had not heard the entire case for guilt, coupled with what he characterizes as a “terse” instruction on lingering doubt,29 “failed to permit the jury to give full effect to the lingering doubt mitigation in this case.”
We agree the prosecutor‘s repeated argument that the penalty retrial jury could not consider lingering doubt without having heard the entire prosecution case for guilt was a deceptive or reprehensible means of persuasion and hence constituted misconduct under California law. (People v. Gonzales (2011) 51 Cal.4th 894, 920; People v. Hill, supra, 17 Cal.4th at p. 819.) Even for a penalty retrial jury, lingering doubt is a proper consideration in mitigation. (People v. Hamilton (2009) 45 Cal.4th 863, 948–949; People v. Gay (2008) 42 Cal.4th 1195, 1218–1223.) Moreover, the jury instructions, including that on lingering doubt, were settled before argument to the jury. The prosecutor knew the court would instruct the jury it could consider that factor in mitigation, and should not have attempted to persuade the jury to the contrary. But in
Third, defendant complains of a portion of the prosecutor‘s rebuttal argument addressing the time at which someone in a pickup truck had apparently abducted a boy—on the prosecution‘s theory, Michael Lyons—near the corner of Boyd and C Streets. The prosecutor argued that while the defense relied on Ray Clark‘s testimony that he saw the abduction at around 3:00 p.m. (too early for Michael to have reached that spot after leaving school or defendant after leaving the card room), the defense had failed to call Clark‘s cousin Charles Wilbur, who also witnessed the event and placed it later, at 3:30 or 4:00 p.m. Because the kidnapping charge had been dismissed after the guilt jury failed to reach a verdict on that count, defendant argues, it was unfair to hold against him that he “did not again raise a reasonable doubt about his guilt” of kidnapping.
The argument was proper. It responded directly to fairly extensive defense argument on the same points: the timing of the apparent abduction and the observations of Clark and Wilbur. The fact that the guilt jury did not unanimously find kidnapping proved beyond a reasonable doubt did not preclude
Fourth, defendant contends the prosecutor engaged in deceptive argument regarding the defense‘s ability to conduct DNA testing on the victim‘s fingernail scrapings. In context, the prosecutor‘s argument was not prejudicial misconduct.
Before instruction and argument, the jury was read a stipulation about the fingernail scrapings: ” ‘It‘s hereby stipulated to and agreed to by the parties that the fingernail scrapings taken from the body of Michael Lyons were appropriately transported to Forensic Analytical, DNA laboratory for the defense. [¶] The defense had the possession of the scrapings from January 19, 1998 until April 1998, after which time they were returned to the People. [¶] The defense did not test the fingernail scrapings.’ ”
In his argument to the jury, defense counsel stated that, as stipulated, defendant‘s “first lawyers” had the fingernail scrapings but had not tested them, that neither had the prosecution‘s experts, and that “I frankly don‘t know why no one examined it.” He went on to suggest the jury should hesitate to return a death sentence because in the future, improved DNA analysis techniques might be applied to the scrapings or to the
In response, the prosecutor noted that defense counsel “makes a big deal about the fingernail scrapings, and he‘s the one who brought this whole idea up.” Defense counsel, the prosecutor continued, had not asked the prosecution expert why she did not test the scrapings. Moreover, “Defense‘s own expert had it for almost three months. They didn‘t examine it either. Why didn‘t he present their expert to tell you why that wasn‘t done?” Defense counsel objected and, still before the jury, stated, “Your Honor, we went through this. I asked for money to get it done and it wasn‘t, and he is walking right into it.” Outside the jury‘s presence, the court ruled it would allow the prosecutor to comment on the fact that—as stipulated—no defense expert had tested the scrapings, but not to ask rhetorically why defense counsel did or did not do anything. The same would apply to argument by defense counsel. In the jury‘s presence, the court admonished the jury to disregard both attorneys’ remarks made before the recess and explained that the argument would be confined to the stipulation read them previously: “It‘s not to go beyond that.”
Renewing his argument, the prosecutor stated that defense counsel is “the one who wants to prove lingering doubt” and that “[i]f there are unanswered questions with regard to the fingernail scrapings, that‘s where you look for the answer. He didn‘t provide it to you.” The court sustained a defense objection to this remark and told the jury to disregard it. The prosecutor then stated, simply, “His expert had it for almost three months,” and moved on to another topic.
The prosecutor did, though, violate the trial court‘s ruling by arguing, after the recess, that “[i]f there are unanswered questions with regard to the fingernail scrapings, that‘s [the defense] where you look for the answer. [Defense counsel] didn‘t provide it to you.” The court had, immediately before this, ordered the attorneys to confine their arguments to the stipulated facts, meaning they could note the absence of testing but not assert that one or the other party was responsible for it. The prosecutor‘s improper argument, however, was not a very strong one, since the jury also knew that the prosecution had not tested the fingernail scrapings for DNA. In light of the sustained objection and prompt admonition, there is no reasonable possibility of prejudice. (People v. Gonzales, supra, 51 Cal.4th at p. 953.)
Fifth and finally, defendant claims the prosecutor endorsed improper experimentation by the jurors in urging them to look at a photograph of the victim‘s skin with a magnifying glass to see a pattern of knife marks. Use of a
Although we have found two instances of improper prosecutorial argument (the argument that lingering doubt could not be considered and blaming the defense for the lack of DNA evidence regarding the fingernail scrapings), we have found neither bore a reasonable possibility of affecting the penalty verdict. We reach the same conclusion as to their cumulative effect: the two errors went to different topics of argument and the court gave the jury clear admonitions to disregard both remarks.
