The People v. Mai

Aug. S089478. [No. 2013.] PEOPLE,

THE Plaintiff and Respondent, MAI,

HUNG THANH Defendant and Appellant.

Counsel Hersek, Defender, Michael State Public under Supreme J. appointment Court, Renard, Defender, Delaine Public for Defendant and C. State Deputy and Appellant. Harris, Gillette, General, Dane R. Chief Assistant

Kamala D. Attorney General, General, Schons, D. Holly W. Assistant Attorney Gary Attorney General, Denault, Wilkens Adrianne for Plaintiff Attorneys S. Deputy Respondent.

Opinion court, BAXTER, J. as Thanh Mai convicted Hung Defendant Code, (Pen. first murder of Don Burt charged, Joseph of the degree §§ circumstance, true, 189).1 allegation The court further found special intentional, knew or have and that defendant should killing duty. known the victim was a officer engaged performance peace statutory All unlabeled references are to the Penal Code. further 190.2, (§ (a)(7) (section 190.2(a)(7).) subd. A jury returned death 190.4, verdict. (§ The automatic motion for modification of verdict denied, (e)) subd. was and defendant was sentenced to death. This appeal Const., VI, Code, (Cal. (a); automatic. art. subd. Pen. (b).) subd. § § We will affirm the in judgment entirety. its

FACTS

A. Guilt and special circumstance evidence. As to the criminal of charge first and degree murder officer peace trial, circumstance special allegation, defendant waived his self- jury incrimination, and confrontation and rights, that the would stipulated determine those issues from preliminary That hearing transcript. transcript included the following evidence. 13, 1996,

About 8:30 on Bernice p.m. July Sarthou into pulled Pepe’s Mexican restaurant North Placentia Avenue just south of its intersection with Nutwood Avenue in Fullerton. The sun was still so she up, wearing was restaurant, her She left car sunglasses. her and entered the prescription but full, saw it so she returned to her and car into the line. got drive-through so, car, As she did she saw a its with behind a patrol lights flashing, stopped white A BMW Vietnamese male was young sitting driver’s seat BMW, and a uniformed officer was in the sitting car. When Sarthou patrol driver, forward, wheel, looked at the BMW’s he leaned his steering gripped a “hard gave her stare.” forward, As the line moved drive-through Sarthou lost of the two cars sight dinner, it, she had She seen. ordered her received into a pulled parking time, area to she By eat. had removed her on her sunglasses put regular there was glasses, though still some sun. From her parking place, view, front of the BMW distance 35 to She again 40 feet. saw the officer lean into the driver’s of the When window BMW. she looked up again, officer the BMW driver were outside that car. standing They seemed to be struggling possession Almost something. immediately, shots, she heard five and the officer fell. The BMW driver then walked toup so, the officer and shot him the head. After into the doing got away. officer’s car drove At the hearing, Sarthou preliminary positively identified defendant as the man who shot officer.

Around Police p.m. evening, Douglas Kennedy, 9:30 Fullerton detective, homicide was advised of the of a California Department shooting He Avenue in Fullerton. (CHP) at. 2950 Nutwood Patrol officer Highway No BMW 525i sedan. he found a white 1995 scene. There responded a casings, the BMW were shell Adjacent CHP vehicle was patrol present. blood, latter in- items.2 The of and various personal considerable amount attached, a handcuff with holster a “Sam Brown” belt cluded officer’s police holder, car case, a BMW key. a in an ammunition and a leather pager pouch, was defendant’s name identification with containing picture A wallet of the BMW. found on the front floorboard had also indicated he nearby. begun

Officer Burt’s citation book was This Phu Due a in the name of to write a ticket for driver’s license suspended There being the the cited. signed by but ticket had been Nguyen, person the on the near ground, shoe citation book. Also bloody was print BMW, form,” an officer fills out before of the was a “CHP 180 which rear was for the BMW. a vehicle. The information on the form impounding vehicle, in were discovered. of traveler’s checks bag At front paper car found abandoned in Later that Officer Burt’s was night, patrol at comer of South Loara Street and of Ford located driveway dealership lived close to the West Lincoln Avenue Anaheim. Defendant dealership, from the 1780 West Avenue. A witness saw an Asian male mn Lincoln Honda, of a evening, over the dealership jump bumper parked recovered in the direction of defendant’s residence. A shoe print proceed from Honda’s bumper. Burt There were wounds entry

Officer died from wounds. multiple gunshot ear, arm, left behind his left in his in the back his right thigh, behind upper ankle, buttocks, The arm left above his and in his left buttocks. just right his bone his to fracture. The fatal bullets wound caused the humeras arm right left ear and exited his through right eye, were one that entered behind his torso into through those that and traveled his entered his buttocks upward intestines, stomach, wound entry residue on lungs. Gunpowder ear fired at close very behind the victim’s indicated this bullet had been range. murder, “Alex” that at the time of Officer Burt’s testified

Chang Nguyen and defendant were in an criminal engaged ongoing enterprise Nguyen basis, defendant, on a large quanti- from whereby Nguyen weekly purchased 13, 1996, On evening July ties of traveler’s and checks. forged payroll Houston, Texas, lived. where Nguyen defendant telephoned Nguyen ” “ “ had down shit’ because he ‘just Defendant said he was in ‘deep [taken] Kennedy by the body had from the scene time Detective The victim’s been removed arrived. ” “ ” Patrolman,’

a California and he needed a Highway low.’ place ‘lay Dallas, The next night, defendant flew to where at the him Nguyen picked up airport. Houston,

During drive from Dallas to on the defendant recounted that 13, he over evening July pulled CHP officer because his lights off, were defendant though thought they were on. Defendant believed had warrant, an outstanding so he did not his own driver’s license present officer, and instead “used else’s name” himself. somebody when identifying That name back . . . license.” The officer removed suspended [a] “[came] car told from his defendant he At would have to tow it. defendant a point, had He “gut feeling something go wrong.” was going ticket, car, the officer him a suggested just give tow the and tell him where to “[f]ine,” it The officer pick up. but said he had to check the trunk responded and do an inventory. Defendant then knew “something going [was] because he had happen” “stuff” in the car.3 trunk,

Defendant told that the Nguyen officer then out a opened pulled it, inside, bag, looked he opened immediately advised defendant was him, under Defendant arrest. had two “strikes” already was afraid a against third would lead life conviction and wanted to leave no imprisonment, So he witnesses. drew and shot gun the officer three officer times. The fell, suffer, but was still Defendant did not “twitching.” want the officer to witnesses, wanted make sure he left no so he shot the more officer four times. them, Defendant then looked for his own car but keys, could find car, so he took the officer’s into the gun, got and drove patrol away. Defendant abandoned that vehicle “somewhere” and a “Mexican paid guy” $100 for a ride to a friend’s house. after

Shortly arriving Nguyen’s Houston defendant said he apartment, clothes, shoes, needed to for new he shop new because had particularly blood on and had gotten his shoes not been able to clean it all off. Nguyen a on noticed dark the sneakers defendant was spot wearing. Houston,

On the a way to mall after his shopping arrival defendant made call, friend, cell to a asked whether the called phone apparently person “ ” care had taken ‘that I left you.’ other said package person “ declared, ‘Well, and defendant then something, better because it’s you very ” “ After told had important.’ hanging up, he ‘some- Nguyen ” of,’ . . . I thing need to have friend important my get rid wanted to “ ” ‘make sure it’s been done right.’ 3 Nguyen he discussing forged said and defendant used the word when “stuff” checks Nguyen buying from defendant. Houston, and his Nguyen arrival in or three after defendant’s

Two days met with an (FBI), Investigation Federal Bureau of contacted the lawyer Defendant and location. defendant’s confession and told agent, agent and local law FBI agents Houston apartment was arrested Nguyen’s enforcement officers. shoes, arrested, of Kmart but wearing pair defendant was not

When A on which he had been sleeping. beneath the sofa tennis shoes was found At the on these shoes. dried blood was observed resembling substance as the shoes from photographs identified these hearing, Nguyen preliminary arrived from when he ones defendant and wanted wearing, replace, with the bloody on these shoes was consistent California. The sole pattern between these shoes book. A comparison shoe on Officer Burt’s citation print Honda yielded and tire shoe left on the of the bumper “positive print match.” Pham, him in she had assisted girlfriend,

Victoria defendant’s testified and 6:00 in the car between 5:00 p.m. white BMW. She saw him leasing her and told her The next day, telephoned 1996. p.m. July BMW, and was hers. to the “something happened” [had] at the hearing. No evidence was preliminary defense presented evidence. penalty phase B. Prosecution’s As a factor in A to determine the issue of penalty. was sworn jury about the factual the extensive evidence aggravation, prosecution presented murder, on surviving and about its impact circumstances Officer Burt’s 190.3, evidence of (§ (a).) aggravation victims. factor Also presented (Id., violence. the threat of involving other crimes violence or defendant had evidence that (b).) Finally, factor introduced prosecution (Id., (c).) factor sustained several convictions. prior felony crime. capital 1. Facts showing evidence on this was consistent with prosecution’s subject additional witnesses and

at the but included several hearing, preliminary details. certain additional testified that between 8:00 Lyman

Fullerton Reserve Police Officer Michael 13, 1996, he intersection driving through and 8:20 on p.m. July p.m. car, lights a CHP with its Avenues when he noticed of Nutwood and Placentia officer, writing who was BMW. The CHP behind white flashing, parked ticket, signal, meaning everything a “code 4” gave Lyman BMW driver a was all no assistance was needed. right Though Lyman first tentatively driver, identified another man as BMW’s he later identified positively defendant from a photo lineup. 13, 1996,

Around 8:30 on p.m. July Baldauf was Benjamin preparing enter and register at a hotel near intersection of Placentia and Nutwood. He noticed a CHP vehicle making traffic of a white Baldauf stop BMW. shadows, described the at lighting this time as “long on before dark.” As just hotel, Baldauf entered the the CHP officer be trunk appeared examining of the BMW. hotel, at the

After'registering Baldauf and his walked toward daughter restaurant on Placentia. The Pepe’s officer was still sorting through trunk, However, BMW’s nervous; but seemed relaxed. driver BMW appeared Baldauf, were . . eyes . “darting wildly.” This bothered so looked back toward the vehicles as he stopped on toward the proceeded BMW, restaurant. Baldauf saw the officer the driver’s door of the at approach which driver point came out shooting.” “[t]he [BMW] Baldauf counted least five shots in rapid succession. Thé driver BMW and the officer struggled officer, and fell the shooter together; take appeared from the something then stood and shot him in the up neck or head at close Baldauf range. remembered officer, some traveler’s seeing checks on the near the ground court, which “didn’t make sense.” In Baldauf identified defendant positively as the shooter. testified,

Bernice Sarthou consistently with her ac- preliminary hearing count, 13, 1996, as follows: Around p.m. 8:30 on she July into pulled Placentia, vehicle, restaurant Pepe’s she noticed CHP with its lights flashing, behind a white parked BMW. As she waited restaurant’s line, she at drive-through stared the absently BMW’s driver. He leaned look,” forward and gave her a “hard even she was though wearing sunglasses that would have the driver from prevented if she was at seeing looking him. food, After ordering and her she receiving where could see she parked front half of the BMW. When she looked out up, BMW driver was of his driver, car and the CHP officer was close near the driver’s door of the shots, BMW. Sarthou heard four rapid and the officer fell. The BMW driver started to away, walk but returned and shot the officer in the head. The view, later, shooter then ran out of but Sarthou’s moments she saw CHP car leaving. positively Sarthou identified defendant as the driver of the BMW and the shooter of Burt. Officer 13, 1996,

Around 8:15 on July Robert Excell p.m. traveling was south- bound on While a light Placentia. red at the intersection with stopped Nutwood, Nutwood, he heard He turned gunshots. onto looked multiple right left, Excell continued on. lights and saw a car with its overhead

to his police Nutwood, then freeway, State Route under the intending pass west on he saw a heAs freeway on-ramp. proceeded, turn left to enter the southbound CHP car’s lane. The vehicle in the adjacent car behind a CHP come up veered it. Defendant driving flashing, overhead were lights lane, of the in that lane out as if to move a vehicle the far honked right into to turn onto the in front of Excell left across two lanes way, then swerved freeway onto the Excell the CHP vehicle followed freeway on-ramp. traffic, miles of 80 it through speeds southward as wove pursued hour, exit. lost of it near the Lincoln Avenue sight until he per Wilcox, 13, 1996, Paul a CHP dispatcher, Around 8:30 on July p.m. of a driver’s Burt status inquiry concerning received an from Officer D. bom The Nguyen, May dispatcher license issued Pao or Pho 1972. in that currently whereupon advised that license name was suspended, station at Officer Burt a tow tmck to Chevron respond requested and Placentia. Nutwood shell collected at the crime scene included seven nine-millimeter

Evidence BMW, citation a seat of the a live nine-millimeter round in front casings, it; form; a 180” vehicle book with a shoe on a “CHP bloody print property checks; a printer cartridges, filled with counterfeit traveler’s bag printer, paper tmnk; a found in the BMW’s bulk bond high-quality paper quantities identification; wallet and BMW car key. Fingerprints defendant’s containing as defendant’s. bag on the and on were identified piece paper Evidence, hearing, similar to that at the preliminary presented Lincoln Avenue Officer Burt’s vehicle abandoned near defendant’s was found residence; young on saw a July that around 10:00 witness p.m. area where of a Honda as he ran from the Asian male over the hop bumper abandoned; that a shoe was lifted from partial car was print Honda’s bumper. Texas, He couch. identified sitting

When arrested in defendant was to the were turned over near the couch as his. These shoes white tennis shoes were consistent with Police soles Fullerton Department. patterns book, and were a positive shoe on Officer Burt’s citation bloody print on the on Honda of blood bumper. Testing match with shoe print in a tissue taken from revealed DNA markers identical to those sample shoes these common to both Officer Burt. The chance that three markers particular in six found each of random individuals was one would be in two samples billion.

A United States Treasury Department agent testified that the 99 good- counterfeit traveler’s checks found quality at the crime bag scene paper $10,000. were worth about These checks to a belonged series of larger $240,000. already passed counterfeit checks that had caused losses of over and of the checks in the quantity quality and the bag, paraphernalia— such as the bond paper, cartridges—found in the BMW’s printer, printer trunk, indicated that someone was mass producing the counterfeit instru- ments, or them selling in bulk.

Officer Burt suffered gunshot wounds inflicted seven bullets. There were no defensive wounds or of a signs He died struggle. gunshot of multiple brain, injuries to his and visceral lungs, organs.

2. Victimimpact. wife, mother, Officer Burt’s and father testified about the effect devastating victim, of his death on his immediate and extended family. The who was 25 died, old when he had years dreamed a CHP being officer like his father. death, father, As a result of Officer Burt’s sergeant, CHP retired wife, one year later. Officer approximately Burt’s described his “best friend,” was seven months with their pregnant first child at the time of his death. members Family described the victim as spontaneous, intelligent, sentimental, and fun loving. The loss was hard for his niece and especially two because their father had nephews, been killed in an accident auto about nine months earlier.

3. Other violent crimes. The prosecution presented following evidence of other crimes by defendant violence or the threat involving of violence:

Mark Baker lived in a next second-story to the unit apartment with shared his girlfriend, Victoria Pham. In the early morning September 11, 1995, Baker heard scuffling Baker went apartment. defendant’s out onto the common balcony walkway, where defendant was with struggling Pham, her apparently trying push railing. over Defendant hit Pham fist, the back of the head or neck with his she fell her knees. When “ ” said, off, motherfucker,’ Baker ‘Knock it you defendant went back into his returned with Defendant apartment machinegun. loaded the front gun Baker, bolt, back the pulled at Baker’s head. pointed weapon “ ” “ ‘ said, Defendant T think me you called a motherfucker’ me [1]et ” real, hear asked if you say again.’ Baker and defendant gun “ ” ‘You responded, want to find out?’ The confrontation ended when the of the manager yelled back inside their apartment complex everyone go unit, Defendant reentered his and Baker went sure apartments. to make called the manager police. Bachand, 17, 1996, a Honda automobile Robert of June evening

On the vehicle test man on a salesman, Asian defendant and another accompanied ” “ drive, do this’ to his companion. defendant said drive. During ‘[l]et’s on semi-automatic pistol a nine-millimeter Ruger then Defendant pulled his Bachand gave up PIN number. demanded his wallet and Bachand and and forced lie wallet, He handcuffed his ATM card. was which contained to take the intended he and his companion Defendant said on the backseat. he did not know car, told them when Bachand and both men seemed upset vehicle). At some point, a stolen (a tracking it had means of Lojack whether Bachand, told a voice on the phone defendant handed cell phone ” “ gave kill Bachand you.’ or will guys they ‘not to fuck with my Bachand warned Bachand Defendant PIN number to the person phone. “ ” “ Asian, with’ you’re messing don’t know who ‘[y]ou ‘[w]e’re ” Mafia.’ Vietnamese Westminster, or where in Garden Grove men took Bachand to house The car, in. Asian man got out of the and another got defendant’s companion further wielding. During he had been gun Defendant handed this man travel, A demanded verification rang again. the cell voice on phone phone complaining Bachand had previously provided, of the PIN number “ ” Bachand out of account. get any money were unable to ‘they’ no After whether debating because the account had money. this was explained him, that evening, let him Later go. the men to kill Bachand release the one in which he had been a crashed Honda as Bachand identified abducted. killed, 13, 1996, Aryan Burt was Officer morning July day

On freeway. the State Route 91 in the fast lane of Neghat driving westbound so following closely, too began A white BMW came behind him and up BMW, avoid contact with vehicle. moved to lane No. Neghat hour, close to another vehicle very 70 miles then traveling around per pulled down, lane, reached it. The BMW driver in the fast slightly bumping out the hand, and waved the gun to his left gun right transferred from his lanes, changed whereupon The car in front quickly driver’s window. watching That while onward. gun night, driver pulled sped BMW murder, at the the white BMW recognized Neghat news of Officer Burt’s July Neghat he had encountered. In as similar to the one crime scene lineup weapon-brandishing defendant from a photo identified positively observed, identifica- he unable to make though positive driver had trial. tion at April

4. Prior convictions. felony that defendant had suffered prior evidence The prosecution presented were charges while misdemeanor escape, convictions felony 4532, 1992, (§ (a)); (2) subd. in pending for possession of an assault weapon 12280, (former 30605, (b); subd. see (a)) now § subd. and of a § possession in firearm violation of an express probation (former condition § (d)(1); see (a)); subd. now and subd. for assault with a § (§ deadly (a)(1)) subd. weapon of an burglary dwelling inhabited 459, 460, (§§ (a)). subd. penalty case.

C. Defense Defendant himself was the only defense witness. He testified in narrative start, form follows: “Thank I I you. Before would did like to I say [*][] behalf, for my lawyers not to request say anything on I my appreciate Jurors, that. I am not here to ask or for beg Nor am your [][] sympathy pity. I here to ask or of beg you, jurors, life. spare my Personally I [][] believe in an for an I eye eye. believe two for every you If were eyes eye. fellows, to take down one of I my would do that is everything necessary even, trial, take down at least two of yours, to be just In this penalty phase [f] Jacobs, Mr. is prosecutor, the maximum which we all seeking penalty, know is death. I feel that the maximum personally suited properly for this occasion. I also feel that it is the for do. right thing you, jurors, to [j[] fair, Being in situation I my now feel it is there’s a only price pay life, Because, everything now that I am here it’s time I after pay price. ordeal, all this entire it is just That’s I part game, all have to say, [f] your defendant, honor.” The did not cross-examine and the defense no other evidence. No rebuttal case presented was offered.

DISCUSSION Counsel-related, interest; claims: A. assistance. conflict ineffective that, Defendant asserts at both the guilt penalty stages, his counsel interest, labored under a and actual conflict of and that counsel’s potential conflict, affected performance adversely by the in violation of his state and federal constitutional rights conflict-free Defendant representation. further he did insists enter validly voluntary, knowing, intelligent event, asserts, waiver In any conflict. the record demon- that, strates in certain counsel him respects, provided with constitutionally ineffective No basis assistance. for reversal appears.

1. Factual interest claim. background—conflict of claim, The factual of defendant’s background conflict of interest unfortu- nately is as follows: Defendant was the 1996 complex, represented Dennis retained preliminary hearing by Attorney O’Connell. In subsequent Peters, were George appointed another lawyer, O’Connell and proceedings, an hired originally Watkins was investigator defendant. Daniel represent counsel, case. O’Connell, on defendant’s both to work later retained 27, 1998, awaiting Orange County jail was in the On while defendant July he, Pham, Watkins, case, and another member” “gang in Victoria trial thereafter, was filed an indictment federal authorities. Soon were arrested by California the Central District of in the United States District Court for (U.S. defendant, Pham, Ha, (C.D.Cal., and v. Mai Ngoc Watkins. against Huy 6, 1998.) 1 accused the LHM) filed Count Aug. No. SA CR 98-82 indictment travel to commit mail and/or interstate indicted conspiring by persons hire, The Code section 1958. murder for in violation of title 18 United States a principal prosecution murder “Alex” target Chang Nguyen, alleged killed whom defendant wanted to the state murder capital charges, witness as with law enforcement.4 because of cooperation that, in asserted furtherance of other federal indictment Among things, Houston, and his Texas to locate Nguyen Watkins “traveled to conspiracy, and with . . . PHAM and that Watkins family,” “provided [defendant] and . . could be located killed.” information about . so Nguyen Nguyen defend- The federal indictment also that after the authorities alleged provided out, asked the murder had been carried ant with fake evidence for had been filed in Houston Watkins to see if missing persons report law enforce- check arouse Nguyen, any might but Watkins warned such indictment, events took place ment to the federal these According suspicions. March, in of 1998. April, May filed, 31, 1998, and in anticipa- the federal indictment was

On before July Watkins, for Attorney of an federal bail and counsel hearing tion upcoming counsel, Waltz, federal faxed become Watkins’s James who would appointed memo). (the Waltz memorandum to the federal office prosecutor’s Watkins was against “phony,” Waltz memo claimed federal case O’Connell, counsel Waltz to call Peters and defendant’s asserted that intended case, According to in this as “cornerstone” witnesses in Watkins’s defense. memo, Waikins, and on while as Peters’s acting investigator, Waltz behalf, told Peters’s “interacted with [Defendant], [Watkins] [defendant]. Texas, all reported about kill [Nguyen] plan [defendant’s] [Watkins] Peters, [O’Connell,] directions.” . . and Rob and took their Harley, that to . from Peters and O’Connell “should be suggested disqualified The memo also preliminary hearing against defendant at his Chang Nguyen This the same who testified defendant, Orange in the explained that then housed in the instant case. The federal indictment exchange money. willing Nguyen County jail, person he believed was murder “hired However, . officer . . .” was an undercover person hired to commit murder [defendant] court, further in state as their representing testimony Federal [defendant] be court will adverse to ... all from they exculpate [defendant] [Watkins] any The memo wrongdoing.” claimed that “all activities were [Watkins’s] Peters, [O’Connell], blessed Harley Just ask them. did [Watkins] to aid nothing which was known plan well his defense among [defendant’s] team.” 7, 1998, filed,

On August day after federal indictment was prosecution defense counsel in this case addressed the court about trial of the federal implications matter. Peters confirmed that besides defend- ant, “this involves a defense who is investigator charged also in the federal case,” and was therefore “possible myself and Mr. O’Connell could be case, witnesses in that called the other defendant.” Peters indicated that he However, and O’Connell did not “see actual any conflicts in an point.” caution, abundance of defense counsel of an requested appointment outside to advise attorney defendant about conflicts. possible The prosecutor counsel, joined in the request. Ultimately, agreement by all the court upon appointed Attorney Gary Pohlson render review materials and applicable an on the conflict issue. opinion 21, 1998,

On August Pohlson reported his activities and conclusions in court, with defendant open and all counsel Pohlson present. acknowledged that Peters and O’Connell would be likely called as witnesses in the federal case, and that a conflict potential arises whenever counsel are required However, in a matter testify client. involving Pohlson indicated that after case, memo, reviewing materials related to the federal including Waltz O’Connell, Peters, with speaking and the he federal foresaw prosecutor, no that or possibility anything Peters O’Connell would in their say federal would be testimony harmful to defendant or either federal the state case.

