THE PEOPLE, Plaintiff and Respondent, v. STEVE WOODRUFF, Defendant and Appellant.
S115378
IN THE SUPREME COURT OF CALIFORNIA
Filed 7/19/18
Riverside County Super. Ct. No. RIF095875
After finding that defendant did not have an intellectual disability, and following a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (
I. THE FACTS
A. Guilt Phase
1. Overview
Police responded to a neighbor‘s call that defendant‘s mother, who lived in a two-unit house upstairs from defendant, was playing a loud radio outside, which had been a longstanding source of conflict. Because the mother refused to turn down the radio, officers began to arrest her. During the process, defendant, who had retrieved a gun from his house and was watching and listening from his porch, leaned into the outdoor stairwell leading up to the mother‘s apartment, and, as observed by Officer Benjamin Baker and by a neighbor, fired up at the officers, killing Officer Douglas Jacobs. That evening, defendant admitted to the police that he shot Jacobs. At trial, however, he denied killing Jacobs, and he also presented evidence to contest the required mental state. The parties also presented contested evidence as to whether defendant had an intellectual disability and a brain injury.
2. Prosecution Evidence
On the afternoon of January 13, 2001, Holly Menzies called the Riverside Police Department because her neighbor Parthenia Carr had been playing very loud music outside for 45 minutes. Carr lived upstairs and her son, defendant, lived downstairs in a two-unit house. Carr would play her radio outside her door on the landing at the top of her stairs. Over the past year, Menzies and her husband had spoken to Carr several times about the loud
On-duty Police Officer Baker responded to the disturbance call. When he arrived at the residence, he saw a portable radio outside, on the landing. The music was at its maximum volume and “extremely loud,” such that other sounds were inaudible.
There was a porch on the ground floor. Seeing someone moving inside the house, Baker asked through the screen door if the person had called the police. The male, defendant, responded “No,” and that it was his mother‘s radio upstairs.
Baker went upstairs and turned off the radio. Carr opened the screen door and “began screaming and yelling, saying that it was her radio, it‘s her property. [Baker had] no right to touch her radio . . . .” Baker informed Carr about the disturbance call. Carr was angry and “out of control pretty much the entire time [Baker] was there, constantly talking, not pausing between words, just constantly saying something.” She threatened to sue Baker for violating her Fourth Amendment rights.
Baker radioed his supervisor, Sergeant Leach, for assistance. Leach responded he was en route. Baker continued to speak with Carr, who refused to cooperate. Baker informed Carr he would arrest her for disturbing the peace if she did not lower the radio volume.
Baker left to speak with Menzies. The music sounded “extremely loud” from outside Menzies‘s house. Menzies signed a citizen‘s arrest form but wanted to speak with Carr to resolve the situation informally. Baker accompanied Menzies to Carr‘s landing to provide assistance. Carr came out on the landing and “immediately began screaming” at Menzies, pushed open the screen door into Menzies‘s foot, and “lunged” toward Menzies, startling her. According to Menzies, she was jostled when Carr opened the door and she did not perceive that Carr was intentionally pushing her. Baker stepped between them and Menzies started walking down the stairs. Menzies observed Baker to be “exceedingly polite” throughout the encounter.
Baker grabbed Carr‘s wrist to arrest her for disturbing the peace and for committing battery on Menzies. Menzies, who had returned to her home, could from a window hear Carr tell Baker he could not arrest her. At that point, Claude Carr (Claude), who, unbeknownst to Baker, had been sleeping inside, came out and stepped between Baker and Carr, within four inches of Baker, and told him to “[g]et your hands off my mom.”
Baker then heard defendant say from downstairs in a threatening manner, “You better not touch my momma.” Baker saw defendant leaning over the
Feeling unsafe, Baker called for immediate assistance. Within a couple of minutes, Jacobs, Baker‘s beat partner, arrived and Baker met him in the middle of the stairs to brief him on the situation. Baker had determined to arrest Carr and Claude, and wanted to wait for Leach for additional assistance. While waiting, Baker and Jacobs walked up to the landing to prevent Carr and Claude from going inside and creating an unsecure situation. The officers informed Carr they were detaining her for disturbing the peace. Carr said she was going into her house if the officers did not leave and started to do so. Baker grabbed her wrist to start the arrest. Claude tried to grab Baker, so Jacobs grabbed Claude‘s wrist and put him in a wrist lock. Baker let go of Carr to assist Jacobs. Carr went into the house. When Claude became still, Baker reached for his handcuffs.
As Baker moved to handcuff Claude, he heard a gunshot. Baker immediately looked down the stairs where the shot came from and saw defendant standing on the porch, leaning over the railing with his body minimally exposed, pointing a handgun up at the officers. Baker let go of Claude, saw Jacobs going into the house, and thought Jacobs was taking cover. According to Claude, Jacobs looked surprised and pushed Claude to the ground as Claude heard gunfire. Baker was not sure if he was the only one on the landing at that point. He grabbed his gun, a .40-caliber firearm, and fired at defendant.
Baker saw defendant, who had fired the first shot, point the gun in his direction and shoot multiple times. Jacobs did not have his gun out. Defendant retreated after Baker‘s third shot.
After defendant had told the officers to leave Carr alone, Delgado saw him walk back into his house for a second and come back out. He looked across at Delgado. Delgado noticed defendant had a silver- or chrome-plated handgun. When Delgado looked over, defendant put the gun behind his back slightly. Defendant walked to the end of the porch, peeked up over the railing furtively, held the gun up and aimed, firing twice without hesitation. He then walked quickly back into the house. Delgado had an unobstructed view of defendant. Defendant looked agitated and like he “didn‘t think twice” before getting the gun and shooting. No more than 30 seconds passed from the time defendant told the police to leave Carr alone to the time he fired the gun. Menzies had heard Claude yell “No, don‘t,” in a “heart-wrenching plea” to defendant just before she heard shots.
Other officers arrived. They set up a perimeter around the house, announced their presence over a speaker system, and ordered anyone in the house to come out.
Suddenly the downstairs door flew open, defendant yelled that he was coming out, and he threw out a rifle. Defendant crawled out of the house naked. The police arrested defendant and put him in a squad car. They later found a jammed bullet in the rifle.
Defendant told the officer who was handcuffing him that he was sorry or that he had not meant “to do this.” During the ride to the station, defendant volunteered that he did not mean to kill the officer and had panicked because they would not let Carr go.
After securing the house, officers found defendant‘s four-year-old daughter hiding under a bed. They found a rifle and bullets on the bedroom floor along with .30- and .44-caliber ammunition in the closet area, a Lorcin nine-millimeter handgun on the kitchen stove and a rifle in the pantry, and expended shotgun shells and two 9-millimeter Speer casings in the backyard. The police took photos of a possible bullet strike to the wall adjacent to the outside stairs. About a year later, the police cut out a portion of the wall and found a bullet lodged inside.
Detectives interviewed defendant the evening of the shooting. Defendant told them that when Baker first arrived, defendant called his brother John Woodruff (John) to say that the police were there again harassing Carr. He went outside and heard Baker tell Carr that she would go to jail if she did not turn down her music. Defendant watched for a minute until he saw Baker calling someone. He then walked into his house and retrieved his gun from the bedroom closet, loaded it, and placed it on the television. Watching from inside his front door, defendant saw Jacobs arrive in his police car, jump out, and run up the stairs.
Defendant went outside with the gun to listen. Nobody could see the gun. He listened for about one or two minutes, until he heard Claude ask the officers to wait for a sergeant. Jacobs responded, “We‘re not waitin’ on no
Defendant explained he panicked, and was not thinking but instead reacted. He did not aim. He explained that the police would come to the house two or three times a day about the loud music and that Menzies was using the police to harass Carr. John had filed a complaint about it with the police.
In response to defendant‘s explanation that he panicked, the detectives pointed out that he had retrieved his gun, and then watched and waited before shooting at the officers. Defendant‘s response was that he did not “mean” to do it and that it was a coincidence that he hit Jacobs. When confronted with Baker‘s statement that he saw defendant aiming through the sight of his gun and with the interviewing detective‘s disbelief that defendant would not aim since his mother and brother were also in the group, defendant responded that he lost his “cool” and acknowledged that he was “mad.” Defendant meant to shoot at the officers and shot Jacobs. He also acknowledged that the officers did not hurt Carr.
Carr testified that the police did not hurt her. Delgado could hear Carr yelling but she was not calling for help and did not sound scared or in pain. Jacobs died from a bullet entering his nose and passing through the base of his brain. It destroyed 50 percent of his brain stem and rendered him immediately unconscious.
Senior criminalist Richard Takenaga compared bullets test-fired from the Lorcin recovered from defendant‘s kitchen to the Speer bullet recovered from Jacobs‘s skull and concluded that the Lorcin had discharged the bullet that killed Jacobs. The bullet found in the wall was damaged and difficult to compare, but had characteristics similar to those of the bullet from the Lorcin.
3. Defense Evidence
Carr testified on cross-examination in the prosecution‘s case that Baker seemed angry. Baker grabbed Claude by the wrist and took his gun out and pointed it at Claude. Carr was crying and felt afraid and angry. Carr testified that she grew up in Mississippi watching the civil rights movement and felt she had not committed any crime or broken any law that day and that Baker
Defendant testified and denied shooting Jacobs. When Jacobs arrived, defendant saw that he was wearing a gun and moving fast. Defendant got his gun because he was “afraid that the police had sent some crooked police” to his house who were “disrespectful [and] prejudiced.” He feared the police would harm Carr because he knew she would not turn down the radio volume. Carr seemed upset and yelled, “You‘re hurtin’ me.” Defendant thought the police were hurting Carr when he heard her screaming, and “chills” went over his body. Defendant was “furious” and “ready to go to war.”
Defendant got his gun, ran across the porch to the railing, raised his gun, and asked the officers what they were doing. When Baker saw defendant‘s gun, Baker reached for his gun. Defendant shot first, over Baker‘s head, when he saw that Baker was going to shoot him. Baker started shooting and defendant returned fire before going into the house.
Stella Alvarez lived across the street and had been cooking dinner that day by her kitchen window. She saw the police go up Carr‘s stairs with Menzies, saw Menzies hurry down the stairs, and heard a male voice say to leave his mom alone. Alvarez then heard gunfire and saw defendant run in and out of his house, but did not see weapons on him.
John, defendant‘s brother, testified that defendant called him that day to come over because the police were harassing Carr and defendant was concerned because he had a driving under the influence (DUI) warrant and did not want to go outside. Defendant did not recall telling John about a warrant.
Several years before the shooting, Carr had had a mental breakdown and was diagnosed with paranoid schizophrenia. Before moving in, defendant would visit Carr most days and would cook and go to the store for her. Defendant explained, “She was the only one that raised me and . . . in ‘63, you know, it was hard back then. And she did not leave us, you know. She kept her responsibilities . . . .” Defendant worried about Carr because she became hard to handle after her breakdown. Carr played the radio because it would calm her and make her happy.
Defendant could read and write “[a] little” and reached the tenth grade in school. He was an electrician by trade and did plumbing and Sheetrock work and worked on cars. He had worked for the Press-Enterprise newspaper as a driver and would count, stack, and bundle the papers. He had a “learning problem” and was in special education classes. He was in the process of purchasing the house he lived in and knew about escrow.
Defendant had been knocked unconscious three times in his life, including in 1985 when a car ran over him. He lost consciousness, suffered spinal injuries and a split skull, and had to learn to walk again.