XIV. Denial of Motion to Continue Sentencing
On September 10, 1999, the date set for sentencing, defendant moved for a continuance in order to prepare a motion for new guilt trial based on newly discovered evidence, namely a letter purporting to be from someone defense counsel referred to as “Raymond Walton” stating that defendant had been set up by a person named Timothy Clarke, who was confined in a Yolo County jail. In response, the prosecutor noted that the letter was actually signed simply “Raymond,” purportedly of “Walton Ave.” in Yuba City. The prosecution had called the telephone number given in the letter but found it disconnected. The woman who lived at the last address associated with that number had lived there for a year; she said no Raymond lived at the address. The letter was apparently sent to Al Rhoades, a relative of defendant, but Al had no idea who Raymond was.
Continuances in criminal cases are to be granted only for good cause, and the trial court‘s denial of a continuance is reviewed for abuse of discretion only. (
XV. Conviction on Multiple Offenses Arising from the Same Act
On counts four through seven—torture, forcible sodomy on a child, lewd act on a child, and forcible lewd act on a child—the sentencing court imposed prison sentences but ordered them stayed under
XVI. Refusal of Defense Instructions on Determination of Penalty
Defendant complains of the court‘s refusal to give several of his proposed special instructions. We find no error.
First, defendant offered an instruction stating that the mitigating circumstances listed “are given merely as examples” and the jury should not limit consideration to these specific factors but may consider “mercy, sympathy and/or sentiment in deciding what weight to give each mitigating factor.” The trial court refused the instruction on the ground it was adequately covered by CALJIC No. 8.88, which as given here defined a mitigating circumstance as “any fact, condition or event which does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating
We have held that these standard instructions “leave adequate room for the consideration of mercy” without an instruction using that term (People v. Thomas (2012) 53 Cal.4th 771, 827) and that an express reference to “mercy” risks encouraging arbitrary decisionmaking (People v. Lewis (2001) 26 Cal.4th 334, 393)—a risk aggravated here by defendant‘s proposed instruction‘s use of the term “sentiment.” Defendant provides no compelling argument to reexamine these conclusions.
Second, defendant‘s proposed instruction stating that “the evidence which has been presented regarding the defendant‘s background may only be considered by you as mitigating evidence” was also refused as cumulative of standard instructions. Defendant contends it was error to refuse this instruction, and the prosecutor exploited the error by arguing defendant‘s background as an aggravating circumstance. (But see pt. XIII., ante [rejecting this characterization of the prosecutor‘s argument].) We have held that “[t]he court need not instruct that the jury can consider certain statutory factors only in mitigation” (People v. Valencia (2008) 43 Cal.4th 268, 311) and that “[i]t follows the trial court need not instruct that background evidence may be considered only in mitigation” (People v. Rogers (2006) 39 Cal.4th 826, 897; see also Tuilaepa v. California (1994) 512 U.S. 967, 979 [“A capital sentencer need
Third, defendant asked that the jury be instructed: “If you sentence the defendant to death, you must assume that the sentence will be carried out.” The trial court declined to give that instruction “in the abstract, so to speak” but agreed that an instruction on the topic would be appropriate “if there is a reason to believe the jury has concerns or misunderstanding” regarding the effect of a death verdict. This course accorded with our precedent (People v. Wallace (2008) 44 Cal.4th 1032, 1091; People v. Kipp (1998) 18 Cal.4th 349, 378–379) and was not error. The jury did not indicate on the record any confusion or doubt as to the meaning or effect of either of the possible penalty verdicts.
Finally, the trial court refused defendant‘s request that the jury be instructed: “A jury may decide, even in the absence of mitigating evidence, that the aggravating evidence is not comparatively substantial enough to warrant death.” But where, as here, the jury is instructed that “[t]o return a judgment of death each of you must be persuaded that the aggravating evidence is so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole,” an instruction like the one defendant proposed is unnecessary to guide the jury. (People v. Rodrigues, supra, 8 Cal.4th at p. 1191, italics omitted.)
XVII. Cumulative Prejudice from Errors
The only errors we have found in the penalty phase are two instances of prosecutorial misconduct in argument to the jury. As discussed above (see pt. XIII., ante), they were not prejudicial either individually or cumulatively.
Defendant contends that executing him after significant passage of time during the appellate process would constitute cruel and unusual punishment in violation of the
More recently, we considered at length and rejected the related claim that systematic delays in implementation of California‘s death penalty render the penalty impermissibly arbitrary in violation of the
Defendant‘s briefing provides no grounds for reexamining either of these conclusions.
Defendant contends his conviction must be reversed because the parties were unable to reconstruct via a settled statement four unreported bench conferences and several “off-the-record” discussions concerning record correction, and because certain confidential attorney fee requests could not be obtained either from the Sutter County Superior Court or from trial counsel. He argues generally that without these transcripts he cannot make an argument about “any reversible error that may have occurred” and that the attorney fee requests, in particular, “could bolster a claim of ineffective assistance of counsel.” ” ‘[D]efendant bears the burden of demonstrating that the appellate record is not adequate to permit meaningful appellate review. [Citations.] He has not done so.’ ” (People v. Richardson (2008) 43 Cal.4th 959, 1037.)