Pohlson further stated he had (1) to defendant explained of dangers counsel, (2) conflicted that defendant could upon advisement waive proper exist, did any waived, conflict that if that the conflict was validly defendant could not on it later as a basis rely attacking state judgment. Pohlson, According defendant indicated he did not believe conflict existed and confirmed that he wished to retain Peters and as O’Connell his state counsel. Evans,

The Orange District prosecutor, County Deputy Attorney agreed could foresee no actual conflict. In particular, that prosecutor represented he was of information in the federal largely ignorant gathered investigation, that, to, in the instant “I don’t intend and I not proceeding, will use evidence, that of anything gathered in terms information or and we will use it even in we won’t gathered, what was anything not derive from there was their confirmed views and O’Connell derivative sense.”5 Peters the federal and conflict, knew about on they currently no actual based what case, I “I believe in the federal iterated that if he did testify state cases. Peters that would harm nothing say would have [defendant].” on the conflict in an extended colloquy court then defendant engaged any wished to waive confirmed that defendant issue. The court preliminarily The court counsel. Peters and O’Connell conflict of interest retain that, “there an appearance information recited based presented, [was] conflict, conflict,” that the it was no actual there of a potential appeared existed, that, but actual conflict determine whether an finally court could did, defense if such a would “not render likely representation conflict in and of itself.” counsel ineffective conflict, of that

The court advised defendant appearance “[b]ecause conflict, conflict,” not be able to furnish or his lawyers might potential trial if and he not have fair might represented effective representation, that, Further, “should you counsel. the court admonished these counsel, are convicted being greater, have ineffective chances your counsel, an free are also you waiving when waive to conflict you your right that he understood. on that conflict.” Defendant confirmed based appeal Pohlson, the given who had him Defendant also he had with agreed spoken same advisements. your court asked defendant been advised of “[h]aving

The then whether conflict, understood to be free of right represented by attorneys having conflicts, with attorneys the of disadvantage dangers being represented by who have by attorneys do the to be give right represented you up specifically Defendant agreed no of Defendant “Yes.” conflict interest?” responded, waiver, and the court no had been made to secure the threats or promises Finally, in defendant’s decision. confirmed all counsel concurred of, the understanding defendant’s prosecutor’s and obtained adopted, in a slight representations in made March This assertion stands tension with addressing be relaxation of defendant’s hearing whether there should some federal court he stringent Angeles prepared in Los detention center while confinement conditions federal others, state hearing, among were defendant’s penalty for his trial in this case. Present Jacobs, counsel, Peters, Attorney taken Orange County who had trial Assistant District be Among the whether defendant should prosecution over the state from Evans. issues was review, cell, 7,000 Discussing discovery the federal case. pages to his some of from allowed in defense, and Jacobs penalty defendant’s both Peters relevance of these materials to that, evidence from federal prosecution while the was bound not introduce indicated cross-examination, case-in-chief, in investigation its some such evidence could come on in Ultimately, any might present. no evidence from mitigating as rebuttal evidence defendant at defendant’s trial. presented the federal case was further statement that defendant could withdraw waiver at future time any if he discerned that a conflict of interest was adversely affecting quality his counsel’s representation.

At a in hearing state court December progress Peters Attorney that he reported was involved in ongoing negotiations with the United States Attorney’s Office defendant’s behalf with to the federal indict- respect ment. Peters that a term under reported negotiations discussion those that defendant would agree to in the plead guilty instant case. Peters that, indictment, immediately explained filing of the federal he had upon defendant, visited who made an that he “felt “impassioned plea” extremely responsible” drawing Pham into the to murder plot and “wanted Nguyen, situation, to do anything he could to rectify with her.” particularly Peters that defendant reported “gave me directions. And since that time I specific directions, have been on those I working because believe it right thing to do.” 9, 1999,

On March pled guilty federal court to all counts of indictment, the federal to an reached pursuant agreement previously with the federal prosecutor.6 agreement included defendant’s that he promise would also in the plead guilty instant to the murder of Officer proceeding Burt, and would admit the circumstance special allegation that intention- killed ally officer in the peace engaged duty, to a performance subject trial determine the It also appropriate penalty. provided for continued severe confinement imposition very conditions for the duration of defend- incarceration, ant’s federal and included defendant’s waiver of the right to serve his entire federal term before state death any sentence was carried out. consideration for defendant’s the federal plea, prosecutor promised

.As recommend, defendant, with respect certain reduc- sentencing guideline tions, defendant met conditions. provided The federal specified prosecutor also to promised “due consideration to the give role” that Pham mitigating in the murder played Nguyen “and to recommend a conspiracy, accordingly role,” sentence for Pham based on that lesser under the federal sentencing guidelines. only (count one), conspiracy charge charges These counts included not the murder but of using the substantive of the or offense mail interstate travel with the intent that for murder hire (count two; 1958), aided, abetted,

be charge committed 18 U.S.C. and a that defendant § counseled, commanded, induced, codefendant, Ha, and procured by the commission his federal three; knowingly unlawfully (count of the of possessing gun offense a machine 18 U.S.C. 2(a), 922(o)(l)). stipulated January The three in supporting §§ facts count were that silencer, arranged defendant the of gun for sale a MAC-11 machine which were delivered later, by stipulation days to the undercover officer Ha. The that weapon recites two the during firing, causing test range malfunctioned head wound to fatal the officer. of the factual basis the was recitation of

Attached to federal agreement the recitation could that facts forth in set parties stipulated plea. of the in a The redacted version reasonable doubt trial. beyond be proved stated, other things, among included in instant record recitation of intended defendant a Watkins) photo #4” (clearly gave “codefendant had from #4” obtained which “codefendant photo murder victim Nguyen, case. The in this the state discovery materials provided prosecutor against “codefendant #4” warned recitation further stated that for a checking missing persons to death Nguyen’s confirm attempting when phone and instead offered to make some “inquiries” by pay report, or recitation that Peters suggested in Houston. No factual portion activities, in any in or those of O’Connell had role “codefendant #4’s” any case. other defendant in the federal to a reduced agreement,

In June Watkins to guilty, pled pursuant using after the to the offense of the mail with accessory federal fact charge 3). The (18 agreement intent that a murder for hire be committed U.S.C. § that, substantive recited defendant had committed knowing underlying offense, to hinder or Watkins “assisted with the intent prevent [defendant] trial, for Nothing that crime. apprehension, punishment” [defendant’s] this recitation Peters or O’Connell. implicated 23, 1999, case,

On in the instant the court addressed defendant’s July to waive his trial with to circumstance request rights respect guilt special to determine those issues on findings, and trial could stipulate the basis of the At the the court preliminary hearing transcript. hearing, plea plea agreement took note of condition in defendant’s federal particular sought that he instant case. the court plead guilty Accordingly, voluntary, of trial were rights truly knowing, assure itself his waivers threats, duress, coercion, intelligent, and not the result of promises. that defendant’s motive for federal entering Peters Attorney explained benefit, him no agreement, virtually personal though plea provided himself, obtain, he could secure Pham. advantage sacrifice any any hand, and the state and federal On other Peters prosecutors— represented, that defendant was under no practical both whom were present—agreed, of the federal enter “slow obligation, by agreement, plea” virtue plea and Pham state case. All federal over defendant sentencing jurisdiction ended, the federal agreement had and all terms of the requiring been Pham’s had satis- concerning prison placement make recommendations hold defendant to sought the nor the federal fied. Neither state prosecutor he to Officer Burt’s guilty the federal that agreement’s plead requirement murder.

Rather, Peters, trial indicated citing lawyer, that experience capital “I an . . analysis made and . based on the of evidence quality against evidence, and the some nature of of that ... I have always [defendant] realized that we had if and wanted we have anything say credibility, to do the it at That’s I am to do As penalty phase. why willing this.” Peters the explained, prosecutor “is this evidence on the going anyways put [at it, some of and penalty phase], will be lesser than he would have hopefully need, I otherwise. And if I am to have of in the going any hope looking jurors make, and eye making I want to I that have have the pitches highest them, of degree with and I have credibility can that out credibility by pointing that has done the right [by not thing insisting guilt [defendant] trial].” Indeed, clear, Peters made “may defendant “is not for and begging anything,” not want to . . even . evidence he hasn’t made present[] penalty phase, that decision and that’s to him.” yet, up clear,

In to a from the response that the record be made request Peters obtained defendant’s that had confirmation he to defendant explained the “tactical and reasons” strategic for submitting guilt special issues, advice, circumstance that defendant did not disagree with this Pham, defendant could do more to or nothing hurt and that he help was to waive his trial The required rights. court accepted stipulation.

However, court revisited issue on Counsel July reported 1999. defendant was disturbed cited articles newspaper apparently tactical reasons counsel had given previous week for to the agreeing “slow plea” doing “right in order procedure—i.e., thing” to preserve at a personal credibility penalty trial—as defendant’s reasons for stipulating to submission on the preliminary hearing Allowed to make transcript. behalf, statement on his own he said was “not this so-called doing plea” face or for hopes “sav[ing] retaining] future credibility jurors,” and was not or “asking for or from future mercy pity but sympathy jurors,” was acting “my personal own reasons.” Defendant indicated that “[what- have, other, ever my reasons lawyers might strategic they have discussed me,” with he assumed counsel were “obligated follow through that,” concerned, with but as far as was results from emerge “[w]hatever my so be it.” penalty phase my sentencing, were,

Defendant declined to indicate what his reasons” but he “personal insisted did not include they gaining for himself or for hope anything Victoria Pham. He confirmed he again freely voluntarily. acting indicated it satisfied that of a defendant’s waiver thereupon guilt circumstance trial was special appropriate. record,

On basis this factual defendant now claims his trial counsel faced a conflict of interest from about potential arising concerns their

1009 case, and in the murder Nguyen conspiracy involvement personal insists, an conflict, into defendant ripened This itself. potential conspiracy fact, because, affected counsel’s adversely as matter of actual one case, refrain from them to influencing providing in the instant performance trial. at all of state capital defense vigorous phases competent Moreover, maintains, of conflict was any waiver defendant purported invalid, was not of sufficiently the record indicates he apprised because zealous and to him give bear on counsel’s pressures might ability He further asserts that of his counsel’s performance undivided loyalty. aspects we will any deficient of conflict. As regardless explain, were professionally we no in these find merit contentions.

2. law. Applicable criminal rights A defendant’s federal and state constitutional Amend.; Const., I, Const., (U.S. 15) include the right counsel 6th Cal. art. § a conviction on challenging grounds assistance. When legal effective assistance, the counsel’s ineffective defendant must demonstrate inadequacy. burden, To must first counsel’s satisfy performance show deficient, reasonableness in that it fell below an standard of objective Second, must show under norms. the defendant prevailing professional that, i.e., a reasonable but counsel’s resulting prejudice, probability have been deficient the outcome of the would performance, proceeding claim, a different. When an ineffective assistance examining reviewing decisions, and there is a defers to counsel’s reasonable tactical presumption acted assistance. It range counsel within wide of reasonable professional difficult an claim of ineffective assis appellate particularly prevail be tance. On direct a conviction will reversed for ineffective assis appeal, if counsel had no rational only (1) tance the record discloses affirmatively omission, (2) tactical for the act or counsel was asked for purpose challenged one, (3) there could be no reason failed simply provide are other claims of ineffective assistance more satisfactory All explanation. v. People resolved a habeas Vines proceeding. (E.g., appropriately corpus 830, 830, (Vines); 251 (2011) 51 Cal.4th 875-876 P.3d Cal.Rptr.3d 943] [124 264, 437, (1997) v. Tello 266-267 Cal.Rptr.2d People [62 Mendoza 1134].) P.2d 933 case to counsel in a criminal right federal state constitutional may free of conflicts of interest that

also includes the right representation efforts to the client and counsel’s attorney’s loyalty impair compromise (1942) 315 U.S. on the client’s behalf. Glasser v. United States (E.g., 457]; Cal.4th 45 People 69-70 L.Ed. S.Ct. Doolin [86 For and federal (Doolin).) P.3d both state Cal.Rptr.3d [87 11] conflicted is one claim representation variety claim purposes, Hence, counsel ineffective assistance. obtain provided reversal of a crimi verdict, nal the defendant must that (1) demonstrate counsel labored under an actual conflict of interest that affected counsel’s adversely performance, (2) conflict, arising absent counsel’s deficiencies from the it is reasonably (Mickens v. the result of the probable would have been different. proceeding Taylor 162, (2002) 291, 535 U.S. 166 L.Ed.2d 122 S.Ct. [152 1237] Doolin, (Mickens); supra, 417-418, see Strickland v. Washington 421; pp. 668, 687, 674, (1984) 466 U.S. 2052].) L.Ed.2d 104 S.Ct. 694 [80 When addressing an that a claim conflict of interest appellate adversely “ affected performance, counsel’s is reviewing court ‘bound the record. by But of where conflict interest causes an not to do attorney something, record an may reflect such We omission. must therefore examine the (i) record to determine whether or arguments actions omitted would likely have interest, been made counsel who did (ii) not have a conflict of (other whether there have may been tactical reason than asserted v. Cox (People interest) conflict of have caused might any such omission.’ 916, (2003) 272, 30 277] . . . .)” Cal.4th 948-949 70 P.3d Cal.Rptr.2d [135 (Doolin, supra, 390, 418.) The defendant may waive a voluntarily, knowingly, intelligently of conflict interest. But the court must take to ensure that of steps any waiver If, a possible conflict meets those standards. after the court deter inquiry, mines that waiver is it necessary, (1) must itself that the satisfy defendant counsel, has discussed with his or her own an with outside if he attorney wishes, or she drawbacks of potential representation may counsel who interest; have a conflict of (2) has been advised conflicted dangers case; (3) his representation wishes to waive that voluntarily right. duties, Where the court fails to fulfill these reversal if the required deficient, can defendant establish that performance counsel’s that an actual conflict of interest was the reason and that it is deficiency, reasonably probable deficiency adversely affected outcome of v. (People 1, 843, (1995) Sanchez case. 12 47 Cal.4th P.2d 906 Cal.Rptr.2d [47 (Sanchez); Bonin People v. 808, (1989) 47 Cal.3d 837-838 1129] [254 People 460]; Mroczko 765 P.2d 35 Cal.Rptr. Cal.3d [197 Doolin, 835]; 417-418, P.2d see Cal.Rptr. Cal.4th 421.)

3. Waiver interest. of conflict of at the outset that defendant waived People urge validly any conflict of interest from his arising counsel’s connection to the federal case. We agree.

Here, and, the court conflict as the possible of interest cases perceived with addressed issue considerable care. The court require, appointed on the subject, and advise to investigate counsel independent defendant’s taking done so. Before counsel had confirmed independent conflicted representa- waiver, danger of the essential the court warned him their when i.e., tion, punches” induce counsel “pull that the conflict might the record agreed case. It was further in the instant him representing actually a conflict time if the waiver at any defendant could withdraw counsel’s affecting performance. and he it was materialized perceived of the considerations Hence, generally apprised it defendant was appears decision. influence his waiver should into the

Nonetheless, the court’s that because inquiry defendant complains received, conflict, purported he were inadequate, and the advisements that, asserts while He intelligent. knowing, voluntary, waiver was not be witnesses in the federal chance his counsel might warned about the him, he was matter, nothing inculpate would say and was assured they that counsel themselves had insinuations informed of the Waltz memo’s never and “bless- “directing]” violations by committed serious ethical and criminal insists murder Defendant in the Nguyen plot. Watkins’s involvement ing]” liability criminal that counsel’s exposure personal he should have been told him, in order motivate them to their when might punches” representing “pull hopes avoiding both federal and state prosecutors favor with curry Indeed, by defendant posits, accept- of their own derelictions. consequences would testify no chance his counsel assurances there ing appeared matter, have believed mistakenly the federal he may to him in unfavorably conflict, that there was no potential enter he could therefore safely and that his waiver. said,

However, attorney waiver of a possible we have consistently as ramifications all conceivable not invalid because simply conflict of interest is does or waiver conflict were not explained, potential explored v. (E.g., People record. discussed on the not extend to those matters only 360, 289]; Roldan P.3d 110 Cal.Rptr.3d 35 Cal.4th [27 P.2d People Carpenter (1997) 15 Cal.4th Cal.Rptr.2d [63 Sanchez, Indeed, no actual conflict 708]; 47-48.) where taken, be may impossible the waiver is simply materialized at the time has counsel’s have a effect on genuine that could to foresee future developments hand, zeal; that are merely sources of conflict on the other loyalty need not be addressed. and conjectural speculative the record for the basis in here. sole That is the situation presented counsel’s warned about his should have been that defendant proposition murder conspiracy in the Nguyen direct criminal involvement possible docu- memo, reviewed. But that counsel Pohlson which independent Waltz a theory. which to build such foundation upon an weak exceedingly ment is Defendant characterizes the Waltz memo as “allegations” by containing Watkins that his himself criminal assistance to defendant Nguyen murder “directed” and by “blessed” defendant’s Peters plot attorneys, assertions, O’Connell. On Waltz’s off-the-cuff contrary, apparently made to his actual as did lawyer, Watkins’s federal not prior appointment most, amount to direct At “allegations” Watkins. to have been by they appear informal, clumsy, lawyer’s to advocate on a preliminary attempts behalf, and client’s some kind potential apply of tactical perhaps leverage against Peters and O’Connell witnesses in Watkins’s case. potential Pohlson could conclude reasonably they exhibited no indicia of credibility sufficient to a genuine invoke concern about counsel’s involvement criminal in the against acts Watkins the federal charged by indictment.

Moreover, terms, its worded did ambiguously Waltz memo of, directed, Peters and claim O’Connell knew blessed explicitly any criminal Watkins. While the memo “inter- declared that Watkins activity defendant, acted” that with defendant told Watkins of to kill Nguyen, his plan counsel, and that all that” “reported Watkins to defendant’s memo also insisted that charges the federal Watkins were against “phony” “trumped that Watkins “did up,” nothing to aid that any plan,” [defendant’s] Peters and testimony by O’Connell in Watkins’s federal would “excul- case from It is pate any reasonable to assume Waltz wrongdoing.” [Watkins] believed Peters and O’Connell would did say; that Watkins truthfully, nothing orders, on their and that illegal any activities Watkins they “direct[ed]” “blessed” were legitimate. reasonable, memo, it

Finally, entirely review of the Waltz upon conclude entered at the time waiver was that source of principal it revealed conflict was the counsel would be called as potential possibility Indeed, witnesses in Watkins’s defense. reason the Waltz memo only its claim Peters and O’Connell should be from expressed disqualified in this case “their Federal court representing defendant testimony (Italics it be adverse insofar as Watkins. exculpated [would] [defendant]” added.) circumstances,

Under these neither counsel Pohlson nor the independent court was further about what conflicts reasonably obliged might speculate arise as a the federal into result of defendant’s murder investigation plot that, There indictment. was no advise resulting requirement aside from the chance Peters and O’Connell be called as witnesses on might behalf, own Watkins’s another source of conflict be their might potential waiver of criminal for his activities. defendant’s Accordingly, liability given. conflict of interest was valid when potential adverse 4. Claims conflict-related of ineffective representation. the merits. event, fail on his counsel against defendant’s any complaints

In conflict record any potential He unable to show on appellate Further, demonstrate that any the record fails to materialized. actually interest counsel, or that of interest resulted in adverse performance conflict rendered ineffective assistance. counsel otherwise Counsel outset, record that Defense no evidence on the At the there is case, or ever in the federal were called as witnesses Peters and O’Connell criminal into their own or federal investigation became focus of state any Indeed, the record Watkins. in the activities of their investigator, involvement above, to trial in never went such As noted Watkins any belies developments. him; to a he entered a negotiated plea the federal case in June against murder Chang reduced after the fact in charge accessory conspiracy made no in the agreement The brief factual recitation included Nguyen. plea 1999, defendant himself in March reference to Peters or O’Connell. Similarly, him. His entered a to the federal charges against plea negotiated plea his central role in attached an extensive factual recitation of agreement involvement Peters any murder but it included no mention of again, plot, and O’Connell. 23, 1999, entered his

These events occurred before when defendant July time, therefore, “slow to the in this case. charges By plea” capital actual, or even conflict counsel was not burdened by any potential, appears federal called as witnesses in the from the chance would be arising they or defendant. Watkins proceedings against of the if conflict remained because

But even we assume potential in the be criminally charged Peters and O’Connell still might possibility no adverse or ineffective perfor- murder the record discloses Nguyen plot, omissions by Defendant cites several actions or mance his counsel. by adverse, deficient, related, the record and conflict but counsel that he deems his claims. does not support “slow plea”

a. Federal plea agreement; strategy. First, counsel to engineer defendant conflict caused urges potential case, and which he additionally, in the federal by onerous plea agreement the murder and charge peace bound himself to guilty prejudicially, plead suggests case. But the record officer circumstance in this allegation special defendant, in state court that Peters explained otherwise. Without objection by obtain, at any acceded to the federal terms was the reason defendant sacrifice, codefendant, whatever benefit he could for his and federal girlfriend Victoria Pham. The in return government agreed, for defendant’s federal plea, Pham, to make certain recommendations and leniency it honored its promise. event,

In any defendant fails to demonstrate from the record that agreement resulted in his “slow here. the evidence is to the plea” Again, Before contrary. defendant to submit the allowing and circum- guilt special stance issues on the preliminary hearing instant trial court took transcript, note of the particular term of the federal “plead guilty” agreement about its The inquired significance. federal and state stressed prosecutors they did not deem defendant bound by his federal conceded promise, they there was nothing could do government that time if he breached it. by Peters the “slow explained was not influenced plea” federal agreement, decision, but was a tactical and strategic based on the premise evidence against overwhelming, there was little if any chance a would exonerate jury defendant of and that a charges, capital be penalty jury might better toward defendant if the knew he disposed jurors had “done the a trial on the right thing” by waiving issue of guilt.

The record confirms the of the evidence strength that defendant murdered a officer police routine traffic during order to arrest for a third stop escape strike offense. Counsel also knew a trial would presumably likely reveal defendant aas violent with a sociopath significant, gang-affiliated orchestrated, criminal even background, without the evidence that he from bars, behind to kill a plot prosecution witness in this case. Counsel principal thus faced a difficult particularly task in the case at defending both guilt and penalty phases. circumstances, few,

Under these where realistic lines of defense were tactically reasonable to in a strategically “slow acquiesce plea” issues, guilt circumstance special some hopes preserving credibility before a sympathy record does not show that penalty jury. a different would have strategy likely been uncon- adopted competent, Hence, flicted counsel. it fails to demonstrate either conflict-driven adverse Doolin, assistance, performance, (See ineffective on counsel’s part. 390, 424.)

45 Cal.4th Defendant insists counsel’s “slow was adverse and plea” strategy incompe- and, tent insofar as defendant failed to receive a return benefit particular, prosecutorial not to seek the death But the record promise contains penalty. no that defendant could inkling have such benefits. reasonably expected Common sense would not have suggests prosecution likely offered favorable terms in a case evidence that defendant presenting overwhelming

1015 avoid arrest prosecution murdered a officer in cold blood to peace that counsel’s affords no to conclude Again, ground other crimes. record from stemming failure to seek such benefits constituted adverse performance interest, deficient.7 a conflict of or was otherwise professionally to a “slow plea” Defendant also contends his counsel’s agreement was adverse and insofar as it him of “compelling” incompetent deprived that he trial the sole circumstance argument against allegation, special . . duties.” murdered a officer in the . . . . “engaged peace performance that murder of a (§ 190.2(a)(7).) This claim is on the rule peace premised the officer was officer in . . . duties” is committed when “engaged only the lethal act occurred. his or her at the time exercising authority lawfully 126, 636, 44 187 P.3d (2008) v. Cal.4th 673 (E.g., People Cal.Rptr.3d [80 Cruz 668, 1, 970]; (1997) v. 14 People Mayfield Cal.4th 791 Cal.Rptr.2d [60 1179, (1990) P.2d v. 51 Cal.3d 1217 (Mayfield); People 928 485] Gonzalez 729, 1159].) P.2d 800 Cal.Rptr. [275 observes, detention,

As defendant a traffic is including police stop, an unlawful “seizure” under the Fourth Amendment absent articu specific detained lable facts that manifest a is objectively person possibility 648, (1979) the law. Delaware v. Prouse 440 U.S. violating (E.g., 660, 295, 1391]; L.Ed.2d S.Ct. 45 Cal.4th People [59 Hernandez 668, 105, 806]; 196 P.3d Cal.Rptr.3d Mayfield, supra, [86 791.) Defendant asserts a could had been jury have found prosecution unable to reasonable doubt that Officer Burt prove beyond “lawfully” stopped 13, and detained him on July 1996. circumstances are as follows: Defendant’s murder of Officer pertinent

Burt the victim from occurred. At the prevented why stop explaining him witness testified defendant told preliminary hearing, Nguyen prosecution on, the officer him because his were not lights although stopped were on. As in effect in the traffic laws vehicles thought they required hour to turn on their from one-half hour after sunset until one-half lights Code, sunrise, (Veh. before or in other conditions. visibility poor §§ 38335.) The occurred in the 1996— early evening July stop time of sometime after 8:00 the record does not disclose the exact p.m.—but Bernice Sarthou sunset Fullerton on midsummer day, eyewitness might suggests cooperation providing Defendant counsel have offered defendant’s leniency. conspiracy Nguyen promise information about to murder in return for a However, particularly unlikely prosecutors given up right state would have their seems seek death for defendant’s actual murder of a CHP officer in return for defendant’s help involving plot a mere to kill a in the state prosecutors in case unsuccessful witness federal Hence, record, grounds appears case. so far as from the defendant’s counsel had reasonable avenue, competent, there no unconflicted counsel would pursue basis believe likely differently. have acted Thus, testified the sun had not when the occurred.8 set yet stop have there urges, might was reasonable doubt whether persuaded jury lawfulness, initio, the had established the the ab traffic prosecution stop led to Officer murder. eventually Burt’s However, even officer crucial to though circumstance was peace special defendant’s for the death to eligibility counsel were not penalty, compelled an of its It is pursue “illegal stop” strategy regardless chances success. that after noteworthy the learned reviewing hearing preliminary transcript, court, finder, trial as a fact acting found all elements of the implicitly special circumstance, element, the “lawful including reasonable duty” proven beyond doubt. Elsewhere in this we we consider opinion, uphold implicit finding; merits, defendant’s claim that there reject, was insufficient evidence from which a rational fact finder could find reasonable beyond doubt that Burt Officer his duties when he was lawfully performing killed.

