*1 Aug. S081700. [No. 2013.] PEOPLE,
THE Plaintiff and Respondent, HARRIS,
WILLIE LEO Defendant and Appellant.
Counsel Richard I. Targow, Court, under appointment by for Defendant Supreme and Appellant. Brown, Jr., Harris,
Edmund G. General, and Kamala D. R. Dane Attorneys Gillette, General, Farrell, Chief Assistant Attorney Michael P. Assistant General, Colombo, Attorney Kim, Harry Joseph William K. Eric Christoffersen, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
CHIN, J. mistrial,1 Following a jury convicted defendant Leo Willie 187, Harris of the (§§ first murder degree (a), 189), (§§ subd. robbery 212.5, (a)), (§ subd. (a)(2)) subd. of Alicia rape Manning; unlawful Code, (Veh. of a taking vehicle (a)); (§451, subd. and arson § (d)). subd. found true circumstance special allegations of robbery 190.2, (§ murder and murder rape (a)(17)(i), (iii)), former subd. and further found that defendant had used deadly (§ dangerous weapon Code, A jury previously (Pen. 459, 460, convicted defendant burglary (a); subd. §§ undesignated statutory Code) references are to Torigiani, the Penal of Bree but it deadlocked as *7 to all other jury counts. After defendant waived a right his on allegations, enhancement 667, 1170.12, (§§ (a), trial court found had prior felony he suffered a (c)-(j), conviction subds. (a)-(e)), (§ 667.5, (b)). subds. and had a prior prison served term subd. denied trial court death. The verdict of returned a (b)(1)).2 The jury
subd. 190.4, (§ verdict the penalty to modify defendant’s automatic application a count and imposed the murder to death on (e)), sentenced him subd. and and enhancements. counts remaining on the determinate sentence 1239, affirm (b).) subd. We (§ court is automatic. Appeal judgment.
I. Facts and 20, 1997, Manning’s apartment entered Alicia defendant May On and it on fire. Defendant car set Manning’s and her. He then stole killed raped of her the night Manning sex with told the he had had consensual police trial, murder, boy- argued Manning’s defendant her. At killing but denied friend killed her.
A. Guilt Phase
1. Prosecution Evidence
a. Manning Alicia in a Bakersfield a senior college living In Alicia was Manning student, had Manning Bucholz. friend fellow Thea with her and apartment Hill, had known year, for a been her Charles dating boyfriend, seriously Hill, a job school and did not have who was not in for over three years. him Tulare, vehicle, hour’s drive lived in a town working approximately or a trial, shortly written by Manning At two unsent letters from Bakersfield. addressed evidence: one was were introduced into before her death him; ad- sweetheart,” the other was her love for and described “Charles with Hill. a and discussed her postgraduation plans dressed to friend a friend. Defendant through mutual Bucholz met defendant April friends, sought Defendant and socialized often. and Bucholz became fast refused, Bucholz, remained they she but which romantic with relationship car, Defendant, have lived and did not who was unemployed friends. than in an less apartment and her brother Findley, his Zenobia girlfriend, . Bucholz and Manning’s apartment. mile from away defendant, to Manning. him she introduced Bucholz met About week after Throughout visits. three of defendant’s during in the apartment Manning (c)) (§ sodomy former subd. guilty of forcible found (a)) special true circumstance (§§459, Manning, and found not subd. burglary 190.2, (vii)). (§ (a)(17)(iv), burglary former subd. sodomy murder allegations of murder *8 and April May, called the frequently when Bucholz apartment was not home. Manning told Bucholz that defendant’s calls were interfering with her and she studying, asked Bucholz to that he request calling stop apartment. time,
During Findley suspected defendant had become romantically involved with Bucholz and called the women’s Manning answered apartment. and phone during the ensuing conversation Findley threatened her. Manning the call to reported police.
Around May Manning Hill discussed ending their relationship because she felt friends, he too much time with spent his and she also feared he have her might given Krone, transmitted sexually disease. Carolyn associate director the student health center at later Manning’s university, told Manning that indicated testing that she did not have transmit- sexually ted disease.