Dr. Joseph Wu, a physician and clinical director of the University of California, Irvine School of Medicine‘s Brain Imaging Center, evaluated defendant for brain injury by administering a PET (positron emission tomography) scan, which shows activity in the brain. Wu compared defendant‘s scan to that of 56 “normal” patients, meaning patients who did not have identified brain disease. Specifically, Wu compared defendant‘s scan to an image generated from the 56 normal patients that was also “normalized” for differences in age, gender, brain size, and shape. Wu observed abnormalities in defendant‘s temporal lobe, interior cortex, and central cortex. The abnormalities observed would affect the ability to regulate emotion, to think “appropriately or correctly,” and to make abstract inferences. Based on his review of the PET scan and defendant‘s medical records, which stated defendant had suffered head injuries when he was run over by a car in 1985 and assaulted in 1989, Wu opined that defendant had traumatic brain injury.
Dr. Curtis Booraem, a clinical psychologist, evaluated defendant. Booraem was experienced in assessing people with developmental disabilities but had never been court-appointed for an evaluation in a criminal case. He met with defendant, administered the Wechsler Adult Intelligence Scale, Third Edition (WAIS-III), reviewed defendant‘s school and medical records, and concluded defendant was a “high functioning” intellectually disabled person. Defendant had a full-scale IQ score of 66, a verbal score of 68, and a performance score of 69. In school, defendant was diagnosed with a learning disability, earned mostly D‘s and F‘s, and scored poorly on standardized and diagnostic tests.
4. Rebuttal Evidence
Dr. Alan Waxman, a physician and co-chair of the department of imaging for Cedars-Sinai Medical Center in Los Angeles, reviewed Wu‘s assessment. Waxman concluded that Wu‘s method was appropriate for research but not diagnostics. He criticized Wu‘s methodology of “morph[ing]” the 56 images of normal brains to fit into the same shape for comparison, which would result in artificial “abnormalities” and faulty comparison, and he challenged Wu‘s lack of validation of his method. Waxman explained that Wu‘s scanning machine, which was “almost an obsolete machine,” would not have accounted for variation in skull thickness and would have produced a lot of image “noise.” Two colleagues performed a blind comparison of defendant‘s brain to the 56 normal brains and found defendant‘s brain to be one of the more “normal” brains, with fewer irregularities and asymmetries. Waxman concluded defendant‘s brain was a “normal brain.” Waxman did not perform any tests on defendant‘s brain using his own brain imaging machine.
Dr. Craig Rath, a clinical psychologist, evaluated defendant. Rath had performed evaluations in over 6,500 court cases, including approximately 400 court-appointed defense evaluations on intellectual disability, and had testified mostly for the defense. Rath met with defendant three times, reviewed his records, and readministered the WAIS-III. Defendant had a full-scale IQ of 78, a verbal quotient of 80, and a performance quotient of 79. Rath readministered the WAIS-III because defendant said he had not tried hard the first time. Rath would have accounted for “practice effects” of retaking the test within five months but defendant‘s areas of improvement would not have been due to test familiarity. According to Rath, it is not possible for an intellectually disabled individual to fake more aptitude than his true capacity. Defendant scored 86 on the Vineland Adaptive Behavior Scales test (Vineland test), administered by Rath, and a 65 on the communication portion of the test.
Based on his experience with approximately 1,000 intellectually disabled individuals, Rath had no doubt that defendant was not intellectually disabled. Defendant had a learning disability. Rath, however, observed defendant to be communicative, providing detailed information, understanding the questions posed by Rath, and recalling his personal history with general accuracy.
Defendant demonstrated levels of abstract reasoning inconsistent with intellectual disability, such as explaining that we study history to learn where we have been, who we are, and where we are going. Removing his clothing so that the police would not shoot him was another example of defendant‘s abstract reasoning ability, which was all the more significant given the high-stress situation. Defendant was able to discuss abstract concepts that he had learned from the Bible and could describe his cooking skills, his ability to write and mail letters and make long-distance phone calls, the events for which he was charged, world events, and card games he had played, as well as his understanding of the fundamentals of chess. Defendant described daily activities of self-care and personal shopping, passing the written test to obtain a driver‘s license, his ability to drive and follow directions, and his ability to engage in monetary transactions with the assistance of a calculator, all of which indicated higher-level functioning and adaptive behavior. At age 30, defendant was able to successfully apply the Heimlich maneuver, which he learned in high school, on a child that he had observed choking in a restaurant.
B. Intellectual Disability Phase
Booraem, the sole witness to testify during the intellectual disability hearing, concluded defendant was “mildly” intellectually disabled. Booraem explained that intellectual disability is typically ascribed to people with an IQ under 70 to 75, taking into consideration the standard error of measurement, along with deficiency in at least two areas of adaptive behavior.
Booraem concluded defendant had adaptive deficits in communication, academics, work, and self-direction. Defendant was deficient in communication based on his score of 65 on that portion of the Vineland test. Defendant had earned poor grades in school, tested at the third or fourth grade level in various subject areas at age 16, and had been diagnosed with a learning disability. Defendant was “significantly deficient” in the areas of self-direction and work because he had had only brief periods of employment and seemed “satisfied with not
C. Penalty Phase
The prosecution presented evidence of defendant‘s criminal activity involving the use or threatened use of force or violence (
In a 1988 physical altercation initiated by a previous live-in girlfriend, Patricia Woodson, defendant repeatedly pushed Woodson, causing her arm to go through a window and requiring hospital treatment.
In 1989, a man named Arnold Palmer, his sister Tamara, and Clinton Williams went to a liquor store. Children were in the car. Defendant, his cousin Dennis Smith, another adult passed out drunk, and children were in another car parked nearby. An altercation developed and accounts varied as to who shot first. Tamara observed two shooters, Smith and another man who was not defendant. The other man shot at Palmer. Palmer died from a bullet wound and Williams was shot in the stomach. Smith testified that defendant was present, but he thought defendant was in the liquor store or in the car during the shooting. Smith did not see defendant with a gun. Freddy Williamson, who was friends with defendant, told a detective that defendant said he was involved in a liquor store shootout and a bullet grazed his shoulder. The detective visited defendant in jail and observed a scar on his shoulder.
A few days after the liquor store shooting, the police arrested defendant and Smith during a traffic stop in Arizona for possession of a concealed firearm as well as a second, altered, firearm.
In 1993, defendant robbed and assaulted Paul Spicer, who had to go to the hospital for a fractured wrist.
In 1999, the police arrested defendant for carrying a concealed weapon after his girlfriend Melvina Crowden called the police because defendant was upset that she was moving out and had showed her a gun.
In 1999, Freddy Williamson and Mario Brooks went to a house to buy marijuana. According to Williamson, four males approached their vehicle, and someone tried to hit Brooks with an object. Defendant might have been present. Someone shot Brooks. Williamson told a detective that defendant was involved in the confrontation. Another officer testified that “Eddie Phillips” told him during a hospital interview, while Phillips was receiving treatment for a gunshot wound, that defendant approached him that day while he was in a vehicle and tried to hit him with an object. The officer did not know if Phillips was the same person as Brooks.
Jacobs‘s widow, Tammy Jacobs, testified about her grief in losing her husband and having to make decisions alone, and the impact Jacobs‘s death had on their daughter and on Tammy‘s son from a previous relationship. Jacobs had become a loving father to her son, who had since gone into a “downward spiral” and was in therapy and on medication. Jacobs had been studying for his master‘s degree. Jacobs‘s mother, Cathy Miller, testified about the grief that she and Jacobs‘s siblings experienced; the kind, hard-working and involved son Jacobs was from childhood; how he aided her as a single mother; and how he had diligently pursued his dream to become a police officer.
The defense presented evidence about defendant‘s background and mental functioning. John testified that defendant was born prematurely and was hospitalized for a month when he was run over by a car in 1985. Defendant had trouble holding a job and had lived in his van at times. Defendant worried about Carr. The family was religious. Defendant was a loving partner and father, including to a former partner‘s children. John‘s wife testified that defendant was kind, a loving dad, and not a violent person.
Wu testified that defendant had a brain injury that impairs a person‘s ability to regulate emotions and respond appropriately to provocation under stress. Dr. Booraem testified that defendant had the mental functioning of a 10-year-old, which meant that in emotional situations he tended to act in fight-or-flight mode.
II. DISCUSSION
A. Competence To Stand Trial
Citing several instances when he expressed on the record a lack of comprehension of certain aspects of the court proceedings, defendant contends the trial court erred in failing to declare a doubt, sua sponte, as to his competence to stand trial, and that remand is required for a retrospective competency determination.
“Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law prohibit the state from trying or
convicting a criminal defendant while he or she is mentally incompetent.” (People v. Rogers (2006) 39 Cal.4th 826, 846; see § 1367, subd. (a) ; Drope v. Missouri (1975) 420 U.S. 162, 172.) “A defendant is incompetent to stand trial if [he] is unable to consult with [his] attorney with a reasonable degree of rational understanding or lacks a rational and factual understanding of the proceedings against [him].” (People v. Rodriguez (2014) 58 Cal.4th 587, 624.)“The decision whether to order a competency hearing rests within the trial court‘s discretion, and may be disturbed upon appeal ‘only where a doubt as to [mental competence] may be said to appear as a matter of law or where there is an abuse of discretion.’ (See People v. Pennington (1967) 66 Cal.2d 508, 518 . . . .) When the court is presented with ‘substantial evidence of present mental incompetence,’ however, the defendant is ‘entitled to a section 1368 hearing as a matter of right.’ [Citation.] On review, our inquiry is focused not on the subjective opinion of the trial judge, but rather on whether there was substantial evidence raising a reasonable doubt concerning the defendant‘s competence to stand trial. [Citation.] A trial court reversibly errs if it fails to hold a competency hearing when one is required under the substantial evidence test.” (People v. Mickel (2016) 2 Cal.5th 181, 195.)
Defendant first points to statements he made during a pretrial hearing requested by the prosecution to inquire into the qualifications of retained pro bono counsel Mark Blankenship to try a capital case and whether defendant was making an informed decision as to his choice of counsel.2 During the hearing, defendant responded to the trial court‘s suggestion that he listen to its review of pertinent case law with “I don‘t understand nothin’ you sayin‘, Judge. . . . I‘m not a lawyer, you know. I‘m listening. I just don‘t understand.” Later, when the court asked if defendant wanted to continue with Blankenship‘s representation, defendant explained, “Yes. I‘ll assure you, Judge, that, you know, there is a higher up that sent Mr. Blankenship to me, and he must be the one to represent me, you know, because there‘s someone over you and that you work for. So, I really don‘t understand what is really going on here, anyway, you know.”
Further discussion with the court resolved defendant‘s comprehension difficulties. When defendant said he was listening but did not understand, the court responded that it would explain in nonlegal language. The court explained to defendant that it was his choice whether to proceed with
Regarding defendant‘s comment that a “higher up” had sent Blankenship to represent defendant, and that he did not understand what was “going on here,” the court further explained that defendant needed to carefully consider his legal representation because he was facing a potential sentence of death. Nevertheless, the court reassured defendant that it could not later remove Blankenship against defendant‘s wishes. When defendant expressed confusion about Blankenship‘s failure to request money, the court explained that money was available for the investigation of defendant‘s defense under state law. Defendant said that he understood.
