THE PEOPLE, Plaintiff and Respondent, v. GRAYLAND WINBUSH, Defendant and Appellant.
S117489
IN THE SUPREME COURT OF CALIFORNIA
Filed 1/26/17
Alameda County Super. Ct. No.
Ten days after he was released from the California Youth Authority, defendant Grayland Winbush murdered a young woman in her home during a robbery. The victim was beaten, stabbed, and ultimately strangled to death while her boyfriend was out Christmas shopping. The jury convicted defendant of murder in the course of a robbery, with personal use of a deadly weapon.1 It fixed the penalty at death. We affirm.
I. BACKGROUND
A. Guilt Phase
1. Events Before the Murder
In December 1995, 20-year-old Erika Beeson lived with 21-year-old Mario Botello in an Oakland apartment. The building had a security gate, and visitors had to be “buzzed in” to enter. Botello sold small amounts of marijuana, mostly to people he knew. He grew up in South Berkeley and had been childhood friends with Norman Patterson. He was 14 when he first met defendant.
During the weeks before defendant‘s release, Patterson and Botello had spent time together. On December 20, about a week after defendant came home, Patterson took defendant to visit Botello‘s apartment. Botello, Patterson, and defendant spent the visit talking and smoking marijuana. Beeson was home but did not join the conversation. At one point, defendant noticed a shotgun in the room. He asked if Botello could get him a gun, explaining he wanted to rob some drug dealers. The conversation made Botello uncomfortable. He did not want to help defendant, who was acting aggressively. Botello gave defendant $40 and talked about helping him find a job, but defendant did not appear grateful. Defendant and Patterson left after about an hour.
During the next two days, defendant called Botello five or six times asking for help obtaining a large-caliber gun. Defendant said he wanted to rob some drug dealers in Hayward and asked if Botello knew others he could rob. In one conversation, defendant asked if Botello loved his girlfriend. Botello thought the question was odd but did not consider it a threat. He tried to put defendant off politely, hoping he would drop the subject of guns. Nevertheless, defendant insisted Botello find him a firearm by the end of the week.
December 22 was the day of the murder. Around noon or 1:00 p.m., Maceo Smith brought defendant to the house he shared with his girlfriend, Iva Mosely. Smith had long known defendant but had not seen him in four years. Among other things, the two men discussed committing a robbery together later that night. They called Botello to ask about the gun and announced they would be at his apartment in about 20 minutes. Botello and Smith were close friends. Botello left home immediately, however, to avoid encountering defendant. He asked Beeson to say he would be back later.
After defendant and Smith left, Mosely called Beeson to warn her they were coming. The women were friends and had shared their view that defendant was “weird.” Beeson was still speaking with Mosely when defendant and Smith arrived, around 3:00 p.m. They climbed over the security gate and knocked on the apartment door. Beeson opened the door a crack and told them Botello was not home.
Defendant was angry that Botello had left and suggested robbing Botello. Smith refused to participate. Later that evening, defendant called Smith
Various witnesses established the following timeline. Around 3:45 p.m., Botello went Christmas shopping with his friend Grace Sumisaki. He called Beeson between 5:00 and 6:00 p.m. Beeson also spoke to her mother around 6:00 p.m. Two other friends stopped by the apartment in the same time frame. Another friend tried calling Beeson around 8:00 or 9:00 that evening, but the line was busy.
Botello‘s uncle, Andrew Williams, called around 7:35 p.m. and spoke briefly to Beeson. Williams arrived at Beeson and Botello‘s apartment between 7:45 and 8:00 p.m. Another young man was ringing the security buzzer, but he soon left. Williams rang the buzzer for about 10 minutes. No one answered. He then went to a friend‘s house and called the apartment about 10 times between 8:15 and 9:15 p.m. Each time, the line was busy.
2. The Murder
Around 8:00 p.m., defendant and Patterson went to Botello‘s apartment, intending to rob him. Beeson buzzed them through the security gate and met them at the apartment door. Patterson said he wanted to buy some marijuana. Beeson hesitated when she saw defendant but then let them both inside.
Defendant told Patterson to put the couple‘s puppies in a bedroom. Patterson returned with Botello‘s shotgun and picked up some containers of marijuana lying nearby. Defendant searched the bedroom and took $300. Defendant became irritated because Beeson did not seem to be taking the robbery seriously. He removed his belt and forced Beeson to the floor. Both he and Patterson choked her. Beeson struggled throughout but remained conscious. After a few minutes, at defendant‘s direction, Patterson brought him a butcher knife from the kitchen. Defendant stabbed Beeson repeatedly in the face, shoulder, and neck. He and Patterson left immediately afterward. Defendant took the knife with him. Patterson drove to Aquatic Park in Berkeley, where defendant threw the knife in the lagoon.
Defendant and Patterson picked up Smith shortly after he returned home from the movies. The trio went out drinking. Smith noticed defendant now had money to spend.
3. Investigation
a. Discovery of the Crime Scene
Knowing her boyfriend would be out, Beeson invited two friends to come over. Jennifer Onweller called around 8:00 p.m. to tell Beeson that she and
Onweller and Kekki arrived at Beeson‘s apartment around 9:30 p.m. and found the security gate propped open. The apartment door was locked, and no one responded when they knocked. The lights and television were on, but the television was tuned to a sports channel, which was unusual for Beeson. The bedroom door was shut, and they could not see Beeson or the dogs inside. Onweller and Kekki then walked around the corner to a park to see if Beeson had taken her dogs for a walk. Unsuccessful, they returned to the apartment, and Onweller began writing a note. As she did so, Botello arrived. He found the door locked and could hear the dogs barking. Not having a key with him, he removed a screen and opened a window to enter.
The apartment had been ransacked. Beeson lay on the living room floor, covered in blood. She was not breathing. A wadded-up strip of masking tape and pieces of a gold rope necklace lay on the floor near her. The robbers had left a roll of masking tape nearby on the floor. Onweller found the telephone, which had been knocked off the hook, and called 911. Botello spoke with the dispatcher. Sounding “frantic” and “terrified,” Botello insisted an ambulance be sent immediately. Police and an ambulance arrived, but Beeson had expired.
An autopsy revealed Beeson died from “[a]sphyxiation due to strangulation and multiple stab wounds.” She had multiple scrapes and bruises on her arms, legs, back, and face, including a bruise on her nose matching the size and shape of Botello‘s shotgun barrel. A ligature mark circling her neck could have been made by a belt. She also had nine stab wounds on her face and neck.
b. Investigation and Arrests
Botello‘s shotgun, some marijuana, a piece of stereo equipment, and $300 in cash had been stolen. Botello told police he suspected defendant, Smith, and Patterson were responsible.
On December 26, the police discovered that defendant‘s electronic monitoring ankle bracelet had been disabled from 7:04 p.m. on the night of the murder through Christmas Day. They conducted a brief parole search and adjusted defendant‘s bracelet but were not ready to question him about Beeson‘s murder. They did question Smith, however. Smith gave them an unusually precise, “minute-by-minute” alibi for the night of the murder. As the investigation continued, a number of witnesses reported that defendant was bragging about the murder.
While defendant was in jail, Julia P. called the police anonymously to report that she had heard defendant telling his cousin about the murder. Julia knew defendant‘s cousin, Lakeisha Lovely, and Patterson‘s girlfriend, Latonya Wilson. According to the caller, defendant said he had broken off his ankle bracelet, then robbed and killed a young Caucasian girl in her home. When Julia heard “Mario‘s girlfriend” had been stabbed, she was confused about why defendant would have stabbed her since “he always [had] guns on him” now.
On the evening of April 30, 1996, Patterson robbed a gas station and was arrested early the next morning. On the ride to the police station, he asked the officer sitting next to him, “You all didn‘t come get me about a murder?” The officer responded, “Not unless you want to talk to me about one.” They both laughed, and Patterson said, “Naw, I don‘t think so.” In a search of Patterson‘s home, police recovered the shotgun and stereo equipment stolen from Botello‘s apartment.
c. Confessions of Defendant and Patterson
At the police station, Patterson waived his Miranda3 rights and eventually confessed to the robbery. Because the shotgun was found at his home, the police then took him to the homicide division. Patterson first claimed he had bought the shotgun from a “dope fiend” he knew as Gichi Dan. When questioned specifically about the Beeson murder several hours later, however, Patterson admitted his involvement.