Thus, conclude, trial counsel could experienced for several rationally reasons, that the overall risks of circumstance issue trying special trial, In the outweighed benefits. first counsel knew that in place, any jury would be to jury evidence defendant had exposed persuasive gunned down Officer Burt a routine traffic during order to avoid arrest stop circumstances, conviction for a third strike offense. Under these counsel could harbor a reasonable concern that would find an lay jurors “illegal stop” hand, argument would it out of and would hypertechnical cynical, reject residual over to their deliberations—the kind of carry hostility very danger counsel sought prevent.

Moreover, counsel had for concern that the grounds evidence at such a trial—and, in evidence on issue of “lawful particular, duty”—would be limited adduced at the necessarily preliminary hearing. mindful of its trial prosecution, duty prove every guilt special (as circumstance element reasonable doubt to its beyond opposed preliminary trial), to show sufficient evidence hearing duty merely to warrant a could be to enhance its effort to establish that Officer Burt expected acting when he lawfully was killed. circumstance issue on By submitting special defendant avoided additional preliminary hearing such transcript, proof, forced the trial court decide whether evidence preliminary hearing alone it that “lawful had been established persuaded duty” beyond reasonable doubt, and, found, in the event trial court so preserved right argue however, testified, stop p.m., Sarthou also that she observed the traffic about 8:30 when she Moreover, pulled driveway adjacent into the of an restaurant. an order entered June 13, 1996, judicial July we have taken notice that sunset occurred in Fullerton on at 8:04 p.m., approximately one-half earlier. hour

1017 does, (Bunnell was not sufficient. legally on as he that this evidence appeal, 592, 302, (1975) 604 531 P.2d Court 13 Cal.3d Superior Cal.Rptr. 1086] [119 on to on right argue appeal who submits cause transcript preserves [defendant evidence]; v. Martin People regarding sufficiency legal significance [same].)9 P.2d (1973) Cal.3d Cal.Rptr. 694-695 1161] [108 failed to weigh The record on does not disclose that counsel appeal issue, that of further litigating “illegal competent, possibility stop” that any unconflicted counsel would have such a or likely strategy, pursued influenced do so. conflict of interest his counsel’s decision not to actually demonstrated counsel’s conflict-related ad- defendant has not Accordingly, verse this performance respect. Penalty

b. phase strategy. counsel, Defendant the record includes “circumstantial evidence” that urges interest, influenced their conflict of with to by adversely respect performed evi- trial to by failing challenge aggravating penalty prosecution’s dence, to inform him about available by omitting fully mitigating potentially evidence, to his wishes to no evidence or by acceding mitigating present an insufficient effort to dissuade him from argument, by making taking Indeed, the stand to invite a death sentence. the record suggests, permits an inference that counsel his decision not to for his actually encouraged fight life. We disagree.

i. Failure to evidence. challenge aggravating interest, Defendant that his burdened a conflict of urges attorneys, by to his interests at the trial to conduct adversely by failing performed counsel, submitting prelimi Defendant asserts that while on the evidence adduced at the should, would, to the trial court nary hearing, likely argued unconflicted have if least duty” beyond that this evidence did not establish the “lawful element a reasonable doubt. But conclude from an that such competent, unconflicted counsel could otherwise. Aside assessment succeed, argument unlikely prosecution an to counsel could fear it would cause the to seek willing opportunity to adduce further evidence on this issue. Even if defendant was to hearing, preliminary prosecution submit his cause on the evidence adduced at the necessarily agree to a claim compelled procedure. People to to such a Had been alerted fact, that, showing preliminary hearing at the failed to the reasonable-doubt their meet element, any logic suggests guilt special standard on circumstance no reason of fairness or evidence, they insisting right whether before the present were foreclosed from further (But People v. Ernst jury, their case. cf. 446-447 [34 court or bolster may right jury Cal.Rptr.2d [prosecution 881 P.2d not exercise its trial over 298] text, guilty].) strategy by plea defendant’s As noted in the chosen counsel avoided hearing kept open possibility preliminary the trial court would find the evidence pitfall, so, and, preserved right failed to do defendant’s to raise an unpersuasive, if the court appeal. insufficient-evidence claim on witnesses, more than cross-examination of desultory prosecution by making evidence, facts, few to various objections failing stipulating claim that defendant dispute prosecution’s carjacked kidnapped Robert Bachand a vehicle test drive. during

However, we have made clear that matters as whether objec “[s]uch tions should be made and the manner are of cross-examination within counsel’s discretion and ineffective assistance of counsel.” rarely implicate 946, 654, (2002) v. McDermott 28 Cal.4th (People 993 Cal.Rptr.2d [123 297, 874]; (1998) 51 P.3d see v. Bolin 334 People Cal.Rptr.2d [75 412, 374].) P.2d 956 Defendant to no points exculpatory impeachment “ evidence that further examination would have elicited. cannot evaluate ‘We deficiencies in alleged counsel’s ” on defendant’s unsub representation solely (Bolin, stantiated 18 Cal.4th at speculation.’ v. p. quoting People 351], Cox 53 Cal.3d 662 P.2d fn. Cal.Rptr. 809 [280 omitted.) does such unsubstantiated that allow us to infer speculation Nor unconflicted counsel would have acted likely differently.

In defendant counsel suggests knew of to particular, grounds challenge and, unconflicted, Bachand evidence if would carjacking competent contention, have mounted likely such As for this challenge. support defendant to his own courtroom points during outburst testimony Bachand, men, an automobile salesman. When Bachand recounted that two taller, whom defendant was the him with a to test drive a approached request Prelude, shout, Honda defendant to “This is bullshit. interrupted fucking [(J[] the fuck What am I to of shit Honda? I in going carjack If were piece ass, the car I would have wasted it would your fucking have been stupid.” defendant, chance,” asserted, When Bachand said to “You had defendant your ass, I “You will on.”10 Defendant fucking something also to put points at the Peters’s statement on the automatic motion for Attorney hearing modification of the death verdict that he had tried to persuade prosecutor to not incident “because I knew from own present carjacking my [(i.e., do)] investigation good did not that.” [defendant] But record defendant cites is evidence that nothing passages undermines the incident. In prosecution’s proof carjacking response court, careful and the Bachand questioning by positively identified defendant the taller man who test drive and later requested him at The record abducting ground discloses no participated gunpoint. later, A few moments Bachand said that after he was handcuffed at gunpoint forced to backseat, carjacked cooperate handing lie down in the vehicle’s defendant warned him to “ ” ‘[y]ou you messing over his ATM card and PIN number because don’t know who are with’ “ ” Asian, point, again say, At interrupted Vietnamese Mafia.’ this ‘[w]e’re Mafia, stupid “Asian fuck.” existed, defend- testimony to discredit evidence

conclude that any evidence, counsel or that known of such have counsel knew or should ant’s Defendant’s and unconflicted. it if competent have likely produced would be rejected. claim must evidence. to pursue mitigating

ii. Failure counsel that, the record indicates in one urges respect, Defendant next the client potentially investigate present their duty failed in offer it in wishes not to to his acceding evidence before mitigating significant 2003) F.3d Cir. (9th Douglas (See, e.g., mitigation. Woodford his girl- to his counsel’s 1089-1090.) representations Defendant points after became more violent friend, Pham, behavior had said his Victoria counsel, result, the defense accident; according as a auto near-fatal tests, Thomas, recommended neuropsychological Dr. Veronica psychologist, scan, had whether defendant to determine an MRI or CAT and perhaps fail to counsel’s records billing Defendant notes that brain damage. sustained Thomas, health ever mental expert, other any qualified indicate that Dr. tests, were not they must thus assume performed. such and we conducted assume, conclude no basis to the record discloses But even if we so defendant of and to advise this line of inquiry, counsel’s failure to pursue them, deficient was performance before agreeing present results the extent the record sheds of interest. To their asserted conflict by influenced a different explanation. at all on the subject, suggests any light mid-1999, the actual commencement months before eight In over for brain trial, testing intended to pursue that they counsel represented penalty matter, so, subject approval and were to do as priority damage, preparing evi- However, circumstantial the record contains necessary funding. of the Thomas, team, became thereafter Dr. including dence that the defense and emotional anger defendant’s increasing an effort to deal with absorbed in confine- caused, of his federal conditions restrictive by instability part, resulting and instability, this anger There are indications ment. Thomas, the ultimate reason Dr. be cooperation defendant’s lack of may with never administered. such tests were why below, defendant, his following detail in A.4.c. discussed in greater part

As trial on these conviction, detention his held in pending federal federal conditions to the harsh confinement He was subject charges. state capital rule violations serious His agreement. subsequent dictated his federal by plea the federal restrictions imposed to even more severe while confined led and weeks In the months preceding and his federal jailors. district court isolation, surveillance, and in essential trial, constant he was under state kept defense team. for access to the except trial,

During through commencement period, counsel, Thomas, assisted Dr. worked to obtain a relaxation tirelessly conditions, these effects citing of defendant’s confinement psychological end, on defense efforts to for the trial. To counsel and prepare that, Dr. Thomas in various fora represented though defendant was not emotional toll of his incompetent, psychological confinement was his attitude and to the impairing willingness extent that cooperate, Dr. Thomas “unable to move forward” with her work for the defense and could not that work. complete

Thus, the record does not establish though for certain reason for tests done, brain were never it does not damage inferences defendant support seeks draw. It fails to demonstrate that counsel’s deficient performance, interest, from a conflict of was the reason failure arising any to administer tests, the desired or that tests would such have been administered but likely for counsel’s conflict and incompetence.

iii. Failure to evidence present mitigating

argument. Next, counsel, that influenced of urges by their conflict interest, deficiently to wish not to performed by acceding his avail present able evidence. Defendant that mitigating penalty concedes counsel does not act necessarily the by honoring client’s wishes not to incompetently present 991, 386, (1989) such evidence v. (People Lang 49 Cal.3d 1031 Cal.Rptr. [264 1132, (1992) 782 P.2d v. 1 Cal.4th (Lang); People see Howard 1185 627] [5 268, 1315]; 787, (1991) 824 P.2d v. 54 People Edwards Cal.3d Cal.Rptr.2d 811 696, 436]),11but that Cal.Rptr.2d 819 P.2d he asserts counsel need do not [1 Roldan, 646, [counsel, client, (see so 35 Cal.4th People 682 not has supra, Lang, explained proposition we As that counsel should be to defense forced “[t]he mitigating present objection soundly evidence the defendant’s been over has criticized out, point attorney’s duty loyalty commentators. commentators to As these an of [Citations.] always forego the attorney the client means the remember that decision whether ‘should to objectives legally non-legal ultimately available or methods because of factors is . . .’ require mitigating client . To defense counsel to evidence present over [Citation.] objection paramount attorney’s duty loyalty defendant’s would be inconsistent with an trust, and representation, existing the client would undermine essential for effective Moreover, attorney imposing between and client. could duty such cause some defendants would so right who otherwise not have done to exercise their Sixth Amendment of self- representation guilt phase before commencement of the in order to [citations] retain [citation] presentation penalty resulting significant over the at the phase, control of evidence loss of 991, (Lang, during legal guilt phase.” for these defendants Cal.3d protection because, 1030-1031.) simply No different apply appeal, standárds considerations should on Lang suggested, gloss interest” decision. As applies the defendant a “conflict of to counsel’s present mitigating counsel’s accession to the client’s considered desire to no evidence loyalty client, disloyalty. to the conflict-related demonstrates decisions]; People v. Welch trial over all but most fundamental

control [same]) and P.2d 728-729 Cal.Rptr.2d [85 754] decision. make a rational a client is unable to they should overrule suspect unstable, asserts, and Here, he counsel knew he was his psychologically irrational, result, confine- of his harsh among things, other sometimes ment conditions.

Moreover, him of decision deprived defendant asserts that counsel’s case, child he was the illegitimate substantial evidence mitigating including soldier, from was rescued of a Vietnamese “bar and a South Vietnamese girl” four, either at the and never had contact with age again war-tom Vietnam trial. until he his father at the time of the saw parent capital however, that theory does not defendant’s Again, record support decision, insistence, mitigating counsel’s at defendant’s own no present Nor it indicate evidence stemmed from a conflict interest. does penalty no case. On defendant was acting irrationally seeking mitigating present contrary, the record with indications counsel replete pursued and evidence the circumstances of defendant’s birth from escape about Vietnam, Indeed, ob- that evidence. counsel were prepared present bureaucratic, trial tained and surmounted delays, diplomatic, various difficulties, in a effort defendant’s father logistical bring successful uncle from rural Vietnam to on his behalf. testify hand, there consistently,

On other are indications that defendant defense, counsel’s of a rationally, presentation penalty opposed despite efforts to his mind. after change Ultimately, prosecu- April case, had there would tion rested its counsel advised evidence, but be discussing not be defense that counsel would any “probably” indicated that with defendant “over the next a half.” Counsel day available, “we do have and we it if there is a in change evidence could use advised mood.” The court obtained defendant’s that counsel had agreement evidence, to such and had they him were and able ready, willing, present his “recommended to that it be Defendant also confirmed you presented.” court, decision to offer such as advised that his not understanding, that if he such evidence result the death might penalty, precluded evidence, he not on lawyers appeal could blame his or otherwise complain about its omission. that, 19, 2000, time” “for some

On Peters advised the April Attorney defendant, it has “and he had been defenses with discussing possible penalty are valid not what he believes been his wish to defend himself for consistent reasons, morally he is and he is thinking moral and I believe that competent out,” such defendant threatened to “act for himself.” Peters indicated that had tables, as if acted to his by interrupting overturning counsel contrary circumstances, Peters desires. declared that under these consid- especially that available ering mitigation was too weak to make probably determination, in the difference he was deci- making “conscious sion” do as to defendant asked.

The court then another defendant extended about his engaged colloquy decisions to evidence or and to present mitigating testify argument, At the personally. court’s defendant indicated he understood prompting, again evidence, it, that counsel had were mitigating to wanted prepared present to do so. Defendant he confirmed did not wish to such counsel present that, evidence, evidence. court reminded defendant even if he offered no behalf, his if to allowed on his lawyers, speak could possibly “present different And arguments jurors be might you. favorable precluding from is another the death towards step penalty.” [counsel] Defendant confirmed he wished to counsel separately arguing from preclude the case. issues, his

Explaining these defendant insisted he “not position suicidal,” do,” but this was I need to “something something “important” that seemed “right” Defendant said he “not at this “necessary.” looking here is at it. way everyone else I feel I I can do looking [in] am competent, this, I and would not to appreciate my lawyer say anything.” whether,

Attorney Peters asked defendant as told two Peters had the court earlier, days defendant intended to “act out” if tried an counsel to present so, basis, argument. Defendant said would do albeit reluctantly. On this Peters indicated he was again a “conscious decision” to as making proceed Peters declared requested. he would rather have defendant “say than [piece] jury” display behavior to if counsel disruptive jurors tried to overrule him.

In his to the further testimony jury, defendant his attitudes. He explained behalf, told the he had asked his not to on his and he jurors lawyers speak their in that He “appreciate^]” cooperation regard. said his personal code, code demanded “two for that under such a eyes every eye”; maximum penalty was suited for this occasion” and was “the “properly right do”; jurors] that “there’s a for thing price pay everything [the life”; that, game,” it was time he “part paid price.

Thus, all record indications are that omission of evidence mitigating consistent, clear, was the result of defendant’s and cogent, articulately wish to evidence moral expressed forgo such for and ethical reasons. There is no to basis conclude that this decision stemmed from any conflict

1023 counsel, if uncon- or that counsel’s adversely performance interest affecting that flicted, essentially urges Defendant differently.12 have acted likely would court, counsel, ensure defendant received and the were to obliged not, (E.g., the case. Lang, but such is not whether he wanted one or defense E., 991, 1030-1031; Similar consider- see also pt. post.) Cal.3d supra, 49 and that conflict-free counsel would to defendant’s argument ations apply no argument that wish counsel present have overridden defendant’s should merit. behalf. claims lack contrary on his Defendant’s jury testimony. iv. Defendant’s claim that unconflicted competent, Nor is there merit to defendant’s should, could, objections would have raised valid likely counsel defendant, course, has the death A testimony defendant’s inviting penalty. even his counsel’s wishes. right give testimony, against absolute such 223, 705, 68 P.3d v. Nakahara 719 Cal.Rptr.2d (People [134 494, (Nakahara); (1993) 6 Cal.4th 534-535 People v. Webb [24 1190] 779, (1988) 45 (Webb); Cal.3d People 862 P.2d v. Cal.Rptr.2d 779] Guzman 467, (Guzman).) P.2d 961-963 Cal.Rptr. 917] [248 trial, after v. Lancaster People cites a case decided his long Defendant (Lancaster), for (2007) 41 Cal.4th 50 P.3d Cal.Rptr.3d [58 157] is irrelevant seeking that a a death sentence testimony defendant’s proposition Hence, thus be excluded. may mitigation penalty, properly conflict, asserts, of their his counsel as the result performed adversely, to raise relevance to his failing objection testimony. There, observed, however, that Lancaster itself decision inapposite.

As defendant, to invoke sought ostensibly offering testimony mitigation, his by comparing and racial own case beyond considerations political “ ” Abu-Jamal, that that of Mumia by suggesting ‘wrongfulQ conviction]’ are their labeled fight rights men who stand up African-American ” “ “ ” on black ‘[t]hey that ‘crazy,’ by asserting experiment people.’ (Lancaster, 101.) prosecu- The trial court sustained Cal.4th supra, error, We no holding to this found objections testimony. tor’s relevance factors strayed beyond pertinent the defendant’s impermissibly assertions willing Attorney Peters’s urges that the adverse conflict-related influence on Defendant circumstantially demonstrated the fact mitigating in this case is present ness not to evidence trial, that, against capital present mitigating evidence his client’s in at least one other Peters did Woodford, Douglas (See [finding, despite client’s 316 F.3d 1087-1090 wishes. history investigation, inadequate mental and social cooperation, lack of Peters conducted sociological though client did not wish noting presented Peters had evidence some case, unwilling so].) in the we are to draw of the full circumstances other him to do Unaware proposes. inference defendant strained i.e., in the circumstances of his own offense and character mitigation, his own (Id., 101-102, cited.) and at and cases background. pp. so, In the defendant’s reliance on Lancaster Webb’s state- doing rejected “

ment that ‘a defendant’s absolute to cannot right testify be foreclosed or ” (Lancaster, 101-102, censored based content.’ 41 Cal.4th supra, Webb, supra, 535.) 6 Cal.4th We indicated that statement quoting “[this] context; must be understood in it addressed Webb’s contention the trial that court should not have him allowed to in favor of a death testify sentence.” (Lancaster, supra, Lancaster thus made clear its 102.)13 did not p. holding undermine Webb’s that the defendant have premise does right proffer such even over testimony, his counsel’s objections. Defendant’s claim must be rejected.14 to stand trial.

c. Competence Defendant his conflict in urges counsel’s resulted their failure to ensure that he not he was when entered “slow he incompetent his when plea,” tried on the issue and when he to the penalty, “effectively stipulate[d]” death penalty by presenting no evidence and mitigating argument by taking the stand he agree deserved execution. He asserts that and his mental emotional condition and deteriorated before seriously during penalty incarceration, aas result of the “draconian” proceedings conditions his that obvious, his made this that behavior deterioration his expressly counsel realized his mental emotional with worsening state his interfering Nonetheless, observes, to assist his ability defense. assidu- counsel so, ously avoided he was did claiming They incompetent. posits, their because their concerns about involvement personal Nguyen in the murder motivated them to with favor ensur- conspiracy curry prosecutors by that ing defendant’s trial would not be he would postponed, be sentenced to death. promptly predictably

Defendant’s related argument regard this intertwined with his closely that, it, claim based on the information available the trial erred sua to declare doubt of his order a failing, sponte, competence, on that issue. hearing Neither contention has merit. quoted sentence was a statement relevance followed defendant’s “[t]he [the (Lancaster, 50, 102.) Webb]

testimony challenged.” was not But counsel imply may objection against remark did raise such an his own client’s defense voluntary testimony. reasons, no merit argument For similar we also find to defendant’s related that the trial sponte duty court had a prevent testimony. sua defendant’s background.

i. Factual From following facts: claims stem from the incompetence-related, arrest, had held in federal administra- defendant been moment his federal severe limitations on his communications privileges, tive with segregation, Federal 501.3 part under terms of 28 Code of Regulations Attorney the United States (hereafter 501.3). section This authorizes provision or detainee whose to such conditions for federal prisoner General specify bodily death or would a substantial risk of serious communications present included agreement to Defendant’s federal his injury plea stipulation persons. of his federal that such would continue for duration prison conditions term. conviction,

After his in federal custody, federal defendant was kept under 501.3 (MDC), Los Detention Center section Angeles Metropolitan conditions, the instant murder Control charges. disposition capital pending he was his resided the federal district court. While over with privileges orders, MDC, housed in the and in federal court violation prior was found of a and a number of forbidden in possession pen pencils, federal and written communications from defendant other state prisoners included against were Certain of these communications threats intercepted. and an the undercover officer who was instrumental in his federal conviction inmate in the Orange County jail. incidents, January

As result of these federal court in 2000 imposed on of confine- additional restrictions defendant’s severe conditions already materials; was writing ment. Defendant was from again prohibited possessing inmates essentially denied contact with other and most prison personnel; and, counsel to a limited forbidden communications with except telephone extent, his with an and was allowed no visitors elderly grandmother; except staff, counsel and aunt. As these restrictions an MDC implemented cell, radio, resulted in defendant’s in a sealed without placement single television, or material. Two surveillance general (nonlegal) reading computer, interior, the cell’s cell’s lights cameras constant watch on kept use cell toilet as day. remained on 24 hours a For fear defendant would toilet; communication, he was to flush the means of inmate not allowed this task. required guard summon perform fora, and with limited Defendant’s counsel labored in several repeatedly, efforts, success, to In these counsel obtain relief from these restrictions. isolation, had not become incompetent, insisted that while defendant stress, his emotional of his confinement were sensory causing deprivation deteriorate, thus with defense interfering preparation and mental condition to for the trial. 23, 1999,

As defendant entered early July day his “slow plea” circumstance, and the guilt special counsel advised court of defendant’s MDC, isolation and restrictions at the emotional “horrendous” alluding 30, 1999, effects July of these conditions. On counsel moved to continue date, 9, 1999, trial then scheduled to late August September reasons, early October 1999. other the written Among motion pointed effect, defendant’s severe confinement conditions as then that noting “[t]his intensive confinement and isolation has a negative on his mental very impact health,” with ability to his and results organize thoughts[,] “interfere^] [his] hostile emotion.” very 8, 1999,

On held October the court to what hearing determine issues trial, before required resolution commencement of the scheduled then penalty for October 18. the matters addressed Among on October 8 were counsel’s Vietnam, difficulties in defendant’s father uncle and transporting from measures, courtroom security including restraints possibility physical on defendant and for other the court- screening procedures persons entering discussion, room. After the court announced a tentative that it would decision i.e., else, not “wand” but would jurors, “wand” prospective everyone “any- band,” that doesn’t have a body before them to juror allowing enter.