XX. Relief from Defaults and Incorporation of Claims
In a set of generalized arguments that do not refer to any of his brief‘s specific claims for relief, defendant maintains that all violations of state law rights also constitute federal constitutional violations, that trial counsel‘s failure to request or object to instructions should be excused, that we should review all errors in capital cases on the merits rather than invoking procedural bars, and that when the court reviews defendant‘s to-be-filed petition for writ of habeas corpus we consider any claim that should have been raised on appeal to be incorporated into his appellate briefing.
We have addressed questions of forfeiture as necessary in discussion of defendant‘s specific arguments for reversal and have addressed the merits of defendant‘s constitutional claims
XXI. Constitutionality of California‘s Death Penalty
Defendant raises a number of federal constitutional challenges to California‘s death penalty law, each of which we have previously rejected.
“[T]he California death penalty statute is not impermissibly broad, whether considered on its face or as interpreted by this court.” (People v. Dykes (2009) 46 Cal.4th 731, 813.)
“The death penalty statute does not lack safeguards to avoid arbitrary and capricious sentencing, deprive defendant of the right to a jury trial, or constitute cruel and unusual punishment on the ground that it does not require either unanimity as to the truth of aggravating circumstances or findings beyond a reasonable doubt that an aggravating circumstance (other than
“The jury may properly consider evidence of unadjudicated criminal activity under
“Intercase proportionality review, comparing defendant‘s case to other murder cases to assess relative culpability, is not required by the due process, equal protection, fair trial, or cruel and unusual punishment clauses of the federal Constitution.” (People v. Winbush, supra, 2 Cal.5th at p. 490.) Procedural differences between capital and noncapital trials do not constitute violations of equal protection, and California‘s use of the death penalty does not violate international law either by punishing certain first degree murders with death or by employing the procedures defendant complains of above.
DISPOSITION
The judgment of the superior court is affirmed.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
GROBAN, J.
These facts bear an uncanny resemblance to those in Johnson v. California, where the trial court also denied a Batson motion under the “strong likelihood” standard but said, “[W]e are very close.” (Johnson v. California, supra, 545 U.S. at p. 165, italics omitted; see id. at p. 164 [prosecutor used three of 12 strikes to remove all three black jurors].) In that case, the high court disapproved the “strong likelihood” standard, calling it “an inappropriate yardstick by which to measure the sufficiency of a prima facie case.” (Id. at p. 168.) “Instead,” the high court held, “a defendant satisfies the requirements of Batson‘s first step by producing evidence sufficient to permit the
If the evidence of discrimination is “very close” to meeting the “strong likelihood” standard, then logically it is sufficient to meet the less onerous “inference” standard. Yet today‘s opinion, sidestepping Johnson v. California‘s logic, finds no inference of discrimination at Batson‘s first step. How is this possible? “[M]ost importantly,” the court says, “the record discloses readily apparent grounds for excusing each prospective juror, dispelling any inference of bias that might arise from the pattern of strikes alone.” (Maj. opn., ante, at p. 65.)
As I discuss below, this mode of analysis — hypothesizing reasons for the removal of minority jurors as a basis for obviating inquiry into the prosecutor‘s actual reasons — has become a staple of our Batson jurisprudence, and it raises serious concerns. “The Batson framework is designed to produce actual answers” — not hypothesized answers — “to suspicions and inferences that discrimination may have infected the jury selection process.” (Johnson v. California, supra, 545 U.S. at p. 172.) If an inference of bias is to be dispelled, it is up to the prosecutor to dispel it by stating credible, race-neutral reasons
The court‘s opinion coincides with a decision, also filed today, finding no inference of discrimination where the prosecutor disproportionately excused black jurors in the penalty trial of a black defendant accused of killing a white man and raping a white woman. (People v. Johnson (Nov. 25, 2019, S029551) __ Cal.5th __, __ [p. 41].) The prosecutor there was asked but declined to answer whether he targeted black prospective jurors for criminal background checks. (Id. at p. __ [p. 35].) Of course, each case must be evaluated on its own facts. But if we consider today‘s decisions together and alongside others in our case law, some unsettling observations emerge.
It has been more than 30 years since this court has found Batson error involving the peremptory strike of a black juror. (See People v. Snow (1987) 44 Cal.3d 216.) In the 14 years since Johnson v. California, this court has reviewed the merits of a first-stage Batson denial in 42 cases, all death penalty appeals. (See appen., post, at p. 25.) Not once did this court find a prima facie case of discrimination — even though all 42 cases were tried before Johnson v. California disapproved the “strong likelihood” standard and held that “an inference of discrimination” is enough. In light of this remarkable uniformity of results, I am concerned that “this court has
I.
The penalty retrial in this case began in 1998 in Sacramento County, a community that was 64 percent white and 10 percent black at the time. (U.S. Census Bureau, 2000 Census of Population and Housing, Summary Population and Housing Characteristics: California (2002) p. 112.) Rhoades, a white man, was convicted of killing a white eight-year-old boy. Defense counsel made his first Batson motion after the prosecution used three of five peremptory strikes to remove three black women: Shirley R., Adrienne A., and Alice S. The trial court denied the motion, and the prosecution declined the court‘s invitation to state reasons for the record. The prosecution later excused a fourth black woman, Alicia R., leaving no black jurors on the panel. At that point, the prosecution had used four of eight strikes against black women, and defense counsel made a second Batson motion. Three additional jurors were subsequently seated on the main panel.