On May Manning confronted defendant and Bucholz about Findley’s threatening call and told them she had phone called the Manning was police. furious and told defendant and Bucholz to tell Findley to calling stop apartment. Hill,
That evening, Manning, Hill’s father went out to dinner. Hill car, drove back to Manning her apartment her but did not in the park space closest to her Manning and Hill had apartment. intended to have sex but did not because he was ill. Hill feeling by his father at picked up Manning’s around 10:00 apartment and Bucholz p.m., returned soon thereafter. The women stayed talking, told up Manning Bucholz that she had concerns whether Hill was “the right for her.” No one guy else visited the apartment that night.
On around May 3:00 came home from p.m., Manning class and Bucholz soon left to to her go class. Defendant telephonically Bucholz paged back, around 6:15 When p.m. Bucholz called defendant he if asked they could meet later. up Bucholz told him to her page around but he 9:30 p.m., never did. afternoon,
At some friend, point Hill the house visited Pat nearby McCarthy, a.m., Tulare. Hill socialized with until around McCarthy 1:00 and then walked home. Hill on the around spoke Manning telephone 5:30 could p.m. McCarthy not if Hill had been say at his house the entire time, but he did not remember Hill for more than being gone 20 minutes Hill, any point. According 10 to 15 came and went from people other however, McCarthy’s house that did recall day; McCarthy, other anyone than Hill his house. *9 after 8:30 p.m., sometime their apartment into defendant near ran
Findley a go him and left around 9:20 p.m. beer she had purchased, some gave house. friend’s Ave, who worked neighbors one of Manning’s James
Around 10:00 p.m., in the space car was noticed her university, parked at her as an athletic trainer on. Another light that the interior dome and closest to her apartment, and with landing exterior staircase shared an whose neighbor, apartment times, about three and down staircase Manning’s, go up heard someone Around 10:10 p.m., unusual. did not otherwise hear anything but Manning’s apartment. saw someone leaving left and his neighbor apartment car. Manning’s and stereo also saw a television neighbor portable and defendant answered her called Findley apartment; Around 10:50 p.m., at her When she arrived apartment had not returned. yet asked her she why unusual about nothing there. There was around defendant was 11:00 p.m., defendant’s demeanor or appearance. vehicle fire less a firefighters responded reported
Around 11:00 p.m., the time the By a third a mile from defendant’s away apartment. than vehicle, the fire to be Manning’s, later determined arrived at the firefighters been intention- concluded the fire had had An arson investigator been out. put usable latent finger- alcohol as an accelerant. No set ally by using rubbing the outside obtained from the vehicle. A fingerprint were found inside prints defendant’s. of the vehicle did not match to Manning’s Mike Golleher went Bakersfield Police Officer midnight,
Around door, no officer but received answer. Another and knocked on the apartment the line was busy. to call the but attempted apartment, She returned to the apartment. Bucholz May Around 1:30 a.m. glass sliding blinds a covering unlocked and the noticed the front door was usual place, was not in its unusual. The television were which was open, door later deter- Bucholz around the room. living and were items scattered there recorder, television, videocassette malfunctioning mined that were from missing apartment. stereo portable bedroom, blocked the door was partially to enter the but Bucholz attempted nude from the waist Manning, and saw light a fan. Bucholz turned on called out down, of blood. Bucholz on her bed in pool facedown lying name, not respond. but she did Manning’s 9-1-1, its usual was not in place but the telephone
Bucholz went to call the hook on its receiver off room. She found telephone dining room, thereafter, dining floor of the Golleher dialed 9-1-1. Soon Officer entered the apartment determined that Manning was dead. a.m.,
Defendant Bucholz paged around 4:00 which was unusual time for talk, him to She told her. him it was page they time to but good spoke later that and she told him the be morning would police contacting probably him because she had them his given name. Defendant became “kind of quiet” after Bucholz said this. Bucholz asked he defendant where had been *10 and he said he was with night, and Findley eating movies watching pizza. Bucholz thought defendant did not sound like himself. a.m.,
Around 5:00 officers went to Hill’s house and told him that police had been Manning murdered. Hill started to cry and left the room. The police hands, arms, head, returned that and saw no visible evening, on Hill’s injuries or neck.