Defendant‘s desire to proceed with Blankenship‘s representation because a “higher up” had sent Blankenship did not suggest an inability to understand the proceedings. On the contrary, it reflected defendant‘s desire to accept Blankenship as his attorney and thus defendant‘s ability to assist in his defense. Simply because, as defendant characterizes it, his comment indicated “a belief that his volunteer attorney was a gift from God,” it does not follow that he was not competent to understand the proceedings. (See People v. Mendoza (2016) 62 Cal.4th 856, 895 [“[R]eligion-infused comments,” without more, are not indicative of mental illness and do not suggest the need for a competency determination].)
Second, defendant contends that his request for bail, despite his attorney‘s explanation that bail was not available in capital prosecutions, was another indication of his incompetence. But the fact that defendant, a nonlawyer, did not understand the unavailability of bail did not suggest incompetence. Neither defendant‘s confusion about bail nor his inability to understand the court‘s discussion of case law was evidence of inability to understand the proceedings against him. (People v. Bradford (1997) 15 Cal.4th 1229, 1364 [” ‘technical legal knowledge’ ” is irrelevant for determining competency].)
Reviewed in their entirety, defendant‘s comments at the hearing support a finding that he understood the proceedings and could communicate how he
As further evidence of incompetence, defendant next points to his trial testimony that he “somewhat” understood what was happening at trial that day, that he could read and write a “little bit,” and that he did not understand what he was reading at the jail law library. We have reviewed defendant‘s testimony at trial and cannot conclude that defendant lacked understanding of the proceedings. Defendant answered questions coherently. On direct examination, he explained his protective relationship towards his mother and his family‘s negative experiences with law enforcement, and gave his account of what happened on the day of the shooting. On cross-examination, he was able to adhere to his version of events despite persistent questioning from the prosecutor. Similarly, he was able to appropriately state when he did not understand a question. Defendant “testified, in a completely rational manner, in his own defense.” (People v. Rundle (2008) 43 Cal.4th 76, 180.)
Finally, defendant notes that defense evidence showed he had an IQ score of 66 and a verbal comprehension index score of 61. The prosecution expert testified defendant‘s full-scale IQ score was 78 and his verbal quotient was 80. As we have previously explained, the “evidence, which addressed defendant‘s alleged intellectual disability, did not pertain to the question of competence to stand trial. Although a defendant‘s incompetence to stand trial might, in some cases, be inferred from evidence of severe intellectual disability, the . . . evidence of possible incompetence presented here was not so substantial as to deprive the trial court of discretion. Therefore, we defer to the trial court, which heard the . . . evidence, observed defendant and the witnesses, and did not form a doubt
about defendant‘s mental competence.” (People v. Sattiewhite (2014) 59 Cal.4th 446, 467.)We therefore see no due process or statutory error resulting from the absence of a competency hearing. For these reasons, we also reject defendant‘s claim of violation of his other federal constitutional rights.3
Attorney Mark Blankenship substituted in for the public defender as defendant‘s retained pro bono counsel a few days after defendant‘s arrest. Defendant raises a set of contentions related to asserted deficiencies in Blankenship‘s representation and his potential conflicts of interest. First, he contends the trial court erred in failing to remove Blankenship for incompetence and in failing to ensure that defendant had made a knowing and intelligent waiver of his right to effective assistance of counsel with respect to his decision to continue with Blankenship as his counsel. Next, he claims the trial court erred in misleading Blankenship regarding the requirements for appointment of cocounsel in a capital case and that Blankenship was ineffective for failing to request appointment of cocounsel. Finally, defendant contends his waivers of his rights to conflict-free counsel with respect to Blankenship‘s prior representation of two prosecution witnesses were not knowing, intelligent and voluntary.
1. Asserted Failure To Remove Blankenship for Incompetence and To Make Adequate Inquiry into Defendant‘s Choice of Counsel
Defendant contends the trial court failed to intervene and remove Blankenship for incompetence. Relatedly, defendant challenges the adequacy of the trial court‘s inquiry into defendant‘s choice of Blankenship as counsel. We review the pertinent proceedings below.
a. Factual Background
i. Prosecution‘s Motion and the Ensuing Hearing on Blankenship‘s Qualifications for Capital Litigation and on Defendant‘s Choice of Counsel
In August 2001, about a month before trial, the prosecutor moved for a court inquiry into Blankenship‘s qualifications to try a capital case, and for an inquiry into whether defendant was making an informed choice regarding his retention of Blankenship, who was representing him pro bono, and if necessary to obtain a waiver from defendant that he wished to proceed with Blankenship‘s representation despite being informed that Blankenship had previously been suspended from the practice of law. The State Bar had previously suspended Blankenship from the practice of law for incompetence and he was serving a five-year probation.
comes to minorities and law enforcement.” Blankenship provided similar explanations regarding other motions he declined to file.
In reliance on our decision in Smith v. Superior Court (1968) 68 Cal.2d 547, the trial court decided not to remove Blankenship, concluding he had “set forth in an articulate fashion and demonstrate[d] clearly that [he had] considered these issues” and made strategic decisions after consultation with defendant.
The court explained to defendant two areas of concern. First, with a month remaining before trial, Blankenship had done little penalty phase investigation. Second, Blankenship had not applied for indigent defense funds. Blankenship responded he needed more time to prepare.
The court informed defendant that he had the right to representation by an attorney at no cost, and that the Riverside County Public Defender‘s Office had death penalty experienced attorneys. The court told defendant to “listen to me carefully” because it had “very, very serious concerns” that Blankenship had not sought defense funds. The court repeated, “If you cannot afford to hire an attorney, I will appoint an experienced death penalty qualified attorney to represent you.” Defendant said that he understood.
As previously noted, defendant told the court, “I‘ll assure you, Judge, that, you know, there is a higher up that sent Mr. Blankenship to me, and he must be the one to represent me, you know, because there‘s someone over you and that you work for. So, I really don‘t understand what is really going on here, anyway, you know.” The court explained that if the jury found just one of the special circumstances true, defendant would die in prison whether by a life sentence or by the death penalty. The court cautioned, “So it is in your best interest that you consider very carefully your representation in this matter.” The court explained that it was defendant‘s right to choose Blankenship, and the court would not interfere with defendant‘s decision. Defendant responded, “You tellin’ me that‘s
my decision, but then later on down in trial, you‘s tellin’ me that you have the power to say that this man might not be
The trial court verified that defendant understood that defense funding was available and that a well-trained death penalty lawyer would have applied for funds. The court explained again, “I want you to understand, because ultimately your life is the one that‘s on the line here, this Court, me, I will, if you ask me to, I will appoint an attorney to represent you for free, who is experienced in this type of defense, a person who has handled death penalty cases in the past and who is intimately familiar with all of the requirements involved in a death penalty case, both in terms of investigation, preparation, the interviewing of witnesses, the conducting of the trial, all the way from jury selection through the penalty phase. And I will do that if you ask me to.
“If you don‘t ask me to, that‘s fine. If you want to proceed with Mr. Blankenship, knowing of the concern that I have with respect to his experience . . . . And as Mr. Blankenship has readily acknowledged, his background in criminal law is not extensive. He has had some victories, both in San Diego County and this county, but none of those cases even approach the gravity or seriousness of the case involving you.”
Defendant indicated that he understood. The court stated again, “Now, with that in mind, is it your decision, at least at this point, to continue to proceed with Mr. Blankenship representing you?” Defendant responded affirmatively.
The trial court vacated the impending trial date, electing to “take a wait-and-see approach” and to monitor defense counsel‘s progress.
ii. Further Hearings Indicating Blankenship‘s Lack of Preparedness, Defendant‘s Affirmance of Blankenship as Counsel of Choice, and the Trial Court‘s Efforts To Ensure Adequate Defense
At trial readiness conferences in March 2002, Blankenship‘s lack of preparedness again became evident. The prosecution had not received any defense discovery requests with two weeks remaining before the new trial date. Blankenship needed additional time to procure a ballistics expert, and he also had not filed a Pitchess motion discussed several months before. Of most concern, Blankenship had not yet obtained a psychological evaluation of defendant. Despite Blankenship‘s reassurance, the court determined it would have to postpone the trial by several more weeks and dismiss the 183 jurors who had been time-qualified during two days of jury selection.
Blankenship responded, “My position is that my tactical decisions through the course of this trial regarding the protection of my client and the promotion and preservation of the truth, those decisions that I‘ve made, they may not be perfect and they may be different than what you would do or different than what [prosecutor] Soccio would do . . . .”
The court noted that the defense “probably should” have filed the following motions: a motion attacking the makeup of the grand jury; a motion to challenge the sufficiency of the grand jury testimony, particularly with respect to one of the
special circumstance allegations; and a motion for change of venue. Blankenship responded that motions that a court would likely deny are “an exercise in futility.”
The prosecutor asked the court to again take a waiver from defendant because of the “appearance of ineffective assistance” and asked the court to appoint experienced counsel to consult with Blankenship and defendant.
The court asked defendant, “Mr. Woodruff, are you comfortable with the way your case is being handled thus far?” Defendant responded, “Yes.” The court determined it would not inquire of defendant at the length it had done previously, stating: “Mr. Woodruff has made, in my estimation, a sound and informed decision to continue on with counsel of his choice, and I cannot conclude that there has been ineffective assistance at this point.”
The court concluded, “There‘s no question in my mind that the representation being provided thus far to Mr. Woodruff is zealous and, thus far, within the bounds of the law.” The court stated further, “In examining the history of this case, the Court feels that there may well be sound, tactical reasons behind the failure to pursue certain motions, such as those I referred to earlier this morning. . . . All of these, in my opinion, had such motions been brought they would have been denied.
“And taking Mr. Blankenship at his word, he may very well have had a sound, tactical reason and may have concluded legally . . . that such motions would have been fruitless.” The court noted, however, that there was “no sound, tactical” reason for failing to make a Pitchess motion and “strongly suggest[ed]” that Blankenship do so. Blankenship agreed and the court set a hearing date.
while poor, did not rise to the level of “flagrant ineffective assistance,” but that if it were to do so in the future, the court would not hesitate to remove Blankenship.
b. Analysis
i. No Error in Allowing Blankenship To Represent Defendant
Defendant contends the trial court failed to intervene and remove Blankenship when the prosecutor raised doubts about Blankenship‘s competence to provide adequate representation in defendant‘s capital trial. The trial court did not err.
The Sixth Amendment right to counsel guarantees a criminal defendant the right to choose his own counsel when he does not need appointed counsel. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144.) While a defendant has a constitutional right to competent representation, he also has the right to counsel of his choice so that he may defend himself in “‘whatever manner he deems best.‘” (Smith v. Superior Court, supra, 68 Cal.2d at p. 559.)
“California decisions in this area reflect a determination that respect for the dignity of the individual shall be maintained within the context of enforcing the criminal law, and that a reasonable accommodation of seemingly conflicting values shall thereby be achieved. Thus, though it is clear that a defendant has no absolute right to be represented by a particular attorney, still the courts should make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney.” (People v. Crovedi (1966) 65 Cal.2d 199, 207, fn. omitted.) The erroneous deprivation of a defendant‘s right to counsel of his choice results in automatic reversal. (United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 150; People v. Ramirez (2006) 39 Cal.4th 398, 422.)
In People v. Ramirez, supra, 39 Cal.4th at pages 419 to 422, the defendant contended that the trial court erred in granting his request for substitution of counsel despite the court‘s concerns that his two chosen counsel were unqualified to try a capital case. Concluding there was no error, we explained that a trial court can deny a defendant counsel of his choice only if it “‘will result in significant prejudice to the defendant.‘” (Id. at pp. 422-423.)