Patterson told the police that defendant needed money and wanted to rob Botello. Patterson kept making excuses, but defendant bullied him into going along. After Beeson let them into the apartment, Patterson put the dogs in a back room. When he returned to the living room, defendant was on top of Beeson, choking her with his belt. Defendant continued to struggle with Beeson and ordered him to retrieve the shotgun and marijuana. At one point, defendant hit Beeson in the head with the shotgun barrel. Patterson initially said that defendant took a butcher knife from the kitchen but later admitted that he had retrieved the weapon. Patterson described how defendant assaulted Beeson but denied ever stabbing her himself. Afterward, defendant
Shortly after Patterson‘s statement, officers interviewed defendant. Defendant waived his Miranda rights and initially denied any involvement. He was confident and self-assured during the questioning. However, after police told him they had evidence against him, showed him pictures of Patterson in custody, and played the first five minutes of Patterson‘s taped confession, defendant admitted the crimes.4 The police secretly recorded his initial statements, and defendant later gave a formal taped confession. He also admitted the murder in a recorded phone call to his mother.
d. Other Events Before Trial
About two weeks later, acting on an anonymous tip, the police interviewed county jail inmate Tyrone Freeman. Freeman had shared a holding cell with defendant on May 8, 1996. Defendant told Freeman that he was in jail on a murder charge and “might have partially confessed.” He said he and his brother-in-law “Nate” were committing a robbery but the girl was not cooperating. After sending “Nate” to search the house, defendant said he pistol-whipped the girl, choked her with his belt, and finally stabbed her with a knife he saw lying on the counter. Defendant said he planned to blame the whole crime on “Nate.” He would explain that he was tired when he talked to the police and did not remember confessing.
Patterson was released on bail in July 1997. A little over a year later, in September 1998, Patterson called Julia P. and asked her to come out and smoke marijuana. He said nothing about Julia‘s anonymous phone call to the police, and she did not think he was aware of it. They drove to a park and Patterson asked, “Was that you on that tape?” Scared, Julia denied making the call. Patterson then demanded that Julia have oral sex and punched her in the face when she refused. He beat her severely, knocking out two teeth, breaking her nose, and causing her eyes to swell shut. He also choked her, saying “[t]hat was you on that tape,” and threatening to kill her. He said, “I‘m going to do you just like we did that bitch.” The assault ended when witnesses heard Julia screaming. In 1999, Patterson was convicted of several charges arising from the incident.
Defendant and Patterson were tried together for murder with special circumstance allegations. Emphasizing that no physical evidence linked them to the murder, the defense argued the prosecution‘s case was based entirely on street rumors and coerced confessions.
Defendant testified, denying any involvement. He admitted he and Smith went to Botello‘s apartment the afternoon of the murder but denied going back later. Defendant testified he left his grandmother‘s house around 7:00 p.m. and took a bus to his aunt‘s home in South Berkeley. Around 10:00 p.m., he and Patterson drank and smoked marijuana with Smith and another friend. Defendant claimed the police had coerced his confession. They threatened him with the death penalty, said they had his fingerprints on Botello‘s shotgun, and played him the entire recording of Patterson‘s statement. Defendant said he confessed because the officers told him it would help him avoid the death penalty. He obtained details of the crime from Patterson‘s statement and things the officers told him. Defendant explained that he lied on the phone call to his mother because the officers were standing nearby and he wanted to keep his deal to avoid the death penalty.
Codefendant Patterson also testified that he had nothing to do with Beeson‘s killing. He said he did not visit Botello‘s apartment on the night of the murder and did not see defendant until 10:15 or 10:30 p.m. Patterson claimed he gave a false confession because police officers had assaulted him and threatened the death penalty.
Defendant‘s aunt testified that defendant sometimes visited her home, but she could not recall the specific date or time of any visit. Botello‘s landlord testified that he saw a lot of traffic in and out of the apartment and suspected drug activity.
The jury returned guilty verdicts against both defendants on all charges and found the special circumstance allegations true.
B. Penalty Phase
1. Prosecution Evidence
The prosecution presented victim impact testimony from Beeson‘s mother and sister.5 Melitta Beeson shared memories of her daughter and described
The prosecution offered evidence under
The prosecution also presented factor (b) evidence about several jail incidents. Twice while awaiting trial, defendant attacked a fellow inmate. On February 6, 1998, defendant slipped out of his restraints and charged an inmate boarding a prison bus. After a deputy forced defendant to back away, defendant told the inmate, “That is what you get for calling me PC.”6 Another time, defendant charged an inmate being escorted back to his cell. Defendant punched the inmate, wrestling him and two deputies to the floor. The inmate did not provoke the attack. He was in waist chains and “virtually defenseless” when defendant charged him. Defendant defied commands to stop and continued the beating until subdued.
Defendant also attacked prison guards on several occasions. For example,7 on March 1, 1997, defendant was in the shower during a lockdown and given two minutes to finish. After the water was turned off, he complained he needed more time and angrily refused to comply with the lockdown. When a deputy tried to take him to an isolation cell, defendant punched the deputy two or three times in the face, breaking his nose. On another occasion, defendant refused to cooperate with procedures for a security check. He punched a deputy in the face, breaking his glasses.
A defense investigator testified about interviews with two prisoners who saw defendant‘s altercation with the deputy in the showers. Both said the deputy struck first. Although defendant was shivering, the deputy threatened to send him to the “cold room,” then began hitting him and spraying him with pepper spray. The prisoners said defendant was not combative but was simply asking to rinse off.
In addition, the defense offered expert testimony from Jamie Candelaria-Greene, Ph.D., that defendant suffered from learning disabilities and attention deficit hyperactivity disorder (ADHD). On cross-examination, she conceded defendant had been diagnosed with a conduct disorder and met the diagnostic criteria for antisocial personality disorder.
The jury sentenced Patterson to life imprisonment without possibility of parole but sentenced defendant to death. Defendant‘s appeal is automatic. (
II. DISCUSSION
A. Pretrial Issues
1. Pitchess Rulings
The trial court ruled on several motions filed pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Defendant sought to discover any complaints against Sergeants Olivas and McKenna for incidents of aggression, use of excessive force, dishonesty, or improper interrogation tactics. Based on defendant‘s showing, the court reviewed the records for promises of leniency or other improper interrogation tactics. It found no discoverable information. The court also reviewed Oakland Police Department personnel files in response to Patterson‘s Pitchess motion and found no discoverable information about inappropriate interview tactics. The defense received the officers’ training records but no additional discovery through Pitchess proceedings.
When a defendant shows good cause for the discovery of information in an officer‘s personnel records, the trial court must examine the records in camera to determine if any information should be disclosed. (
The record includes five large volumes of sealed documents pertaining to all of defendant‘s motions. The trial court made a detailed record of all the materials it found discoverable. Our review confirms that all discoverable materials were properly released. There was no Pitchess error.
2. Jury Selection Issues
a. Cause Challenge Rulings
Defendant contends the court erred in denying two of his challenges for cause and in granting one prosecution challenge without adequate voir dire. Each challenge involved the panelist‘s personal views on the death penalty.
A cause challenge lies only if a panelist‘s death penalty views “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; see Wainwright v. Witt (1985) 469 U.S. 412, 424; Witherspoon v. Illinois (1968) 391 U.S. 510, 521-522.) “If a juror‘s responses are conflicting or equivocal, the trial court‘s ruling is binding on us. [Citations.] If not, we will uphold the trial court if the ruling is fairly supported by substantial evidence in the record, giving deference to the trial court which had the opportunity to observe and
i. Denial of Defense Challenges
Defendant unsuccessfully challenged two prospective jurors for cause. He argued Prospective Juror E.T. was not qualified to serve because voir dire responses indicated he would vote for the death penalty in any case involving an intentional killing during a robbery. Defendant raised a different challenge to Prospective Juror G.M. He maintained G.M. could not be fair because, as a young White woman similar in appearance to Beeson, she would identify too closely with the murder victim. The court denied both challenges.
Weeks later, voir dire concluded and actual selection began. Prospective Juror E.T. was seated early in the process. Neither side exercised a peremptory challenge, and he served as Juror No. 12. Several panelists cycled through the No. 9 seat. Eventually, Prospective Juror G.M. was seated in this position. Immediately afterward, the prosecution and defense declined to exercise any further peremptory challenges. Patterson‘s attorney declared, “The defense is very satisfied with the jury.” As a result, Prospective Juror G.M. served as Juror No. 9.