At this defendant that if point, interrupted, insisting “you my wand people, are to wand you and that the court going everybody,” should not demonstrate side “prejudice[]” by my from their side and all that other shit.” “separat[ing] When the court repeated it intended to “wand” who came into everybody i.e., observers, said, it, defendant don’t gallery, “Fuck wand If anybody. me, have you say with so.” When the court that it had problem responded continued, court, no “I defendant have done what I need problem, to this this, this court to rush me into what kind of bullshit going is that? Fucking 18th, to be on the nothing is done if we are going say going any- ...” When the defendant it out thing judge “get told of your system,” retorted, defendant and will “Play fucking games games.” we At play fucking 18, 1999, on October after motion subsequent hearing granting defense trial, continue the the court warned defendant that further outbursts like the one on October 8 would in his from the result removal courtroom duration. 4, 2000,

On counsel informed the court of the increased federal February confinement restrictions indicated January. although Counsel imposed “tough” “strong,” there was concern about psychologically total on him of “this virtual isolation lack of stimulation.” impact 25, 2000, times

On the trial court several to obtain February attempted defendant’s time waiver so the trial could be continued March from time, to understand 3, Each defendant professed 2000. April ahead,” said “[g]o The court lawyers. he time to talk

and said needed However, counsel, Peters, was present. that defendant’s noting principal indicated he attorneys of his only Peters was one defendant insisted that defendant “is Peters During two.” the proceeding, explained “need[ed] the stress of his isolated because of morning,” likely very agitated with the condition “interferes confinement. Counsel asserted defendant’s basis, he is but am not saying to deal him a rational I with ability course, was, [(i.e., obligation.”15 I tell you, my if would incompetent)], an Code section 402 March the trial court held Evidence On their effect on penalty of confinement and on defendant’s conditions hearing heard from testimony the court things, trial other preparation. Among Thomas, to assist in Dr. the clinical retained defense psychologist penalty and to determining develop mitigating defendant’s competency help evidence. that, defendant, because a recent visit with Dr. Thomas indicated

Assessing Pham, of harsh of the sentencing his over the federal Victoria disappointment Pham, the to and other withdrawal of his communicate with privilege confinement, of current had unstable emotionally conditions he become Thomas, team. defendant was According and distrustful of defense to Dr. irrational,” of was “alternately enraged lability” kind his “emotional Dr. all the around.” Thomas way of defense “impairing process all, reality cautioned that defendant “was not out of touch with at certainly discuss,” that certainly not unable to but she with defense counsel agreed are emo- causing “some of this custodial situation aspects [defendant’s] , basis, . . tions . on a too to override his frequent judgment.” that defendant a violent socio- intelligent, Dr. Thomas acknowledged and a risk own threats and rule violations had security whose path, prompted that, Indeed, the current she with the in his agreed restrictions. frustration, had kill feelings wanting “articulated anger [of] witnesses, the lieutenant at . . . including] prosecutors, judges, people [and] Nonetheless, she continuation of holding facility.” opined to think “ability would cause defendant’s current confinement conditions diminish,” better,” and that she any ... that “it is not clearly going get “unable time” with her work for the defense. to move forward Peters in federal court defend- Attorney Later same day, represented “not but he’s that sort up against thing.” ant was incompetent, bumping pro forth in which trial The reference is to section which sets the circumstances competence. ceedings suspended pending must be determination of the defendant’s mental 29, 2000, that, At a on March pretrial hearing Attorney Peters noted though evidence, he was “we prepared put mitigating have for some penalty However, time talked about no evidence on.” putting Peters cau- tioned, defendant “needs to be a in situation where he can make rational decisions about this” and indicated defendant’s conditions of federal confine- indicated, ment were with that Peters interfering Accordingly, process. intended to seek relief in Ninth Circuit Court front federal Appeals district court’s harsh confinement orders! Peters declared that “if wanted I could games I declare him I play but don’t believe he something, is 1368, he in difficult situation.” just very 30, 2000,

On March counsel filed a promised, for writ of petition mandate and in stay the federal court. Thanh v.Mai United appeals (Hung Court, Cir., States District (9th Central District 0-70364).) No. of California The an petition sought both defendant’s easing confinement conditions and an order state trial until postponing his mental state capital penalty stabilized. asserted that improved petition while defendant was not incompetent, effects of his confinement had led to psychological “a breakdown the attorney client and to inability counsel’s “to relationship,” with effectively communicate The Ninth Circuit denied the petition [him].” on April 2000. 11, 2000,

On while selection of the April penalty jury instant case inwas filed progress, counsel for mandate and petition stay District, California of Court Fourth (Mai Division Three. Appeal, Superior Court, 11, 2000, G027090, den.) The a Apr. petn. writ petition sought the trial court to order directing defendant’s transfer from the MDC to the trial, Orange and County jail a restraint on further trial pending proceed to ings. According defendant’s federal petition, conditions of confinement unstable, were so restrictive that he “has become a increasing[ly] point where difficulty is his in the having great assisting Counsel defense of [he] that, his case.” The cited Dr. petition Thomas’s conclusions due to the confinement, circumstances of defendant’s federal “dehumanizing” “is that, becoming volatile” and “cannot think and extremely clearly,” as a Dr. Thomas could not her consequence, work. The complete penalty phase of Court denied the same Appeal petition day. 11, 2000, selection was on the of and

Jury completed afternoon a April jury was sworn. Prior to after the had adjournment, been dismissed for the jurors the court stated it had in day, reviewed the Ninth Circuit writ allegations confinement that defendant’s conditions had to be- proceeding caused him unstable, come such that his unable mentally were psychologist attorneys him trial. court said it wished “to note prepare observations [its] 3rd, for the record. The this April defendant has in courtroom on appeared selection, He has 6th, 10th, during jury the 11th [f] April April April read call He has by questionnaires followed roll attentively page page. He notes. has appeared lists. He has made reviewed prospective juror I note the lists and concerning questionnaires. with counsel consult both his counsel)] the exercise of [(defense in peremp- that he has Mr. Peters assisted an of nervous being He has not tory given appearance challenges, [f] collected during to be rather calm and On the he has contrary, appeared upset. four-day time frame.” that, Thomas, defendant was Dr. by Counsel as confirmed responded overreacting that he various experiencing symptoms, physiological difficulties, confinement his and that frustration produced smallest team. with the defense he “can’t be objective” dealing conditions meant which had alluded to an “outburst” that morning required Counsel also down.” delay until counsel could “calm [defendant] hand, I’d say reiterated that “if On other counsel [defendant] that, and I am not here to game, I am not that because that would be doing insisted, was that the harsh we are counsel play games.” saying,” “[A]ll Espe- confinement were “bound to an effect on somebody. conditions have cially death somebody facing penalty.” noted,

The next in chambers discus- morning, April counsel, out his cell at the sion with that defendant had refused to come do to Orange MDC ordered the court to so. Once transported unless observed, cell, in the the court holding court’s County placed “has so can hear courtroom.” been loud that almost you good yell “has reason Defense Counsel Peters indicated that defendant scream,” his was that but was now calm. Counsel said experience “[a]fter that he enough gets able to vocalize anger time point [defendant] defendant was upset back to Counsel indicated rationality.” some sort because, earlier, court clerk coffee to the days several he had seen the give members, ground, victim’s which made him feel he was on neutral family to and had jailors reneged promise was also irate because his federal “1368,” was not his indicated that defendant again lunch. Counsel provide “volatile],” and had limited control over very emotionally but was and upset his behavior. a biased jury—a defendant had about

The court asked if complaints “the record should had the court indicated Again concern bailiff reported. through I sat there watched him exercise reflect and peremptories issue, that defendant was this was not the and insisted counsel.” Counsel said well under- to Counsel indicated that defendant not obstruct trying delay. what the of his situation and “knows reality legal [probable] stood is,” defense, -outcome particularly since “we on no may and the evidence put counsel, and overwhelming awfully brutal.” to this According reality, confinement, defendant’s isolated were small like the precisely why problems lunch issue became and “drive “magnified” crazy.” The court [defendant] remind admonished counsel to defendant court’s that prior it warnings would not tolerate his conduct” and “foul “disruptive and that language,” further outbursts or would result in his disruption exclusion from the trial. resumed,

Proceedings briefly but almost the court met with immediately, counsel in the again out of defendant’s hallway, Defense Counsel presence. Peters said defendant was he concerned able might be to control himself courtroom, in the and had therefore asked be to shackled to him from prevent “act[ing] out.” Peters that when defendant first met with explained counsel that “he was he morning, talking how to act he going up, that had lose, to nothing which is true.” Peters indicated there to be appeared grounds to accede to defendant’s wishes his safety my “for safety [Cocounsel Still, observed, Peters while did safety.” O’Connell’s] he not “think [shack- would be ling] extremely he to prejudicial,” would dissuade defendant if try he believed otherwise. The indicated he had no to objection it, that, court, court request, granted while in ordering defendant be restrained in “Martin waist chains.” courtroom,

Defendant was into the brought jurors were summoned. theAs court to to the began defendant to speak jury, “Next interrupted say, smile, time you bigger throw a smile my way.” The following colloquy me, ensued: “THE COURT: Pardon Mr. Mai? THE I DEFENDANT: am [f] to Burt speaking want to be smart THE family, they asses. COURT: [][] Don’t be to Burt THE DEFENDANT: speaking family, right.” That’s [f]

As the court resumed defendant addressing jury, again interrupted, stating that he a break” and something.” When the say “needfed] “need[ed] told court him to be quiet, defendant Defense Peters implored Counsel defendant, for me.” After a with “speak up discussion Peters to the explained court that defendant wanted be “just assured was order he be your here ordered, When the morning.” it had so responded asked, that, defendant “If you have to do why you don’t have power to do anything else?” The court advised power defendant his counsel was and warned defendant not speaking re- disrupt, whereupon that, “ask if Peters have the do quested you power to why [the court] you don’t have the do other stuff?” Peters indicated make power would time,” warned defendant court

such an inquiry appropriate “[a]t further again against disruption.16

A in the morning short while later April about incident the evidence he to outlining produce jury expected defendant brandished on the of Officer Burt’s murder which morning to “And interrupted say, at driver Defendant another freeway. handgun bench, to do The court defendant face toward the I would it ordered again.” and defendant responded, “Right.” Baker, 17, 2000,

On of Mark who disrupted testimony defendant April that, stated he witnessed a violent domestic altercation in September between defendant and Victoria Pham outside their When Baker apartment. Pham, her fist and during testified that with defendant hit with his struggle knees, shout, to “Shut the fuck I up, she fell her defendant to interrupted fist, full If I hit with a I would have fucking think are of shit. you [her] When the talking knocked her ass on the floor. What are about?” fucking you defendant, muttered, want to say to admonish “You attempted truth,” something, fucking speak “[b]ullshit.” defendant by telling Baker then testified that when he tried to the fight stop “ ” motherfucker,’ off, it went into his you defendant apartment ‘[k]nock Baker’s and returned with a machine At this defendant gun. interrupted point, declare, “I ass is what I should testimony your fucking should have killed done, have waste time.” my goddamn thereafter, testified that in June automobile salesman Bachand

Shortly the test defendant and an abducted him accomplice gunpoint during above, drive of Honda Prelude. As noted defendant shout interrupted “bullshit,” had no incentive to Bachand’s because defendant testimony Honda,” and that if defendant had been one of the steal shit “piece later, he would have “wasted ass.” Moments carjackers, fucking [Bachand’s] his were Bachand said defendant had warned that he and companion when “ ” Mafia, ‘Asian, Mafia,’ mutter, “Asian defendant interrupted Vietnamese The court admonished defendant further stupid against disruptions. fuck.” Nonetheless, his overturned the as Bachand continued testimony, a detention area the bailiffs. counsel table was removed to why, authority sensibly asking the court had the question Defendant’s understood as if trial, authority did also transported the MDC to attend the have to order him from facility relaxed. of confinement in that be order that conditions 1032 19, 2000, rested,

On after April defendant confirmed on the prosecution that, wishes, record his counsel’s advice and he despite declined to present evidence, any effort mitigating any counsel in his opposed speak behalf, and intended to about his testify opinion appropriate penalty. The court warned defendant that he was that he could not acting unwisely, death sentence appeal resulting grounds or attorney incompetence error, and that these decisions were tantamount to suicide. In response, suicidal,” defendant he insisted that was “not felt he was and was competent, “just I doing right thing that feel that’s necessary.”

Defendant he confirmed “act out” would if counsel exercised their preroga- tive to an argument, is not I In present though want do.” something “[i]t court, to a from the defendant response query indicated he assumed his with understanding his counsel was firm.” He “I feel “pretty iterated that just basis, this right, is and I am agrees to that.” On hoping my lawyer above, noted counsel announced he would accede to defendant’s wishes. law. Applicable

ii. “ ‘Both the due clause of the . . process Fourteenth Amendment . and state law the state from or prohibit trying a criminal defendant convicting Missouri while Drope 1367; she is mentally (§ v. (1975) incompetent. 162, Pate v. Robinson 103, 420 896]; U.S. 181 L.Ed.2d (1966) 95 S.Ct. [43 375, v. Ramos People 815, 383 836]; U.S. 384-386 L.Ed.2d 86 S.Ct. [15 494, (2004) 575, 34 Cal.4th 507 478].) Cal.Rptr.3d 101 P.3d A defendant [21 “ to stand trial if he or she incompetent lacks ‘sufficient present ability consult with his with a lawyer degree reasonable of rational understanding— ... a rational as well as a factual of the lacks] understanding [or proceedings ” United (Dusky States 402, v. against (196[0]) him.’ 362 U.S. L.Ed.2d 402 [4 824, v. Moran 788]; 389, (1993) 80 S.Ct. see also Godinez U.S. 509 399-400 . . People 321, v. Stewart 2680]; L.Ed.2d 113 S.Ct. (2004) . 33 Cal.4th [125 425, 656, (People Rogers (2006) 271].)’ 513 93 P.3d Cal.Rptr.3d [15 v. 39 826, 1, v. Lewis (People Cal.4th 846-847 . .)” 141 P.3d . . Cal.Rptr.3d [48 135] 415, (Lewis).) 588, 43 (2008) Cal.4th 524 181 P.3d Cal.Rptr.3d [75 947] law, Under both the federal Constitution and state the trial court must criminal suspend proceedings conduct if hearing competency with substantial evidence presented is incompetent. (People Elliott 59, (2012) v. 53 Cal.4th 583 269 P.3d Cal.Rptr.3d [137 (Elliott); People Ary v. Cal.Rptr.3d 494] [120 People (Rogers).) 322]; 246 P.3d Rogers, Cal.4th Substantial evidence of incompetence exists when mental health qualified “ ‘ oath, who has examined the defendant under expert states “with ” illness, the that because of mental ’, a opinion

particularity,” professional of the criminal or nature understanding purpose is of incapable 43 (Lewis, him, supra, with counsel. of or cooperating proceedings against 80, 415, 525; (1982) Cal.Rptr. Cal.3d 92 v. 32 [184 Cal.4th People Stankewitz 611, 578].) P.2d 648 also, in proper irrational behavior may

The defendant’s demeanor and (Rogers, of circumstances, evidence incompetence. constitute substantial 826, However, and courtroom 847.) conduct disruptive 39 Cal.4th supra, inability a demonstrate necessarily present the defendant do not outbursts Elliott, 53 supra, (E.g., or assist in the defense. to understand the proceedings 525-526; 415, 535, 583; Lewis, v. Medina People 43 Cal.4th Cal.4th supra, 165, 694, (Medina).) P.2d (1995) Cal.4th 735 906 Cal.Rptr.2d 2] 11 [47 to is entitled in a client’s incompetence Counsel’s assertion of a belief a doubt as to has declared some But unless the court itself weight. on the subject, has asked for counsel’s opinion defendant’s competence, not, in be does her client is or may incompetent counsel’s assertion that effect, a court hold to that require the absence of substantial evidence 415, 525; 1368; Lewis, v. (§ People 43 Cal.4th hearing. supra, competency P.2d (1994) 8 1111-1112 Rodrigues Cal.Rptr.2d Cal.4th [36 1132, 1163-1164.) Howard, 1]; 1 Cal.4th People is token, a showing “incompetence” the same and absent By a law, not to order a the trial decision judge’s “substantial” as matter of deference, court is in because the trial is entitled competency hearing great (Rogers, supra, the defendant trial. during the best observe position “ 847.) appraise ‘An in no position Cal.4th appellate calculated indicating insanity, defendant’s conduct in the trial court as or sheer temper.’ attempt feign insanity delay proceedings, 691, 727 Cal.Rptr.2d v. Danielson (People [13 [Citations.]” 729].) P.2d iii. Discussion. counsel,

Here, conclude that driven the record discloses no basis to interest, hearing though even a conflict of avoided seeking competency to infer grounds defendant was Nor are there believed they incompetent. Indeed, as we sought hearing. would have such likely unconflicted counsel hereafter, of defendant’s evidence the record contains no substantial explain had a difficult counsel Reasonably suggests incompetence. interpreted, in his severe conditions own calculated acts had resulted client whose confinement, and whose frustration with the custody terms of his contributed counsel, to his emotional distrust anger, volatility, lack of frequent with them. cooperation conditions,

Counsel worked to ease assiduously these custodial fora, in several urging that the by vigorous advocacy, resulting emotional toll on defendant was seriously with defense efforts. But interfering that, record does indicate contrary to counsel’s consistent representations, or they knew should have known defendant’s confinement had rendered him unable,

mentally rather than emotionally unwilling, help with his defense. We distinction, did, have recognized the as frequently counsel apparently not, itself, have made an clear that attitude is in and uncooperative of Elliott, substantial evidence (See, of 53 Cal.4th incompetence. e.g., supra, 583; Lewis, 415, 526; Medina, 694, 735; supra, Cal.4th 11 Cal.4th supra, v. Davis People 10 Cal.4th 527-528 Cal.Rptr.2d 896 P.2d [41 119].) Thomas,

Significantly, the defense Dr. never declared psychologist, “with that, particularity” as the result of a mental disorder or disability, defendant was unable to understand the or proceedings assist in his rationally defense. On the she contrary, acknowledged defendant’s he intelligence, indicated was all,” “not out of touch with reality he was able to agreed “certainly legal discuss” his situation. She suggested that the emotional instabil- simply ity stemming from his custodial status sometimes caused him to be “kind of irrational,” affected his to think “ability clearly,” made it difficult to obtain his cooperation. court,

Counsel made similar representations additionally noting situation, defendant understood the of his reality legal and that once allowed frustration, vocalize his fully he was able anger to calm down usually and behave Counsel’s that these rationally. concession circumstances did not amount to mental does not counsel incompetence indicate ad- performed as the of a versely result conflict of interest.

Defendant’s outbursts in court also do “self-defeating” not constitute evidence that should and would have likely persuaded uncon competent, flicted counsel to seek competency hearing. These demonstrated episodes But, above, that defendant was often and resentful. noted angry disruptive unless, behavior is not substantial evidence of its incompetence particular nature, it casts doubt on the defendant’s assist in his or her ability defense. Elliott, 535, 583; Medina, (E.g., 53 Cal.4th supra, Here, 735.) aside from one incident of confusion over a time momentary demeanor, words, indicated and conduct never waiver, courtroom defendant’s to assist his unable actually or he did not understand proceedings lawyers.

Indeed, an resentment were often connected defendant’s anger Thus, when defendant protested to the trial way proceedings. understandable trial, security worried that court’s he was rushed to thought being he that court or feared against “my people,” measures discriminate might to witnesses victim’s or reacted family, were too solicitous personnel him. Defendant testimony appeared damaging against who were giving he consult with his lawyers when felt need to capable speaking up and, at one asked point, pertinent of courtroom light developments, confinement. over the conditions authority about court’s questions Moreover, of defendant’s after the conditions reviewing allegations state, the trial his mental and emotional affecting confinement were seriously did not court clear the that its observations of defendant made on record that defendant had the court noted indicate In incompetence. particular, selection, the but in extended of actively, process jury calmly, participated lists, notes, and counsel and reviewing questionnaires juror making assisting sum, In defendant’s the of certain of challenges. in exercise peremptory record, behavior, rude, menac- as and even by disclosed was disruptive, which uncon- upon but behavior afforded no substantial ing, grounds a and claim of likely flicted counsel should would have pursued incompetence. We a similar conclusion with to defendant’s consistent reach respect evidence, no present and stated intention to with firmly mitigating dispense for and invite the to of death. A wish argument, jury judgment impose defense, not, are by death an insistence on no presenting penalty penalty, themselves, of to trigger competency pro evidence sufficient incompetence v. Blair 36 Cal.4th (E.g., People Cal.Rptr.3d ceedings. [31 Ramos, 509.) 1145]; Defend People 115 P.3d decision, his and he ant made he understood the of consequences clear to He even coherently, jury. explained his reasons eloquently, expressed for or his beg pity, by he was motivated reluctance to in court sympathy that, belief of eye,” “part code of “two his eyes every personal his of Officer Burt. had come to in full for murder game,” the time pay a mental ability These sentiments no belied way well-stated moral them. Defendant’s defending to assist understand proceedings Accordingly, attitude is not evidence he incompetent. substantial that, interest, no conclude provides ground to as the result of a conflict of counsel omitted to valid pursue potentially claim.17 incompetency reasons, similar we

For defendant’s alternative reject argument trial court had a sua to declare sponte duty doubt his and to competence, initiate we competency As have the record proceedings. discloses explained, no substantial evidence that defendant mentally No incompetent. quali- testified; fied witness so counsel’s various of defendant’s mental descriptions emotional state did incompetence; defendant’s observ- equate able actions and did not decisions necessarily suggest lacked requisite Moreover; ability to in his defense. participate rationally the trial court’s conduct, observation defendant’s demeanor and day-to-day including behavior, did not cause the episodes doubt his disruptive compe- tence—a once, fact court felt obliged to the record not but place twice. circumstances, Under these the court did not err by no action to taking determine whether defendant was competent.

d. Advice to defendant. Peters, Finally, comments at various points by Attorney points (never in the record jury’s presence), view expressing pessimistic there was little realistic at either guilt hope stages. Defendant characterizes certain of these as suggesting remarks counsel’s comments, view that personal defendant deserved the death Such penalty. 17Defendant notes Victoria Pham’s claim that defendant became more violent after accident, near-fatal causing psychologist suspect damage. car the defense Citing brain Pate v. Robinson, 375, supra, urges 383 U.S. defendant that of injury subsequent evidence a head with constitutes, irrationality changes flag” regarding competence, and behavioral raises a “red law, as a require competency hearing. matter of sufficient evidence to a But the scant evidence remotely compare here does not with the evidence found in Pate to raise a fide doubt of bona Pate, competence. killing during convicted of his common law wife an a episode, irrational had history of dating severe disturbance back to a childhood accident in which a brick fell on his behavior, hallucinations, history frequent episodes head. His turbulent included of bizarre delusions, son, stay killing a in psychiatric hospital, prior a and the of his 18-month-old after trial, testified, contradiction, he which tried to commit At his suicide. four witnesses without evidence, combination, that he was insane. persuaded high This the that Pate court should inquiry a competence. have received full into his Here, contrast, by behavior, sociopathic there is no real indication defendant’s whatever cause, Moreover, any logical legal incompetence. its had to possibility connection the of not, itself, injury-related damage suggest inability brain does in and of the legal to meet Lewis, 415, 525; (See competence People standard for to stand trial. 43 Cal.4th v. 973].) Leonard Cal.Rptr.3d Though 1415-1416 [58 P.3d purpose, testimony psychologist offered for a the of suspected different the who defendant’s damage mentally might suggested strongly accident have caused brain that he was not unable rationally to proceedings Nothing understand the assist in his defense. in Pate convinces effective, likely us that unconflicted counsel should and have the would used information about competence. defendant’s auto accident to raise a reasonable doubt of his counsel, their asserts, burdened by are evidence that

defendant circumstantial interest, by overstating advised defendant incompetently conflict defenses,18 case, and by he no viable his had by suggesting hopelessness him issues and forgo to circumstance guilt submit urging special at phase. evidence and argument penalty of mitigating presentation asserts, Further, duties as an advocate defendant Peters violated his Attorney death that defendant deserved the stating his view by publicly personal 1070, 1074; v. e.g., U.S. Swanson (9th 1991) F.2d Cir. (Citing, penalty. 626; State v. Holland Osborn Shillinger (10th 1988) Cir. 861 F.2d (Utah 1994) 3.) P.2d & fn. 358-361 not, First, concedes, for the record does

We are unconvinced. as defendant him. If advice counsel to the most disclose what privately imparted part, however, throughout the record indicates defendant himself insisted anything, to cogently penalty jury, reasons proceedings, explained him to obliged pay his code of honor once he to brought justice, personal to mercy without effort seek or any sympathy for his murder of Officer Burt that his a of law. record also contains numerous indications mind,19 but that he virtually did to him to attorneys attempt get change engage inflammatory coerced them to to his wishes agree by threatening if to overrule him. disruptions they before tried jury knew, Second, evidence that as counsel there was indeed overwhelming traffic gunned stop, ultimately defendant down CHP officer routine during the officer a bullet into the victim’s head close executing firing range by that a fact while he Counsel could also conclude lay reasonably helpless. finder, be special whether court or would jury, likely unpersuaded And, the traffic stop. circumstance defense that legality questioned inevitable, neither the facts of the though capital a death was not judgment during crime nor violent and defendant obstreperous displayed personality deciding the likely engender trial were with penalty sympathy jury life death. issue of circumstances, discloses no ground

Under these difficult record if advised or deficient assistance they conclude counsel rendered adverse his counsel allowing at a trial credibility preserve guilt. done not right thing” by contesting tell the he jury “ha[d] 18 asserts, special reality, strong to the officer peace In he had a defense circumstance, Burt. He further stopped illegally was detained Officer grounds on he Vietnam, case, from his cultural urges developed mitigating escape a based on his fully States, damage, might well possible brain adjusting in to life in the United and his difficulties persuaded jury spare have a to life. modify motion to the death Attorney hearing at the automatic As Peters stated verdict, talking topic.” spent “we hundreds of hours about that if Similarly, counsel defendant should reserve for suggested appeal that the argument hearing contained insufficient evi- preliminary transcript victim, too, advice, dence he was detained murder illegally was Nor, us, not adverse on the basis incompetent. of the record before did counsel if perform adversely they offered the candid and reasonable predic- tion that a death judgment was of likely, regardless any case in mitigation could be forward. put we do not

Finally, Peters’s on the record interpret Attorney comments as Rather, concessions that he personally believed defendant to die. deserved they on behalf a appear attempts, of client who had resisted all efforts to that, end, him portray sympathetically, urge least taking actions, for his did responsibility not seek to avoid the of his consequences Burt, murder of Officer and thus not irredeemable. wholly above, For all the reasons set forth we conclude the record fails to demonstrate that defendant’s trial counsel adversely as the result performed interest, of a of conflict or that they otherwise rendered constitutionally result, not, not, assistance. inadequate As a we need and do address defend- ant’s extensive argument that of should “presumption prejudice” apply counsel’s adverse from the performance arising of conflict defendant type (See, Mickens, 162, 171-174; Doolin, asserts here. e.g., supra, U.S. 390, 418, 20.)20 fn. B. Sufficiency special circumstance evidence. of that,

Defendant contends in violation of “state law and the Eighth Amendments,” Fourteenth the evidence supporting circumstance special that he finding killed a intentionally officer police engaged performance duty was legally insufficient. We disagree.