In Smith, the issue concerned whether a trial court could remove an indigent defendant‘s attorney based on “the judge‘s subjective opinion that the attorney [was] ‘incompetent’ . . . .” (Smith, supra, 68 Cal.2d at p. 549.) We explained that “the constitutional guarantee of the defendant‘s right to counsel requires that his advocate . . . be free in all cases of the threat that he may be summarily relieved as ‘incompetent’ by the very trial judge he is duty-bound to attempt to convince of the rightness of his client‘s cause.” (Id. at p. 562.) While “it is the duty of the trial judge to protect the defendant‘s right to a counsel who is effective . . . in discharging that duty the judge must be on his guard neither to
infringe upon the defendant‘s right to counsel of his choice, nor to compromise the independence of the bar.” (Id. at p. 559.)
We explained that a trial court has several measures available “when it appears to him that a defense counsel is making serious mistakes to his client‘s prejudice.” (Smith, supra, 68 Cal.2d at p. 560.) The “judge may intervene, at least within reasonable limits,” such as by “controlling the scope of examination, questioning witnesses himself, making appropriate suggestions as to the items or order of proof, commenting on the evidence, admonishing or instructing the jury on his own motion, or exercising any of his other inherent powers over the conduct of the proceedings to insure that the defendant receives a fair trial.” (Ibid.)
Nonetheless, “[w]hile we recognize that courts should exercise their power to remove defense counsel with great circumspection,” a trial court has a duty to remove counsel even over the defendant‘s objection where other measures have failed, in cases of “‘obviously deficient performance‘” such as when counsel refuses to participate in the trial. (People v. McKenzie (1983) 34 Cal.3d 616, 630.)
Here, the trial court relied on Smith in declining to relieve Blankenship. The court took the approach endorsed in Smith, intervening when it observed
defendant had an intellectual disability and a brain injury. The court also intervened at times during the trial, for example by admonishing the jury that it was not to consider a witness‘s opinion as to guilt when Blankenship elicited a prosecution investigator‘s opinion that defendant was guilty.
Given the court‘s twin duties as outlined in Smith—to protect defendant‘s right to effective assistance as well as his right to chosen counsel (Id. at pp. 558-562)—and given defendant‘s repeated affirmance of Blankenship as his choice of counsel, the court‘s approach was reasonable.
Moreover, it is evident from the record that Blankenship never relinquished his responsibility to represent defendant and instead actively litigated issues and examined witnesses on defendant‘s behalf throughout the trial. As Blankenship explained at the September 2001 and March 2002 hearings, his approach was not to rely on motions that he felt would telegraph the defense strategy, but instead to try the case in front of the jury and allow it to determine the strength of the evidence. Blankenship‘s actions throughout the trial reflected his stated strategy of presenting this case as a Riverside community issue involving minorities and law enforcement. For example, during jury selection, Blankenship questioned potential jurors about their sensitivity to racial injustice and their knowledge of the Tyisha Miller shooting. Blankenship‘s examination of defendant and Carr at trial similarly demonstrated this approach by highlighting the family‘s earlier experiences with law enforcement as well as their familiarity with the Tyisha Miller shooting.
Thus, Blankenship actively defended defendant with a strategy we cannot say was unreasonable, given the evidence in the case and the events taking place in the Riverside community at the time. “Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness
examination and jury argument.” (United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 150.) We also note that Blankenship endeavored to work with the court to meet its concerns and the court
Defendant asserts the trial court was unaware it possessed the discretion to remove Blankenship for incompetence. However, the court stated just the opposite, acknowledging that “[t]he narrow circumstances in which removal may occur are flagrant attorney misconduct or incompetent attorney, incapacity, significant[] prejudice to the defendant, or serious circumstances that undermine the integrity of the judicial process or orderly administration of judicial process.” Aware of this discretion, however, the trial court concluded, “There‘s no question in my mind that the representation being provided thus far to Mr. Woodruff is zealous and, thus far, within the bounds of the law.” At a later hearing, the court said it would not hesitate to remove Blankenship if he reached a standard of “flagrant ineffective assistance.”
The trial court‘s “wait-and-see” approach, coupled with active intervention when concerns arose, struck the right balance in protecting defendant‘s dual rights to effective assistance of counsel and to defend himself in “‘whatever manner he deems best.‘” (Smith, supra, 68 Cal.2d at p. 559.)
ii. The Inquiry into Defendant‘s Choice of Counsel was Sufficient
Defendant also challenges the court‘s inquiry into his choice of Blankenship as his counsel. Specifically, defendant contends that the trial judge did not make adequate inquiry “into the defendant‘s comprehension of his constitutional rights and how defense counsel‘s actions were jeopardizing them,” and “did not actually ask Mr. Woodruff to waive his right to effective assistance.” The trial court did not err.
“[T]he right to counsel can be waived only if such waiver is knowing, intelligent and voluntary.” (People v. McKenzie, supra, 34 Cal.3d at p. 635.) When posed with the claim that a defendant had “impliedly waived his right to effective assistance of counsel,” we explained that “‘The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the
At the September 2001 hearing, the trial court inquired of defendant whether he wished to proceed with Blankenship as his attorney, urging him to “consider very carefully your representation,” given the possibility of a death
sentence. The court sought to ensure that defendant was making an informed decision to retain Blankenship by describing its concerns about Blankenship‘s limited experience and his failure to take certain actions in the case, and verifying that defendant nonetheless wished to continue with Blankenship. The court discussed its concerns about Blankenship‘s failure to apply for defense funds carefully and at length. Defendant participated in the discussion, offering comments and asking questions when he did not understand, and the court provided further clarification. The court also explained at length that he had the right to an attorney at no cost and that the court would appoint a public defender experienced in capital cases if defendant wished and verified that defendant understood.4
Every time the court asked defendant whether he wanted to proceed with Blankenship as his counsel, defendant responded affirmatively, even reassuring the judge that Blankenship “must be the one to represent me” and obtaining confirmation that the court would not later override defendant‘s decision. Defendant indicated that he understood the court‘s concerns about Blankenship. Defendant sought further assurance from the trial judge that the judge would remain assigned to the case, finally telling the court, “Well, I‘m satisfied.”
Thus, the court took the time to inform defendant of his right to counsel and of its concerns regarding Blankenship‘s lack of experience and lack of preparation, and cautioned defendant to think carefully about his choice of counsel given the serious consequences he faced. Given that the trial court did not find Blankenship to be ineffective, defendant‘s argument about the failure to take a “waiver” of effective assistance is misplaced. In response to
regarding Blankenship, the court sought to affirmatively ensure that defendant was making an informed decision in his choice of counsel, as was his right.
At the hearing in March 2002, when the court determined that Blankenship was again unprepared for trial, the court asked and received an affirmative response from defendant to the question, “Mr. Woodruff, are you comfortable with the way your case is being handled thus far?” Concluding defendant had made “a sound and informed decision to continue” with Blankenship, the court reasonably elected not to question him to the extent it had at the September hearing; further inquiry could have been viewed as interference with defendant‘s right to counsel of his choice. “We observed in Maxwell v. Superior Court[, supra,] 30 Cal.3d [at p. 615,] . . . ‘[d]efendant‘s confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.‘” (People v. Ramirez, supra, 39 Cal.4th at p. 422.)
The court again concluded Blankenship had not provided ineffective assistance “at this point.” It noted areas where it had concerns about Blankenship‘s representation of defendant, but also found that Blankenship had “sound, tactical reasons” for his decision not to file or pursue certain motions. Thus, the circumstance did not call for taking a “waiver” of effective assistance of counsel.
Further, defendant‘s repeated affirmative choice of Blankenship as his trial counsel has not prevented him from raising ineffective assistance in support of various claims in his appeal. “A defendant whose request to substitute counsel is granted cannot complain on appeal that the trial court should have denied that request. The defendant‘s only contention on appeal in such circumstances can be that he or she was denied effective assistance of counsel.” (People v. Ramirez, supra, 39 Cal.4th at p. 423; see Wheat v. United States (1988) 486 U.S. 153, 162 [“we note . . . the apparent willingness of Courts of Appeals to entertain
ineffective-assistance claims from defendants who have specifically waived the right to conflict-free counsel“].)
Defendant further contends that the court erred in making no attempt to determine his “mental ability to knowingly and intelligently waive his rights . . . .” However, as noted in section II.A., ante, the record does not indicate that defendant was incompetent to stand trial, and nothing in his colloquy with the court suggests he lacked the mental capacity to make an informed decision to continue with Blankenship.
2. Availability of Appointment of Cocounsel
As explained in Keenan v. Superior Court (1982) 31 Cal.3d 424, 429, a trial court has discretion under section 987 to appoint cocounsel to the defense in a capital case. Defendant claims the trial court abused its discretion when it “misled the inexperienced defense attorney into thinking he had a high threshold for obtaining” cocounsel. Defendant also contends Blankenship was prejudicially ineffective in failing to request the appointment of second counsel.
a. Factual Background
At a hearing in March 2001, the prosecution inquired whether Blankenship would request appointment of Keenan counsel since there were indications that defendant did not have funds for a private attorney. The court stated that it would “consider anything you wish to bring to my attention.” Keenan counsel was a “novel” concept to Blankenship. The court explained, “I‘m sure once you conduct your evaluation you‘ll discover that the justification for appointing second counsel—or as it‘s referred to, Keenan counsel, is limited to some rather narrowly
defined situations, particularly regarding the complexity of the case, the types of issues that will be raised during the course of the case, and various related factors. So once you‘ve had a chance to evaluate that, by all means bring it to my attention.”
When Blankenship raised the prospect of Keenan counsel at the September 2001 hearing, the trial court noted uncertainty about whether it could appoint second counsel in the current situation, stating: “Well, there‘s a question in my mind about that. Now, Keenan counsel, in certain circumstances, can be appointed, assuming the appropriate procedures regarding the request for second counsel are complied with. But . . . the Keenan case itself involved appointed first counsel, and in virtually every situation I have seen that is the case. Appointed counsel makes the request for a second appointed counsel and, you know, that‘s how it goes. . . . [M]y question to you, . . . very simply stated, is whether the Keenan case allows for appointment of second counsel in a situation where first counsel is not appointed but rather retained.” The court also observed that it might become necessary for Blankenship to brief this question.
Blankenship responded that he had received a lot of inquiries about offers to assist the defense, so he felt “certain” he would be able to bring in another attorney to serve pro bono.
i. The Trial Court Did Not Discourage Defense Counsel from Seeking Appointment of Cocounsel
the reasons stated in the affidavit that the appointment is necessary to provide the defendant with effective representation. If the request is denied, the court shall state on the record its reasons for denial of the request.” “The initial burden . . . is on the defendant to present a specific factual showing as to why the appointment of a second attorney is necessary to his defense against the capital charges.” (People v. Lucky (1988) 45 Cal.3d 259, 279.) “The appointment of a second counsel in a capital case is not an absolute right protected by either the state or the federal Constitution.” (People v. Clark (1993) 5 Cal.4th 950, 997, fn. 22.) We review a decision denying the appointment of second counsel for abuse of discretion. (People v. Verdugo (2010) 50 Cal.4th 263, 278.)