Defendant now complains the court erred in denying his cause challenges to Juror Nos. 9 and 12. To preserve such a claim, a defendant must exercise a peremptory challenge and remove the prospective juror in question, exhaust all available peremptory challenges, and express “dissatisfaction with the jury as presently constituted.” (People v. Mills (2010) 48 Cal.4th 158, 186.) None of these requirements was satisfied.
Defendant did not peremptorily challenge either Juror No. 9 or No. 12, nor did he exhaust his challenges. Counsel for defendant and Patterson were given 30 challenges to exercise jointly in selecting the 12 trial jurors. When counsel accepted the jury panel as constituted, the defense had 25 challenges remaining. Indeed, the defense “passed,” indicating its satisfaction with the panel, four times after Prospective Juror E.T. was seated. Finally, rather than expressing dissatisfaction, counsel assured the court the defense was “very satisfied” with the panel chosen.9 The court confirmed this satisfaction was shared by both defendants, and confirmed again, during an in-chambers discussion, that all parties agreed the 12 jurors currently sitting would serve as the trial jury.
Relying on United States v. Martinez-Salazar (2000) 528 U.S. 304, defendant contends his claim is preserved. He argues Martinez-Salazar allows criminal defendants to risk leaving a biased individual on the jury then bring a Sixth Amendment challenge on appeal. Defendant misreads the case. In Martinez-Salazar, the high court was interpreting federal law, specifically
Accordingly, defendant‘s claims are not cognizable on appeal. (People v. Thomas (2012) 54 Cal.4th 908, 935; People v. Hillhouse, supra, 27 Cal.4th at p. 487; People v. Williams (1997) 16 Cal.4th 635, 667.) We decline defendant‘s invitation to revisit these rules or find his failure to satisfy them was justified. (See Thomas, at p. 935.) Defendant‘s attempt to derive an alternative standard of forfeiture from People v. Yeoman (2003) 31 Cal.4th 93 and People v. Boyette (2002) 29 Cal.4th 381 is also unavailing. In those cases, the defendant used a peremptory challenge to excuse the objectionable juror and exhausted all challenges. (Yeoman, at p. 114; Boyette, at p. 416.) Defendant failed to do either.
Next, defendant claims the court erred in excusing Prospective Juror E.I., both because voir dire was inadequate and because her views on the death penalty would not have substantially impaired her ability to serve.
E.I.‘s questionnaire responses indicated she was “[m]oderately in favor” of the death penalty. She explained, “it is acceptable punishment for certain crimes but,” because of the “heavy responsibility” in imposing it, the defendant “had better be guilty and the jury had better be sure.” She said she had been opposed to capital punishment in college but “became for it again” after learning about some horrific crimes. She agreed that California should have a death penalty because “[s]ome crimes are so serious that there are no second chances for the person who committed them. Why spend huge amounts of money on imprisoning these people.” Asked whether she would always vote for death if the victim was intentionally killed for the purpose of a robbery by defendants with substantial criminal histories, E.I. responded that an “intentional” killing warranted the death penalty but she did not agree it was “always” appropriate.
In voir dire, when asked if she could realistically consider both sentencing options, E.I. stated that, while both were possible, “it would have to be really, really aggravating circumstances for me to choose the death penalty over life in prison, because that is the most serious thing you can do.” When the court probed further, E.I. said she probably would have voted for the death penalty in notorious cases involving serial murder or “incredibly violent” murders like decapitation.
The court responded with a general description of the facts here: “In this case the allegation is one person has been killed. There aren‘t a number of victims like the Yosemite case or Ted Bundy. One victim. [¶] There was no mutilation involved, such as cutting the head off of the victim, things of this nature. That did not occur. [¶] There was no sexual assault involved in the commission of the murder.” Given these features of the case, the court asked whether the death penalty would be a realistic sentencing option for E.I. She responded, “It doesn‘t seem to be the kind of case where I would vote for the death penalty.” The court indicated it was inclined to excuse the juror but allowed the attorneys to question her first.
The prosecutor added that the victim had been “involved in marijuana dealing” and described the murder as a kind of “drug deal gone bad,” after which the victim was strangled, stabbed and robbed. E.I. responded that she had not heard anything about the case to make the death penalty a possible sentencing option. She noted, “I would have to hear something really different to make the people so incredibly dangerous and deranged that it would have to be death as opposed to life in prison.” The murder of a single
After a brief chambers conference, defendant‘s attorney examined E.I. He explained in some detail that penalty would be decided after a second trial in which the parties presented aggravating and mitigating evidence. Following this lengthy explanation, counsel said, “All I‘m asking you, [is] would you wait and listen to the evidence in the second phase, and can you conceive that depending on what the aggravation is that you might return a verdict of death?” E.I. responded, “I don‘t want to send anybody to death.” Counsel asked if she was saying she would not vote for death. She said, “I‘m beginning to think more and more—as I‘m more and more on the spot, I don‘t want to live with my conscience.” When counsel asked again, “Are you telling me that you would not want to return a verdict of death,” E.I. answered, “No.”
The court dismissed E.I. for cause, remarking it had formed a “definite impression” from the courtroom voir dire that E.I.‘s views on capital punishment would substantially impair her ability to serve. E.I. clearly described the types of cases in which she would consider voting for death, i.e., those involving multiple killings or mutilation, circumstances not present in this case. Moreover, it appeared that, over the course of her questioning, E.I.‘s views had become “crystalized that she could never return a verdict of death.”
“A prospective juror may be excluded for cause without compromising a defendant‘s right to trial by an impartial jury if the juror‘s views on capital punishment ‘would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.“’
death penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient that the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law in the case before the juror. [Citations.] “On review, if the juror‘s statements are equivocal or conflicting, the trial court‘s determination of the juror‘s state of mind is binding. If there is no inconsistency, we will uphold the court‘s ruling if it is supported by substantial evidence. [Citations.]” [Citation.]’ [Citation.]” (Virgil, at pp. 1243-1244.)12
The record supports the conclusion that E.I.‘s finally expressed views made her unqualified to serve. “A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate. [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1246.) Defendant complains the court ignored questionnaire responses showing support for the death penalty in favor of E.I.‘s ambiguous statements in voir dire that did not clearly show she was unqualified to serve. Defendant mischaracterizes the record and misconstrues our standard of review.
Even if a prospective juror‘s questionnaire responses express a willingness to consider the death penalty, an excusal for cause is appropriate if oral questioning establishes that the juror‘s views on capital punishment would, in fact, substantially impair her ability to return a death sentence. (See, e.g., People v. Virgil, supra, 51 Cal.4th at p. 1244.) Here, E.I.‘s questionnaire responses showed moderate support for capital punishment, noting it was appropriate for “some crimes.” However, she clarified her beliefs during voir dire, consistently expressing the view that only the most violent kinds of killings warrant death. Defendant characterizes these responses as ambiguous because E.I. left room for the possibility that she could vote for death. However, in each instance, she emphasized that the murder would have to be particularly brutal. “‘The real question is “whether the juror‘s views about capital punishment would prevent or impair the juror‘s ability to return a verdict of death in the case before the juror.“‘”
Defendant now complains the court and prosecutor gave the juror a sanitized, “sugarcoat[ed]” version of the incident. Yet, two defense lawyers expanded on those descriptions and on the process for determining penalty. Patterson‘s attorney stressed that the victim was only 20 years old and was killed in her own apartment by two men who intended to rob her. They choked and stabbed her repeatedly in what he stressed was unquestionably an intentional killing. With that preface, he asked whether such a murder could be sufficient to support a death verdict. Once again, E.I. hedged in responding, stating only that an intentional killing would “sort of ma[ke] that more of a possibility,” but consistently emphasized that she would be able to vote for death only in extreme cases.