After the second Batson motion, the prosecution gave the trial court a copy of Howard, supra, 1 Cal.4th 1132, which held that the “strong likelihood” standard applied at Batson‘s first step. Defense counsel argued that he needed to show only “that the relevant circumstances raise an inference that the government use [sic] the challenges to exclude a class of jurors
The prosecutor again insisted that “a strong likelihood” was required and that defense counsel‘s showing did not “rise to the level to [sic] the standards set out in People v. Howard or People v. Wheeler.” The trial court compared the prosecution‘s strikes with the pattern of strikes in Howard and said, “The distinction that‘s bothering me in the case that you cite . . . you have essentially two out of eleven [in Howard] . . . [a]nd in this case, you had four out of eight? That‘s quite a distinction, isn‘t it?” The prosecutor maintained that more was required under Howard, and defense counsel reiterated that there were “no discernable differences” between the struck jurors and other jurors. The trial court again invited the prosecutor to describe how the jurors were different; the prosecution again declined.
The trial court denied the Batson motion under “the authority of this Howard case” but warned that “any further matters of this kind will weigh heavily on this Court . . . . I‘ve indicated how the Court feels at this juncture. I‘m very close, I‘m going to go with Howard for the time being, but if I see very much more of this, I‘m going to indicate to you, you may well have a serious problem on your hands.”
It is true that this case does not involve ” ’ “[r]acial identity between the defendant and the excused person.” ’ ” (Maj. opn., ante, at p. 53.) But assuming the jury‘s racial composition approximated the demographics of the community, it is likely that this case involved ” ’ “[r]acial identity . . . between the victim and the majority of remaining jurors.” ’ ” (Ibid.) In capital cases involving white victims, it is entirely plausible that prosecutors may be motivated to seat white jurors. And whether a prosecutor strikes a black juror in order to seat fewer black jurors or to seat more white jurors, it is discrimination all the same.
What the record also makes clear is that the trial court believed it was bound by Howard‘s “strong likelihood” standard and had that standard clearly in mind when it denied the Batson motion and said, “I‘m very close.” Before the trial court ruled, the parties had argued over the proper standard, and “the trial court presumably understood the [Howard] standard to be somewhat more demanding than the ‘reasonable inference’
Given this context, the most natural meaning of the comment “I‘m very close” is that the trial court found the circumstances sufficient to raise “an inference” of discrimination but not quite a “strong likelihood” of discrimination. Indeed, I am not sure what else it could mean. Consider an analogy: If a judge analyzing a set of facts under the clear and convincing evidence standard were to say, “I‘m very close,” wouldn‘t we conclude that the judge has determined that the facts meet the preponderance of the evidence standard?
As noted, Johnson v. California involved a virtually identical comment by a trial court applying the ” ‘strong likelihood’ ” standard. (Johnson v. California, supra, 545 U.S. at p. 165, italics omitted.) In analyzing the Batson issue under the correct standard, the high court said: “In this case the inference of discrimination was sufficient to invoke a comment by the trial judge ‘that “we are very close,” ’ and on review, the California Supreme Court acknowledged that ‘it certainly looks suspicious that all three African-American prospective jurors were removed from the jury.’ Those inferences that discrimination may have occurred were sufficient to establish a prima facie case under Batson.” (Id. at p. 173, italics added.)
Today‘s opinion attempts to distinguish Johnson v. California by noting that it involved the racially charged context of a black defendant accused of killing his white girlfriend‘s child. (Maj. opn., ante, at p. 62.) But in comparing this case to
Today‘s opinion goes on to resist the clear meaning of “I‘m very close” by saying, “The trial court‘s statement appears to have been intended as a warning to the prosecutors to be careful with their future peremptories, because additional strikes might lead to a finding of a prima facie case of discrimination.” (Maj. opn., ante, at p. 64.) But the trial court‘s warning that “additional strikes might lead to a finding of a prima facie case” under the erroneously high standard suggests that in its view the lower and correct standard had already been satisfied or surpassed. Today‘s opinion then says, “It is not clear the trial court meant it as a commentary on how suspicious (or not) the prior strikes had been, given the totality of the circumstances.” (Id. at pp. 64–65) But what else could the trial court have meant? Next, today‘s opinion says, “nor is it apparent that the court implied the existence of a prima facie case under a ‘reasonable inference’ standard.” (Ibid.) But the same thing could have been said of the trial court in Johnson v. California, and yet the natural meaning of its “very close” comment was readily discerned and credited by the high court. (See Johnson v. California, supra, 545 U.S. at p. 173.)
II.
The analysis should end there, as it did in Johnson v. California, with the straightforward conclusion that the trial court‘s “inference[] that discrimination may have occurred [was] sufficient to establish a prima facie case under Batson.” (Johnson v. California, supra, 545 U.S. at p. 173.) Yet today‘s
We will examine those “readily apparent” grounds in a moment, but let us first pause to consider what the court has done here. Step one of the Batson framework is a threshold inquiry to determine whether the prosecutor should be required to state reasons for contested strikes. In many instances, the prosecutor will voluntarily state reasons before the first-step determination is made, in order to remove any doubt about the issue. In this case, the prosecutors chose to stay mum; they repeatedly declined to explain why they believed the struck jurors differed from seated jurors. Now, instead of taking their silence at face value, this court on appellate review claims it is able to discern the reasons that would have motivated any reasonable prosecutor to strike the four black jurors. The court then relies on those hypothesized reasons to conclude that there was no need for the prosecutors to state their actual reasons.