“In addressing of the challenge sufficiency evidence sup conviction, court porting must examine the whole reviewing record in the light most favorable to the to determine whether it judgment discloses reasonable, substantial evidence—evidence that is credible and of solid value—such that a reasonable trier fact could find the defendant guilty beyond reasonable doubt. court appellate presumes [Citation.] Mickens, high As the acknowledges, made clear in a “presumption as defendant conflicts, may prejudice” apply attorney including representa certain kinds of the active interests, then, competing tion of but presumption apply even until does the defendant performance (See Mickens, supra, has demonstrated adverse related the conflict. 535 U.S. 162, 171-174.) the trier could reasonably fact every of the the existence of judgment

support (People (2000) 23 Cal.4th v. from the evidence. deduce [Citations.]” Kraft v. Prieto e.g., People see, (2003) 30 1, 68]; 978, 5 P.3d Cal.Rptr.2d [99 v. Farnam People 18, (2002) 226, 1123]; 66 P.3d Cal.4th Cal.Rptr.2d [133 988].) In the instant 47 P.3d 142-143 Cal.Rptr.2d [121 case, police the applicable these inferences are aided presumption, arrest, duty that official was in the case of warrantless except officers Department e.g., Davenport Code, 664; see, (Evid. § regularly performed. 818].) Motor Vehicles Cal.Rptr.2d 6 Cal.App.4th [7 above, the evidence indicated hearing indicated the As preliminary Defendant’s early occurred in the 1996. evening July traffic stop associate, that defendant him the gave following testified Chang Nguyen, Officer Burt circumstances to the victim’s death: leading account the on. did to have his Defendant not headlights failure stopped license, name. The gave the officer his own driver’s but instead false show name was He learned that the driver’s license suspended. officer car, he have to tow the but first must advised defendant would thereupon the car’s an search of vehicle. The officer perform inventory opened Defendant, trunk, inside, under arrest. looked and told defendant was crime that he trunk and determined not leave aware evidence had. offense, to a then to shoot officer. witness third strike proceeded that, Defendant’s insufficient-evidence claim proceeds premise the officer must have order for officer circumstance to apply, peace special (See at the time he was killed. been his duties performing “lawfully” ante.) A.4.a., the record lacks evidence seriously argue Defendant does pt. However, he urges during traffic were the officer’s actions lawful. stop circumstance finding record of on which hearing, special preliminary made, a rational fact finder could fails to include evidence from which Burt had cause beyond legal stop reasonable doubt that Officer conclude and detain him at outset. the victim

Because Officer death defendant’s hands prevented Burt’s the reason and basis for the testimony, stop, from in sworn explaining, evidence on that came from who testified—without Nguyen, issue only “he was and he driving from the defense—that defendant said objection on, over California got he had his but he thought light pulled by [a] [sic] Defendant’s state- having for not his light Patrolman Highway [on].” [sic] finder—here, a allow fact learned sufficient to Nguyen ment amply 1040 first, infer,

trial failure to have judge—to headlights his was the second, should have had defendant was he reason that he understood stopped; not actually did on; third, his that he lights have them on. No evidence or contradicted these inferences.21 disputed

C. Claim juror. biased of Sixth, Defendant his urges that under Fourteenth rights Eighth, and Constitution, I, Amendments United States and under article section 16 Constitution, 12, of the California were violated by of Juror No. seating asserts, who, he biased on the issue of actually Defendant penalty. cause, acknowledges lawyers challenge his did Juror No. 12 for use challenge juror,22 to excuse the with the peremptory dissatisfaction express v. (E.g., People 1263, Carasi (2008) as 44 jury sworn. Cal.4th 1290 [82 265, People Bonilla 616]; 313, (2007) 190 P.3d v. Cal.Rptr.3d 41 Cal.4th 339 209, 469, v. Hillhouse People 84]; P.3d (2002) 160 Cal.Rptr.3d [60 45, Crittenden People 754]; 487 40 P.3d v. Cal.Rptr.2d (1994) Cal.4th 9 [117 (Crittenden).) 83, 474, 121 885 P.2d & Cal.Rptr.2d fn. 4 Nonethe- [36 887] less, defendant contends state is constitutionally disentitled to out carry joined by death biased he judgment juror. Alternatively, that his asserts cause, counsel’s failure to No. 12 challenge Juror for or to use a peremptory event, challenge against juror, constituted ineffective In he any assistance. insists the court should have excused sua juror sponte. 21 Nguyen leading Defendant concedes his account to of own shooting his actions to the interest, against Officer Burt were declarations and were thus not made inadmissible for their Code, However, by hearsay (Evid. 1230.) truth rule. he “no § asserts Officer Burt’s him, headlights” Nguyen, statement as related to was not its prosecution offered “truth,” “non-hearsay but purpose explaining for the into putting context [defendant’s] response hearsay” admissions.” claim is on the prosecutor’s “multiple This based to a defense objection testimony by Nguyen to later that Officer Burt advised defendant would have inventory an search on defendant’s The prosecutor layer do car. said he understood that “the is indicating from the officer to not for the truth of the matter.” court agreed, “inventory that evidence of Officer Burt’s search” presented statement was to make the However, noted, “meaningful,” objection. defendant’s admissions and overruled the hearsay Nguyen made objection defense no when said testified defendant that Officer Burt Moreover, headlights hearsay him stopped because his were off. rule did not make purpose—i.e., inadmissible Officer Burt’s statement as intent evidence of his his state Code, (Evid. (a)(2).)

mind—in And stopping § defendant. subd. to the extent Officer (see headlights” Washington Burt’s out-of-court “no statement was v. “testimonial” Crawford (2004) 1354]), 124 U.S. L.Ed.2d S.Ct. the doctrine of “forfeiture [158 rights wrongdoing” precludes claiming defendant from his were constitutional violated because confront, court, killed, he was unable to an out-of-court declarant whom he as the shows, undisputed prevent appearing against evidence the declarant as a from witness him. (Giles 2678].) L.Ed.2d 554 U.S. 376-377 128 S.Ct. [171 California challenges. undisputed peremptory It is that defendant exhausted framed, the merits of are unpersuaded by

However the issue we actual bias. No. 12 demonstrated defendant’s that Juror argument Hence, claim must be rejected. defendant’s

“ a trial an of ‘The and federal constitutional guarantees state will in a case a whose members jury include the to jury right impartial capital murders, for but will instead not the death all automatically impose penalty the the evidence weigh mitigating determining appropriate consider death is aby jury containing ... If the imposed sentence. penalty [Citation.] the death without automatically even one who would vote juror penalty evidence, “the State disentitled to execute considering the mitigating ” 381, (2002) v. Cal.4th 416 Boyette sentence.” 29 (People [127 [Citation.]’ 544, (2001) v. 26 (Boyette), P.3d Weaver People 58 Cal.Rptr.2d quoting 391] 876, 2, (Weaver).) Cal.4th 910 P.3d 29 Cal.Rptr.2d [111 103] against necessarily

But for or the death do strong penalty views a of actual bias. ground basis to excuse a on provide prospective juror “ Instead, ‘the be for cause juror challenged law permits prospective [as on the of if his or her views only biased issue punishment] [on capital of his “would or subject] ‘prevent substantially impair performance [or ” duties as a with the court’s and the in accordance instructions juror’ her] 485, 686, (2005) oath.’ v. Cal.4th 741 juror’s Cal.Rptr.3d Blair 36 (People [31 [412,] 1145], [(1985)] P.3d 469 U.S. 424 [Wainwright 115 v. quoting ]Witt 841, 399, 844].)” (2009) L.Ed.2d 105 S.Ct. v. 47 Cal.4th (People [83 Martinez 732, (Martinez).) P.3d That a 213 Cal.Rptr.3d prospective juror [97 77] evidence in of his or her weigh light might aggravating mitigating death views is not for exclusion. about penalty necessarily ground Opinions the death if would penalty may juror only they prevent disqualify penalty from in the issue juror engaging weighing process deliberating Stewart, Martinez, 427; at 33 Cal.4th penalty. (E.g., People v. supra, p. supra, 446.) at p. these or may

A on issues be prospective juror’s responses conflicting the com or demonstrate understandable confusion about ambiguous, may of death law. Such do not plexities necessarily require, penalty responses 416; Boyette, excusal for bias. 29 Cal.4th juror’s supra, justify, (E.g., Weaver, 876, 910; 7 Cal.4th supra, Fudge 26 Cal.4th People 36].) very strong 875 P.2d And even with jurors Cal.Rptr.2d [31 about are if affirm will set they they views the death serve qualified aside, the law and instructions. those views favor necessary, applying Martinez, 399, 431; Lewis, Cal.4th (E.g., supra, 488.) ,12’s he No. answers on the indicate harbored juror questionnaire

Juror views, and about this case. On the particular both strong prodeath generally hand, other he that he asserted his belief could set aside his follow feelings, instructions, the court’s and be a fair impartial juror. how, all,

In to a about if he at had become familiar with response question case, Juror No. 12 indicated wife’s cousin was a Fullerton fireman who had been called to the shooting scene and tried save Burt. Officer information, Asked what based opinions, he had formed about sentence, answered, Juror No. 12 appropriate “My sentence.” opinion—death hand, On the other Juror No. 12 answered whether “yes” question could set aside his of the prior knowledge case decide on the evidence in court “and the presented law case.” given you conclusion To the he whether could set aside the question about any preformed opinions trial, case and decide it on the evidence and law Juror presented during No. 12 “I think so.” responded,

In to a he whether had response question followed other criminal recently media, cases in the news Juror No. 12 answered and he had “yes,” explained followed to let the woman in Texas appeals be excused from “[t]he [the] death she because found God.” A penalty whether followup question inquired a case or cases the had followed affect or her prospective juror might be a fair and ability juror. Juror No. and impartial 12 checked “yes” indicated, defendant said he’d found God and be that “[if] should for spared reason.” answers,

Following these and the included questions questionnaire section titled “Attitudes About the Death Penalty.” This section was prefaced an extended of the nature of a trial. The description capital penalty preface that the was to determine the explained jury “weigh- appropriate penalty (“bad various ing” aggravating the mitigating good”) things about crime, defendant, the and his background, a consideration of “including It admonished that the sympathy.” was not but weighing process quantitative, that, death, fix qualitative, the the must be penalty jury persuaded the factors “are so aggravating substantial with the comparison mitigating death, factors” that rather than life without was warranted. parole, whether, above,” The then asked on the questionnaire prospec- “[b]ased tive views would juror’s automatically cause him her to vote for life or death. No. Juror 12 answered “no” in each case. When to his queried as “GENERAL FEELINGS about the death Juror No. penalty,” responded, “I’m for it.” Asked whether he the death too thought used penalty seldom, often, stated, too or too “Too Juror No. randomly, many appeals that take too Asked whether he could set aside long.” his personal feelings instructions, about what law to be and ought follow court’s Juror wrote, No. 12 checked “I’m for the death but court “yes,” if penalty [the] to me that defendant should be death—I not proved vote death.” spared might to Con- titled Trial—Factors “Penalty The next section was questionnaire by an explanation The in this section was preceded sider.” single question receive instructions would jurors selected serve persons penalty These were factors determination. factors listing relevant forth, which extenuates then set other circumstance including “[a]ny (and not a excuse for the crime of the crime even it is gravity though legal record) character and or other defendant’s any sympathetic aspect death, not than whether or the defendant offers as basis for a sentence less asked on trial.” then related the offense which he is The questionnaire be felt of the factors should “never” any if listed juror prospective Juror No. 12 answered determining considered in the appropriate punishment. “no.”

Juror attitudes oral voir dire.23 While during No. similar expressed selection, was in box the court three during posed questions, jury jury addressed in the box. these were whether questions group Paraphrased, (1) if he believed could vote for death or she prospective juror personally (2) that was the vote for life could appropriate punishment, personally without if he or she a case where death was parole believed deciding. would consider both before carefully options appropriate, Juror individually, including then asked several jurors prospective answered, No. No. how would to those Juror 12 they questions. respond to all “Yes three.” to the court addressed Juror No. 12 about his “I think so” response and decide whether he could set aside views

questionnaire inquiry preformed [me],” the the case and “Can counsel and you on the evidence the law. assure asked, court “that can set and decide this you any aside preconceived opinion can, I can interjected, they give good case—?” Juror No. 12 “I think if me death, that reason that believe I would vote in shouldn’t be I somebody put asked, they direction.” The court then “So is that have to your position prove answered, No. why should not be death?” Juror 12 somebody put “Uh-huh.” thereafter, to the

Shortly general court addressed remarks panelists, that it who in the The court indicated including jury Juror No. were box. would certain the trial and its conclusion. throughout instructions provide declared, will “It is the court “that I assurance that your you have important,” 23 dire, response during Juror indicated biographical inquiries In to the court’s voir No. 12 Park, single, years completed high that he lived Buena old and and had school in 43 couple years college.” Disneyland past years, He 24 “a stated he had worked at years Juror Orange County Republican couple for the Central Committee “for a before that.” sheriff, Angeles County deputy 12 also had an was a No. indicated he uncle who retired Los force . . in the late spent years police and another uncle “who about five in Whittier . back 1960’s.”

follow instructions on the law and will that law to my rulings this apply case, it somewhat differently, whether or [p]ut you approve disap- [f] [To] instructions, of the court’s or it is rulings solemn prove your duty accept correct these statements of the law. You not own idea may your substitute what think the Is there you ought law to be. member of the any panel [][] will follow the law as it is Juror No. 12 given you this case?” made no he would so. response indicating not do its

Continuing asked the in the general inquiries, jury panelists box, Juror No. whether including “any close friends or relatives [their] case; ever served as on a juror death case.” Juror capital [had] stated, No. raised his hand and immediate boss at work that I have “My known for about out did one in Riverside The court years, just County.” asked whether this individual had discussed the Riverside trial County with declared, it, Juror No. 12 after it was over. Juror said that No. “He you like, know don’t what it is have an until you opinion you about it there get decision, don’t, have make that actually you can’t understand just you it.”24

After further directed to various with Juror No. questions panelists sitting box, whole, in12 the court jury asked “Does again any as a group reason, know of other has juror any or occurred this anything during make questioning period might you doubtful would be you case, fair completely in this should not impartial juror be on why you is, this If there it is jury? your to disclose the at this time.” duty reason Juror No. 12 did not respond. Peters asked Juror No. 12 about

Attorney reference to questionnaire delays system. Peters whether “that capital penalty inquired going [is] case, to leak over into the facts of the law involved in this case.” Juror said, 12 No. “I don’t think so.” suggested, Peters “That’s more of a political answered, than else?” 12 Juror No. “Yeah.” Peters problem anything queried whether Juror No. 12 could the “weigh whatever aggravating mitigating, be, turn those out to render a fair verdict.” 12 Juror No. “I responded, 12, so.” think Without further No. to Juror the defense the questions passed box, 12, in the Juror No. for panelists including cause. whether,

The you asked Juror No. 12 what heard about prosecutor “[f]rom case, about, victim, the what it do you officer think could sit police you 24 by anything Asked the County juror court if Juror No. 12 discussed with the Riverside case,” any bearing the “would experience you about latter’s have on how would decide this answered, Juror No. 12 But the preceding “No.” considered in context of his answer to the question, negative response any these not reinforced indicates discussions had and, had preconceived prodeath part, anything, attitudes on Juror No. 12’s if instead influenced keep him to an open mind. both who can consider about talking we were

and be that kind of juror one.” either and vote or impose the death who can accept penalty [penalties], answered, “[y]ou then posited When the No. 12 “Yes.” Juror “Yes, further that?,” I do.” Without No. 12 think can do Juror you responded, in the 12, jury panelists to Juror No. prosecution passed questions 12, box, No. for cause. Juror including did circumstances, written and oral responses Juror No. 12’s

Under these law, demonstrate, death views would that his penalty not as a matter of “ duties as juror’s or substantially impair’ performance ‘prevent (Crittenden, supra, and the oath.” juror’s defined the court’s instructions for the general support 121.) unequivocal Cal.4th Juror No. expressed death was appropriate death conceded his pretrial impression penalty, case, that the defense had and asserted he started from perspective this However, that he must at several otherwise. advised points burden of proving views, and must the law and instructions regardless personal follow so, that he indicated consistently if he felt unable to do disclose frankly views, consider carefully weigh and would subordinate his could instructed, either death or life vote for evidence as aggravating mitigating the juror’s in accordance with fairly without as sit parole appropriate, as a had served recently of a who colleague oath. He further noted the insight notions, that, it was impossible whatever one’s juror preconceived capital it. had realities of that role until one experienced understand solemn This 12 was a biased juror. record fails to establish that Juror No. thus had a sua that the trial court of defendant’s contentions conclusion disposes counsel was incompetent to excuse Juror No. and that his duty sponte this failing challenge juror. Had the trial reasons: following

The first of these claims fails for and evaluate his Juror No. 12’s demeanor court—which was able to observe for cause on challenge dire credibility under voir questioning—denied bias, would have been ruling upheld appeal its ground evidence, (E.g., court’s discretion. and within the substantial supported 415, 483; Martinez, 399, 426; Lewis, 43 Cal.4th supra, Cal.4th supra, Weaver, to sustain a was not 910.) required If the court on its own obliged, certainly Juror No. challenge against bias motion, for bias. to excuse juror token, record cannot show on appellate the same

By 12 on this Juror No. and would have challenged counsel should competent 525, 415, v. Lucas (1995) 12 Cal.4th Cal.Rptr.2d ground. (People [48 there conclude could 373].) reasonably far as counsel appears, P.2d So (Ibid.) Nor does the record demonstrate no merit in such a challenge. absence of tactical reason for failure any counsel’s to raise issue plausible Counsel, the chance of a favorable were also able to observe ruling. who demeanor, No. Juror that, 12’s have formed the personality might impression views, his would despite panelist fairly, indeed would perform be a liability sitting juror. (Ibid.) as a We find no basis to reverse the penalty judgment.

D. Wheeler/Batson claim. Defendant his state and federal to a urges constitutional drawn rights jury from of the representative cross-section community, equal protection law, Const., 5th, (U.S. 6th, and to a fair & fundamentally and reliable trial Amends., I, Const., 7, 16) 14th Cal. art. were when trial violated court §§ (1978) denied erroneously under 22 Cal.3d objection, People Wheeler 890, (Wheeler) Kentucky 583 P.2d Cal.Rptr. Batson v. [148 748] 69, (1986) 476 (Batson), U.S. L.Ed.2d 106 S.Ct. that the 79 [90 1712] had used to excuse African-American prosecutor peremptory challenges (Wheeler/Batson prospective jurors racially reasons. discriminatory claim). We the contention. reject

1. Facts. selection, During jury defense counsel that the objected prosecutor “[had] excused all the Black The court counsel jurors.” asked if was making motion,” “Wheeler and counsel “Yes.”25 Defense counsel and the replied, agreed the had prosecutor exercised prosecutor peremptory challenges M.H., P.F., L.P., excuse Jurors three Prospective only African- American members court asked clerk to retrieve the jury pool. so, of these While the clerk was questionnaires doing court panelists. found a tentatively facie intent. prima showing discriminatory reflection, On the court backtracked from It finding. suggested defense was demonstrate a likelihood” of discrimination required “strong in the excusal of these doubt such jurors, expressed prospective likelihood was the mere three established fact that “all of the same [were] racial Defense counsel there was further “circumstantial group.” responded discrimination, i.e., that, evidence” of counsel’s recollection for their except race, these from were others the prospective jurors indistinguishable prosecu- had tion failed to excuse. found the facie Ultimately, though prima issue it asked the reasons for the excusáis. “marginal,” give his 25 The reference to Wheeler sufficed Batson as well. claim under preserve defendant’s 7; (Vines, People v. Yeoman [2 fn. 31 Cal.4th 117-118 Cal.Rptr.3d 1166].) 72 P.3d indicated, She has no M.H., is single. the

As to prosecutor “[M.H.] also, in her 30’s. She is I She is than younger juror prefer. children. She emotional, not the death was personal her attitude regarding penalty about, I could my family talked if it was She was one who philosophical. and no single she is young, it. But the reason understand primarily [is] who fit children. on the jury presently There no other jurors [are] pattern.” want, in P.E, than I that “she is also younger stated

As prosecutor that, well, her attitude and dress. She said her 30’s. She had a casual very a where there was only death appropriate questionnaire penalty] [the conduct, And didn’t seem is not the law. she of violent which pattern to her talking when I was interested in And proceedings. particularly and with she seemed rather bored with my questions, counsel’s] [defense questions.” L.P., challenging declared that “I had two reasons for

As the prosecutor not to is a social worker. And I generally try her. Her She present occupation. workers have I will use a on social generally social workers. peremptory vote for the unless there is a reason not to. She also said that she couldn’t were a shadow of beyond death unless it was facts proved, proved doubt, a which is not the law either. So I felt she be might holding People facts, the other acts that are stronger burden on some of particularly alleged.” issue, jurors

As additional to all prospective explanation pertaining of one to advised that “I grade jurors] system prosecutor [prospective three, a three ten and I graded plus, before seeing jurors [L.P.] [PE.] and . . . a four.” [M.H.] “I want to out just

At this defense counsel point, interjected, point remark, No. is also unmarried.” confused counsel’s Apparently [Juror 12] indicated, aren’t we?” the court “I think we are still doing peremptories, I am “I know. I am by saying, finding everything, Defense counsel responded asked, the court “Anything I am lawyer, finding every—,” whereupon said, matter was “No.” The court asked whether the further?” submitted, said, and defense counsel “Yes.” “Well, that no ruled as the court finds

The court follows: thereupon and the reasons appear intent is inherent in discriminatory explanations, the Wheeler neutral, the court will deny be race and on those grounds motion.”

1048 law.

2. Applicable “ ‘ “Both the state and federal Constitutions the use of prohibit to remove peremptory challenges jurors based prospective solely group ’ bias.” ‘the United States Court Recently, reaffirmed that Supreme [Citation.] Batson states the and standard to be procedure trial courts when employed by “First, such as defendant’s are made. challenges defendant must make out facie case that the prima ‘by showing of the relevant totality facts rise gives Second, to an inference of once the discriminatory purpose.’ [Citations.] case, defendant has made out a facie prima ‘burden shifts to the State to the racial exclusion’ explain adequately by race-neutral offering permissible Third, justifications for strikes. a race-neutral explanation [Citations.] ‘[i]f tendered, is the trial court must then decide . . . whether the opponent ’ strike has v. racial discrimination.’ (People proved purposeful [Citations.]” 50, Cornwell (2005) 1, 622]; 37 Cal.4th 66-67 117 P.3d see Cal.Rptr.3d [33 v. Mills 158, 153, People also 48 Cal.4th 226 P.3d Cal.Rptr.3d [106 276].)