We determined similar views supported a removal for cause in a previous death penalty case involving the same trial judge. (People v. Martinez (2009) 47 Cal.4th 399.)13 In Martinez, a prospective juror stated that a crime would have to be “‘particularly heinous‘” or involve other circumstances like recidivism to warrant the death penalty. (Id. at p. 428.) The prospective juror in Martinez conceded there was a possibility she could vote for death, depending on the facts, but “‘it would have to be something that would push me beyond the way I normally feel about the death penalty.‘” (Id. at p. 429.) We concluded these
statements reserving the possibility of a death verdict did not necessarily mean the juror was qualified: “The trial court was justified in concluding that the prospective juror‘s responses, rather than suggesting she could set aside her own personal views, constituted merely a grudging acknowledgment that those views might include some narrow exception—or at least an abstract possibility she would consider the statutory penalty of death. But the mere theoretical possibility that a prospective juror might be able to reach a verdict of death in some case does not necessarily render the dismissal of the juror an abuse of discretion. [Citations.] Excusal for cause is not limited to a juror who ‘zealously opposes or supports the death penalty in every case.“’ [Citation.]” (Id. at p. 432.) Echoing the dissent in Martinez, defendant argues the dismissal was improper because E.I. was not asked whether serial killings and murders involving mutilation were the only types of cases in which she could consider the death penalty. (See id. at p. 461 (conc. & dis. opn. of Moreno, J.).) However, a court is certainly capable of discerning bias without hearing a
Defendant also complains the court did not allow adequate voir dire because it prevented defense counsel from telling E.I. about aggravating evidence that would likely be introduced at the penalty phase. We have repeatedly cautioned that death-qualification voir dire “must not be so abstract that it fails to identify jurors whose death penalty views would prevent or substantially impair their performance as jurors” but also “must not be so specific as to require prejudgment based on a summary of potential [aggravating and mitigating] evidence. (People v. Cash[, supra,] 28 Cal.4th [at pp.] 721-722.)” (People v.Leon (2015) 61 Cal.4th 569, 586.)14 The trial court has considerable discretion in striking this balance. (Leon, at p. 586; People v. Cash, supra, 28 Cal.4th at p. 722.) The ruling here was well within that ample scope. The attorneys had already given E.I. a detailed preview of how and why the murder was committed. The court reasonably concluded that voir dire questions describing particular evidence likely to be offered in aggravation would come too close to requiring E.I. to prejudge penalty. A defendant has no right to ask prospective jurors to predict how they would decide penalty based on a summary of aggravating or mitigating evidence. (People v. Carasi (2008) 44 Cal.4th 1263, 1326-1327 (Carasi); People v. Burgener (2003) 29 Cal.4th 833, 865.) In any event, the aggravating evidence here, which primarily consisted of violent outbursts while defendant was in custody, was not nearly as shocking as Beeson‘s murder. A description of this evidence would not have caused a reasonable juror to change her views about the appropriateness of death as a penalty.
Moreover, E.I.‘s response to defense counsel‘s final questioning removed any doubt about her inability to serve. Defendant‘s attorney explained that if the case reached a penalty phase, the parties would present aggravating and mitigating evidence about the crime and the backgrounds of the offenders and
A refinement of views often occurs during voir dire. When panel members are sent to a courtroom, they learn for the first time that they have been called for a capital case. Then, appropriately, their opinions are probed in depth. These questions touch on matters of conscience, morality, social policy, and individual ability that panelists may never have considered in practical detail. The process encourages panelists to think deeply and seriously about their views. It falls to the discerning trial judge to carefully evaluate each panelist‘s state of mind on these weighty issues. The able trial court did so here. There was no error.
b. Batson/Wheeler Rulings
Defendant, who is African-American, complains he was deprived of his constitutional rights to equal protection and a representative jury because the prosecutor exercised peremptory challenges to exclude African-Americans from the jury. (See Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).)
i. Background
Because defendant makes several statistical arguments, we discuss the jury selection procedures in some detail. The process, which the court conducted
Jurors were called into the jury box in random order for the parties to exercise peremptory challenges. Each side had 30 challenges, with 12 additional challenges to use for the alternates. Defendant and Patterson agreed to exercise their challenges jointly. The prosecutor exercised 10 peremptory challenges in selecting the trial jury and eight in selecting the alternates. Three of these challenges were made against African-American panelists. After each, the defense jointly asserted a Batson/Wheeler motion. The court held a hearing and issued a detailed ruling denying the motions.
Including alternates, the jury was composed of 11 women and seven men, ranging in age from 24 to 61 years old. All major cities in the county were represented except Fremont, Pleasanton, and Berkeley. Thirteen of the jurors were Caucasian, three were Hispanic, and two were Asian.
ii. Analysis of Individual Challenges
Both state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based on their race or membership in a cognizable group. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) A three-step inquiry governs the analysis of Batson/Wheeler claims. “First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.]” (People v. Lenix (2008) 44 Cal.4th 602, 612-613; see also Johnson v. California (2005) 545 U.S. 162, 168.)
“‘A prima facie case of racial discrimination in the use of peremptory challenges is established if the totality of the relevant facts “gives rise to an inference of discriminatory purpose.“’ [Citation.]” (People v. Scott (2015) 61 Cal.4th 363, 384.) At step two of the analysis, the prosecutor “‘must provide a “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges.’ [Citation.] ‘The justification need not support a challenge for cause, and even a
The People do not dispute the trial court‘s finding that a prima facie case had been established. Accordingly, we focus on the third Batson/Wheeler prong and examine whether the African-American panelists were excused due to intentional discrimination. (See People v. Mills, supra, 48 Cal.4th at p. 174; People v. Lenix, supra, 44 Cal.4th at p. 613, fn. 8.)
“At the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to whether the trial court finds the prosecutor‘s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor‘s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ (Miller-El [v. Cockrell (2003)] 537 U.S. [322,] 339.)” (People v. Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.) Implausible or fantastic justifications offered at the second stage may not be sufficiently credible to pass muster at stage three. (Purkett v. Elem (1995) 514 U.S. 765, 768.) “In assessing credibility, the court draws upon its contemporaneous observations of the voir dire.” (Lenix, at p. 613.) This assessment may also take into account “the court‘s own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her. (See Wheeler, supra, 22 Cal.3d at p. 281.)” (Lenix, at p. 613.)
“We review a trial court‘s determination regarding the sufficiency of a prosecutor‘s justifications for exercising peremptory challenges ‘“with great restraint.“’ [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court‘s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]” (People v. Burgener, supra, 29 Cal.4th at p. 864)
a) Prospective Juror E.T.
The prosecutor used his second peremptory challenge to excuse Prospective Juror E.T., a retired credit manager from Oakland married to a retired federal immigration agent. She stated in the questionnaire that she had been arrested for obstruction of justice but did not explain her answer. During voir dire, she explained that she and a police officer “kind of got into a thing” when she was helping her sister leave her husband. She said the officer pushed her and “made some kind of remarks.” She retaliated, and “[i]t escalated from that.” She was arrested but the charges were dropped.
In the questionnaire, E.T. described her general opinion about the death penalty as neutral but also stated, “If you take a life be prepared to give up your life.” In voir dire, she said she had “mixed feelings” about capital punishment. She explained that, according to the Bible, “only God is supposed to be able to really take somebody‘s life,” and “[i]t‘s not our place” to kill someone; however, she also believed people shouldn‘t be allowed to murder others.
The prosecutor cited these mixed feelings about the death penalty as one reason for striking E.T. Another reason, related to the first, was a concern that E.T.‘s religious beliefs would make it difficult for her to impose the death penalty. The prosecutor said it raised “a huge red flag” if a potential juror stated that only God can take a life. He explained that, “as a prosecutor in a death penalty case, every single juror that makes [that] answer [has to be excused] either by cause or by peremptory challenge or I‘m not doing my job.” He noted no one sitting on the jury had given such an answer.
The prosecutor also cited E.T.‘s attitude toward law enforcement. Before voir dire, he had obtained the police report related to E.T.‘s obstruction of
The prosecutor also observed that Patterson‘s attorney questioned E.T. only briefly and defendant‘s attorney asked no questions at all. Their approach raised the concern that E.T. would favor the defense.