This maneuver is hard to square with the high court‘s clear statement that “[t]he Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process.” (Johnson v. California, supra, 545 U.S. at p. 172; see ibid. [” ‘[I]t does not matter that the prosecutor might have had good reasons . . . [;] [w]hat matters is the real reason they were stricken’ “].) No wonder the high court has never approved the
Again, the high court‘s application of the law to the facts in Johnson v. California is instructive. There, the trial judge‘s “own examination of the record had convinced her that the prosecutor‘s strikes could be justified by race-neutral reasons. Specifically, the judge opined that [two of] the black venire members had offered equivocal or confused answers in their written questionnaires.” (Johnson v. California, supra, 545 U.S. at p. 165.) On review, this court hypothesized various reasons to explain the strike of the third black juror. (See People v. Johnson (2003) 30 Cal.4th 1302, 1325–1326 [“[T]he record discloses race-neutral grounds for challenging C.T.: “(1) she was childless (this case involved the death and alleged abuse of a minor), (2) the police had made no arrest after the robbery of her home five or six years ago, and (3) she omitted to answer the two questions in the questionnaire dealing with her opinions of prosecuting and defending attorneys.“].) But the high court assigned no weight to any of these hypothesized reasons in considering whether a prima facie case of discrimination had been established. (Johnson v. California, at p. 173.)
Today‘s opinion gives a nod to Johnson v. California‘s admonition ” ‘against engaging in needless and imperfect speculation’ ” (maj. opn., ante, at p. 54) but denies that any imperfect speculation is happening here. The court says
Consider Alice S., one of the black jurors struck. In her questionnaire and during voir dire, she discussed her brother‘s conviction and incarceration in Virginia and her belief that he had been convicted only because his alcoholism and homelessness meant that he could not account for his activities at the time of the crime. Today‘s opinion says that “[f]rom any reasonable prosecutor‘s perspective, this belief created a clear risk that Alice S. might be especially receptive to the alibi defense put forward by defendant, who claimed to be taking drugs during the period when the victim was abducted and killed.” (Maj. opn., ante, at p. 59, fn. 19.) But this explanation is far from obvious in light of the stark dissimilarities between Rhoades‘s case and the situation of Alice S.‘s brother.
Alice S. testified that the convergence of two factors — her brother‘s alcoholism and his homelessness — prevented him from mounting an alibi defense: “[H]e didn‘t really have anywhere to live. So he basically was out in the streets. And because he had no accountability as far as, you know, being impaired, you know, I felt like he is an alcoholic but he wasn‘t a molester or whatever.” Rhoades, by contrast, lived in a home in Sutter County at the time of the crime; he was employed and
Moreover, it is not obvious that the prosecution would have been much concerned about lingering doubt in light of the strong physical evidence linking Rhoades to the murder, including blood on Rhoades‘s clothing, pubic hairs consistent with Rhoades‘s found on the victim‘s clothing, the victim‘s footprints on the inside of the windshield of Rhoades‘s truck, and a DNA test showing the victim‘s blood on Rhoades‘s knife — all of which the prosecutors intended to present, and did present, in detail during the two-month penalty retrial. (Maj. opn., ante, at pp. 6–7, 58; see id. at p. 19 [finding confrontation clause error harmless “beyond a reasonable doubt” given the strength of the evidence].) Although the defense did rely on lingering doubt in mitigation, the prosecution was aware from the first penalty trial that the defense would not cite Rhoades‘s drug use to bolster the case for lingering doubt (and indeed, the defense did not do so).
As for Shirley R., Adrienne A., and Alicia R., today‘s opinion hypothesizes that they were struck because of their anti-death penalty views. Here it is important to keep in mind that the prosecution, before exercising peremptory strikes, can use a for-cause challenge to remove a prospective juror whose death penalty views would ” ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Wainwright v. Witt (1985) 469 U.S. 412, 424, fn. omitted.) “Substantial impairment” does not require the juror to have expressed firm opposition to the death penalty. “In many cases, a prospective juror‘s responses to questions on voir dire will be halting, equivocal, or even conflicting. Given the juror‘s probable unfamiliarity with the complexity of the law, coupled with the stress and anxiety of being a prospective juror in a capital case, such equivocation should be expected.” (People v. Fudge (1994) 7 Cal.4th 1075, 1094). We regularly affirm trial court findings of substantial impairment ” ‘even in the absence of clear statements from the juror that he or she is impaired because “many veniremen simply cannot be asked enough questions to reach the point where their bias has been made ‘unmistakably clear.’ ” ’ ”
In this case, the prosecution did not challenge Shirley R., Adrienne A., or Alicia R. for cause. This fact underscores that it is “judicial speculation” (Johnson v. California, supra, 545 U.S. at p. 173) to hypothesize that the prosecution struck these jurors for their death penalty views. Quoting selectively from the juror questionnaires and voir dire, the court says no seated juror expressed “the sort of unqualified opposition to the death penalty that both Shirley R. and Adrienne A. did at times. Two non-African-American prospective jurors who did express such unqualified antideath penalty views on their questionnaires were struck by the prosecution before defendant made his second [] motion.” (Maj. opn., ante, at pp. 57–58, italics added.) Not only were the views of these two nonblack jurors, Evelyn B. and Thomas S. (both white), markedly more skeptical of the death penalty, but the prosecution challenged both of them for cause, though unsuccessfully. How can we conclude that Shirley R.‘s and Adrienne A.‘s death penalty views were “readily apparent” grounds for striking them when the prosecution did not even attempt to excuse them for cause? Especially when a juror‘s equivocal views may result in excusal for cause? To be sure, their death penalty views could have been a legitimate concern to a reasonable prosecutor. But that is a far cry from saying these black jurors had views that “any reasonable prosecutor . . . would logically avoid.” (Maj. opn., ante, at p. 54.)