Crime scene technicians collected evidence and took physical photographs at the women’s There was no evidence of apartment. any a break-in of of There apartment’s entry. were no usable inside the points fingerprints doorknob, on the outside apartment, or on the hand exterior staircase’s railing. read,
Near where the was telephone was usually a note that “Will kept called at 6:15 9:00 and at p.m., 9:30 On a p.m., p.m.” tape microcassette located next to the machine was a answering from defendant message number, effect of “If someone calls for looking don’t pager’s [Bucholz’s] her, it give it’s she’s my girlfriend, trippin’.”
On the room floor a living was steak knife bloody covered a partially T-shirt. The blood indicated the T-shirt had used to pattern been wipe knife’s blade. The blood on the knife and T-shirt consistent with was a Blood on hand towel found in Manning’s. room was also living consistent with Manning’s: shorts,
Near was a Manning’s body of which pair negative tested for blood and semen. Also in the bedroom was a of pair white There was a panties. bloody sanitary inside the and napkin there was blood on the panties, edge The and panties. napkin negative tested for semen. Neither the panties nor panties the shorts were tom.
Underneath shorts were a bloodstained note two broken bottle- pad, necks, a glass. and shard of Several other shards were found near glass head Manning’s and under her A body. large drinking glass its base missing was found in a of clothes near and the broken base also pile Manning, was of the shards. was on some Manning’s with near her. Blood consistent
found a tip knife bloody two-pronged was Also on bedroom floor bent serrated blade. head, there was blood spattered around Manning’s
Blood had pooled buttocks, one Manning’s also blood smears on on the There were walls. her feet. her thighs, blanket, on it near stain was found and a semen body lay on
Manning’s facing away on the side of comforter was also located her Semen vagina. from Manning’s body.
Oral, A Manning’s body. swabs were collected from vaginal, and anal was also collected. Manning’s legs that had between urine sample pooled and urine tested presence swabs vaginal sample positive relatively semen. The anal also tested for semen but contained positive swabs Manning’s that semen had drained from few and it sperm, possible *11 into her anus. vagina but Manning’s body,
Head and hair were also collected from samples pubic but her own. Her nails were scraped, all recovered hairs were consistent with head hair that not left fist contained analyzed. Manning’s were scrapings defendant’s, it with but was was consistent with her own and inconsistent further analyzed. 22, Defend- contacted defendant his
On officers May police apartment. murder. night Manning’s told them he was at his on ant apartment he in the with Bucholz on Defendant said was last women’s apartment murder, denied being and Manning’s specifically before morning day he had called the of the murder. He admitted night in their apartment shirt, his removed night. voluntarily several times that Defendant apartment no visible revealing injuries. of the Bakersfield Police Depart-
On Detective Richard Herman May for DNA so his blood could be drawn ment drove defendant to laboratory the physical asked Detective Herman about Defendant analysis. repeatedly scene, if the had at the and asked police evidence found crime specifically nervous Defendant became extremely blood to belonging suspect. found been DNA evidence had collected Detective Herman informed him that when home, defendant Detective Herman asked the crime scene. On the drive from hesitated, then they and said he ever had sex with Defendant Manning. if had bedroom, in Manning’s again had sex twice: once April had stated both before she was murdered. Defendant living night room defendant, had why Herman asked he consensual. Detective encounters were said he did not with he Manning, denied having relationship previously “want to be involved.”