The court found each of the prosecutor‘s reasons supported by the record and expressive of his true motives in excusing E.T. Substantial evidence supports these findings. E.T. expressed mixed feelings about capital punishment. A juror‘s reluctance to impose the death penalty has long been considered a legitimate, race-neutral basis for excusal in a capital case. (E.g., People v. Lomax, supra, 49 Cal.4th at p. 572; People v. Gutierrez (2002) 28 Cal.4th 1083, 1123; People v. Pride (1992) 3 Cal.4th 195, 230; People v. Johnson (1989) 47 Cal.3d 1194, 1222.) The trial court observed E.T.‘s statement that only God can take a life expressed a “startling and dramatic” reservation about the death penalty based on what appeared to be the juror‘s strongly held religious beliefs. The court observed that no other juror had expressed such a strongly held view. We have repeatedly upheld peremptory challenges to jurors whose reservations about the death penalty are religious in nature. (E.g., People v. Cash, supra, 28 Cal.4th at p. 725; People v. Catlin (2001) 26 Cal.4th 81, 118-119; see People v. Pearson (2013) 56 Cal.4th 393, 422 [challenge to juror whose religious beliefs would make it “‘hard‘” to impose the death penalty did not support a prima facie case of Wheeler error].)
The court found E.T.‘s negative attitude toward law enforcement was an independent reason for the strike. After reading her arrest report for interfering with a police officer, the court concluded E.T. had committed substantial unlawful conduct, which she minimized during voir dire. A juror‘s prior arrest is an accepted race-neutral reason for peremptory challenge. (People v. Lomax, supra, 49 Cal.4th at p. 575.) For similar reasons, a juror‘s negative experience with law enforcement can also be a valid basis for exclusion. (People v. Gutierrez, supra, 28 Cal.4th at pp. 1124-1125; see People v. Farnam (2002) 28 Cal.4th 107, 138; People v. Sanders (1990) 51 Cal.3d 471, 500-501.)
Finally, the court noted that defense counsel‘s failure to question a juror was viewed as a valid race-neutral reason justifying the prosecutor‘s peremptory challenge in People v. Ervin (2000) 22 Cal.4th 48, 75. While this reason might not be sufficient in isolation to support a challenge, the absence of any significant questioning by defense counsel is relevant and may legitimately support a prosecutor‘s feeling that the panelist would favor the defense. (See ibid.)
b) Prospective Juror B.C.
The prosecutor used his sixth peremptory challenge to excuse B.C., a 54-year-old receptionist from Oakland. B.C. disclosed in the questionnaire that her daughter had been raped two years earlier by a “high-profile” person who was not convicted. She favored strengthening the justice system to give victims justice. In voir dire, B.C. explained that her daughter‘s rapist was a professional basketball player. The case was investigated by the Alameda Police Department but was eventually “dropped.”
B.C. had previously served as the foreperson in a criminal case. In her questionnaire, she stated that the case resulted in a verdict; however, in voir dire, she reported that the jury hung on one count. They found the defendant guilty of attempted robbery and being a felon in possession of a firearm but could not reach a verdict on an attempted murder charge.
B.C. also expressed the view that minorities are not treated fairly by the justice system, explaining that minorities were usually unable to pay for the same quality of legal representation available to White defendants. In voir dire, B.C. said she thought people who can afford a private attorney “have a better chance in court” than those represented by a public defender, citing the O.J. Simpson case as an example. Patterson‘s attorney then told B.C. that in addition to retained lawyers and public defenders, some defendants are represented by private lawyers who donate their time. The court remarked after B.C. left the courtroom that this colloquy was misleading. It appeared to give the juror the impression that these defense counsel were donating their time, which was not true. The court noted that the problem had only arisen with B.C. but admonished counsel, “Don‘t do that again.”
The prosecutor gave several reasons for striking B.C. He mentioned her experience as the foreperson of a hung jury. He gave examples of other panelists he had excused specifically because they had served on hung
The prosecutor also struck B.C. because of her views on the criminal justice system. She expressed concern in both the questionnaire and voir dire about the quality of representation received by people who could not afford private lawyers. After this discussion, Patterson‘s attorney made comments that gave B.C. the clear impression that he was working on the case for free. The impression that defense counsel were working for free was damaging because B.C. seemed to have a “full-fledged belief that if an African-American defendant can‘t pay his lawyers in the way that O.J. did, [he‘s] not getting a fair shake.” B.C.‘s views on money in the criminal justice system were highlighted by her assertion that the police or district attorney‘s office failed to pursue charges against the professional basketball player who had raped her daughter. The prosecutor summarized: “So here‘s a juror who‘s been in this situation before as a foreperson, who was willing to take the easy way out of a hung jury on a difficult count, who has very strongly held views expressed in her questionnaire and her oral voir dire that money gets you good representation, and she has concerns about that in African-American context. . . . And then we have a defense attorney who stands up and misleads her, leaves her with the impression that he‘s working for free along with the other lawyers here. That‘s a race-neutral reason, your honor. That‘s a situation where that juror was poisoned.”
The court found that these reasons reflected the truth of why the prosecutor excused B.C. Again, the court‘s careful findings are amply supported by the record.
The court found B.C.‘s prior service as the foreperson of a criminal jury that hung on the most serious charge justified the use of a peremptory strike. As the court observed, many cases have held service on a hung jury to be an appropriate, race-neutral reason for excusing a juror, and this reason alone could have justified the excusal of B.C. (E.g., People v. Taylor (2010) 48 Cal.4th 574, 644; People v. Ayala (2000) 24 Cal.4th 243, 265-267; People v. Farnam, supra, 28 Cal.4th at p. 138.) Prior experience on a hung jury “constitutes a legitimate concern for the prosecution, which seeks a jury that can reach a unanimous verdict.” (People v. Turner (1994) 8 Cal.4th 137, 170.)
The court found that B.C.‘s views about the fairness of the criminal justice system were also a substantial reason justifying the strike. In many of her answers, B.C. expressed “real fears” that an indigent defendant would suffer a significant disadvantage and only people who can pay for private lawyers will receive a good defense. “A prospective juror‘s distrust of the criminal justice system is a race-neutral basis for excusal. (People v. Turner, supra, 8 Cal.4th at pp. 170-171.)” (People v. Clark (2011) 52 Cal.4th 856, 907; see People v. Pride, supra, 3 Cal.4th at p. 230.) Further, the court believed defense counsel‘s statements about private attorneys donating their time created the irrevocable impression that the defense lawyers in this case were working for free. The prosecutor was justifiably concerned that B.C. would feel sympathy for the defendants because she would believe they were not receiving adequate representation. Finally, the court observed that B.C.‘s views on the disparity of representation available to the wealthy were probably reinforced by the fact that her daughter‘s rapist, a high-profile and presumably wealthy person, avoided prosecution. Skepticism about the fairness of the criminal justice system to indigents and racial minorities has also been recognized as a valid race-neutral ground for excusing a juror. (E.g., People v. Vines (2011) 51 Cal.4th 830, 850-852; People v. Calvin (2008) 159 Cal.App.4th 1377, 1386.)
c) Prospective Juror T.W.
Immediately after Prospective Juror T.W. was called into the jury box, the prosecutor used his tenth peremptory challenge to excuse him. T.W., a 57-year-old maintenance supervisor from Oakland, answered “yes” to questionnaire items asking if he knew anyone who had been investigated or charged with a crime or if anyone in his family had been arrested or convicted of a crime. When asked to explain these answers, however, he simply drew question marks. In response to a question about particular types of crimes that upset him, T.W. said, “Innocent people going to jail.” He stated, “I think the system is unfair to Black[s]” when asked about the effectiveness of the criminal justice system and checked “no” when asked if the system treats minorities fairly. Expounding on this answer, he wrote: “So much to say[.] The history of slavery go[es] to[o] deep in this country.” Asked if he would like to see changes to the justice system, T.W. responded “no” and explained, “It [is] the people I want to see changed.” T.W. said he
The trial court explored some of these responses during T.W.‘s voir dire. Asked about his comment that innocent people are going to jail, T.W. said, “We seem to be hearing a lot of it lately” and recalled hearing that another state had released many prisoners from death row for this reason. He also mentioned he was upset by the Riders scandal, a highly publicized case involving allegations of serious misconduct by four Oakland police officers. He affirmed that he held a strong view “that African-Americans have not been and are not now being treated fairly” in the criminal justice system. When asked about his comment that it was “the people” in the justice system he wanted to see changed, he told the court, “Well, I guess I‘m talking about White people,” although he conceded that “probably a lot of Black people‘s minds are made up as well, and maybe they‘re not capable of making decisions based on facts.” Asked to explain his comments about race and capital punishment, T.W. said Black people have not been treated fairly in the judicial system and are disproportionately represented on death row.