“ ‘ “ defendant satisfies the of Batson’s first requirements by ‘[A] step evidence sufficient providing the trial permit judge to draw an inference that discrimination has occurred.’ In whether determining [Citation.] [f] has carried his burden of ultimately racial proving purposeful discrimination, ‘the trial court “must make ‘a sincere and reasoned attempt evaluate the of the prosecutor’s light circumstances of the case explanation known, as then of trial knowledge and his observations of the techniques, manner in which has examined prosecutor members of venire and has ’ exercised for cause or v. challenges . . . .’ (People peremptorily [Citation.]” 903, Reynoso (2003) 31 769, 852].) Cal.4th 74 P.3d Cal.Rptr.3d [3 ‘[T]he trial is not to make or detailed comments for the required specific record to every instance in which a race-neutral justify reason prosecutor’s for exercising is the court peremptory challenge being accepted ” ’ (People Stanley [(2006)] [913,] genuine.’ 39 Cal.4th Cal.Rptr.3d [47 736].) 140 P.3d

“ ‘Review of a trial court’s denial of a Wheeler/Batson motion is deferen- tial, whether substantial evidence examining only its conclusions. supports “We review a trial court’s determination regarding sufficiency [Citation.] ‘ of a prosecutor’s justifications exercising “with peremptory challenges ’ restraint.” great We that a uses presume prosecutor peremptory [Citation.] in a constitutional manner and deference to the trial challenges give great court’s bona fide reasons from sham excuses. ability distinguish [Citation.] So as the trial court makes a long sincere reasoned effort to evaluate the offered, are entitled to defer- its conclusions

nondiscriminatory justifications ’ v. Lenix (People (2008) 44 Cal.4th 613-614 ence on appeal. [Citation.]” (Vines, 848.)26 946.)” 187 P.3d Cal.Rptr.3d [80 also intent finding nondiscriminatory review of a three Appellate step of a “the burden at the third stage informed defendant’s principle Wheeler/Batson excused jurors is to show the hearing prospective [citation], that of the nondiscrimi for reasons some discriminatory merely the record.” reasons offered the are not natory supported prosecutor 852, Taylor 850, v. (People 220 P.3d (2009) 47 Cal.4th Cal.Rptr.3d 891 [102 v. (Taylor); 1302, People (2012) see 54 Cal.4th 1322 McKinzie [144 872] 427, 412].) 281 P.3d Cal.Rptr.3d found, one,

Here, it is not clear the trial court ultimately step Moreover, defendant had made out a facie case. insofar as the court prima declined to it to have relied on its belief that a ruling, make such appears facie case of a likelihood” of discrimina- prima showing “strong required tion. too has held such standard is Intervening high authority (Johnson (2005) for federal constitutional v. demanding purposes. California 26 that, concurring urges why detail opinion explain when the trial court has failed to excusal, challenged ruling it we no accepting proffered is reasons for owe court’s deference, independently but examine the in detail and determine must ourselves record proffered likely prior opinion whether the reasons for the excusal were sincere. As in a recent 214, 630, (2013) subject (People P.3d Cal.Rptr.3d on this v. Williams 56 Cal.4th 715 299 [156 Liu, (dis. J.)), opn. concurring concluding that in opinion’s of author concedes 1185] Liu, J., 1062.) (Conc. precedent. opn. post, p. otherwise we adhere to our well-established at indicate, practice concurring opinion suggests, insensitivity Our does not to claims as peremptory employed discriminatory contrary, that a excusal On the has been for a reason. principles party honors the that should and do attend the evaluation of such claims. A has an limits, right, statutory juror any nondiscriminatory absolute within a prospective to excuse reason, subjective, gives juror’s suitability. We party however concern about the faith, right always claiming presume good party is exercised in and the burden is on the excusal, discrimination to into the for an inquired establish it. When trial court has basis understands, nondiscriminatory and a explanation provided, has been we also assume the court out, duty subject analysis, and carries its to and reasoned proffered to reasons sincere taking credibility. Finally, recognize into account all the factors that bear on their we that the determine, appellate trial rather than the court is best suited to under all the relevant circumstances, likely the proffered whether reasons are the real ones. case, ruling, hardly Deference to the trial court in such a even in the absence of a detailed “ Liu, J., ask, (Conc. post, approach appellate opn. constitutes ‘don’t don’t tell’ to review.” 1075.) p. stage analysis, only party In a three the trial court rules after the Wheeler/Batson asked, tell, Here, challenged who exercised the excusal was and did the reasons for this action. accepted explanations facially permissible, inherently plausible, the trial court that are factually supported, pretext. and defendant Under such cites no substantial evidence circumstances, court, duty by the appeal suspect there is no reason on a dereliction of trial legitimately, simply or to reverse the that the were exercised because the presumption excusáis indicated, Accordingly, we our previously trial court did not “tell” its reasons in detail. as have contrary past precedent “guide Supreme will us until the United States Court articulates a Williams, 653, 21.) (People Cal.4th at fn. p. rule.” 56 162, 129, 545 U.S. L.Ed.2d 125 S.Ct. facie burden [prima [162 2410] evidence sufficient to trial to draw an simply “produc[e] permit judge occurred”].) inference that discrimination has

However, noted, as the court nonetheless two proceeded step by asking his reasons for the excusáis. The prosecutor explain challenged so, did and the trial court then made a ruling, step pursuant three, circumstances, that the reasons were valid. Under these we expressed case, too may this is a three whether simply proceed though step analyzing the trial court the race-neutral reasons properly given by accepted 1082, v. Zambrano (People (2007) 41 Cal.4th prosecutor. 1105-1106 [63 297, 4]; v. Lewis and Oliver 163 P.3d People Cal.Rptr.3d (2006) 775]; v. Ward 140 P.3d People Cal.Rptr.3d [47 Cal.4th 717].) 199-201 114 P.3d Cal.Rptr.3d [30

3. Discussion. this conclude that Applying analysis, we substantial evidence supports race-neutral reasons given by his excusal of prosecutor Prospective M.H., P.F., Jurors and L.P. We each consider excusal in turn. challenged Juror M.H. Prospective

a. old, M.H. indicated that she was 40 was and had no children. years single, On her M.H. stated she was juror questionnaire, for the death and she penalty, confirmed that view on voir dire. When defense counsel asked whether her “Oh, no, no, feelings stemmed from she any personal not experience, replied, But I if someone came to personally. figure my house blew my family I would the switch. But away, that’s that’s I believe in it. flip personal, why man, But I don’t—I wouldn’t sit here and tell young this need it okay, you because killed I think there you somebody, also circumstances. But I [are] know if it was I couldn’t that I wouldn’t be my family, honestly say emotional about it.” executioners,

When defense counsel said that families are not the M.H. that she and confirmed she had no responded agreed, personal experiences relevant to the death but that “if it was me penalty, repeated personally my that’s different for me.” When counsel asked if M.H. family, totally we cannot have a that allows a victim’s to take agreed system family said, “Oh, M.H. I am not that. I think revenge, definitely. saying maybe you are I misunderstanding what am are saying you; you misunderstanding me?” remarks about death be taken more than one penalty might way,

M.H.’s but could rise to reasonable concern that her they give willingness of direct interest her degree be influenced might this

impose punishment M.H.’s by suggesting this concern in the case. The expressed prosecutor and “emotional”—as to be “personal” of the death penalty appeared approval than I could understand it”—rather “philosophical,” in “if it was my family, Moreover, as case. in any appropriate such that she could apply penalty observes, defense with exchange M.H.’s somewhat testy General Attorney also, with me?”) in combination (“are could misunderstanding counsel you him juror, persuade observation of this prospective personal prosecutor’s was a youth sign immaturity. her relative old, “in her 30’s” as that M.H. not years

Defendant out was points asserts, Moreover, defendant prosecutor’s recalled prosecutor. status, and childlessness had that M.H.’s combination of unmarried age, claim was untrue. As defendant not been encountered in the jury pool previously notes, 43 years had on voir dire that was already Juror No. 12 disclosed old, unmarried, that the and childless. defendant Finally, urges prosecutor’s unfair; was M.H. simply characterization of M.H.’s death views penalty meant, asserts, for the be emotional in her desire that she might involved, fair in but could and would be death if her own family penalty case where her interest was not any personal. noted, however, obliged accept precise

As remarks, be reasonably of M.H.’s and he could ambiguous interpretation fair when concerned about her the death consideration ability give Moreover, if Juror No. 12 shared member was not a victim. even family indicated were influential some characteristics with M.H. that the prosecutor latter, between the two in there was one substantial difference excusing views in favor of the death No. 12 much stronger panelists—Juror expressed wrong suggesting indicates penalty. Nothing prosecutor and death views were considered penalty status, when M.H.’s familial age, together, been evaluated at the she was who had among jurors unique circumstances, the record time the excused her. Under these prosecutor for statement of race-neutral reasons adequately supports prosecutor’s M.H. a exercising challenge against peremptory P.F. Juror Prospective

b. serious death penalty very P.F. declared in her questionnaire “[t]he In order for someone (murder). for a serious offense committing consequence out must have set maliciously I believe the person receive this punishment, ones), have a (and history their loved the life of someone else destroy that “the death remorse.” She stated her opinion of such violent behavior w/o have a convicted felons often in cases where enough is not used penalty others, such violent crimes against for committing repeated pattern [behavior] as murder.” dire,

On voir defense counsel indicated to P.F. his that she was impression it, “kind of a of the death strong but not rabid about proponent penalty you answered, “Yeah, if, think it is just sometimes?” P.F. I mean appropriate how it, facts, know, to answer if like I knew all the see I you would everything, mind, want to for a say judgment but based the facts I wouldn’t my upon crime, just arbitrarily say because of a without particular knowing everything, what the should be.” punishment

Later, the asked P.F. what she meant on her prosecutor by questionnaire she “felt the stating death would be penalty when there was appropriate of violent conduct. Did mean pattern you as far anything particular, events, as there would a series of or more than one . . . ?” P.F. [have be] answered, case, cases, “What I had in mind wasn’t but like particular some ones, certain had a person just no for life.” P.F. pattern regard agreed exclusive, when the “it wasn’t prosecutor suggested something just something were you of that would be a thinking consideration for She strong you?” said, agreed when the “It again wasn’t like one just you system at; would consider to look is that correct?” circumstances,

Under these recall that P.F. had indicated prosecutor’s the death for a penalty appropriate violent conduct” was “pattern unfair. certain of Though RF.’s voir dire might she responses suggested cases, consider the death in other penalty it was reasonable for the prosecutor to be concerned that she be reluctant might to do so in cases of the except most calculated and malicious murder someone had who committed similar violent acts in the The record past. thus of the supports sincerity claim that PR’s prosecutor’s views on the death expressed were race-neutral he reason used a why challenge excuse her. peremptory

Defendant insists the record does not assertions support prosecutor’s dress, about PR’s casual and her “bored” and disinterested manner. As observes, the record indicates that P.F. was a operator record, On the police her answers to all department. suggests, questions seem and she to have been an ideal appropriate, appears facially juror. observations,

But the demeanor prosecutor’s even if not explicitly record, confirmed the are a race-neutral for permissible ground peremptory excusal, when were not in the trial court. especially they disputed (People v. 225, (2011) Clark 243]; 52 Cal.4th 261 P.3d see Cal.Rptr.3d [131 v. Fuentes People 54 Cal.3d 818 P.2d Cal.Rptr. [286 75],)27We cannot the record contradicts the say race-neutral reasons stated by the for his excusal of Juror P.F. prosecutor peremptory Prospective 27 Defendant asserts that the trial court cut defense attempt off counsel’s to rebut the prosecutor’s simply protested reasons. But counsel that Juror Prospective No. like M.H., Juror sought dispute was unmarried. There is no indication counsel the prosecutor’s L.P.

c. Juror Prospective Social Worker.” her as “Senior her L.P. listed occupation On questionnaire, death L.P. responded, “My her about the general penalty, Asked feelings that the it to make sure are that it when feelings inflicting is general important a doubt before it.” is a shadow of guilty beyond imposing person dire, a L.P. that doubt” On voir the told her “shadow prosecutor out,” and he asked her on her had sort of “just comment stood questionnaire “I the major problem what she meant. L.P. think I said to explain replied, it, convicted beyond because I wanted to make sure the were with people words,” a the “before we suggested, a shadow of doubt.” “In other prosecutor this, as we sure we know what the consider a serious as want make penalty answered, are; . . . ?” L.P. “Yes.” you facts what are saying that, L.P., for the Defendant insists his reasons stating excusing prosecu- Defendant submitted, replied, motion was defense counsel “Yes.”

addressed the the claimed facial of reasons the only plausibility prosecu- tor, assess, circumstances, and failed to relevant under all the properly the whether were prosecutor’s explanations credible.

However, we made clear that “the court is have trial required v. on the record Batson/Wheeler on a motion. (People explain ruling its [903,] 919.) Reynoso, supra, 31 Cal.4th ‘When prosecutor’s stated record, are reasons both plausible the trial inherently supported v. court need not or make detailed findings.’ (People question prosecutor 345, 93, Silva (2001) (Vines, 769].)” 25 Cal.4th P.3d Cal.Rptr.2d [106 Here, noted, 849.) 51 Cal.4th reasons were prosecutor’s and, in all essential plausible respects, supported.

Moreover, that the of the arguing language trial shows the court’s-ruling made no bona fide to assess the attempt prosecutor’s credibility, too parses court’s words The court’s assertion that no closely. intent “inherent” in discriminatory prosecutor’s explanations read reasonably as a determination that the court believed them to be true. that, motion, We further note Wheeler/Batson while considering court asked for the juror relevant questionnaires, and reviewed presumably No them. reason to conclude the court failed to consider all the appears demeanor, factors on the bearing his credibility, including prosecutor’s inherent reasonableness or their improbability explanations, proffered basis in trial plausible the court’s own observation of accepted strategy, dire, the relevant voir its jurors’ as a trial in the experience lawyer judge and the community, common of the office practices and the prosecutor’s individual (E.g., People Jones himself. Defendant’s Wheeler/Batson claim 82].) 247 P.3d Cal.Rptr.3d [121 be

must rejected. E. Claim special unreliable circumstance and verdicts. penalty Defendant trial case urges procedures in this denied him reliable determinations of death of the eligibility, penalty, violation appropriate state and (U.S. of his federal to a death rights constitutional reliable judgment. Const., 5th, 8th, Amends.; I, Const., 17.) & 14th Cal. art. He suggests §§ the trial an due to general charade” his counsel’s “empty deficiencies, and his own asserted to waive his rights stand incompetence trial—claims we have considered at already rejected length record. however,

In focuses anew on two particular, aspects proceed- “slow to the circumstance and the ings—his special allegation, plea”

1055 evidence or trial, no mitigating to at which he was permitted present death. He him to and to sentence give testimony jury inviting argument authorized, wishes, indeed required, the state was claims that of his regardless interest in in order to the paramount public to override these decisions protect in reasoned, fair, his and to avoid being implicated death judgments, just not commit suicide. We are persuaded. desire to state-assisted observes, circum has limited recognized As defendant California which, rights in a matter of fundamental public policy, stances be defendant limited may decisions that are to a criminal normally personal Thus, a capital in of death reliability. or overruled the service penalty a automatic of death defendant is not to waive his or her permitted appeal VI, 11, Code, 1239, Const., (b); subd. (Cal. (a); Pen. art. subd. judgment. § § 820, 49, 457 71 Cal.2d 834 P.2d (1969) v. Stanworth People Cal.Rptr. [80 Moreover, taken 889].) may to a not be felony a of guilty capital except plea counsel, 1018.) Even (§ consent. if in the of with counsel’s presence right self-representation otherwise to exercise constitutional competent (Faretta 562, 2525]), S.Ct. (1975) v. U.S. 806 L.Ed.2d [45 California over a defendant in order enter such may discharge lawyer plea v. 747-757 counsel’s Chadd Cal.3d objection. (E.g., People 837]; (2007) 41 Cal.4th 621 P.2d see Cal.Rptr. People [170 Alfaro 118].) 163 P.3d 1299-1302 Cal.Rptr.3d [63 here, But defendant’s counsel did consent to a “slow on issues of plea” counsel to allow agree circumstances. Nor did guilt special simply defendant to waive a death rights inviting judgment. his trial for purposes contrary, On the their consent stemmed from their decision—one we express have deemed under the preserve reasonable circumstances—to competent with a in the face of evidence that credibility jury overwhelming traffic defendant had officer routine gunned during stop down police to eliminate the victim as a to serious evidence felony order witness during discovered the encounter. noted, “slow we have counsel could conclude this competent plea”

As also circumstance had the strategy advantage limiting additional special made duty showing evidence of the officer’s “lawful” performance the risk that additional at the Defendant avoided preliminary hearing. thereby trial, on the issue would be while duty” presented evidence “lawful necessary, if right urge preliminary preserving appeal, turn, evidence insufficient. In we have concluded was hearing legally sufficient, in that “lawful” performance legally evidence of Officer Burt’s fact, trier of the evidence adduced at reviewing preliminary a rational the instant trial court could find reasonable doubt—as hearing, beyond time at the engaged duty did—that the victim necessarily lawfully circumstances, was killed. Under these the fact that may have had reasons, counsel, different from those of his to a personal agreeing “slow does not undermine the fundamental of the death plea” reliability judgment.

Nor are the reliability constitutional concerns raised fact that defendant, insistence, at own his no evidence or presented mitigating argu ment at the have trial. “We stated that ‘a verdict is penalty constitutionally the reliable “when has burden at its the prosecution discharged guilt proof and to the rules penalty pursuant of evidence within the phases guidelines statute, of a death constitutional the death verdict penalty has been returned under instructions and and the trier of proper has procedures, penalty duly evidence, considered the relevant any, if which the defendant has mitigating ’ conditions, chosen to Under those a defendant’s present.” despite [Citation.] avowed intent not to available evidence state’s present mitigation, interest in a reliable and fair been ensuring determination has met. penalty 1229, v. (People (1997) 15 Cal.4th 1372 Cal.Rptr.2d [Citations.]” [65 Bradford 145, 259].) 939 P.2d we Finally, have the contention rejected that constitu repeatedly tional reliability a death recognizing is undermined judgment (Nakahara, defendant’s in favor of the death personal right testify penalty. 705, Webb, 719; 494, 30 supra, 534-535.) Cal.4th supra, Though “ the instant received no instruction that jury the defendant’s specific ‘despite ” it must decide the testimony,’ based the factors in appropriate penalty upon 535, 29, Guzman, aggravation mitigation (Webb, at fn. supra, p. quoting 915, 45 962), Cal.3d that it jury generally instructed must weigh evidence to aggravating mitigating determine the appropriate return a death verdict if penalty, should only persuaded aggravating were circumstances “so substantial” in that death comparison mitigation was warranted. Jurors were told not also to be swayed by against bias defendant, exclusive,28 that the listed were factors and that aggravating defendant’s “behavior” in the courtroom be only could considered to rebut any evidence of remorse if such evidence was offered. No mitigating basis for reversal appears. Challenges

F. death statute and penalty instructions. California statute, Defendant challenges raises numerous to California’s death penalty arid to the given standard instructions trial. We have rejected penalty occasions, the identical claims and defendant fails to us many persuade that these should decisions be reconsidered. 28 jury jury expressly only also advised that the could section 190.3 factors (other (a) (circumstances crime), (b) aggravation

consider in were .capital factors of the violent conduct), (c) convictions). (prior criminal felony

1057 Thus, not unconstitutional that “the death statute is we reaffirm to the truth of ‘unanimity aggravating because it does not require circumstances, an or a reasonable doubt findings beyond aggravating 190.3, (b) (c) evidence) has been (other proved, than factor or circumstance § factors, or death is mitigating factors aggravating outweighed v. Cunningham Nothing sentence.’ appropriate [Citation.] California 856], Blakely Washington 127 v. (2007) U.S. L.Ed.2d S.Ct. 549 270 [166 2531], Ring v. S.Ct. Arizona (2004) 542 U.S. L.Ed.2d 124 [159 New 2428], Apprendi (2002) U.S. 584 L.Ed.2d S.Ct. [153 2348], affects our Jersey L.Ed.2d 120 S.Ct. U.S. 466 [147 constitutionally No burden of proof conclusions in regard. [Citations.] is no that there nor is the trial instruct required, jury required certain sentencing proceedings burden of That noncapital proof. [Citations.] mean the death burden of does not may assign proof or defendant’s rights protection statute violates penalty [capital] equal is a due .... The trial court need not instruct there process. [Citations.] 1, v. Dement (2011) 55-56 (People of life. 53 Cal.4th presumption [Citation.]” 496, 292].) 264 P.3d Cal.Rptr.3d [133

Moreover, the statute is not circum special unconstitutional because stances it are so numerous or broad that it fails to narrow genuinely specifies it fails of for the death or because eligible penalty, require class persons Vines, 830, 891; v. People written 51 Cal.4th supra, Abilez findings. (E.g., 190.3, 472, 526, 58].) (2007) 41 Cal.4th 533 161 P.3d Section Cal.Rptr.3d [61 (a), factor which to consider the circumstances the capital allows jury crime in is not overbroad and does not lead aggravation, impermissibly Vines, supra, or at (E.g., death arbitrary capricious imposition penalty. 891; Abilez, 592, 533; v. People Robinson (2005) 37 Cal.4th 655 p. at p. 595, 760, Kennedy (2005) 363]; 36 People v. P.3d Cal.4th 124 Cal.Rptr.3d [36 641, 160, 472.) 31 115 P.3d The federal constitutional Cal.Rptr.3d guarantees due and unusual cruel process protection, against punish equal 6th, 8th, Const., Amends.), ment do not intercase (U.S. pro 14th require 1, People v. Whalen (2013) review 56 Cal.4th 91 portionality appeal. (E.g., 673, 915].) P.3d 294 Cal.Rptr.3d [152 overbroad, misleading vague,

CALJIC No. 8.88 is not impermissibly death if may persuaded insofar as specifies jury impose are to the mitigat “so substantial” in aggravating comparison circumstances “warranted],” to advise that circumstances that death is fails ing v. (People is central determination is whether death the “appropriate” penalty. 299, 364]; 999, Watkins (2012) 55 290 P.3d Cal.Rptr.3d Cal.4th 1036 [150 757, 1234, v. (2012) see 54 Cal.4th 1299 People Cal.Rptr.3d Gonzales [144 834]:) to delete 281 P.3d Nor was the trial court required inapplicable v. (2012) (E.g., People factors from instructions. Valdez sentencing 1058 82, 865, v. McDowell People 924]; 180 281 P.3d Cal.Rptr.3d [144 395,

(2012) Cal.4th 54 444 547].)29 P.3d 279 Cal.Rptr.3d [143 death Finally, California’s penalty scheme does not violate international v. (E.g., People Houston law and norms. (2012) Cal.4th 1232 [144 Roper 799].) 281 P.3d We Cal.Rptr.3d are otherwise persuaded Simmons 1183], U.S. L.Ed.2d S.Ct. in which [161 cited high court evolving international signifi standards as “respected cant” for its holding that the support Amendment Eighth prohibits imposition their crimes as juveniles. of the death penalty against who committed persons (Roper, 578.) p.

DISPOSITION judgment affirmed. J., Kennard, J., J., Chin, J., J., C. Cantil-Sakauye, Werdegar, Corrigan, concurred.