Defendant asserts the trial court “discouraged” Blankenship from seeking appointment of second counsel. On the contrary, the court stated it would “consider anything you wish to bring to my attention,” with regard to a Keenan appointment. Moreover, in response to Blankenship‘s comment that Keenan counsel was a “novel” concept to him, the court helpfully responded that once Blankenship had a chance to consider the matter, he would learn the requirements for the appointment of second counsel, stating generally the criteria to be “the complexity of the case, the types of issues that will be raised during the course of the case, and various related factors.” (See Keenan v. Superior Court, supra, 31 Cal.3d at p. 432 [When assessing the need for another attorney, the court “must focus on the complexity of the issues involved, keeping in mind the critical role that pretrial preparation may play in the eventual outcome of the prosecution.“].) Therefore, rather than discouraging Blankenship from applying for cocounsel, the court seemed to encourage him.
Further, the statute providing for the appointment of second counsel states that it may be available “upon a written request of the first attorney appointed.” (
appoint second counsel where defendant had privately retained his attorney and simply suggested to Blankenship that he
Moreover, since defendant never filed an application for cocounsel, as
ii. Defense Counsel Was Not Ineffective in Failing To Request Cocounsel.
Defendant also contends Blankenship rendered ineffective assistance by failing to apply for cocounsel.
“[A] defendant claiming a violation of the federal constitutional right to effective assistance of counsel must satisfy a two-pronged showing: that counsel‘s performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.” (People v. Alexander (2010) 49 Cal.4th 846, 888, citing Strickland v. Washington (1984) 466 U.S. 668, 687.) Rarely is ineffective
assistance of counsel established on appeal since the record usually sheds no light on counsel‘s reasons for action or inaction. (E.g., People v. Mendoza Tello (1997) 15 Cal.4th 264, 265-268.)
The record does not show that Blankenship provided ineffective assistance in failing to request appointment of second counsel. Defendant contends “it would have been an abuse of discretion [for the court] not to appoint second counsel for Mr. Woodruff because of the inexperience of defense counsel, who was totally unfamiliar with capital trial procedure . . . .” However, it was defendant‘s repeated choice to remain with Blankenship despite the court‘s warning about Blankenship‘s lack of experience. Thus, given defendant‘s
Defendant also contends it would have been an abuse of discretion not to appoint second counsel given “the complexity of the issues, which included scientific testimony to mental retardation5 and brain injury, as well as other criminal acts alleged as aggravating factors at the penalty phase.” On the contrary, the trial court would have been within its discretion to deny an application for second counsel based on this bare assertion of complexity. “An abstract assertion’ regarding the burden on defense counsel ‘cannot be used as a substitute for a showing of genuine need.‘” (People v. Staten (2000) 24 Cal.4th 434, 447;
see People v. Jackson (1980) 28 Cal.3d 264, 287 [no abuse of discretion where denied application for cocounsel made no “factual assertions,” instead relying generally on the “‘circumstances surrounding the case‘“]; People v. Verdugo, supra, 50 Cal.4th at p. 278 [application for second counsel insufficient because “unlike in Keenan, on which defendant relies, counsel did not state that he needed to interview more than 100 witnesses, that the case involved complicated scientific and psychiatric testimony, that trial would occur soon after counsel was appointed, or that other criminal cases were pending against defendant and that the prosecution intended to rely on evidence related to those cases here“].)
“In any event, because the claim is presented as one of ineffective assistance of counsel, relief depends solely on whether counsel‘s error, if any, may have affected the outcome.” (People v. Webster (1991) 54 Cal.3d 411, 437.) Defendant does not explain how any failure to obtain cocounsel prejudiced him, only summarily stating, “In failing to make the request anyway, defense counsel provided prejudicially ineffective assistance.” Regardless, as discussed in section II.B.1., ante, the trial court monitored the case and protected defendant‘s rights, for example, by delaying the trial by several months so that Blankenship would have sufficient time to prepare. The record does not suggest that a more favorable result was reasonably probable but for the failure to request cocounsel.
Finally, defendant contends that the trial court erred in “solicit[ing] three pretrial waivers of [the] right to unconflicted counsel without showing defendant made [a] knowing, intelligent and voluntary choice,” and that Blankenship violated his duty of loyalty. Defendant contends that Blankenship‘s conflicts “adversely affected” his performance. (Cuyler v. Sullivan (1980) 446 U.S. 335, 348.) Defendant fails to show that Blankenship‘s representation was ineffective.
a. Factual Background
Defendant waived his right to conflict-free counsel on three occasions.
First, defendant waived the right with respect to Blankenship‘s recent representation of his mother, Carr, on charges of misdemeanor disturbing the peace and resisting arrest stemming from the same event. The court explained to defendant that “it is possible . . . some evidence that may have been produced during the course of [Carr‘s] trial . . . would be in conflict, or against your best interests.” Defendant indicated he understood. The court explained further that defendant would have to waive any conflict of interest in Blankenship‘s representation of his mother. Defendant indicated he was willing to waive the potential conflict and that he was “satisfied with Blankenship.”
The second and third waivers concerned Blankenship‘s former representation of defendant‘s cousin, Dennis Smith, whom the prosecution expected to testify at the penalty phase and potentially at the guilt phase to impeach defendant. Blankenship had represented Smith on an unrelated matter and stated he had no confidential information that would benefit defendant. The court surmised that conflict was unlikely but sought to protect both Smith‘s and defendant‘s rights. Noting that Smith‘s testimony would be incriminating to defendant and would potentially result in an aggravated sentence, the court explained at length to defendant that Blankenship would have limited ability to impeach Smith with Smith‘s prior criminal conduct because of Smith‘s right to attorney-client confidentiality. The court explained, “If someone else was representing you, someone who had absolutely no connection with Mr. Smith over here, . . . that attorney . . . [could] inquire to his heart‘s content about information that was exchanged between Mr. Smith and someone else, . . . without fear of any conflict of interest, without fear of any attorney-client privilege.” Defendant indicated that he understood and nonetheless wished to proceed with Blankenship, and on both occasions, waived any potential conflict of interest.
b. Analysis
A defendant‘s
Assuming without deciding that Blankenship had a conflict of interest that defendant did not validly waive, we do not find that his representation was ineffective. A claim of ineffective assistance of counsel requires a defendant to establish that counsel‘s performance was deficient and that absent those deficiencies it is reasonably probable the outcome would have been more favorable to him. “‘Hence, to obtain reversal of a criminal verdict, the defendant must demonstrate that (1) counsel labored under an actual conflict of interest that adversely affected counsel‘s performance, and (2) absent counsel‘s deficiencies arising from the conflict, it is reasonably probable the result of the proceeding would have been different.‘” (People v. Rices (2017) 4 Cal.5th 49, 65.)
“Determining ‘whether counsel‘s performance was “adversely affected” . . . “requires an inquiry into whether counsel ‘pulled his punches,’ i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by the record. But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.” [Citation.]’ ” (People v. Rices, supra, 4 Cal.5th at p. 65.)
Because Blankenship‘s performance was not deficient, we need not reach the second prong of the Strickland test, i.e., whether counsel‘s performance affected the outcome. Defendant offers no argument supporting the claim that Blankenship‘s deficient performance impacted the guilt or penalty verdicts.
Finally, defendant asserts that Blankenship labored under actual conflicts with respect to defendant‘s six-year-old daughter as well as his brother Claude Carr, as evidenced by comments Blankenship made about the possibility of sparing defendant‘s daughter from testifying as a prosecution witness and about potentially merging defendant‘s trial with Claude‘s. An attorney labors under an actual conflict of interest when he “fail[s] to represent defendant as vigorously as he might have, had there been no conflict.” (People v. Cox (2003) 30 Cal.4th 916, 948.) Based on these brief inquiries, we discern no potential for conflict. Blankenship did not represent defendant‘s daughter or Claude. Blankenship may have had tactical reasons for his queries or may have been responding to an instruction from defendant to spare his daughter the trauma of testifying.
1. Exclusion of Prospective Juror Based on Written Questionnaire
Defendant contends the trial court, over defense objection, erroneously excused for cause two prospective jurors, W.C. and D.K., based solely on their written responses to questions about their views on capital punishment. We conclude the trial court erred in excusing D.K. based on his questionnaire responses, requiring reversal of the penalty verdict. We thus need not reach defendant‘s claim regarding W.C.
The prosecution challenged for cause prospective juror D.K. based on his responses to the questionnaire. The defense would not stipulate to his removal. The trial court denied the prosecution‘s challenge, explaining, “He‘s pretty strong here. He doesn‘t believe in the death penalty. He rates himself a one. He does state in 55-C he would consider all the evidence. However, the reason I am not gonna grant your challenge at this point is his response to 53-C where he says it would not—Because he‘s against the death penalty, his opinion would not make it difficult to vote for the death penalty. He would follow the law. So, I think that needs to be explored.”
On further argument by the prosecutor, the trial court responded, “But what harm what do we lose if he comes in here and you question him further on this, and if his answers don‘t change I grant the challenge for cause?” The prosecution articulated the suspicion that the reason for the court‘s refusal to grant the challenge as to D.K. was because he was African-American. The court had previously stated concern “about the relatively small number of African-Americans here.”
Regarding his general feelings about the death penalty, D.K. wrote in his questionnaire, “I don‘t believe in death penalty,” and on a scale of 1 to 10, circled 1, which corresponded to being “strongly against” the death penalty. (Circling 10 indicated being “strongly in favor of the death penalty.“) D.K. explained, “Men are equals only God can make those choices.” However, D.K. checked “no” to the question whether his opinion would make it difficult to vote for the death penalty regardless of the evidence, explaining in his own words, “I would followed the law.” D.K. responded “none” to the questions asking what purpose he thought the death penalty served and what impressions he had of life in prison without parole as a punishment for murder. On question 55, which asked whether he would “ALWAYS” vote for the death penalty, or “ALWAYS” vote for life without parole, or consider all
The prosecution later filed a written motion asking the court to reconsider its rulings denying the prosecutor‘s request to remove three prospective jurors for cause, including D.K., based on their written responses, reiterating the concern that the court‘s decision was based in part on the impermissible factor of race. At the hearing on the motion, the defense asserted that the prosecution would have “plenty of opportunity during voir dire to determine whether or not the answers, indeed, were trustworthy,” and that “the word ‘believe’ and all those things are talked about in a vacuum. They are talked about in advance of hearing and seeing evidence. They are—they are certainly not bright lines that would deprive anyone of the right to serve on a jury.” The defense explained that it might advance a Wheeler motion based in part on the prosecution‘s challenges.7 The prosecution acknowledged that the defense was correct about the voir dire process but that the court had not used the same standard in excusing for cause prospective jurors of different races.
The trial court granted the motion as to W.C. and D.K., explaining it had reconsidered the responses and determined that “there is not even a theoretical possibility of evidence that would allow them to vote for the death penalty . . . .” The next day, the defense added that the prosecution motion did not include the information that D.K. had written in his questionnaire that he would follow the law. The court explained that D.K.‘s “statements otherwise in the questionnaire make it clear to me . . . that there was no reasonable possibility he would vote for the death penalty if placed in the position of having to do so.”
“When the trial court‘s assessment of a prospective juror‘s capacity to serve is based at least in part on the juror‘s tone, demeanor, or other elements that cannot be reflected in the written record, its ruling is owed deference by reviewing courts. [Citation.] But no such deference is warranted when a trial court‘s ruling on a for-cause challenge is based solely on the prospective jurors’ answers to a written questionnaire. [Citation.] In those circumstances, we review de novo the trial court‘s dismissal of the prospective juror for cause.” (People v. Zaragoza (2016) 1 Cal.5th 21, 37.)