On the subject of whether he could vote to impose the death penalty on an African-American defendant, T.W. stated that sentencing someone to death would be “a very difficult decision” regardless of the defendant‘s race. He told the prosecutor that he could conceivably impose the death penalty for the murder of a single adult, but the facts would have to be “pretty heinous” and “ugly.” He also said “it seem[ed] unlikely” that he could vote for death for two defendants if only one person had been murdered.
Finally, the prosecutor asked if T.W. himself had any experience with being arrested or taken to jail. He answered that around 20 years earlier, after having too much to drink, he was arrested during an altercation with a cab driver. Although the police took him to jail, T.W. stated that he had “probably” been treated appropriately. Neither of the attorneys conducting voir dire for the defense asked T.W. any questions.
After this voir dire, the prosecutor challenged T.W. for cause. In the questionnaire, which had been signed under penalty of perjury, T.W. stated that he had not been arrested for any crime and had never “visited or been incarcerated in, any jail, prison, or juvenile detention facility.” The prosecutor argued T.W.‘s prompt and detailed voir dire answers indicated he clearly remembered his previous arrest and trip to jail. His failure to disclose these facts in the questionnaire could not be attributed to faulty memory. The prosecutor was also “deeply concerned” about the juror‘s views on race. He
The court denied the cause challenge but said it was “not totally satisfied . . . that this man is a totally impartial juror.” The court understood the prosecutor‘s concern about having T.W. on the jury, noting it would stretch credulity to assume that T.W.‘s views on racism and African-Americans on death row would not enter into his deliberations and judgment. However, it could not conclude as a matter of law that T.W. was too biased to serve.
The prosecutor repeated these reasons in explaining why he used a peremptory challenge to excuse T.W. He noted the juror had markedly negative views about the police and had mentioned a recent scandal involving Oakland police officers in particular. Because T.W. said he thought the Oakland Police Department was “a whole lot better now than it had been” despite the egregious misconduct alleged in the case, the prosecutor concluded he held a negative view of the department. The prosecutor‘s case depended heavily on the credibility of Oakland police officers, and he did not believe T.W. would fairly consider their testimony. Negative views about the Oakland police were also evident in T.W.‘s description of his arrest. The prosecutor argued that T.W.‘s failure to disclose this incident in the questionnaire reflected a lack of honesty that was an independent, race-neutral ground for excusal. The prosecutor also cited T.W.‘s reluctance to impose the death penalty and his clear belief that the criminal justice system is racist. The prosecutor also observed that defense counsel did not ask the juror a single question, which suggested their belief that T.W. leaned heavily in their favor.
Before ruling on the Batson/Wheeler motion, the court reviewed the transcript of voir dire and the cause challenge hearing as well as its own notes about the juror. Remarking that perhaps the cause challenge should have been granted after all, the court concluded the prosecutor had ample reasons for striking T.W. and his race-neutral justifications were sincere. When a prospective juror‘s hostility to law enforcement and the criminal justice system is not sufficient to support a dismissal for cause, it may well justify a prosecutor‘s peremptory challenge. (See, e.g., People v. Williams, supra, 58 Cal.4th at p. 287.) The court noted T.W. had been arrested by the same police department that investigated the murder. T.W.‘s own arrest was a valid race-neutral reason for excusal. (See People v. Box (2000) 23 Cal.4th 1153, 1186, 1189.) Moreover, the juror‘s failure to disclose his arrest in the questionnaire could reflect a lack of candor, a legitimate concern for the prosecutor. (See, e.g., People v. DeHoyos, supra, 57 Cal.4th at p. 114; People v. Booker (2011) 51 Cal.4th 141, 166-167; People v. Ayala, supra, 24 Cal.4th at p. 266.) T.W. also expressed a very low opinion of the Oakland Police Department. Even if T.W. truly believed the department had improved in recent years, the relevant events took place seven years earlier. Moreover, T.W. strongly believed that nonwhite defendants cannot receive a fair trial. A prospective juror‘s views that the criminal justice system is biased, and that the death penalty has been disproportionately imposed against minorities, can validly support a peremptory strike. (Williams, at p. 285; People v. Vines, supra, 51 Cal.4th at pp. 850-851.) Based on this record, the trial court reasonably concluded T.W.‘s mind was already made up against the prosecution.
iii. Comparative Analysis
As part of our assessment of the court‘s factual findings, we also consider comparisons between African-American panelists the prosecutor challenged with panelists of other races who were allowed to serve. (People v. DeHoyos, supra, 57 Cal.4th at p. 103.) “The rationale for comparative juror analysis is that a side-by-side comparison of a prospective juror struck by the prosecutor with a prospective juror accepted by the prosecutor may provide relevant circumstantial evidence of purposeful discrimination by the prosecutor. [Citations.]” (Id. at p. 109.) “If a prosecutor‘s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson‘s third step.” (Miller-El v. Dretke (2005) 545 U.S. 231, 241People v. Taylor (2009) 47 Cal.4th 850, 887.)
Defendant urges this court to conduct a comparative analysis of the excused panelists with all 18 of the seated trial jurors and alternates. However, defendant himself compares the excused panelists with only five of the trial jurors and one alternate. He makes no contention that comparison with any of the other 12 jurors has probative value. Accordingly, we limit our
Defendant does not explicitly compare the excused panelists with jurors who were seated. Rather, he argues two of the prosecutor‘s reasons for dismissing the panelists were pretextual because Caucasian jurors who expressed similar views were not excused. Pretext is established, however, when the compared jurors have expressed “a substantially similar combination of responses,” in all material respects, to the jurors excused. (People v. DeHoyos, supra, 57 Cal.4th at p. 107, italics added.) Although jurors need not be completely identical for a comparison to be probative (see Miller-El v. Dretke, supra, 545 U.S. at p. 247, fn. 6), “they must be materially similar in the respects significant to the prosecutor‘s stated basis for the challenge.” (DeHoyos, at p. 107.)
Defendant raised a comparative analysis argument in the trial court, and the prosecutor responded by explaining why he accepted some jurors who expressed beliefs similar to those he struck. The trial court accepted the prosecutor‘s reasons, and we too conclude they do not support an inference of discriminatory motive.
Like B.C. and T.W., three seated jurors and one alternate expressed the view that the criminal justice system is unfair to minorities. However, the prosecutor adequately explained why each of the seated jurors was stronger for the prosecution than those excused.
Juror No. 5, a Puerto Rican financial advisor, checked “no” on the questionnaire when asked if the criminal justice system treats minorities fairly and explained, “Empirical data has proven this fact.” However, based on this juror‘s demeanor and questionnaire responses, the prosecutor viewed him as “a conservative person” with “strong beliefs in the need for people to take personal responsibility for their actions.” The prosecutor explained that he accepted Juror No. 5 because of his strong support for the death penalty. For example, he stated that he would vote in favor of the death penalty on a ballot initiative because “[c]ertain crimes need to be dealt with [by] the death of the convicted.” Even more important, when asked in voir dire whether death or a life sentence would be harder to impose, Juror No. 5 indicated they would be equally difficult. The prosecutor explained that in his experience, a juror who perceives either penalty to be a difficult choice is likely to be “very favorably disposed towards imposing the death penalty.”18
Juror No. 11 was a fire department captain. He placed an “x” on the questionnaire in between “yes” and “no” when asked if the justice system treats minorities fairly. He explained, “I have seen newspaper and news accounts that address this. I do believe that ethnicity is an issue in the criminal justice system. However, I have no strong personal opinion.” The prosecutor recalled that he liked Juror No. 11 because he seemed focused on the issue of remorse. He stated in the questionnaire that the death penalty was appropriate only for cases involving extreme acts for which the defendant showed no remorse. Noting that both defendants had committed significant postmurder violence, including attempts to intimidate a witness, the prosecutor predicted he would “do pretty well on [the remorse] issue” with this juror. Also, like Juror No. 5, Juror No. 11 said in voir dire that both death and life imprisonment are severe penalties, and he would not have more difficulty imposing either one.
Some seated jurors also made statements similar to B.C.‘s comments that money is necessary to buy a good defense. However, their sentiments on this issue were generally milder, or qualified. The prosecutor reasonably viewed them as stronger jurors for his side.