Indeed, at least six seated jurors also expressed hesitation or inconsistency in their death penalty views. Juror No. 4 said she “[didn‘t] really have an opinion” about the death penalty and didn‘t support reinstatement because “it takes too much money.” But if tasked with making the laws, she would institute a death penalty. Further, she noted that the killing of a child is a circumstance that could warrant the death penalty, but when asked whether a defendant convicted of sexual assault and murder of a child should categorically receive the death penalty, she said “some persons may benefit from rehabilitation.” Juror No. 6 thought the death penalty was warranted for intentional killing, but he also thought life without parole as punishment for murder is “excellent.” Juror No. 7 “[a]gree[d] somewhat” with the statement that a defendant convicted of sexual assault and murder of a child should be sentenced to life without parole regardless of the circumstances, but also “[a]gree[d] somewhat” that such a defendant should be sentenced to death regardless of the circumstances. Juror No. 9 was “neither for nor against” the death penalty but said if he were making the laws, it would be “difficult . . . but [he] probably” would institute a death
Today‘s opinion is correct that the struck jurors made some statements that the seated jurors did not. (Maj. opn., ante, at pp. 55–61.) But the court also acknowledges that “both Juror No. 4 and Juror No. 9 expressed reservations about the death penalty that overlapped in certain respects with Shirley R.‘s and Adrienne A.‘s.” (Id. at pp. 56–57.) And Alicia R. wrote that in “some cases the death penalty is acceptable” but “[couldn‘t] say” if there would be a death penalty if she made the laws. Like Juror No. 4, Alicia R. believed in the possibility of redemption. Like Juror No. 12, she believed in the teachings of the New Testament. And like Juror No. 9, she had no strong feelings about the death penalty but felt it was warranted in certain circumstances.
In sum, although the death penalty views of Shirley R., Adrienne A., or Alicia R. differed in some ways from those of the seated jurors, the fine parsing required to tease out those differences hardly suggests they were obvious reasons for the strikes. This hypothesis seems especially speculative in light of the fact that the death penalty views of these black jurors did not prompt the prosecution to challenge them for cause.
Although every Batson issue must be decided on its own facts, it is instructive to take a step back and place today‘s decision in the broader context of our Batson jurisprudence.
As noted, this court has decided the merits of a first-stage Batson issue in 42 cases (all capital cases) during the 14 years since Johnson v. California. (See appen., post, at p. 25.) Not once did we find that the circumstances established a prima facie case of discrimination. What makes this track record even more remarkable is the fact that all 42 cases were tried before Johnson v. California clarified that an inference of discrimination is all that is required at Batson‘s first step. In other words, the trial courts in these 42 cases made their first-stage Batson rulings at a time when our unduly stringent “strong likelihood” standard was the controlling law. Can it really be that not a single one of those rulings was erroneous under the lower standard set forth in Johnson v. California? It is not difficult, in my view, to cite several cases where the circumstances plainly gave rise to an inference of discrimination. (See, e.g., People v. Johnson, supra, __ Cal.5th at p. __ [p. 1] (dis. opn. of Liu, J.); id. at p. __ [p. 2] (dis. opn. of Cuéllar, J.); People v. Reed (2018) 4 Cal.5th 989, 1019–1028 (Reed) (dis. opn. of Liu, J.); id. at p. 1031 (dis. opn. of Kruger, J.); Harris, supra, 57 Cal.4th at pp. 870–879 (conc. opn. of Liu, J.); id. at pp. 880–882 [discussing People v. Clark (2011) 52 Cal.4th 856, 872–873, 904–908 (Clark); People v. Hartsch (2010) 49 Cal.4th 472, 485–489 (Hartsch); People v. Hoyos (2007) 41 Cal.4th 872, 900–903].)
A key factor behind this uniformity of results is the court‘s habit of relying on hypothesized grounds for contested strikes —
The court purports to limit hypothesized reasons to ” ‘obvious’ ” or ” ‘readily apparent’ ” characteristics “that any reasonable prosecutor . . . would logically avoid in a juror.” (Maj. opn., ante, at pp. 53–54, italics omitted.) I acknowledge there have been instances where the reason for a strike was truly obvious — for example, when the struck juror “was married to a convicted murderer” and “[n]one of the seated or alternate jurors had anything remotely similar in their backgrounds.” (People v. Jones (2013) 57 Cal.4th 889, 983 (Jones) (conc. opn. of Liu, J.).) But, as today‘s opinion demonstrates, the court is willing to hypothesize reasons well short of something so conspicuous.