“[A] prospective juror may not be excluded for cause simply because his or her conscientious views relating to the death penalty would lead the juror to impose a higher threshold before concluding that the death penalty is appropriate or because such views would make it very difficult for the juror ever to impose the death penalty. Because the California death penalty sentencing process contemplates that jurors will take into account their own values in determining whether aggravating factors outweigh mitigating factors such that the death penalty is warranted, the circumstance that a juror‘s conscientious opinions or beliefs concerning the death penalty would make it very difficult for the juror ever to impose the death penalty is not equivalent to a determination that such beliefs will ‘substantially impair the performance of his [or her] duties as a juror’ . . . .” (People v. Stewart (2004) 33 Cal.4th 425, 447.)
Even if a juror checked the box indicating that it would be “very difficult” for him or her to impose the death penalty, the juror might nonetheless, “in response to brief follow-up questioning, persuasively demonstrate an ability to put aside personal reservations, properly weigh and consider the aggravating and mitigating evidence, and make that very difficult determination concerning the appropriateness of a death sentence. Such a prospective juror
Reviewing the decision to remove D.K. independently, we conclude the trial court erred in sustaining the challenge for cause based on the juror‘s written questionnaire responses. Simply because he did not “believe” in the death penalty, it does not follow that D.K. would have been unable to “put aside personal reservations, properly weigh and consider the aggravating and mitigating evidence, and make that very difficult determination concerning the appropriateness of a death sentence.” (People v. Stewart, supra, 33 Cal.4th at p. 447.)
Despite his beliefs, D.K., in response to question 55, which asked whether he would always vote for the death penalty, always vote for life without parole, or consider all the evidence and instruction and impose the penalty he felt appropriate, chose the third option. Additionally, he responded “yes” to the question whether, if the judge gave an instruction on the law that differed from his beliefs or opinions, he would follow the law as instructed by the judge. D.K.‘s responses thus “did not clearly demonstrate that his death penalty views would prevent or substantially impair the performance of his duties as a capital juror.” (People v. Covarrubias, supra, 1 Cal.5th at p. 866.)
D.K.‘s responses provide little ambiguity as to his ability to set aside his beliefs and follow the law. In response to the question whether his beliefs (which included that “only God can make those choices“) would make it difficult to vote for the death penalty, D.K. responded “No,” explaining, “I would follow[] the law.” Thus, D.K.‘s written response did not support the trial court‘s conclusion. “Those who firmly oppose the death penalty may nevertheless serve as jurors in a capital case as long as they state clearly that they are willing to temporarily set aside their own beliefs and follow the law.” (People v. Avila (2006) 38 Cal.4th 491, 529.) Here, in his own words, D.K. expressly stated that he would “follow[] the law.” These views, including the pledge to follow the law, do not demonstrate a substantial impairment in his ability to serve as a juror.
The parties could have, and should have, examined D.K.‘s responses further through voir dire. As the trial court noted in its initial decision to deny the challenge for cause, D.K.‘s response that he would follow the law “need[ed] to be explored” and there was nothing to be lost by questioning him in voir dire.
“We simply do not know how [this] potential juror[] would have responded to appropriate clarifying questions posed to [him] by the trial court. Had the trial court conducted a follow-up examination of [D.K.] and thereafter
“[U]nder existing United States Supreme Court precedent, the erroneous excusal of a prospective juror for cause based on that person‘s views concerning the death penalty automatically compels the reversal of the penalty phase without any inquiry as to whether the error actually prejudiced defendant‘s penalty determination.” (People v. Riccardi (2012) 54 Cal.4th 758, 783, citing Gray v. Mississippi (1987) 481 U.S. 648.) Accordingly, “[u]nder compulsion of Gray, we reverse defendant‘s penalty phase verdict.” (Riccardi, at p. 783)
2. Assertedly Biased Juror
We address defendant‘s remaining claims of error concerning jury selection since they may affect the validity of the guilt verdict. The court seated Juror No. 3 over the prosecutor‘s challenge for cause. Based on Juror No. 3‘s responses in his written questionnaire and in voir dire, defendant asserts that the juror was biased, and thus the trial court erred in seating him and defense counsel was ineffective for failing to make a for-cause challenge and instead opposing it. Regardless of how defendant frames the claim, we find no error.8
Juror No. 3, a 31-year-old African-American man, stated in his jury questionnaire that the nature of the charges would make it “[d]ifficult to be fair” because his mother and uncle were peace officers. However, he stated that he would not credit the testimony of a witness simply because the witness is a law enforcement officer. Juror No. 3 stated he would follow the law where it differed from his opinions and would require the prosecutor to prove guilt beyond a reasonable doubt. In his other responses, Juror No. 3 indicated he could listen to fellow jurors and receive the benefit of their thinking. Juror No. 3, a former Marine, had grown up in Alabama.
Both parties questioned Juror No. 3 at voir dire. The juror explained that his mother‘s status as a correctional officer, and the subject matter of the case, would cause him to “be strongly on the side of [defendant] being guilty.” However, he stated he would “evaluate options before making conclusions,” and affirmed his duty to be “open-minded and listen[] to all the evidence.”
Defendant does not meet his burden of demonstrating that his counsel‘s performance was deficient. Given the defense strategy of showing that defendant and his family distrusted the police due to their experiences growing up in Mississippi during the civil rights movement, it would have been reasonable for defense counsel to conclude that Juror No. 3, who grew up in Alabama, would have been “accessible,” as counsel described, and open to hearing defendant‘s side of the case. “[A] reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had ’ “no rational tactical purpose” ’ for an action or omission.” (People v. Mickel, supra, 2 Cal.5th at p. 198.)
Further, the record supports the trial court‘s finding that Juror No. 3 could be impartial. Although the juror expressed concern about his ability to be fair because he had relatives in law enforcement, he repeatedly stated that he would try to be fair and impartial. We credit the trial court‘s conclusion, based on observing the juror firsthand, that he had the ability to serve on defendant‘s trial. ” ‘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. Under such circumstances, we defer to the trial court‘s evaluation of a prospective juror‘s state of mind, and such evaluation is binding on appellate courts.‘” (People v. Souza (2012) 54 Cal.4th 90, 123.) Defendant thus cannot show prejudice or that the court erred.
Therefore, defendant‘s claims fail.
Defendant, an African-American, contends that the trial court erroneously denied two motions challenging the prosecution‘s peremptory challenges to three African-American prospective jurors. (Batson v. Kentucky, supra, 476 U.S. 79; People v. Wheeler, supra, 22 Cal.3d 258.) On the first motion, the court found no prima facie showing of discrimination in the removal of L.T. and S.J. Defendant disputes the finding with respect to S.J. On the second motion, challenging the removal of M.M., defendant contests the court‘s conclusion that the prosecutor‘s proffered race-neutral reasons were credible. We find no error.
a. First Motion
i. Background
When the court heard defendant‘s first motion, 36 randomly selected jurors had been questioned. The court excused seven jurors for hardship or cause, leaving 29 jurors available for peremptory challenge, including three African-Americans, L.T., S.J., and Juror No. 3. The prosecutor exercised nine peremptory challenges; he used his first and sixth challenges on jurors L.T. and S.J., respectively. At one point, the prosecutor accepted the jury as composed with Juror No. 3.
Before voir dire, prospective jurors filled out a 20-page questionnaire on their views and background. Prospective juror S.J. felt “fine” about law enforcement and the judicial system. He responded affirmatively to several questions about whether he could be a fair and impartial juror regarding race. There was nothing about the charges that would affect his ability to be fair and impartial, he would follow the law as instructed, he would not credit more or less a police officer witness, he could discuss his thinking about the case and listen to other jurors, and he could be fair to both sides because he had an “open mind.” S.J. had “no feeling” about the death penalty, circled 6 out of 10 on whether he was in favor of it, and explained that its purpose was “an eye for an eye.”
During defense voir dire, when asked if he wanted to sit on this jury, S.J. responded, “I look at it as, if I have to, I have to.” When asked again if he were willing to sit on the jury and be fair, S.J. replied, “Yes, if I have to.” In response to the prosecutor‘s question about whether he was a “very quiet man,” S.J. said “sometimes.” He indicated he was not a “very private man.” When the prosecutor pressed him about having no opinion on the death penalty, S.J. explained, “That means that I believe that in some cases a death penalty is justified and in some case I have to look at the case.” S.J. affirmed
The trial court found the defense had failed to make a prima facie showing that the prosecutor had exercised peremptory challenges on the basis of race, commenting that S.J.‘s “initial remarks [were that jury duty] is like having a root canal. He clearly didn‘t want to be here. Would be here if forced to stay, but his whole attitude and reluctance, the air about him suggests that a peremptory challenge was appropriate.” However, the court appears to have at least partially confused S.J. with another prospective juror, D.B., who made the comment likening jury duty to a root canal. The court also noted that the prosecutor had accepted the panel when it included Juror No. 3. Before the jury was sworn, the prosecutor peremptorily challenged a total of 17 out of 47 jurors available for challenge after for cause and hardship excusals, including challenges to three of four African-American jurors (L.T., S.J., M.M., Juror No. 3). In alternate jury selection, the prosecutor peremptorily challenged three out of 13 jurors, including a challenge to one of two available African-American jurors (challenging juror D.B. and accepting Alternate Juror No. 3).
ii. Analysis
“‘Both the federal and state Constitutions prohibit any advocate‘s use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.’ [Citation.]
“‘There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination.’ [Citation.] ‘A three-step procedure applies at trial when a defendant alleges discriminatory use of peremptory challenges. First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution‘s offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. [Citation.] “The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant].“’ ” (People v. Parker (2017) 2 Cal.5th 1184, 1210-1211.) “Because the trial predated the United States Supreme Court‘s decision in Johnson v. California (2005) 545 U.S. 162, and exactly what standard the lower court used in finding no prima facie case is unclear, ‘we review the record independently to “apply the high court‘s standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror” on a prohibited discriminatory basis.’ ” (People v. Parker, supra, 2 Cal.5th at pp. 1211-1212.)
“Although we examine the entire record when conducting our review, certain types of evidence are especially relevant. These include whether a party has struck most or all of the members of the venire from an identified group, whether a party has used a disproportionate number of strikes against members of that group, whether the party has engaged those prospective jurors in only desultory voir dire, whether the defendant is a member of that group, and whether the victim is a member of the group to which a majority of remaining jurors belong. [Citation.] We may also consider nondiscriminatory reasons for the peremptory strike that ‘necessarily dispel any inference of bias,’ so long as those reasons are apparent from and clearly established in the record.” (People v. Reed (2018) 4 Cal.5th 989, 999-1000.)
Defendant asserted in each of his Wheeler motions that the prosecutor‘s lengthier voir dire of African-American jurors, and his effort to establish bias, revealed his race-based jury selection, especially when contrasted with his effort to rehabilitate non-African-American jurors. He asserts the prosecutor‘s comment that he was “forced to take jurors simply because of their race” reveals his discriminatory intent.
Defendant provides no examples in support of his general claim about the prosecutor‘s style of voir dire, and the record does not support his claim. The prosecutor‘s comment that he was forced to accept jurors on the basis of race was in response to an earlier comment by the trial court in which it expressed reluctance to dismiss African-American jurors because of the small number of available African-American jurors, and thus was a comment on the court‘s approach to jury selection.