Juror No. 8 referred to the influence of wealth obliquely when she commented in the questionnaire that the O.J. Simpson trial had made her “somewhat skeptical” of the effectiveness of the criminal justice system. The prosecutor was impressed with her prior jury service in a murder trial, however. Juror No. 8 and one other juror believed the defendant was guilty of
Juror No. 10, a supervisor of a grocery store meat department, stated in her questionnaire that the criminal justice system is “very effective if you have plenty of money & an excellent attorney.” She also checked “yes” when asked whether minorities are treated unfairly in the criminal justice system. The prosecutor explained that he liked jurors who are supervisors because they often have to make hard decisions in their job. Because Juror No. 10 was a butcher, he felt she would not be overwhelmed by gory evidence in the case. The prosecutor also noted two ways in which Juror No. 10 shared similarities with victim Beeson: She had a history of drug abuse, and her husband had strangled her during an argument. In addition, when asked in the general portion of the questionnaire if she would like to see any changes to the criminal justice system, Juror No. 10 volunteered that she wanted to “narrow the appeals down on death penalty cases.” She repeated in voir dire that if there was no doubt of a defendant‘s guilt, she did not see the need to spend money and court time on lengthy appeals. In light of these answers, the prosecutor believed she was a strong juror.
Like Juror No. 10, Alternate Juror No. 16 expressed doubts about the fairness of the justice system to minorities and the indigent. She stated in the questionnaire that the criminal justice system is “generally effective – but access (financially) to effective attorneys can be beneficial.” When asked if minorities are fairly treated, she answered, “For the most part yes[,] but as in all aspects of life some people can be judged (unfairly) based on their race or ethnicity.” The prosecutor did not recall details of Alternate Juror No. 16‘s questionnaire or voir dire except that she was strongly in favor of the death penalty and that her brother-in-law was a judge in Kern County. Although she circled the questionnaire response stating she was “moderately in favor” of the death penalty, rather than “strongly in favor,” we do not agree with defendant‘s assertion that the prosecutor
mischaracterized the juror‘s views in a manner that evidences discriminatory pretext. (See Miller-El v. Dretke, supra, 545 U.S. at pp. 244-246; Cook v. LaMarque (9th Cir. 2010) 593 F.3d 810, 818.) Moreover, we find reasonable the prosecutor‘s reliance on the factThe prosecutor gave reasonable explanations for why he viewed each of these seated jurors as more favorable than excused panelists E.T., B.C., and T.W. Comparative analysis does not suggest that the prosecutor‘s reasons for striking these panelists were pretexts for unlawful discrimination.
iv. Statistical Arguments
Apart from individual and comparative juror analyses designed to ferret out pretext, defendant insists discrimination must have occurred because it was statistically improbable that no African-Americans would serve on a jury in Alameda County. He notes that while African-Americans comprised only about 6 percent of the panel, the prosecutor used 30 percent of his peremptory challenges against them, excusing 100 percent of the African-American panelists called into the jury box.
In regard to whether a prima facie case of discrimination has been established under Batson‘s first step, we have observed that the excusal of all members of a particular group may suggest impropriety. (People v. Pearson, supra, 56 Cal.4th at p. 422; People v. Crittenden (1994) 9 Cal.4th 83, 119.) Statistical evidence about the underrepresentation of certain groups in the venire may also be relevant to this prima facie showing. (See Johnson v. California, supra, 545 U.S. at pp. 169-170 & fn. 5.) Here, however, the trial court found a prima facie case had been established and proceeded to the second and third steps of the Batson/Wheeler inquiry. The existence of a prima facie case is therefore not in dispute. The only dispute here concerns whether the court properly found that the inference of discrimination was rebutted by the race-neutral justifications given for the strikes. (See Johnson, at p. 168.)
We are aware of no case holding that statistical evidence about the underrepresentation of particular groups on a venire, or jury panel, can be sufficient to undermine a trial court‘s considered findings at the third step of a Batson/Wheeler analysis. By the third step, the court has already found that exclusion of jurors from a particular group requires explanation. (See Johnson v. California, supra, 545 U.S. at p. 173.) The question at the third step is not whether the defendant can plausibly urge systematic exclusion, but whether any particular panelist was, in fact, excused due to group bias. (See People v. Avila (2006) 38 Cal.4th 491, 549.) Defendant argues the Supreme Court‘s discussion of the percentage of African-American panel members struck in Miller-El v. Dretke, supra, 545 U.S. at pages 240 to 241, supports the relevance of statistics to third step
Defendant complains that his jury consisted of eight Caucasians, two Asians and two Latinos, whereas, “if race were not an issue . . . one would have expected five white jurors, three Asian jurors, two Latinos, [and] two blacks.” However, we have long held that “no litigant has the right to a jury that mirrors the demographic composition of the population, or necessarily includes members of his own group, or indeed is composed of any particular individuals.” (Wheeler, supra, 22 Cal.3d at p. 277.) Nor does the
Finally, to the extent defendant‘s statistical arguments urge that the venire was not representative, the claim has not been preserved for appeal. Defendant neither objected to the panel nor moved to quash the venire. (See People v. Lewis (2001) 25 Cal.4th 610, 634.) Nor has he attempted to support the claim by showing that the jury selection process in Alameda County results in the systematic exclusion of African-Americans. (See Duren v. Missouri (1979) 439 U.S. 357, 364; Lewis, at pp. 634-635.)
3. Admission of Defendant‘s Confessions
Defendant sought to exclude his recorded statements about Beeson‘s murder. The confessions were made after full Miranda warnings (see Miranda, supra, 384 U.S. 436), but defendant argued they were involuntary because they were induced by “the intentional application of psychological pressure” and a promise of leniency to avoid the death penalty. After a lengthy hearing, the court found all of the statements admissible. Defendant renews his arguments, claiming reversible error. Substantial evidence supports the factual findings below. We independently conclude as a legal matter that the statements were voluntarily given.
a. Background
On May 1, 1996, police officers questioned Patterson about the murder after they found Botello‘s shotgun in his home. Patterson initially denied specific knowledge but ultimately admitted his involvement and identified defendant as the murderer. The police then advised Patterson of his Miranda rights again and took a recorded statement. Patterson‘s interview concluded shortly before 1:00 a.m.
A day later, officers brought defendant to the police department. He was placed in a homicide interview room without handcuffs at 10:15 a.m. About an hour later, Sergeants Enoch Olivas and John McKenna began the interview. Defendant was immediately advised of his Miranda rights and waived them, both orally and in writing. The officers used no physical force during the interview and made no threats or promises to induce cooperation. Altogether, defendant spoke to the police from 11:07 a.m. until 2:00 a.m. the next morning, when he finished giving his final recorded statement about the crimes. This interview was conducted in relatively short sessions, with lengthy breaks between. Defendant was given food, drink, and access to a bathroom.
During the first session, defendant discussed how he knew Botello and Patterson. After 50 minutes of questioning, officers took an hour-long break and defendant had lunch. Questioning resumed for another hour and 15 minutes. Defendant talked more about Patterson and how he knew Maceo Smith. He speculated that a power outage at his grandmother‘s house was the reason his ankle monitoring bracelet did not transmit a signal during some days in December. At the end of the session, Sergeant Olivas said he had evidence that defendant was involved in Beeson‘s murder. He did not mention Patterson‘s interview or disclose other details. Defendant denied any involvement. The third interview session began after a 40-minute break and lasted a little over an hour. Defendant acknowledged visiting Botello‘s apartment and, contrary to his earlier statements, now admitted he had noticed Botello‘s shotgun. The officers brought defendant another meal during a 45-minute break.
When the interview resumed for another hour-long session, defendant made additional statements which Sergeant Olivas wrote down verbatim. Defendant said: ” ‘I admit I was there’ “; ” ‘If I get the death penalty, I get it’ “; ” ‘Once I got there, it all went sour’ “; ” ‘I have to play it out’ “; and ” ‘I‘m fucked.’ ” Sergeants Olivas and McKenna both testified that they never mentioned the death penalty or any possible punishments. Defendant was the first to mention the penalty. His remark was unsolicited and not responsive. The officers did not acknowledge the remark or discuss penalties with defendant in any way. They took a 90-minute break after this session and set up equipment for the next interview session to be surreptitiously recorded. Sergeant Olivas believed defendant would soon start describing details about the murder, and he did not want to inhibit this disclosure by openly recording.