Moreover, the limits stated in today‘s opinion come late in our jurisprudence. Our first-stage Batson cases have regularly relied on hypothesized reasons so long as they “reasonably” or
Similarly, today‘s opinion acknowledges “the utility” of comparative juror analysis in first-stage Batson analysis and notes that our “more recent decisions have considered such comparisons.” (Maj. opn., ante, at pp. 56–57, fn. 17.) But this also comes late in our jurisprudence. For more than a decade, this court has repeatedly said that comparative juror analysis “is inappropriate” (People v. Sánchez (2016) 63 Cal.4th 411, 439) or “has little or no use” (Bonilla, supra, 41 Cal.4th at p. 350) in first-stage Batson analysis. Today‘s opinion is grossly inaccurate when it says we have declined to conduct comparative juror analysis “particularly when neither the trial court nor this court, in evaluating the prima facie case, has posited possible prosecutorial reasons for the challenged strikes.” (Maj. opn., ante, at p. 56, fn. 17, italics added.) We have regularly declined to conduct comparative juror analysis at Batson‘s first step in cases where we have relied on hypothesized or even actually stated reasons for contested strikes. (See Sánchez, at pp. 439–440; People v. Streeter (2012) 54 Cal.4th 205, 225–226, fn. 6; Clark, supra, 52 Cal.4th at pp. 907–908 & fn. 13; Taylor, supra, 48 Cal.4th at pp. 616–617; Hawthorne, supra, 46 Cal.4th at p. 80, fn. 3; People v. Howard (2008) 42 Cal.4th 1000, 1019–1020; Bonilla, at pp. 343, 347–350.) Again, if today‘s opinion is intended to turn over a new leaf, one would expect to see these prior cases disapproved. But the court repudiates none of them despite repeated calls to do so. (See Reed, supra, 4 Cal.5th at p. 1026 (dis. opn. of Liu, J.); Sánchez, at pp. 492–494 (conc. opn. of Liu, J.); Harris, supra, 57 Cal.4th at pp. 862–863 (conc. opn. of Kennard, J.); id. at pp. 874–876 (conc. opn. of Liu, J.).) The court‘s refusal to overrule our prior
I would like to believe that the limits stated in today‘s opinion will rein in this court‘s reliance on hypothesized reasons in first-stage Batson analysis. (Cf. Harris, supra, 57 Cal.4th at pp. 872–873 (conc. opn. of Liu, J.).) But in light of our prior case law (which the court does not disapprove) as well as today‘s decision and another recent decision that relied on “underwhelming” hypothesized reasons to find no inference of discrimination arising from the removal of five out of six black jurors (Reed, supra, 4 Cal.5th at p. 1025 (dis. opn. of Liu, J.)), I now believe a different approach is needed.
I see at least two options. First, the high court could make clear that reliance on hypothesized reasons in first-stage Batson analysis is generally impermissible. Such reliance “effectively short-circuits the three-step framework and defeats the essential inquiry into whether the possible reasons for a strike were the prosecutor‘s actual reasons.” (Harris, supra, 57 Cal.4th at p. 873 (conc. opn. of Liu, J.); see Johnson v. California, supra, 545 U.S. at p. 172 [“The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question.“].) If there are to be exceptions for “obvious” reasons, it must be emphasized that such exceptions should be rare and truly exceptional — for example, the struck juror “was married to a convicted murderer”
A second option is for this court, the Judicial Council, or the Legislature to follow the lead of several state high courts that have essentially eliminated Batson‘s first step. (See State v. Rayfield (S.C. 2006) 631 S.E.2d 244, 247; Melbourne v. State (Fla. 1996) 679 So.2d 759, 764; State v. Parker (Mo. 1992) 836 S.W.2d 930, 939–940; State v. Holloway (Conn. 1989) 553 A.2d 166, 171–172;
This approach would serve the important goals of promoting transparency, creating a record for appellate review, and ensuring public confidence in our justice system, while imposing “the comparatively low cost of requiring a party to state its actual reasons for striking a minority prospective juror.” (Harris, supra, 57 Cal.4th at p. 884 (conc. opn. of Liu, J.).) As the Washington Association of Prosecuting Attorneys observed in the development of that state‘s rule, “[t]he first step of the Batson inquiry, a prima facie test, has historically cut off discussion as to meaningful objections to peremptory challenges. That step ultimately served to mask intentional or
One way or another, it is time for a course correction in our Batson jurisprudence. The stark uniformity of outcomes in our case law raises a serious concern that our analytical approach has evolved into a one-way ratchet. I would hold that the totality of circumstances in this case gives rise to an inference of discrimination. And because the passage of time makes impractical a remand to explore the prosecution‘s actual reasons for the contested strikes, I would reverse the penalty judgment. I respectfully dissent.
LIU, J.
First-stage Batson Decisions by the California Supreme Court Since Johnson v. California (2005) 545 U.S. 162
An asterisk (*) denotes that this court hypothesized its own reason or accepted the trial court‘s hypothesized reason for a contested strike. This does not include cases where the prosecutor stated reasons for the record and this court‘s analysis considered reasons identical to the prosecutor‘s stated reasons. (See, e.g., People v. Sánchez (2016) 63 Cal.4th 411, 435–437; People v. Howard (2008) 42 Cal.4th 1000, 1017–1020.)
A dagger (†) denotes that a prospective juror‘s death penalty views were hypothesized as a reason for the strike.
A double dagger (‡) denotes that a prospective juror‘s (or a family member‘s) negative experience or negative view of law enforcement was hypothesized as a reason for the strike.