The trial court found S.J. did not want to be a juror based on his demeanor, which would have been a permissible basis for excusal. (E.g., People v. Parker, supra, 2 Cal.5th at p. 1213.) S.J.‘s response to the two questions about whether he was willing to sit on the jury was, “if I have to,” which suggests he “didn‘t want to be here” as the court noted.
However, as defendant observes on appeal, the trial court erroneously attributed to S.J. a comment likening jury service to a root canal. It is
The trial court also noted the prosecutor‘s acceptance of Juror No. 3 on the panel. (See People v. Clark (2011) 52 Cal.4th 856, 906 [while not dispositive, acceptance of a member of the group indicates prosecutor‘s good faith].) With respect to both Wheeler motions, defendant challenges the significance of this fact because Juror No. 3 had expressed pro-prosecution sentiments as described in section II.C.2, ante. The prosecutor had previously made a for-cause challenge to Juror No. 3, for the reason that the juror had expressed bias in favor of the prosecution, explaining in response to defense objection to the challenge, that he had similarly stipulated to the excusal of other jurors who had expressed pro-prosecution views out of a duty to ensure that defendant had a fair trial, which is supported by the record. From these circumstances, it is difficult to draw an inference about the prosecutor‘s acceptance of Juror No. 3 on the panel. Even if we agreed that the prosecutor accepted Juror No. 3 only because of his pro-prosecution views, that circumstance would simply show that he was exercising his challenges based on which jurors would be most favorable for him and not for racial reasons.
Turning to jury statistics, prior to the court‘s ruling on defendant‘s motion, “[w]hile the prosecutor did excuse two out of three [African-Americans], the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible.” (People v. Bell (2007) 40 Cal.4th 582, 597-598, fn. omitted.) Neither does the prosecutor‘s use of two out of nine peremptory challenges against African-American jurors suggest a disproportionate use of peremptory challenges. (See, e.g., People v. Sánchez (2016) 63 Cal.4th 411, 436 [use of two of eight peremptory challenges against Hispanic jurors was insignificant].) While the percentage of African-American jurors challenged (2
Any inference of bias is “‘necessarily dispel[led]‘” because nondiscriminatory reasons for the prosecutor‘s peremptory strikes of L.T., M.M., and D.B. “are apparent from and clearly established in the record.” (People v. Reed, supra, 4 Cal.5th at p. 1000.) L.T.‘s responses both in her written questionnaire and in her voir dire, and as noted by the prosecutor during two earlier for cause challenges of her, revealed significant race-neutral reasons for L.T.‘s challenge, namely, that she perceived a conflict between her religious beliefs and the death penalty, and had felt upset about an incident where she was a victim and believed the Riverside Police Department had made an inadequate investigation. L.T. had also expressed deep reluctance to serve on a jury where she would have to view autopsy photos. As discussed in section II.C.3.b, post, the record supports the prosecutor‘s proffered race-neutral reason for peremptorily challenging M.M. As to the prosecutor‘s challenge to D.B. during alternate jury selection, the trial court denied defendant‘s third Wheeler motion at the first stage, noting that D.B. had served on a hung jury, which defendant has not challenged on appeal. The prosecutor had questioned D.B. about her service on the hung jury. Likewise, the prosecutor‘s voir dire of S.J. specifically addressed his questionnaire responses and was not desultory. (People v. Edwards (2013) 57 Cal.4th 658, 698-699.)
Defendant also asserts that “the prosecutor attempted to exclude the first eight Black jurors to appear in the jury box.” Defendant does not identify any specific jurors. While a prosecutor‘s specious for-cause challenge to other jurors of the same race might support an inference of race-based discrimination (People v. Sánchez, supra, 63 Cal.4th at p. 437), none appears here.
Defendant also requests that we compare S.J.‘s questionnaire responses to those of Juror Nos. 7 and 12, both non-African-American, asserting that all three jurors “were males in their 50s, with service/repair jobs for major companies” and all three circled “6” on the death penalty scale. “We have often declined to undertake comparative juror analysis at step one of the
S.J.‘s affirmative response to several questions on the jury questionnaire indicated that he could be fair and impartial, and the trial court, in concluding that S.J. did not want to be a juror, erroneously attributed to him the comments made by another juror likening jury service to a root canal. However, it is difficult to make a prima facie showing from the statistics of the peremptory challenges and the record reveals race-neutral reasons for the prosecutor‘s challenges. Moreover, S.J.‘s comment that he would serve as a juror if required is consistent with the trial court‘s finding that S.J.‘s demeanor indicated he did not want to be a juror. In his response below, defendant did not address the court‘s comment that S.J. “[w]ould be here if forced to stay, but his whole attitude and reluctance, the air about him” indicated that he did not want to perform jury duty. Defendant therefore fails to show that “the totality of relevant circumstances gives rise to an inference of”
discriminatory purpose” in the prosecutor‘s challenge of S.J. (People v. Parker, supra, 2 Cal.5th at p. 1213.)b. Second Wheeler Motion
i. Background
Defendant‘s second Wheeler motion concerned the prosecutor‘s fifteenth peremptory challenge, to M.M. M.M. had a master‘s degree in sociology and had been working at the Los Angeles County Department of Public Social Services for eight years as an administrator managing assistance programs and conducting research in the jobs training program. M.M. stated he would be capable of voting for the death penalty after hearing the facts. He affirmed that he would not hold the prosecutor to a higher standard than the law required. M.M. was born in Africa and had lived in the United States for 21 years, and explained that his master‘s thesis was about colonial education, which was, “[t]o put it simply, just a brainwash to allow the education of Africa.” M.M. was “neutral” on the death penalty, denied having “sociological problems” with it, concluded it was “just . . . a form of punishment,” and “respect[ed] different views” about it. M.M. would be able to vote for the death penalty even after seeing defendant in the courtroom for several weeks.
In response to the Wheeler motion, the prosecutor explained that he excused M.M. because his dissertation had been about colonization,
The trial court found defense counsel had made a prima facie showing of race-based jury selection but credited the prosecutor‘s race-neutral reasons for excusing M.M. The court explained that in his experience both as a judge and a former prosecutor, “prosecutors generally will excuse people with social welfare type of backgrounds. And the reason for that—again, this is based on my observations and personal experience—is that they are very much inclined to hold the prosecution to a higher standard than that required by the law. In other words, something more than proof beyond a reasonable doubt.” The court also observed that Juror No. 3 was still on the jury.
ii. Analysis
At the third step of Batson analysis, after a prosecutor has posited a race-neutral explanation for a peremptory challenge, “the trial court must decide whether the movant has proven purposeful discrimination. [Citation.] In order to prevail, the movant must show it was ’ “more likely than not that the challenge was improperly motivated.” ’ [Citation.] This portion of the Batson/Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness. [Citation.] At this third step, the credibility of the explanation becomes pertinent. To assess credibility, the court may consider, ’ “among other factors, the prosecutor‘s demeanor; . . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy.” ’ [Citation.] To satisfy herself that an explanation is genuine, the presiding judge must make ‘a sincere and reasoned attempt’ to evaluate the prosecutor‘s justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and herobservations of the prosecutor‘s examination of panelists and exercise of for-cause and peremptory challenges. [Citation.] Justifications that are ‘implausible or fantastic . . . may (and probably will) be found to be pretexts for purposeful discrimination.’ [Citation.] We recognize that the trial court enjoys a relative advantage vis-à-vis reviewing courts, for it draws on its contemporaneous observations when assessing a prosecutor‘s credibility.” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158-1159.)
Defendant contends that comparative juror analysis shows that the prosecutor‘s reasons for excusing M.M. were not genuine because he accepted Juror Nos. 2 and 11, who had similar backgrounds but were Caucasian. “[E]vidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record isadequate to permit the urged comparisons.” (People v. Lenix (2008) 44 Cal.4th 602, 622.) ” ‘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.]’ [Citation.] ‘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.’ [Citation.] ‘At the same time, “we are mindful that comparative juror analysis on a cold appellate record has inherent limitations.” [Citation.] In addition to the difficulty of assessing tone, expression and gesture from the written transcript of voir dire, we attempt to keep in mind the fluid character of the jury selection process and the complexity of the balance involved.’ ” (People v. Winbush (2017) 2 Cal.5th 402, 442.)
The prosecutor‘s proffered reasons for excusing M.M. were M.M.‘s thesis about the brainwashing of Africa through colonial education and his master‘s degree in sociology, as well as his career in social services. Juror No. 2 had a master‘s degree in entomology, the study of insects, and worked as a research
This court has also compared the responses of a challenged juror to other peremptorily challenged jurors of a different race. (People v. Lewis, supra, 43 Cal.4th at p. 478.) Prior to the peremptory challenge of M.M., the prosecutor similarly inquired of, and peremptorily challenged, L.G., a non-Black juror, who had a bachelor‘s degree in sociology and career as a school teacher. Theprosecutor asked L.G. if her background in sociology and child development would make it difficult to impose the death penalty. Like M.M., L.G. said she could impose the death penalty, but the prosecutor nonetheless excused her, which suggests the reason for excusing M.M. based on his sociology background was genuine.
Therefore, the record supports the trial court‘s conclusion that the prosecutor‘s race-neutral reasons for challenging M.M. were credible.
4. Comment on Right to Trial
Defendant contends the prosecutor committed misconduct during voir dire by making comments about a defendant‘s right to trial.
A prospective juror had explained that she had been a witness to a crime but that the case had never gone to trial because the defendant confessed. The prosecutor responded, “Do you understand, though, that even somebody who did it can ask for a trial?” He stated further, “That it‘s a constitutional right for everybody, even if they did it, to ask for a trial? Will you not hold it against the defendant?” The court overruled defendant‘s objection. Counsel renewed the objection the next day, expressing concern “that some of these jurors now think that Mr. Woodruff could have avoided this trial but asked for it.” The trial court concluded the comments were not prejudicial but instead “ingrain[ed] in the minds of the jurors that they‘re to follow the law, to accord him with the presumption of innocence that the law requires . . . .”
” ‘In general, a prosecutor commits misconduct by the use of deceptive or reprehensible methods to persuade either the court or the jury.’ [Citation.] ‘When, as here, the point focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the juryconstrued or applied any of the complained-of remarks in an objectionable fashion.’ ” (People v. Thomas (2012) 53 Cal.4th 771, 797.)
Defendant contends the comments implied that the prosecution offered defendant a plea deal that he had rejected and that the jurors would “plausibly conclude that even though the defendant was
“Moreover, as a general matter, it is unlikely that errors or misconduct occurring during voir dire questioning will unduly influence the jury‘s verdict in the case. Any such errors or misconduct ‘prior to the presentation of argument or evidence, obviously reach the jury panel at a much less critical phase of the proceedings . . . .’ ” (People v. Medina (1995) 11 Cal.4th 694, 741.)
D. Guilt Phase Issues
1. Presence of Officers in the Courtroom
Defendant contends the trial court erred in refusing his request to limit the number of uniformed officers present in the courtroom, which “created [an] intimidating atmosphere.”
Before trial, defendant requested an order “limiting or prohibiting the presence of uniformed peace officers in the trial,” expressing concern that the presence of several officers would distract the jury. The court responded, “I certainly understand and understand your concern. I can‘t say that I am not without the same concern to some extent myself, but here‘s the problem: I have no right to tell them how to dress when they come in here. This is a public proceeding and they can come in here.”