The next interview session began again shortly after 9:00 p.m. Before the questioning started, defendant remarked, ” ‘I‘m going to get what I‘m going to get.’ ” The officers then showed defendant photographs of Beeson and began recording. Defendant then confessed to robbing and murdering Beeson. He gave many details about the chronology, including what he and Patterson each did to Beeson, the items they stole, and how they disposed of the knife. Specifically, he said Patterson hit Beeson with the barrel of Botello‘s shotgun and she began making a lot of noise. Defendant gave his belt to Patterson and told him to choke her into unconsciousness. When Patterson was unsuccessful, defendant grabbed an end of the belt, and they choked her together for several minutes. Because Beeson was still conscious and they worried about her making noise, defendant took a knife from the kitchen and stabbed her repeatedly in the shoulder and back of the neck. When they left, he thought Beeson was probably dead. Defendant was very animated in retelling the events, even acting out for the officers how he and Patterson had choked their victim and where on the neck he had stabbed her. At the end of this interview session, defendant said, “Man, I get this off my chest, man.”
After giving the recorded statement, defendant asked to call his mother. He was allowed to do so but was warned that all telephone calls were monitored. After the recording equipment was installed, defendant called and told his mother that he and Patterson had murdered a woman. He explained he had confessed to the police because he heard a taped statement in which Patterson was trying to minimize his own responsibility. Defendant said he told the police the truth because he thought they would seek the death penalty against him, whereas Patterson would get a reduced sentence. He thought he would probably spend the rest of his life in prison.
Later that night, defendant gave two more recorded statements to a deputy district attorney. The first described the robbery and murder in full detail. The second was an Aranda statement recounting the events of that evening without mention of Patterson‘s involvement.19 Each of these statements was preceded by Miranda warnings followed by defendant‘s repeated waivers.
Defendant testified that he was not harmed or threatened during the interview, and his physical needs were provided for. The interview‘s tone was cordial and respectful at the start but turned accusatory when Sergeant McKenna showed him a photograph of Botello‘s shotgun. McKenna said defendant‘s fingerprints were found on the gun and the police had learned defendant was pressuring and threatening Botello before the murder. Defendant claimed McKenna said “I might as well help myself, defend myself right now, or else they would have to assume the worst and I would get the death penalty.” The officers played him the entire tape of Patterson‘s confession. Afterward, defendant asked what could happen if he gave additional information. Sergeant McKenna responded that talking could help “clear” him of the death penalty if the murder was unintentional or accidental. Defendant testified that he changed his story because, with Patterson‘s statement and his fingerprints on the gun, the case against him appeared strong, and he did not want to risk the death penalty. He asked what would happen if he admitted
Sociology professor Richard Ofshe, Ph.D., testified as an expert on influence and police interrogation. Based on the interview tapes and transcripts and defendant‘s own recollection about unrecorded portions of the interview, Ofshe concluded the police used psychologically coercive tactics to secure defendant‘s confession. Specifically, in the professor‘s opinion, defendant‘s statements in the phone call to his mother indicated he believed he was avoiding the death penalty and securing a lighter sentence by admitting involvement. Although these statements did not prove capital punishment was threatened, they did suggest the subject came up during questioning. Ofshe also testified that defendant‘s confession was “contaminat[ed]” because it came after defendant heard the recording of Patterson‘s statement. He explained, “contamination can give someone information necessary to tell a story that fits the crime facts even if they weren‘t there.” Ofshe discounted testimony that the tape was played for only five minutes because Patterson did not implicate defendant until later in his statement. Finally, Ofshe believed defendant‘s unpersuasive claim that the murder was accidental was an attempt to obtain leniency.
On cross-examination, Ofshe conceded that generally accepted procedure did not require the police to record all phases of defendant‘s interview. Encouraging defendant to feel angry with Patterson was not a psychologically coercive tactic. Nor was it inappropriate for the police to play defendant a portion of Patterson‘s recorded confession. Ofshe conceded the police did not appear to have used any psychologically coercive tactics during the recorded portions of defendant‘s interview.
After examining all relevant circumstances in a lengthy, thoughtful ruling, the court determined beyond a reasonable doubt that all of defendant‘s statements were voluntary. The court found both police officers credible based on the criteria set forth in CALJIC No. 2.20 and concluded both gave truthful accounts of defendant‘s interviews. Indeed, with regard to personal demeanor, the court observed that “one would be hard-pressed to find a more mild-mannered, in[]offensive, unantagonistic, soft-spoken, nonconfrontational, pleasant man than Sergeant Olivas.” Nothing about the content of defendant‘s statements or his tone of voice on the recordings suggested he was speaking under physical or psychological duress. Nor did defendant say anything in the recordings to suggest that any deal had been offered regarding his penalty. Based on the officers’ unequivocal testimony and the absence of
b. Analysis
State and federal constitutional principles prohibit a conviction based on an involuntary confession. (Lego v. Twomey (1972) 404 U.S. 477, 483; People v. Massie (1998) 19 Cal.4th 550, 576.) “The prosecution has the burden of establishing by a preponderance of the evidence that a defendant‘s confession was voluntarily made. [Citations.] In determining whether a confession was voluntary, ‘[t]he question is whether defendant‘s choice to confess was not “essentially free” because his [or her] will was overborne.’ [Citation.]” (People v. Carrington (2009) 47 Cal.4th 145, 169.) To be considered involuntary, a confession must have resulted from coercive police conduct rather than outside influences. (Colorado v. Connelly (1986) 479 U.S. 157, 164-167.)
A confession‘s voluntariness depends upon the totality of the circumstances in which it was made. (People v. Carrington, supra, 47 Cal.4th at p. 169; Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226.) Relevant factors include: ” ‘the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant‘s maturity [citation]; education [citation]; physical condition [citation]; and mental health.’ ” (People v. Massie, supra, 19 Cal.4th at p. 576.) No single factor is dispositive. (People v. Williams (2010) 49 Cal.4th 405, 436.)
Our standard of review is well established. Voluntariness is a legal question subject to independent review; a trial court‘s related factual findings are upheld if supported by substantial evidence. (People v. Carrington, supra, 47 Cal.4th at p. 169; People v. Holloway (2004) 33 Cal.4th 96, 114; People v. Massie, supra, 19 Cal.4th at p. 576.) When the evidence conflicts, the reviewing court must accept the version of
Defendant‘s primary argument is that police officers improperly coerced his confession by mentioning the death penalty and either explicitly or implicitly promising he would receive a lighter sentence if he confessed. Although confessions procured by threats of prosecution for a capital crime have been held inadmissible (see People v. Thompson, supra, 50 Cal.3d at p. 169), mere “[r]eference to the death penalty does not necessarily render a statement involuntary.” (People v. Williams, supra, 49 Cal.4th at p. 443.) A constitutional violation arises “only where the confession results directly from the threat [capital] punishment will be imposed if the suspect is uncooperative, coupled with a ‘promise [of] leniency in exchange for the suspect‘s cooperation’ [citation].” (People v. Holloway, supra, 33 Cal.4th at p. 116.)
There was a square conflict in the evidence concerning whether defendant was threatened or promised leniency. The court‘s resolution of this factual question rested heavily on credibility assessments. Sergeants Olivas and McKenna both denied mentioning the death penalty or discussing the subject of punishment during defendant‘s interviews. They testified that defendant made an unsolicited remark about the death penalty in an unrecorded session but that they did not respond or even acknowledge the remark. Although defendant made statements to his mother suggesting a belief he would not get the death penalty if he confessed, nothing in the transcript of the call, or elsewhere in the record, reveals the source of this misunderstanding. The trial court expressly found the officers’ testimony credible. It found defendant‘s contrary account, and his expert‘s inferences based on that account, unbelievable. Substantial evidence supports these findings. We independently conclude defendant‘s statements were not coerced by express or implied promises of leniency. (See People v. Tully, supra, 54 Cal.4th at p. 993; People v. Boyette, supra, 29 Cal.4th at p. 412.)
This conclusion is not undermined by defendant‘s complaint that he was young and “had a limited educational background.” Despite his youth, defendant had extensive experience with the criminal justice system, beginning in his early teens. He testified that he knew his Miranda rights. In his phone call to his mother he was even able to explain the difference between Three Strikes and indeterminate sentencing for murder. The record also belies defendant‘s claim that the police deceived him by claiming they had his fingerprints on Botello‘s shotgun, playing all of Patterson‘s taped confession, or suggesting that the murder was accidental. None of these assertions was corroborated. The trial court reasonably rejected defendant‘s testimony.