On June
detectives interviewed
being
defendant. After
advised of and
Miranda
his
under
waiving
Arizona
rights
A detective told defendant analysis DNA be able determine would to when semen had been Defendant then said invited deposited. Manning him come to her on the night she was murdered. said apartment Defendant work, he waited for to come home from left Findley his after she apartment left, and then went Manning’s he apartment. Defendant said had sex condom, in her bedroom. Defendant it Manning said he had worn took off before ejaculating, and then flushed it down the toilet. Defendant said the sex consensual, killing denied When Manning. why asked his story kept said, changing, “I’m conniving like but I just you’re conniving, didn’t kill the bitch.” friend,
Around July investigators police spoke defendant’s Anthony Denweed, and Denweed’s girlfriend, Arlene Holiday. Holiday told police murder, that defendant tried sell Denweed a television after but Manning’s at trial she testified the investigator she told that defendant to sell attempted *12 the television before the murder. Denweed denied that defendant had ever television, tried to sell him and denied telling about such a sale. Holiday defendant’s, investigator police spoke acquaintance of Cain, who, murder, Debra at the time of lived the Manning’s across street from defendant. Cain told the that defendant investigator tried to sell her a videocassette recorder in or malfunctioning May June of but at trial she testified the sale occurred before murder. attempted Manning’s swabs, comforter,
The urine vaginal anal sample, portions of blanket and fibers from the were sent Cellmark to be Diagnostics com- defendant, Hill, with blood obtained pared samples Manning, from and two of A Hill’s friends. director of Cellmark testified deputy laboratory about the results of the DNA Based on of a testing performed. results polymerase chain reaction defendant was who could not be process, only person excluded as the source of the on swabs. The sperm vaginal sperm sample was consistent with defendant’s DNA to a one frequency statistical of in 410 the Cauca- 1.6 in one in billion in
million the African-American population, The the Hispanic population.3 one in 1.5 billion in sian population, had been indicated semen deposited on the swabs vaginal of sperm presence of only also the one Defendant was collection. no more than hours before the source of sperm could not be excluded as the five tested who to a statistical defendant’s DNA consistent with blanket. The was sample one in population, one in million in the African-American 1.6 frequency in the and one in 9.1 million 4.8 in the Caucasian population, million not be one could only defendant was who And also Hispanic population. urine The was of the in the sperm sample. sample excluded as source 1,100 in of one with defendant’s DNA a statistical frequency consistent 11,000 in the Caucasian population, the African-American one population, 13,000 and one in in the Hispanic population. on the anal friends were excluded as sources sperm
Hill and his two swabs, that defendant could neither be but the amount of was so low sperm not be one who could only excluded nor included as the source. Hill was the comforter. excluded as the found on sperm source had died due to extreme blood loss Manning An revealed autopsy blunt trauma to four occurred a matter minutes. She had suffered force shards glass distinct areas the left side her head. The along presence object. her these were caused injuries by heavy glass under indicated scalp or killed her. have rendered her unconscious injuries These could neck, and there also had been stabbed at least 57 times in Manning cheek, arm, and the left on her left right were additional stab slice wounds on her left elbow side of a few marks her abdomen. There were also scrape abdomen, on her left hand and the left side of her chest and and some cuts of the stab wounds on were consistent with defensive wounds. Some being a knife consistent with the Manning’s neck have been caused appeared alive but likely in her bedroom. Manning knife found two-pronged stab wounds were conscious when the blunt force trauma and necessarily “rage her were consistent with a inflicted to head and neck. stabbings *13 is, murder, not involves which more often than a killing,” passionate who “know each other.” people trauma, even did which not uncommon any vaginal not suffer
Manning trauma consisting occurred. She did suffer anal when sexual assault has time of her death. These inflicted around the three small contusions or bruises the size of an adult object were with anal penetration by bruises consistent and would have not been unless there was such present penetration. penis, Manning Defendant is African-American. was Caucasian.
b. Bree Torigiani Bree and her brother lived in a condominium in Torigiani Bakersfield. 11, 1997, Around a.m. 1:00 on June the Torigiani arrived home and noticed kitchen window was and the screen had been removed. Her videocas- open sette recorder was and the missing, contents of a tin container were spread out over the room floor. living Torigiani heard someone inside the residence. name, She called out her brother’s and and defendant ran down the hallway out the front door suitcase that carrying had been under bed. Torigiani’s called and
Torigiani 9-1-1 the and a reported officer burglary, police defendant, suitcase, spotted still carrying Torigiani’s near defendant’s apart- ment. Defendant the dropped suitcase to run but was attempted away, defendant, The officer searched apprehended. and found several pieces radio,” and a all of jewelry “Walkman-type which belonged Torigiani. suitcase contained videocassette Torigiani’s recorder and her camera.