“The right to a public trial is not that of the defendant alone. (
In determining whether the presence of uniformed officers denies a defendant‘s right to a fair trial, a reviewing court must look “at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant‘s right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to showactual prejudice, the inquiry is over.” (Holbrook v. Flynn (1986) 475 U.S. 560, 562, 572; People v. Stevens (2009) 47 Cal.4th 625, 638.)
We conclude there was no abuse of discretion. Defendant points to no place in the record that states the number of officers present in the courtroom. At the record correction hearing, when asked about the number of uniformed officers present during the trial, the trial court noted there were never enough uniformed officers present “to give me concern that there would be an intimidation factor” and that if during the trial there had been more than two or three uniformed officers present, the court would have expressed concern. Therefore the concerns expressed by defendant prior to the trial are insufficient to support a claim of error or prejudice.
Defendant also contends that the presence of officers wearing blue wristbands in memory of Jacobs diminished his chance of receiving a fair trial. Defendant bases this assumption on the responses of two officer-witnesses to defense counsel‘s own questions concerning the wristbands the witnesses were wearing and whether many officers wore the wristbands. Because defendant never objected to the presence of officers wearing wristbands and instead called attention to them, he has forfeited his claim. (People v. Carrasco, supra, 59 Cal.4th at p. 965.)
Defendant also asserts an intimidating atmosphere was created when “Officer Baker‘s brother, a former police officer, had gestured with his fingers like he was pointing a gun at the defendant as the room was emptying for a recess.” Blankenship objected to the gesture at trial on the ground that it
Blankenship‘s objection at the trial was out of concern for defendant‘s “sense of peace” rather than for its effect on the jury, which was leaving for recess. Thus, the claim is forfeited because defendant did not object on the ground he now urges. It also lacks merit. Following the court‘s instruction to the sheriff‘s department to investigate the incident, the issue was not mentioned again. ” ‘Spectator misconduct is a ground for mistrial if it is “of such a character as to prejudice the defendant or influence the verdict,” ’ and the trial court has broad discretion in making this determination.” (People v. Carrasco, supra, 59 Cal.4th at p. 965.) Here there is no evidence that the jury saw or was prejudiced by the gesture, assuming it occurred. We find no error.
2. Photographs of Defendant in Jail Jumpsuit
Defendant contends the trial court erred in admitting, over defense objection, two photographs showing him in an orange jail jumpsuit on the day of his arrest and that this allowed the jury to speculate that he was dangerous. Carr testified that when defendant crawled out of the house, four or five officers “dived” onto him and an officer put his knee into defendant‘s back, and she heard defendant cry out in pain. The prosecutor subsequently sought to introduce the photos to show defendant was not injured and explained that defendant had been given the jumpsuit to wear because he had not been wearing any clothes when he was arrested. The trial court examined the photographs and found them to be relevant and not prejudicial.
Later, a prosecution witness was shown a photograph of defendant in an orange jail jumpsuit to identify for the jury what he looked like on the day of his arrest. The witness testified that the police gave defendant the jumpsuit becausehe had come out of his house naked. Defense counsel renewed his earlier objection, explaining his concern about the prejudicial impact of the sight of defendant in jail clothing even though “it‘s very clear that they know he‘s in custody.” Defendant wore civilian clothing at the trial. At an earlier hearing concerning how defendant would appear at the crime scene viewing, the court had noted that the jury “knows he‘s in custody.”
The trial court did not abuse its discretion in admitting the photographs because they corroborated the prosecution witnesses’ testimony. (People v. Winbush, supra, 2 Cal.5th at p. 459.) In any event, defendant fails to show
3. Testimony Referencing Defendant‘s Arrest Record
During cross-examination, prosecution witness Keith Kensinger briefly referenced defendant‘s “previous arrest record.” He said nothing specific aboutthe record. Defense counsel did not object. Defendant contends the reference violated his state and federal rights to due process and a fair trial.
“By statute, evidence of prior specific acts of misconduct is ordinarily inadmissible either to prove conduct on a specific occasion or to attack a witness’ credibility. (
Defendant has forfeited the contention by failing to object. (
Moreover, the comment was harmless beyond a reasonable doubt even if we assume, without deciding, that it violated defendant‘s federal constitutional rights. (Chapman v. California (1967) 386 U.S. 18, 24.) The brief and vague comment told the jury nothing it did not
4. Testimony of Lead Investigator Opining on Guilt
Several times, in response to questions by both parties, prosecution witness Martin Silva, the lead investigator in the case, expressed to the jury his opinion that defendant was guilty, as well as his reasons for so concluding. ” ’ [O]pinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact.’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.) Defendant claims ineffective assistance of counsel, prosecutorial misconduct, and judicial misconduct with respect to the admission of Silva‘s testimony. We find no error.
Part of the defense strategy was to show that the police failed to make a thorough investigation into the case because they prejudged defendant to have murdered Jacobs. While questioning Silva, defense counsel tried to show that the investigation had been compromised and that Silva was determined to conclude defendant was guilty. At one point, counsel asked, “You believe, with everything that you are, that Mr. Woodruff fired a bullet that didn‘t ricochet that hit Mr. Jacobs, don‘t you?” Counsel then elicited the “factual basis for [Silva‘s] belief.” On redirect, the prosecutor reviewed with Silva the evidence that had been developed in the investigation and that led him to conclude “that this defendant is guilty of murder.” To the prosecution‘s question whether, “having investigated six to 700 murders . . . [Silva had] any doubt that the defendant‘s guilty,” Silva responded he did not. On recross, defense counsel sought to show that Silva was biased.
During a break, the court expressed concern that Silva‘s opinion and described reasons for concluding defendant was guilty had prejudiced defendant, and discussed the issue with defendant at length before asking if he wished to continue the trial and continue with Blankenship. Defendant said that he did.
Defense counsel explained that given the testimony presented by several prosecution witnesses over the previous 13 days of trial, Silva‘s testimony
We find no misconduct. In light of the defense strategy of trying to show that the police simply believed defendant guilty and thus failed to investigate the case fully, the prosecution was certainly entitled to show why the police did believe him to be guilty and thus investigated the case as they did.
We also find no judicial error. The court did intervene, foreclosing any further testimony by Silva as to his opinion on guilt, and reinstructing the jury when it appeared the prosecution was revisiting the topic during redirect. Given defense counsel‘s stated strategy of drawing out Silva‘s bias, and given defendant‘s reaffirmation of Blankenship as his choice of counsel, the court was limited in its discretion to prohibit the testimony. “A criminal defendant‘s constitutional right to confront witnesses is violated when the court prohibits the defendant from conducting otherwise appropriate cross-examination designed to show a prototypical kind of bias on the witness‘s part, and thereby provide the jurywith facts from which it could appropriately draw inferences regarding the witness‘s reliability.” (People v. Sanchez, supra, 63 Cal.4th at p. 450.) Moreover, the court offered defendant a mistrial, but he elected to continue the trial after being sufficiently apprised by the court of its concerns about prejudice. Therefore, the court did not abuse its discretion in acceding to defendant‘s decision to continue with Blankenship and in mitigating any harm by instructing the jury that it alone was to determine guilt.
The real question is whether, as defendant contends, his attorney was ineffective. To show ineffective assistance, defendant must show that “counsel‘s performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.” (People v. Alexander, supra, 49 Cal.4th at p. 888; see Strickland v. Washington, supra, 466 U.S. at p. 687.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) Trying to show that the police believed defendant was guilty and thus did not adequately investigate the case was a reasonable defense strategy. “A reviewing court will not second-guess trial counsel‘s reasonable tactical decisions.” (People v. Kelly (1992) 1 Cal.4th 495, 520.)
Moreover, we see no prejudice, especially in light of the trial court‘s admonitions. In People v. Riggs (2008) 44 Cal.4th 248, the prosecutor elicited from an investigator (Pina), the opinion that the defendant was guilty. We found no prejudice. The witness‘s “testimony that he believed defendant was guilty as charged . . . did not present any evidence to the jury that it would not have already inferred from the fact that Pina had investigated the case and that defendant had been charged with the crimes. There was no implication from the questions or answers that Pina‘s opinions were based upon evidence that had not beenpresented to the jury. [Citation.] In addition, we see nothing in the record that would lead us to conclude that the jury was likely to disregard the instructions it received concerning its duty to decide the issues of credibility and guilt based upon its own assessment of the evidence, not the opinions of any witness.” (Id. at p. 300.)
For similar reasons we see no prejudice here. As defense counsel noted, the jury would hardly have been surprised that Silva had concluded that defendant was guilty. Moreover, the jury had heard over two weeks of testimony from prosecution witnesses before Silva testified, and none of his stated reasons for concluding defendant was guilty was based on information that the jury had not heard or would not hear from other prosecution witnesses. Thus, “[t]he jury‘s exposure to the unsurprising opinions of the investigating officer that he believed the person charged with the crimes had committed them . . . could not have influenced the verdict—especially in light of the overwhelming evidence against defendant.” (People v. Riggs, supra, 44 Cal.4th at pp. 300-301.)
5. Asserted Prosecutorial Misconduct
a. Questioning About Defendant‘s Mother‘s Convictions Resulting from the Same Incident
Defendant contends the prosecutor engaged in misconduct by asking Parthenia Carr about her convictions for resisting arrest and for disturbing the peace, stemming from the same events, and then further asking, after the court had sustained a defense objection, whether she had gone through a trial regarding the events.
The trial court here concluded that the misdemeanor convictions were inadmissible and, further, that they did not involve offenses of moral turpitude. The court noted it had read to the jury the pretrial instruction to disregard any question to which an objection was sustained and to not speculate as to what the answer might have been, and further offered to instruct the jury to disregard the question. Defense counsel wanted to consider, over the weekend, the best approach for the defense, including whether, “now that the door‘s open,” he might want to elicit the fact that Carr had been “punished and she spent almost a year in jail . . . .”
Defendant now contends that a “corrective instruction” would not have cured the harm caused by the question and, further, that even though the court sustained the objection, because the prosecutor nonetheless persisted in the line of questioning by asking Carr if she had gone through a trial regarding the events, the jury would have concluded that she had been convicted of the offenses. Defendant contends two aspects of the error were prejudicial—the improper impeachment of Carr, and the supposed inference that “if the mother was guilty of a crime, so was the son.”
We do not find it reasonably probable that a different outcome would have resulted had the prosecution not asked Carr about her convictions. (People v. Riggs, supra, 44 Cal.4th at p. 298.) Furthermore, the question did not infect the trial with such unfairness as to deny defendant due process. (Ibid.) The trial court had preinstructed the jury to disregard any questions to which the court sustained an objection and not to speculate as to the answer, and reinstructed it to the same effect prior to closing argument. Further, the jury was aware of the facts underlying the convictions—that Carr frequently played the radio loudly, causingMenzies to call the police, and that Carr was resisting the officer‘s attempt to arrest her for disturbing the peace. Carr‘s involvement in the events was central to the case. It is unlikely that evidence of Carr‘s convictions stemming from the same events was significant to the jury or would have caused it to reach a different conclusion as to defendant‘s guilt. Therefore, there was no prejudicial misconduct.
b. Asserted Mocking of Defense Counsel
Defendant contends “the prosecutor . . . repeatedly mocked defense counsel in front of the jury,” thereby undermining counsel‘s credibility and
Notes
- No matter what the evidence was, ALWAYS vote for the death penalty.
- No matter what the evidence was, ALWAYS vote for life without possibility of parole.
- I would consider all of the evidence and the jury instructions as provided by the court and impose the penalty I personally feel is appropriate.”