LIU, J., Concurring. The trialcourt in this case denied defendant’s objec- tion to the prosecutor’s strikes of peremptory all three black prospective “Well, the jurors with statement: the following court finds that no discrimina- is tory intent inherent in the and the be explanations, reasons race appear neutral, the Wheeler motion.” on those the grounds court will deny Because defendant has not shown that it was more than not that the likely motivated, strikes were I racially that his I agree claim must be denied. however, cannot agree, with today’s defer aspects opinion improperly and, to the trial court’s in doing, so fail to ruling evaluate defendant’s claim in the manner court high precedent requires. Batson Kentucky 69, (1986) v. 476 U.S. 79 L.Ed.2d 106 S.Ct. [90 1712]

(Batson) set forth a framework for three-step a claim that a evaluating “First, strike was based race. peremptory defendant must out a make case prima facie that the ‘by showing of the relevant rise totality facts gives to an Second, inference of discriminatory once the purpose.’ [Citation.] case, defendant has made out a facie prima ‘burden shifts to the State to the racial explain adequately exclusion’ race-neutral offering permissible Third, justifications for the strikes. a race-neutral explanation [Citations.] ‘[i]f tendered, is the trial court must then . . . decide whether the of the opponent ” (Johnson v. strike has racial proved discrimination.’ purposeful California (2005) 162, 129, 2410], U.S. 545 168 L.Ed.2d 125 omitted S.Ct. fn. [162 29 28, ante), (fn. Though, as noted jury only was told that the applicable section above (a), (c). aggravation (b), 190.3 factors were factors

1059 (Johnson).) In order to prevail, that “it more the defendant must show (Id., 170.) at motivated.” challenge p. than was improperly not that likely Batson's court third an Ordinarily, appellate step. case involves present review the denial of a Batson motion deference to at the third with step must 472, v. Louisiana Snyder U.S. (2008) 552 (See [170 trial court. Batson, 98, fn. (Snyder); 476 U.S. at p. L.Ed.2d 128 S.Ct. 1203] because Batson's third-step is 21.) inquiry This rule of deference warranted belies demeanor often involves evaluation “whether prosecutor’s (Snyder, addition, if the has 477.) at In intent.” discriminatory p. the Batson strike, as the reason for juror’s inquiry invoked demeanor can be said to credibly evaluation of “whether the demeanor juror’s requires to the prosecutor.” exhibited the strike attributed juror have (Ib basis ‘ id.) demeanor lie credibility determinations of “pecu “[T]hese ’ (Ibid.) within a trial . . . .” liarly judge’s province,” [citation] However, to make deference is unwarranted “when trial fails or to of the analysis on-the-record explicit findings any prosecution’s provide v. Williams (People stated reasons for a strike.” (Williams) Liu, J.).) In (dis. P.3d Cal.Rptr.3d opn. [156 1185] circumstances, no assurance that the trial court such “a court has reviewing bear the issue’ of upon examined ‘all of the circumstances that has properly (Ibid., 478; Snyder, supra, U.S. p. discrimination.” purposeful quoting Rutledge U.S. (7th 2011) nothing see Cir. 648 F.3d there is 559 [“if decision, then to which nothing the record the trial court’s there reflecting case, that “no discrimina defer”].) we can In this the trial court’s statement to be race intent is inherent in the reasons tory appear explanations, ...” that it and careful thorough neutral does not indicate conducted at Batson's third court’s decisions step exemplified by high inquiry Dretke Snyder Miller-El v. 196, (2005) 545 U.S. 231 L.Ed.2d 125 [162 (Miller-El). the trial court’s erroneously deferring ruling, S.Ct. By 2317] Batson once effectuated “the denial of defendant’s this has again [a] court, the fact that no a trial has conducted claim or ever despite appellate, (Williams, Liu, Batson (dis. J.).) at of 700 analysis.” p. opn. proper to Batson rulings in Williams that our deference I recently explained side of wrong falls on findings analysis unaccompanied by explicit review at Batson's third on correct of split authority approach appellate Williams, Liu, 56 Cal.4th at J.) (dis. 709-715 (See opn. pp. step. unex- law accord deference [reviewing refusing state federal case U.S. v. McAllister 2012) Batson (6th Cir. 693 F.3d rulings, including plained Coombs 559, U.S. Rutledge, supra, 581-582, v. 572, F.3d at 648 p. LaMarque and Green v. 255, 261-265, Diguglielmo 2010) Cir. F.3d (3d 616 1028, I 1031].) In this show how (9th 2008) Cir. 532 F.3d opinion, 1060

unwarranted deference results in short that falls of what judicial inquiry is ain Batson I analysis. also trace the our required proper origins erroneous doctrine and the unfair and discuss of our counterproductive consequences now, For some time our has not demanded that trial approach. jurisprudence courts or reviewing truly courts demonstrate reasoned effort to evaluate light Batson claims in of all on relevant circumstances the issue bearing of. results, discrimination. And the I another purposeful which document in filed are remarkable: In the cases where this court opinion today, quite has addressed Batson claim Batson over we have found past years, error (See (2013) once—and that was 12 only ago. v. Harris years People 804, 885-886, Liu, Cal.4th (conc. J.).) 892-898 opn.

Because high court has precedent consistently recognized manifold harms of racial discrimination in selection jury and has accordingly required more careful and thorough than our case I inquiry provides, law respectfully disagree with deferential framework that this court continues to apply reviewing Batson unexplained rulings appeal.

I. “ ‘ our Reciting today’s of a precedent, says: “Review trial court’s opinion deferential, denial of a Wheeler/Batson is motion examining whether only substantial evidence its conclusions. a trial supports ‘We review [Citation.] court’s determination regarding sufficiency of a justifications prosecutor’s “ ” for exercising peremptory challenges great ‘with restraint.’ We [Citation.] that a uses presume in a peremptory challenges constitutional give manner and deference to the trial great court’s bona ability distinguish fide reasons from sham excuses. So as the trial court makes a long [Citation.] sincere and reasoned effort to evaluate the nondiscriminatory justifications ” offered, its are conclusions entitled to deference on appeal. [Citation.]’ (People v. Lenix 44 Cal.4th 613-614 187 P.3d Cal.Rptr.3d [80 946].)’ ([People (2011)] v. Vines Cal.Rptr.3d [124 ante, 943].)” 251 P.3d 1048.) (Maj. p. So far so Deference opn., good: where the trial court makes “a appropriate sincere reasoned effort” to evaluate the stated reasons for prosecutor’s minority striking juror. have

I no doubt trial court in this case But was sincere. the record no basis for us to conclude that the trial court made a provides reasoned effort to the the analyze prosecutor’s explanations for strikes. There is no in the trial reasoning court’s statement that “no intent is discriminatory inherent the in the reasons to be race neutral.” explanations, appear Moreover, when defense counsel noted that No. is also unmar- “[Juror 12] ried” in the to assertion he struck response prosecutor’s juror prospective M.H. in single,” because is the trial court was part “[apparently “[M.H.]

1061 (Maj. opn., the comparison. remark” and did not probe confused counsel’s Lenix, (Lenix) ante, 1047; Cal.4th at 624 supra, p. People [trial at see v. p. Taken at juror analysis].) to best consider comparative courts are positioned intent is value, discriminatory observation that “no the trial court’s mere face to race neutral” appear be inherent in and the reasons the explanations, the given by the reasons (italics added) not address whether race-neutral does the at actual reasons strikes. motivating inquiry were or a determination of inherent Batson's third more than stage requires of to assess plausibility [the it “requires judge apparent plausibility; all with a on it.” bearing reason in of evidence light prosecutor’s stated] that the (Miller-El, 252.) in the record shows supra, Nothing 545 U.S. at p. trial court conducted the requisite inquiry. First, it the trial says to fill the two gap ways.

Today’s opinion attempts in the intent was ‘inherent’ discriminatory prosecu- court’s “assertion that no the court is read as a determination reasonably tor’s explanations ante, 1054.) But that reading believed them to be true.” at (Maj. opn., p. is of this court’s own light the word “inherent” is as strained it ironic Williams, (See 56 Cal.4th at p. of the word in this context. usage “ ” is if it “not ‘inherently ‘inherently prosecutor’s explanation plausible’ [a “inherent,” Further, it ”].) after the trial court used word implausible’ right added). appear (italics “the race neutral” If trial court said reasons be true, were in fact why had made determination that the reasons prosecutor’s did it not its instead of just say analysis using doubly so provide It is this court that court’s conclusory language? qualified, “parses [trial] ante, 1054) words too at instead them their giving closely” (maj. opn., p. meaning. plain

Second, juror the trial “court asked for the relevant today’s opinion says No reason and it reviewed them. presumably appears questionnaires, all the bearing conclude court failed consider factors prosecu- demeanor, tor’s the inherent reasonableness including credibility, of his their basis plausible accepted improbability proffered explanations, dire, voir its jurors’ trial the court’s own observation the relevant strategy, as a trial in the common lawyer judge community, experience himself.” of the office and individual prosecutor practices prosecutor’s ante, 2013) 1054. But Adkins Warden (11th cf. Cir. 710 F.3d at (Maj. p. opn., about with personal opinion court’s experience [“trial consideration at Batson’s third of the was not a proper reputation prosecutor” did not have because it was “non-record evidence which stage [the defendant] chasm, however, rebut”].) wide between the an There is a opportunity that the trial court did not conduct a proper absence of reasons to conclude (See Batson did. and the of reasons conclude analysis presence not credit Snyder, supra, [reviewing may juror 552 U.S. p. no trial court made “specific demeanor as the reason a strike where the 1062 on the record

finding concerning juror’s] demeanor” allowed “simply [the the without If a can the challenge reviewing fill explanation”].) simply void awith massive of then we can be assured that pile many presumptions, trial courts will continue to deny Batson claims without reasoned explanation. Indeed, we might as well with review in such dispense appellate cases since is so to a easy rationalize silent record with a of cacophony presumptions.

The court actually knows we cannot do this under Miller-El and so Snyder, its to real answer the of Batson is problem unexplained rulings following: the “we have made clear ‘the trial court is not required explain record its ruling on a Reynoso [(2003)] Batson/Wheeler motion. v. 31 (People 769, [903,] 852].) Cal.4th 74 P.3d “When the Cal.Rptr.3d [3 prosecutor’s stated are record, reasons both inherently plausible supported by trial court need not or make question detailed findings.” (2001) 93, v. Silva 25 Cal.4th (People Cal.Rptr.2d 21 P.3d [106 Vines, 769].)’ ante, v. 51 Cal.4th ([People supra,] 849.)” (Maj. opn., “ ‘ ‘ at added.) italics p. trial court is not required “[T]he make or specific detailed comments for the record to instance in justify every a which race-neutral reason for prosecutor’s a chal exercising peremptory ’ ” lenge is being genuine.” court as v. accepted by (People Stanley ” [(2006)] [913,] 736].)’ (Id. 140 P.3d at Cal.Rptr.3d [47 1048-1049.) pp.

The swarm internal mle marks around the stated above quotation indicates that this court often has found it to be tool handy in rejecting Batson claims. The discussion in II. below excavates the tenuous part origins of this rule in our Batson IHere focus on how jurisprudence. our application of the rule dilutes the proper inquiry Batson’s third step. nutshell, in a is this: Our court holds so problem, routinely long stated reason for prosecutor’s striking minority (1) is juror inherently record, we

plausible must that the trial supported presume motion, court’s denial a Batson even if rendered any without explicit on a findings analysis, full into all the relevant premised inquiry circumstances on the of the bearing credibility That prosecutor’s explanation. turn, entitles trial court’s to deference on presumption, ruling appeal. But stated is say reason prosecutor’s inherently plausible only ” (Williams, that it is “not say Cal.4th at ‘inherently implausible.’ supra, 56 653.) That is far from p. cry evaluating whether the stated reason was likely the actual reason for a strike particular given totality relevant circum stances. And to that a say stated reason is prosecutor’s “supported by record” is (in that there is some only say evidence to reason or support an formulation) even weaker that the stated reason is not contradicted by the record. 31 Cal.4th at (People Reynoso, supra, (Reynoso).) p. circum based on all relevant from that is far cry inquiring,

Again, for the the actual reason stances, is the stated reason was likely how it that likelihoods; it an assessment of ultimately Batson requires strike. The inquiry that the “it more than not likely was the defendant’s burden prove is 170.) 545 U.S. at (Johnson, supra, p. was motivated.” challenge improperly an can without and being likely, explanation An can be plausible explanation without being or uncontradicted the record by some evidence be supported do see how the circumstances. I not based on the relevant likely totality and inherently supported fact that reason is proffered plausible reached a decision as actually record enables us to trial court presume was it than not that the reason likely proffered pretextual to whether was more in of all relevant circumstances. light in several aspects

This and related errors are analytical apparent gap against Consider the court’s discussion of strike today’s Prospec- opinion. was a M.H. On her M.H. indicated she tive Juror juror questionnaire, with bachelor’s math degree consultant 40-year-old computer science. and had no children. She had formed no single She computer no ability about the case and hesitations about her opinions present expressed an follow the instructions and serve as When asked impartial juror. court’s wrote, “I for her about the death M.H. am for general feelings penalty, has been too given death When asked whether death penalty penalty.” often, seldom, wrote, has too or M.H. “I feel the death randomly, penalty the defendants have been used that some of Especially given appropriately. death further indicated that her views on the death years on row.” M.H. spent did belong had not last few M.H. not changed years. support penalty did either belong any group advocating victim she not any rights groups; did not have close any abolition or increased use of the death she penalty; of a crime. M.H. said friends or relatives who had been arrested or convicted her to vote automatically her views on would not cause capital punishment against considering aggravating for or death without penalty evidence mitigating presented. dire, whether her for the death support

At voir when defense counsel asked no, own,” “Oh, M.H. said: your stemmed from “some experience penalty no, blew my not But I if someone came house and figure my personally. I believe I would the switch. But that’s that’s family away, personal, why flip man, I need young okay, you in it. But don’t—I wouldn’t sit here tell this But I killed I think there also circumstances. you somebody, it because [are] that I be I couldn’t wouldn’t family, honestly say know if was my she had no On further M.H. confirmed questioning, emotional about it.” said, “if it was me related to the death but again experiences personal that’s different for me.” my family, totally personally gave following M.H.: explanation striking “[M.H.] is She has no children. single. She is than I She younger juror prefer. also, her 30’s. She is her attitude the death regarding penalty was personal emotional, about, She was the one who talked if it philosophical. I could understand it. my family But the reason she is primarily young, [is] single jurors jury presently and no children. There no other on the who [are] fit that pattern.”

In assessing prosecutor’s explanation, that M.H.’s today’s says opinion statements at dire voir “could rise to a give reasonable concern that her willingness this be influenced her of impose punishment might degree ante, direct interest in the 1051) case” at (maj. opn., and that the p. prosecutor be “could concerned reasonably about her the death ability give penalty fair consideration when a family (ibid.). member was not a victim” word The “could” makes it hard to insofar disagree as one cannot that the court’s say posited reading of M.H.’s remarks is But even if entirely implausible. likely plausible, is reasonable would have understood M.H.’s person statements that way? M.H. stated that her clearly for the death support no, no, was unrelated penalty any (“Oh, personal not experience person She on ally.”). wrote her that “I questionnaire am for the death penalty” that her view had not in the last few changed years. She further indicated that “I feel the death has been used penalty appropriately. Especially given of some have years defendants death spent row.” It does not seem that a likely familiar with M.H.’s full at person and her questionnaire answers voir dire would have be, understood her the death as support penalty for it, emotional, not prosecutor put M.H.’s “personal philosophical.” remarks she would have an simply conveyed emotional reaction if her (“I switch”), were murdered would family not that she did flip not support or could not death in other circumstances. apply penalty The court to buttress attempts with the prosecutor’s explanation statement; “Moreover, observes, following as the General Attorney M.H.’s (‘are somewhat with defense testy exchange counsel you misunderstanding also, me?’) could in combination with the observation prosecutor’s personal of juror, him her relative was of prospective persuade sign youth ante, at immaturity.” (Maj. opn., 1051.) But the inclusion of this sentence p. Batson First, in the court’s analysis wrong is on two counts. prosecutor said one reason he struck M.H. that “she “younger than young” I juror The said prefer.” prosecutor “immaturity.” about nothing views, might have treated as a for liberal prosecutor youth proxy compassion defendants, or criminal else. We do not know what underlies something and neither the General nor this prosecutor’s preference, Attorney may shore reason that the with a prosecutor gave reason he did up actually” Miller-El, (See 545 U.S. at supra, give. p. prosecutor simply [“[A] has state his reasons as best he can and stand or on the got fall plausibility its up, does not hold stated reason .... If the gives the reasons he an judge, appeals because a trial does not fade pretextual significance false.”].) court, been shown up not have can a reason that imagine might Snyder, Second, personal credit “the prosecutor’s we have no basis to under ante, 1051) as part opn., p. juror” (maj. observation this prospective the trial judge not show that “the record does for the strike because the basis (Snyder, demeanor.” concerning determination made a actually [M.H.’s] 479.) 552 U.S. at p. M.H. to Juror Moreover, of comparing the import the court dismisses views stronger much No. 12 expressed 12 on the that “Juror ground No. wrong indicates the Nothing the death penalty. favor of views and death status, M.H.’s familial age, that when suggesting together, who had been jurors among she was unique were considered ante, at her.” (Maj. opn., excused evaluated at the time prosecutor in M.H.: striking said 1051.) actually recall what the prosecutor But p. I than the juror prefer. She is younger is She has no children. single. “[M.H.] also, the death penalty is her attitude regarding in her She She is 30’s. about, emotional, one who talked She was the and not philosophical. personal is reason she I understand it. But it could family primarily [is] if was my on jury There no other jurors and no children. young, single [are] that his concern begins The with who fit that pattern.” prosecutor presently 30’s”), without and single, not “in her (she actually M.H. is young end, he pivots views. At the discusses M.H.’s death children. He then penalty “But primarily is she the reason his concern: prioritizes [is] opening no on jurors jury There other and no children. young, single [are] be construe added.) It (Italics may possible who fit that presently pattern.” age in addition to her M.H.’s death views “that encompass penalty pattern” is it an is plausible, status. But even if such again-, interpretation and familial likely last two meant? When that that is what the prosecutor’s are read sentences of his assertion understanding natural the most together, is who fit that on the jury presently pattern” “There no other jurors that [are] and no children.” And were jurors “young, single believed no other that he in to M.H. were age seated close jurors the record shows that two this point, children; 43). No. 12 45) (age and Juror (age Juror No. without single to fold in the prosecutor’s death about M.H.’s comments Even if we were as acknowledge, have to “that we would views as part pattern,” penalty if (even above, an unlikely plausible) comments offer that those discussed acknowledged, And once the views she expressed. rendition of in much views stronger 12 expressed that “Juror No. say seems doubtful ante, 1051.) at As to opn., p. M.H. did. (Maj. the death than penalty” favor of 12 wrote on his Juror No. about the death feelings penalty, his general it,” wrote, “I am for death penalty.” M.H. “I’m for whereas questionnaire, seldom” is used “too he felt the death penalty No. 12 indicated Juror noted, said, many that take too M.H. “I appeals long”; feel the death “[t]oo has been used penalty that some of the appropriately. Especially given have defendants on death spent years row.” Juror No. his views qualified that “if court by indicating to me that defendant proved should be spared Further, death—I not vote death.” might he noted that ability to serve as an be juror might affected if impartial “defendant said he’d found God and should be for that reason.” spared On her M.H. did not questionnaire, qualify her for the death support penalty any way. difference principal between Juror No. 12 and M.H. is that Juror 12No. wrote on his question- naire that his cousin-in-law was a fireman who had tried the murder to save victim and that he had formed an already opinion defendant deserved death But we can cite Juror penalty. hardly No. 12’s about preconception (as case distinct from his views about the death as a general) M.H., basis for proper him differentiating from since we have trial upheld court’s refusal to excuse Juror No. 12 for cause on the ground during voir dire he indicated that he “consistently could and would subordinate his views, and consider carefully weigh the aggravating mitigating evidence instructed, vote for either death or life without parole as appropriate, sit fairly ante, accordance with the juror’s 1045.) oath.” (Maj. opn., p. Whether there were other differences between Juror No. 12 and M.H. is court, we do not something know because the trial defense despite counsel’s did not conduct a prompting, comparative juror analysis. end,

In the the court finds that “the only reasons were prosecutor’s and, in plausible ante, all essential at respects, supported” (maj. opn., 1054) because that is under p. enough our to entitle the trial court’s precedent above, Batson unexplained ruling to deference on As shown this appeal. cannot be reconciled with the “in approach high court’s mandate that a Batson considering objection, or in a reviewing claimed be Batson ruling error, all of circumstances bear the issue of racial upon animosity Miller-El, must be (Snyder, consulted.” 552 U.S. at supra, p. citing supra, Batson, 239; 545 U.S. at see p. 94.) 476 U.S. at supra, p. Tellingly, today’s nowhere that the trial opinion actually says this court has indepen determined, circumstances, based on dently all relevant that was not more than not that the likely strikes of the prosecutor’s three black prospective Williams, were jurors motivated race. As in our decision in today results court, “the denial of defendant’s Batson claim no fact that trial or despite (Williams, has ever conducted a appellate, analysis.” Batson 56 supra, proper Liu, at (dis. J.).) Cal.4th 700 of p. opn.

II. Although shortcuts that in legal pervade analysis Batson today’s deference, are of reality is that habits unwarranted opinion troubling,

1067 inference, have been presumptions on and overreliance gap-filling speculative I entrenched in our Batson As discuss for time now. some jurisprudence Harris, Liu, J.) (conc. People of opn. 57 at 885-886 Cal.4th pages of (Harris), one unlawful found instance only filed this court has today, also raised Batson that have the 102 cases among discrimination in selection jury cases that postdate the 59 among and none years, claims over past attributable, to the Miller-El. at least in part, This record improbable Batson in evaluating that we continue legal apply erroneous framework Harris, of our case law In I the problematic development claims. discuss first discrimination at Batson’s an inference of what is to establish required Liu, (Harris, I trace the J.).) Here (conc. opn. at 879-882 step. pp. at Batson’s third step. rule of deference of our erroneous development A. Batson was not rulings we

The deferential approach apply unexplained v. Wheeler People (1978) a 22 Cal.3d of our law. In the wake of always part Batson, 748], P.2d our state law forerunner of Cal.Rptr. [148 v. Hall People 672 P.2d Cal.Rptr. this court in 35 Cal.3d [197 motion, Wheeler (Hall) court, a considering trial emphasized 854] “a and reasoned evaluate the prosecutor’s must make sincere attempt known, the case as the circumstances of then explanation light in which his observations of the manner of trial knowledge techniques, of the venire and has exercised has examined members (Id. 167-168.) define what trial court clearly We did challenges.” pp. did we made nor inquiry, do in order to demonstrate that it had this must with the level connect trial court’s failure to conduct inquiry we did trial court must suggest deference owed on But appeal. denial if there was some basis summary question undertake more than a Hall, explana reasons. In we evaluated ing prosecutor’s prosecutor’s “demanded further of bias” and “suggestive tions and found that some were (Id. 168-169.) at “Yet the trial court on the of the trial court.” inquiry part pp. all of the explana considered itself bound accept prosecutor’s apparently value, when only the view that bias is shown group tions at face expressing all of an ethnic from group declares an intent to exclude members prosecutor court’s under obligations inconsistent with the Such abdication is jury. Wheeler, be to constitute error of that case must held authority and on (Id. 169, omitted.) at fn. reversal.” p. requiring 656, v. Turner People 42 711 726 P.2d (1986) Cal.Rptr. In Cal.3d 102] [230 (Turner), we Hall’s requirement make a that trial courts “sincere applied for striking to evaluate the explanation” reasoned prosecutor’s attempt (Hall, 167). The trial court in Turner had supra, 35 Cal.3d at minority juror p. denied defendant’s Batson motion that “the without comment. We observed 1068 were

prosecutor’s either explanations implausible suggestive of bias. They ([Hall,] therefore ‘demanded further on the of the trial court’ at inquiry part 169), followed ‘sincere and reasoned’ p. by effort court to evaluate their genuineness sufficiency of all the of light circumstances the trial (id., 167, added). at italics Each p. is if constitutional step ‘imperative, (ibid.), guarantee to have real We meaning’ conclude that ... [f] failed to its burden of prosecution sustain showing challenged [citation], were not excluded because prospective jurors bias and as group in Hall the court failed to its discharge duty into and inquire carefully (Turner, evaluate the offered explanations at [citation].” basis, 728.) On that conviction. (Ibid.) p. court reversed the capital We found reversible error on similar in three grounds subsequent capital cases, all without dissent. v. People Snow In (1987) Cal.3d 216 [242 477, 452], court, Cal.Rptr. P.2d in a unanimous Chief opinion by Lucas, Justice determined that “it that the trial . . strongly appears judge . bias, at face value the simply accepted prosecutor’s denials without group making any ‘sincere and reasoned to evaluate the attempt’ prosecutor’s Hall, motives. Under abdication is inconsistent with court’s ‘[s]uch ([Hall, (Id. Wheeler under . . . .’ supra,] obligations 169.)” 35 Cal.3d at at p. Fuentes 226.) Similarly, People (1991) 792, p. Cal.3d 707 Cal.Rptr. [286 (Fuentes) 818 P.2d held that the trial court failed to conduct “a 75] truly ‘reasoned to evaluate the attempt’ because it prosecutor’s explanations” did not “address the challenged jurors individually any to determine whether one (Id. of them has been 720.) excluded.” at improperly court in p. Notably, Fuentes the trial court’s role in an “reemphasize[d] making record adequate when dealing with a Wheeler motion. the deference we Notwithstanding give to a trial court’s determinations of only we can do so credibility sincerity, when the court has clearly its expressed findings and the bases rulings (Id. later, People v. Silva added.) at fn. italics A decade p. therefor.” (Silva), 21 P.3d Cal.Rptr.2d we observed [106 769] that the trial court had failed to between the probe discrepancies prosecutor’s dire, record, stated reasons and the record voir and we held that “[o]n we are unable to conclude the trial court met its to make ‘a obligations sincere and reasoned ([Hall, to evaluate the attempt prosecutor’s explanation’ ([Fuentes, at 167-168]) 35 Cal.3d and to clearly its pp. express findings (Silva, at 5]).” fn. p. p. 385.)