- People v. Cornwell (2005) 37 Cal.4th 50*‡
- People v. Gray (2005) 37 Cal.4th 168*‡
- People v. Avila (2006) 38 Cal.4th 491*‡
- People v. Williams (2006) 40 Cal.4th 287*‡
- People v. Guerra (2006) 37 Cal.4th 1067*‡
- People v. Bell (2007) 40 Cal.4th 582
- People v. Lancaster (2007) 41 Cal.4th 50*†‡
- People v. Bonilla (2007) 41 Cal.4th 313*†
- People v. Hoyos (2007) 41 Cal.4th 872*†
- People v. Kelly (2007) 42 Cal.4th 763
People v. Howard (2008) 42 Cal.4th 1000 - People v. Carasi (2008) 44 Cal.4th 1263
- People v. Hamilton (2009) 45 Cal.4th 863
- People v. Hawthorne (2009) 46 Cal.4th 67
- People v. Davis (2009) 46 Cal.4th 539*†‡
- People v. Hartsch (2010) 49 Cal.4th 472*†‡
- People v. Taylor (2010) 48 Cal.4th 574
- People v. Blacksher (2011) 52 Cal.4th 769*†‡
- People v. Garcia (2011) 52 Cal.4th 706*†‡
- People v. Clark (2011) 52 Cal.4th 856*‡
- People v. Dement (2011) 53 Cal. 4th 1
- People v. Thomas (2012) 53 Cal.4th 771*†‡
- People v. Streeter (2012) 54 Cal.4th 205*†
- People v. Elliott (2012) 53 Cal.4th 535*†
- People v. Pearson (2013) 56 Cal.4th 393*†
- People v. Lopez (2013) 56 Cal.4th 1028*
- People v. Edwards (2013) 57 Cal.4th 658
- People v. Harris (2013) 57 Cal.4th 804*‡
- People v. Jones (2013) 57 Cal.4th 899*‡
- People v. Manibusan (2013) 58 Cal.4th 40*†
- People v. Montes (2014) 58 Cal.4th 809*†
- People v. Sattiewhite (2014) 59 Cal.4th 446
- People v. Cunningham (2015) 61 Cal.4th 609*
- People v. Scott (2015) 61 Cal. 4th 363*‡
- People v. Sanchez (2016) 63 Cal.4th 411
People v. Clark (2016) 63 Cal.4th 522 - People v. Zaragoza (2016) 1 Cal.5th 21*†‡
- People v. Parker (2017) 2 Cal.5th 1184*†
- People v. Reed (2018) 4 Cal.5th 989*†‡
- People v. Woodruff (2018) 5 Cal.5th 697*†‡
- People v. Johnson (Nov. 25, 2019, S029551) __ Cal.5th __*‡
- People v. Rhoades (Nov. 25, 2019, S082101) __ Cal.5th __*†‡
Notes
Defendant‘s briefing repeatedly notes that all the African-Americans called into the jury box and excused by the prosecution were women, but does not argue their sex should alter the Batson-Wheeler inquiry.
In supplemental briefing and at oral argument, defendant suggested the prospective jurors’ sex is relevant because African-American women are subject to discrimination on the basis of stereotypes relating to both race and sex; defendant asserted that the prosecutors here must have engaged in such dual stereotyping. But discrimination in this context cannot be assumed; it must be demonstrated. Because defendants’ efforts to demonstrate discrimination have, in substance, focused on the jurors’ race rather than their sex, we likewise focus on the jurors’ race in determining whether defendant established a prima facie case.
Our dissenting colleague appears to agree that an appellate court may consider such readily apparent reasons for a strike, though he may differ as to precisely how obvious an hypothesized reason must be to dispel any inference of biased selection. (Dis. opn. of Liu, J., post, at p. 19; see also People v. Harris (2013) 57 Cal.4th 804, 872–873 (conc. opn. of Liu, J.).)
We stress that in considering these grounds on appeal we do not suggest that a trial court evaluating a Batson-Wheeler prima facie case should search the record for reasons for the peremptory challenges instead of asking the attorney who exercised them for his or her reasons as part of a second-step inquiry. In the trial court, “a direct answer can be obtained by asking a simple question.” (Johnson v. California, supra, 545 U.S. at p. 172.) But in this court, which may conduct its review of a no-prima-facie-case ruling many years or even decades after it was made, asking the attorneys would be anything but simple—indeed, both defendant and the dissent argue that it would be impossible here. (Dis. opn. of Liu, J., post, at p. 24 [only possible remedy for trial court‘s failure to ask question is to reverse penalty judgment]; see People v. Johnson (2006) 38 Cal.4th 1096, 1100–1104.) On the other hand, as an appellate court, we have the benefit of being able to examine the record in more detail, and at a great deal more leisure, than a trial court in the midst of jury selection. What is the soundest and most practical approach for trial courts is not necessarily the soundest and most practical approach for appellate courts, and vice versa.
Although we have sometimes declined to consider such comparisons in a first-stage Batson-Wheeler analysis—particularly when neither the trial court nor this court, in evaluating the prima facie case, has posited possible prosecutorial reasons for the challenged strikes (Bell, supra, 40 Cal.4th at pp. 600–601; see also People v. Bonilla (2007) 41 Cal.4th 313, 350 [comparative analysis not mandated in first-stage cases])—more recent decisions have considered such comparisons. (See, e.g., Reed, supra, 4 Cal.5th at pp. 1002–1003; People v. Harris, supra, 57 Cal.4th at pp. 836–838.) These cases recognize that comparative juror analysis has a role to play as an aid in determining whether the reasons we are able to identify on the record are ones that help to dispel any inference that the prosecution exercised its strikes in a biased manner. Whether or not this evolution in jurisprudence demands we explicitly “repudiate[]” our earlier decisions (dis. opn. of Liu, J., post, at p. 20), we clarify here that juror comparisons can play a role at the first stage of the Batson-Wheeler analysis.
This case illustrates the utility of juror comparisons in conducting our independent appellate review of the first stage determination. By comparing the excused jurors to those the prosecutor retained on the identified characteristics, we test the hypothesis that these characteristics were distinct enough to account for the challenge and dispel any inference of bias.
The dissent (p. 11) also notes that our opinion in People v. Johnson, supra, 30 Cal.4th at pages 1325 to 1326, suggested some reasons that could have supported a peremptory challenge to the third disputed prospective juror. These, too, fall short of the kind of readily apparent reasons that would lead any reasonable prosecutor to challenge a juror.