B. out, Silva now stands as the sole instance during the itAs turns 20 past court has found Batson error. An in years which of erosion of early sign Hall’s “sincere and reasoned” evaluation requirement v. People appeared Johnson 1047], 47 Cal.3d 1194 767 P.2d where a Cal.Rptr. [255 and unex summary to the trial court’s court accorded deference divided the prosecu there was some reason though question even ruling plained Broussard, in dissent Mosk, observed Justice joined by tor’s reasons. Justice court, explana into the prosecutor’s actually that the trial instead of inquiring tions, striking eight his reasons for had stated said that simply prosecutor rambling with a statement” ruling its oral minority and then “continued jurors neutral, that they facially that the stated reasons were at best implying (Id. Mosk, J.).) But (dis. were fide.” at opn. “bona 1289-1290 pp. court, juror analysis in comparative after the dissent for criticizing engaging of some of the prosecution’s explanations, and for the plausibility questioning trial “Here an experienced owed to the trial court: the deference emphasized which defendant’s saw and heard the entire voir dire judge proceedings under duty he was aware of was selected. The record indicates jury Wheeler were challenges be in which sensitive the manner peremptory no of the challenges by used. He found use improper peremptory no to second- circumstances we see reason good Under these prosecutor. (Id. 1221.) at his factual determination.” guess p. v. Johnson People

Thereafter, cases what upholding the court cited two Cummings v. denials of Batson claims. People were essentially summary that (1993) 4 P.2d Cal.4th 1233 Cal.Rptr.2d explained “[t]he [18 1] bias, for the to group offered unrelated prosecutor adequate justification, It necessary exercise of was not peremptory challenges. [Citations.] is no in the record for the court to make additional There basis inquiry. reasons assertion the court failed to scrutinize prosecutor’s (Id. And the court in People 1282.) if determine were at they pretextual.” p. Jackson said that (1996) 13 Cal.4th 1164 P.2d Cal.Rptr.2d 1254] [56 “Wheeler does not further into inquiry trial court conduct require here, if, from its as satisfied race-neutral prosecutor’s explanations (Id. 1198.) or all of them are at any p. observations proper.” Johnson, Cummings, in Silva attempted The court to reconcile cases like and Jackson with Hall’s “sincere and reasoned” evaluation requirement as findings its “clearly well trial court express requirement [] (Fuentes, supra, 5). at fn. therefor” 54 Cal.3d rulings p. the bases facts, Silva all but its was a case. straightforward On that he to discriminate announced at the outset of selection jury planned had hung phase the basis of race because a previous jury (Silva, He 375-376.) Cal.4th at struck divided on racial lines. pp. and, that were when asked to reasons gave five jurors explain, Hispanic (Id. The trial court 379-381.) at contradicted the record. directly pp. without “the obvious probing nevertheless denied the defendant’s motion (Id. at 385.) This reasons and the record. p. between the prosecutor’s gap” (Id. 386.) the death verdict. court reversed p. said;

aIn critical the court in Silva we paragraph, “Although generally '‘accord deference to the great trial court’s that a reason ruling particular do genuine,’ we so when the only trial court has made a sincere and reasoned to evaluate each stated attempt reason as to each applied challenged juror. (Silva, 385-386.) 25 Cal.4th at supra, This echo [Citations.]” pp. principle, Hall, Silva, Fuentes and ing was the on which ground (See Silva was decided. record, at we are unable pp. to conclude that the trial court met [“On its ‘a obligations to make sincere and reasoned evaluate the attempt ([Hall, prosecutor’s 167-168]) explanation’ 35 Cal.3d at supra, pp. ([Fuentes, its clearly findings 5]).”].) 54 Cal.3d at fn. express supra, p. However, the court Silva went on to add the two sentences: following “When the prosecutor’s stated reasons are both inherently plausible record, the supported by trial court need not or question prosecutor make detailed But when the findings. stated reasons are either prosecutor’s record, both, or unsupported inherently more is implausible, required of the trial court than a global that the finding reasons sufficient.” appear (Silva, 386.) at The second of these p. two sentences the circum addressed however, sentence, dicta; stances in Silva. The first had no occasion Silva to decide what findings a trial court must make inquiry when stated prosecutor’s reasons are inherently plausible supported Nevertheless, the record. these two sentences have come to the rule comprise that crucially the trial court’s make a qualifies obligation to sincere reasoned to evaluate the attempt prosecutor’s at Batson’s third explanations stage. later, years

Two Reynoso court in turned dicta In Silva’s into doctrine. defendants, that case two involving only exercised Hispanic prosecutor four the last two peremptory challenges, of which were directed at only two then Hispanic jurors Cal.4th prospective (Reynoso, panel. 909.) at After the trial p. court found that the defense had established prima discrimination, facie case of that he one of struck explained “ G., the two Elizabeth because Hispanic panelists, she was ‘customer ” “ service and therefore ‘did not have educational representative’ enough ” “ and because seemed like experience,’ was not paying ‘[i]t [Elizabeth G.] attention to the . . . that she proceedings involved ” (Id. 911.) at The trial court ruled process.’ p. immediately as follows: “ I ‘And those accept reasons as not based race or And I being ethnicity. upon don’t find that there has been a violation of Wheeler and that the—there was i.e., systematic not a of a exclusion ethnic in this recognized group, Hispanics ” case. (Ibid.) So the motion is denied.’ Defense counsel then argued (Id. 911-912.) in Elizabeth demeanor nothing G.’s strike. at justified pp. The trial court did not comment further note that the defense had except (Id. also struck one Hispanic 912-913.) panelist. pp. decision, court, While ruling. the trial court’s This in a four-to-three upheld “ and reasoned make “a sincere that a trial court ‘must

acknowledging Hall[, .” (People . . . the to evaluate attempt prosecutor’s explanation ” said that “in Reynoso the court in 167-168),’ 35 Cal.3d supra,] to make or that the trial court is not specific fulfilling obligation, required in which a for the instance every detailed comments record justify challenge a is exercising race-neutral reason for peremptory prosecutor’s true the the This is where being court accepted by genuine. particularly is exercising challenge race-neutral reason for peremptory prosecutor’s factors, demeanor, while the or similar intangible based on prospective juror’s 919.) the at The court went on (Reynoso, courtroom.” Cal.4th supra, p. “ dicta the stated the from Silva that highlight prosecutor’s ‘[w]hen record, the trial by are the inherently plausible supported reasons both ” (Reynoso, or findings.’ court need not the make detailed prosecutor question Silva, italics added by at Cal.4th at quoting p. p. Reynoso.) the had its obligations

The court then determined that trial court satisfied The that the and that its was entitled to deference. court ruling acknowledged “ lack of ‘educational first reason for Elizabeth G.—her striking prosecutor’s “of at least “when viewed ”—was experience’ questionable persuasiveness,” to the 924.) 31 Cal.4th at But her “answers objectively.” (Reynoso, supra, p. did as a customer service confirm she worked general questions” (Ibid.) that she had “no Noting jury experience also representative. prior mentioned by no contact with the criminal past justice system”—facts the strike—the court concluded that a prose prosecutor explaining like cutor could conclude in “arguably sincerity” prospective juror (Id. the at Elizabeth G. not be the best for case.” juror “would type 924-925.) court this conclusion with additional justified speculation: The pp. “Such a further be of factors might by myriad determination supported courtroom, in the but not those who readily observable those present (Id. at record on appeal.” are the case from cold transcribed reviewing 925.) p. Elizabeth G.—that she striking

As to the second reason for prosecutor’s made no court that “the trial court acknowledged inattentive—the appeared for Elizabeth G.’s finding reasons attempt prosecutor’s clarify probe (Reynoso, supra, unsuited to service.” demeanor while in box jury jury “But,” said, trial did 926.) the court “the expressly p. challenge for the race-neutral reasons accept peremptory prosecutor’s G., trial sincere and Since the court was finding Elizabeth them genuine. and the manner demeanor jurors’ the best to observe position prospective implied challenges, exercised his in which peremptory G., including reasons Elizabeth excusing finding, prosecutor’s reason, ‘great entitled to were genuine, demeanor-based sincere (Ibid., deference’ on added.) italics appeal. court added that [Citations.]” it found “in record to nothing contradict” trial court’s directly ruling “74 times with Elizabeth G. and noted that the prosecutor accepted jury (Ibid.) seated in the box.” jury

Reynoso went on to state the rule, which is now following boilerplate in our language case law: “Where ... the trial is court of the fully apprised nature of the defense to the challenge exercise of a prosecutor’s particular challenge, where the peremptory prosecutor’s reasons for the excusing juror (Silva, supra, are neither contradicted by the record nor inherently implausible 25 Cal.4th 386), at and the p. where in record is in nothing conflict with the drawn, i.e., usual to be all presumptions that peremptory have challenges manner, been exercised in a constitutional that and the trial court has properly made a sincere and reasoned evaluation of the reasons for prosecutor’s exercising peremptory challenges, then those be relied presumptions may and a Batson/Wheeler motion denied, upon, that the record notwithstanding does not contain detailed the findings regarding reasons for the exercise of challenge.” (Reynoso, supra, 31 Cal.4th each such 929.) at peremptory p. Kennard, Moreno, dissented, Justice Justice joined by Justice Werdegar Justice Kennard in . observed that . . the “[bjrushing aside” fact that the trial ruled on the Batson motion without had court the questioning prosecutor, standard, the making particularized findings, stating or address- proper legal defense, the factual ing raised the the court disputes by “indulgefd] had a that both the the presumption prosecutor trial court acted properly, thereby a standard of review adopting appellate effectively insulates discriminatory strikes from at the meaningful scrutiny both trial and appellate stages.” (Reynoso, supra, Kennard, (dis. 31 Cal.4th J.).) of p. opn. Kennard, to Justice According prosecutor’s reliance on Elizabeth G.’s as a customer service employment representative was sort of implausible further investigation and the explanation required explicit findings, trial court made no effort to resolve the claim that Elizabeth G. had disputed (Id. not been 931-932). attention. at paying pp. deference is “Appellate here, where, unwarranted record supplies many reasons to appellate determination, doubt that the trial court even made a credibility much less a (Id. resulting 935.) determination from sincere and reasoned effort.” at p. Justice Moreno authored a joined by dissent Justice Kennard and separate Werdegar. Justice After that the record did not observing either support (Reynoso, supra, stated reasons for Elizabeth prosecutor’s striking G. Moreno, (dis. J.)), Cal.4th at 940-942 Justice Moreno pp. opn. concluded: “Whereas Silva held that a trial court’s obligation inquire triggered by record, a race-neutral excuse by majority today holds unsupported an obligation such where an triggered only such excuse is contradicted by However, excuse belies com- the unexamined race-neutral record. where counsel, that the we cannot presume defense sense or is contradicted by mon man- in a constitutional challenge has exercised peremptory (Id. id. at 943; logic a sound basis without [“today, ner.” at see p. p. the record’ law, by this court elevates ‘unsupported majority Silva['s] .”].) . . ‘contradicted the record’ standard by to a much standard stricter Reynoso, from which essential departed respects The rule set forth Silva, Fuentes, Hall, toward glide this court on effectively path put Batson motions. As demon- denying trial court affirming unexplained rulings rule in case of Reynoso's our repeated quotation application strated case, stated reasons it has been find easy prosecutor’s after or not contradicted be and either inherently plausible supported record, (See, defer on that basis. ruling e.g., and then to trial court’s Williams, ante, 1048-1049, 1053-1053; at maj. opn., pp. Vines, 849-850; People v. 653-659; supra, Cal.4th at People 51 pp. pp. 543]; P.3d Watson (2008) 43 670-673 182 Cal.Rptr.3d Cal.4th [76 v. Guerra P.3d People 129 Cal.Rptr.3d [40 321].)

C. Reynoso the court’s light high This court has never reconsidered in of decisions in Miller-El call Snyder, those authorities into though even Batson rule to Con- rulings. serious our of deference question unexplained in that Reynoso, Snyder squarely reviewing to the court held a trary high not a demeanor-based prosecutor’s striking court may accept explanation-for of trial as to the finding juror’s a in the absence a minority juror (See Snyder, demeanor, at least has the issue. where defense counsel disputed a on the supra, finding 552 U.S. at than making p. specific [“Rather demeanor, the trial allowed the concerning simply record Mr. Brooks’ judge trial .... cannot that the challenge judge without explanation presume [W]e nervous.”].) credited the assertion that Mr. Brooks prosecutor’s Snyder Miller-El the careful and by More elucidate broadly, example at Batson's third make those decisions thorough inquiry required step, of credibility clear that the of circumstances relevant to totality evaluating a includes striking minority juror compara- a stated reasons prosecutor’s Miller-El, 479-485; Snyder, supra, (See 552 U.S. at analysis. tive juror pp. 240-266.) indulges 545 U.S. at Our the presumption supra, pp. precedent no indication in the rigorous despite a trial court has conducted this inquiry, did, as the stated reason is long inherently record that so prosecutor’s However, a by and not contradicted the record. into packing plausible “the of plausibility entire into inquiry prosecutor’s presumption [the (Miller-El, supra, reason in of light all evidence with a it” bearing stated] 252), at 545 U.S. we have of p. standard review that “adopt[ed] appellate insulates strikes from at effectively discriminatory meaningful both scrutiny (Reynoso, supra, the trial and (dis. 31 Cal.4th at appellate stages.” p. opn. Kennard, J.).) Our Batson rule of deference all but summary rulings that Batson assumes the answer to the question analysis designed address. demonstrates,

As today’s of this rule of deference opinion application tends to foster rationalization of judicial strikes in a manner prosecutor’s that Batson does not court, It is all too for a permit. tempting reviewing in courtroom, on the in the speculating possible dynamics reasons in posit trial court’s Batson support of that the did ruling not As prosecutor give. noted, the court in this case relies on a four-word comment M.H. (“are me?”) defense counsel you misunderstanding suggest have struck M.H. because “her prosecutor may youth sign relative was a even though cited M.H.’s immaturity,” prosecutor only youth, her ante, ante, 1050; as a reason for strike. at immaturity, (Maj. opn., see p. Reynoso, 1064-1065.) And court reasoned that the fact pp. Elizabeth G. had “no jury “no contact prior experience” prior with strike, criminal could justice system” sincerity of support prosecutor’s even never though mentioned those of Elizabeth aspects G.’s (Reynoso, the strike. background 925.) 31 Cal.4th at explaining p. These violate the maneuvers court’s admonition that high adjudication Batson “does not call for a mere challenge exercise thinking up any (Miller-El, supra, 545 252.) rational basis.” U.S. at A strike p. prosecutor’s must “stand or fall on the of the reasons of plausibility gives,” regardless court, whether “a trial or an can a judge, reason that appeals imagine might (Ibid.) not have been false.” shown as up

It is no doubt true that “a of factors myriad readily observable those by courtroom, the in but not those who are the present by case from reviewing inform a Batson cold transcribed record on appeal,” may properly ruling. [a] (Reynoso, supra, 31 Cal.4th reason, 925.) at For this the trial court in the p. is Batson’s best to make the at position all-things-considered judgment required third When trial court has conducted the stage. and has requisite analysis its Batson articulated the that inform findings of ruling, principle judicial restraint of fully deference on But when the supports application appeal. “myriad of factors observable those in the readily courtroom” is present left on of deference simply judicial speculation appeal, does application at an not reflect restraint all. It is instead active of imagining inquiries or not analyses have occurred. Like I am may may my colleagues, the evaluation of Batson claims with confident that our trial courts approach can be But selection in competence sincerity. jury complex process, strike, a the context of a trial court have taking particular may “stopped (Williams, have supra, 651), neglected it may Cal.4th at p. notes” Liu, (id. not J.)), it (dis. “may of dire at opn. the record of voir p. consult (Snyder, supra, 479), it U.S. at p. demeanor” have recalled juror’s] [a the urging juror analysis despite engage comparative have declined to may ante, an have 1047-1048), it may applied at pp. of counsel (maj. opn., (Reynoso, pp. a Batson claim at 933-934 assessing erroneous standard in legal Kennard, an unreasonable judgment it have made (dis. J.), may of or opn. (Miller-El, supra, 266). 545 U.S. at p. of circumstances totality under not an is and presumptions with speculation these Filling gaps appeal ask, Our “don’t restraint. It is also counterproductive. exercise judicial ask, does not this court review-—whereby don’t tell” approach appellate Batson mlings—erodes tell, the reasons for their when trial courts do not thereby and analysis, their findings incentive for trial courts to articulate courts must resolve Batson with which reviewing heightening frequency record. claims on basis of paper have revealed decades of research

More of what fundamentally, light Harris, (see race in selection jury about stubborn role of Liu, studies]), it seems (conc. J.) empiri at [reviewing 887-889 pp. opn. whose unfair—to a rule of deference cally downright apply suspect—if leaves unsaid in denying effect to hold that what a trial court is practical Batson of the claim will be construed on in favor appeal prosecution. Batson of the on the subjective genuineness focuses ultimately inquiry test, and of a naked It a motive short stated reasons. prosecutor’s admission, determine a motive with reasonable it can be difficult to person’s on the uncertainty by placing The law addresses this certainty. properly that the more than not likely prosecu the burden to prove race. The standard and the allocation tor’s strike was motivated proof case, I below. can be decisive in a close show the burden to the defendant post, 1076-1078.) (See uncertainty But the law should not address pp. defendant all that we cannot know—because by construing against what actually findings analysis—about happened trial court no provided the courtroom. to make “a sincere trial courts to their obligation

Our earlier held precedent (Hall, supra, explanation” and reasoned to evaluate prosecutor’s attempt role in an making and underscored “the trial court’s 167) 35 Cal.3d at p. the deference we give that “[notwithstanding record” by declaring adequate we can do so sincerity, only credibility to a trial court’s determinations the bases findings rulings has its clearly when the court expressed (Fuentes, supra, trial courts do 5). at fn. Many therefor” 54 Cal.3d p. Batson it entirely their is rulings, appropriate articulate the for grounds at For what is issue is deference on this contingent practice. make appellate the most a vital that implicates but legal technicality, inquiry not some minor States our The United system. Supreme notions of fairness in justice basic Court has repeatedly emphasized three-dimensional harm that results from racial discrimination in selection. The jury of his deprived “right to be tried by jury whose members are selected pursuant non (Batson, criteria.” discriminatory 85-86.) 476 U.S. at excluded pp. “suffers a juror humiliation profound personal heightened its by public character” and loses “a significant opportunity civic life.” participate (Powers v. Ohio 413-414, 499 U.S. L.Ed.2d [113 1364].) S.Ct. And harm from discriminatory jury “[t]he selection extends that inflicted beyond on the defendant and the excluded to touch the juror entire Selection community. procedures exclude black purposefully per sons from juries undermine confidence in the public fairness of our system (Batson, Miller-El, 87; supra, 545 U.S. at justice.” at see p. p. [“[T]he very integrity of the courts is when a jeopardized discrimination prosecutor’s ‘invites cynicism [citation], respecting jury’s neutrality,’ and undermines [citations].”]; Powers, confidence in public adjudication 412.) In light of p. harms, these potential or, does not seem too much to insist that trial courts fail-safe, as a courts reviewing demonstrate a truly reasoned effort to evaluate a defendant’s assertion of this right in of all the important light circumstances on it. bearing

III. defer to the trial court’s Batson Because we cannot case, in this we ruling must examine the record independently to determine whether defendant has shown that it was more than not that one likely or more of the prosecutor’s strikes were motivated race. by

The record shows that struck prosecutor all three black prospective in the jurors venire. This fact raises a but properly does not itself suspicion discrimination. The prove of the significance is attenuated in this pattern case the fact that the credible reasons prosecutor gave for two of the striking black dire, P.F. and L.P. In her jurors, and voir questionnaire P.F. consistently said she viewed the death as an penalty for a appropriate punishment person who has shown “a of violence or pattern” for life. When the disregard P,E asked if her focus on a of behavior “wasn’t pattern something exclusive,” P.F., words, she But when agreed. her own did using not voice for the death support terms other than as “a punishment behavior, pattern” and no other seated or alternate juror similar expressed views. I thus conclude that the concern that prosecutor’s P.F. had said “in her the death questionnaire penalty] where there was a appropriate only [that was, likelihood, of violent pattern conduct” in all And I reach pretextual. the same conclusion about strike of L.P. based on his prosecutor’s worker,” concerns that is a social fact to L.P. as unique compared “[s]he the seated and alternate and that “she couldn’t jurors, vote for the death of a doubt...” a shadow beyond were proved unless ... the facts

penalty dire. remarks at voir of L.P.’s understanding natural or L.P. because struck P.F. that the found it Having improbable prosecutor M.H. without race, any strike of examine the of their I would prosecutor’s an as apparent pattern. the fact that it occurred part from arising suspicion noted, because, charac- the Still, as prosecutor’s the strike suspicious appears death penalty “personal terization of M.H.’s attitude regarding at emotional, of what she said is a strained interpretation philosophical” dire, indicated on of the views she light when considered voir especially Further, (Ante, at 1063-1064.) with respect her pp. questionnaire. children,” claim no “she young, single concern that prosecutor’s light questionable that “no other ... fit jurors pattern” appears and Juror No. were single, Juror No. 1 fact two seated jurors, (Ante, childless, 1064-1065.) Juror No. 12’s and close in to M.H. age pp. different from the death were not very views in favor of general penalty (ante, her that the 1065), and Juror No. 1 said on questionnaire M.H.’s at p. cases,” extreme voir though during death be used “[ojnly should penalty in mind and “it would depend dire she said she had no case particular everything.” time, fact that reveals an

At the same juror analysis important comparative M.H., Besides three prospective jurors credibility. supports prosecutor’s K.D. (age and without children: young, single, struck were prosecutor addition, all three indicated 20), 33). In 28), (age support A.L. T.F. (age the death on her penalty for the death K.D. wrote questionnaire penalty. cases, dire that and she said voir during “should be in appropriate imposed” death if the instructions and vote for she would be able to follow court’s that she had factors. A.L. wrote factors aggravating outweighed mitigating “do what about the law” and would no strong “personal feelings [she was] to,” could vote and affirmed voir dire that she during personally supposed that he believed the death penalty the death T.F. stated impose penalty. cases, and that he would in certain and just punishment” “appropriate fact that the if it were to rid of it. The get with the “disagree” Legislature childless three other young, single, prodeath stmck prosecutor statement, why in explaining lends credence to the prosecutor’s jurors M.H., and no single the reason she is young, that “primarily struck [is] did not out (italics added). single that the By indicating prosecutor children” characteristics, those jurors M.H. all other among prospective possessing A.L., K.D., the inference of and T.F. tend to diminish strikes of prosecutor’s strike the fact that the did not also from arising discrimination M.H. whom were older than slightly Juror No. 1 and Juror No. both of A.L., K.D., and T.F. make strikes of Ultimately, prosecutor’s single, she was young, that he struck M.H. because primarily possibility without children at least as as the that he likely struck M.H. possibility record, because of her race. Based on an examination of the I independent conclude that defendant has not carried his burden of that was proving more than not that the likely struck M.H. because of her race. Accordingly, defendant’s Batson claim must be rejected.

In all other I join court’s respects, opinion affirming judgment. 2, 2013, for a Appellant’s petition rehearing was denied October and the was modified to read opinion above. printed tor mischaracterized her of a doubt” comment. notes “shadow death that L.P. made clear on dire she was to consider the willing penalty voir Because long so was convicted shadow of doubt. person beyond would be it must of Officer Burt’s jury told conviction accept murder, asserts, no for had basis concern legitimate prosecutor that L.P. would refuse to a death sentence entertain possibility case. However, of L.P.’s it was reasonable for light responses, that, for to be concerned facts death any pertinent possible proof sentence, doubt, L.P. not on the of reasonable only insist elimination would Moreover, but on the removal of confirms the prosecu- all doubt. record tor’s recollection that a social worker. The expressed L.P. was prosecutor’s It about on the race neutral. also having reservation social workers jury “ ‘ ’ ” had “some basis in trial strategy” (Taylor, supra, accepted 850, 886) as it insofar stemmed from concern about the attitudes general Hence, the might in that harbor. record philosophies persons profession excusing affords no basis to conclude that the reasons for L.P. prosecutor’s insincere or were pretextual. terse urges Defendant the trial court’s on Wheeler/Batson ruling to assess whether motion does a “sincere reasoned effort” represent M.H., P.F., reasons excusing race-neutral prosecutor’s proffered true used and L.P. were his reasons. Defendant asserts that the words court—i.e., that “no intent is inherent in the discriminatory explanations, (italics added)—indicate be .” the reasons race neutral. . appear Indeed, when the court thereafter asked if the Wheeler/Batson description of P.F.’s demeanor.

Case Details

Case Name: The People v. Mai

Court Name: California Supreme Court

Date Published: Aug 26, 2013

Citation: 161 Cal. Rptr. 3d 1

Docket Number: S089478

Court Abbreviation: Cal.