2. Evidence Defense Teodula Ruiz lived in the same as apartment Manning. complex murder, hours after asked Ruiz if had Manning’s police she seen anyone car, she driving Manning’s said she had day, not. Later that Ruiz recalled seen a Caucasian having man car in the park Manning’s closest space Manning’s around 5:00 or apartment day Manning’s 6:00 on p.m. later, Ruiz murder. saw no one else in the car. A few a detective showed days Ruiz a from which she photographic identified lineup Manning’s boyfriend Hill as driver. Ruiz told the detective she was unsure if she saw car on of Manning’s murder or on the but night night leaned towards prior, trial, of the murder. At night Ruiz testified she saw car on Manning’s night of murder.
Lori Hiler also in Manning’s lived Around apartment 10:00 complex. p.m. on the of the murder in front night Hiler Manning’s apartment, saw someone who looked like Hill carrying television set. Hiler also saw that the door to car was and the dome was on. A Manning’s slightly open light detective showed Hiler a from which she identified Hill photographic lineup as the she whom had seen set. person carrying television Hiler later told detective, however, she was not really sure Hill was the she had person seen, if she him because his just had been in the picked picture newspaper. trial, At Hiler testified she was not sure who she saw. murder,
Also night Manning’s heard Christopher Bourgoine noise, around, looked “poof’ Manning’s saw car on fire. Bourgoine *14 his fire and out the grabbed extinguisher put fire. testified that a Bourgoine asked if he man, him defendant’s description, repeatedly who did not match the fire investiga- time after the fire. man some disappeared saw who set sister, him, also remembered lived with tor had arrived. who Bourgoine’s man. Ament, slides reviewed microscopic a pediatric gastroenterologist,
Marvin and a testimony, taken forensic during Manning’s pathologist’s autopsy, did any trial. Dr. Ament not see of defendant’s first portion transcript examined, had not and he believed Manning anal on the slides he injuries been sodomized. and who infertility specialist
William Stanley, obstetrician/gynecologist trial, about 10 before the years had examinations performed rape crime reviewed the scene autopsy photographs, portion report, trial, no a medical Dr. saw Stanley of defendant’s first and report. transcript Stanley had sex. Dr. testified indicating Manning evidence nonconsensual of rape occurred in 30 to 98 vaginal injuries percent medical studies indicated cases, no On he in some cases there were injuries. but conceded that rape cross-examination, that medical studies indicated Stanley Dr. testified bruises, such of sexual victims as bodily injuries, assault suffer percent wounds, scratches, being cut caused injuries bludgeoned. or stab scrapes, 3. Rebuttal Evidence friend,
A twice with Hill’s detective testified he on spoke telephone of Manning’s who Hill was him on the McCarthy, night confirmed trouble for get murder. The detective told he could in McCarthy supplying alibi, “I have to Hill with a false don’t about McCarthy worry responded, here and did not leave and could have been because was [Hill] Manning’s Bakersfield night [the murder].” Penalty Phase B. Evidence Prosecution
1.
a. Victim evidence impact life, and how family father about their testified her Manning’s aspirations, who Manning loving, caring person her death affected them. was a loyal, She others return. anything went out of her without way help expecting brothers, her caused a to her two absence “tremendous younger close have nightmares void” Her death caused her mother family. filled father with anger. her
b. Prior convictions Defendant had been convicted in and burglary possession cocaine in 1988 and 1995.
c. Prior uncharged offense On February Beatrice a store when leaving was Thompson refused, her and so approached demanded her purse. Thompson defendant snatched the with so much its broke. purse force strap
2. Evidence Defense 9, 1969, Defendant was bom January Shortly of six children. youngest bom, father, after he was his a “hustler” and killed was woman pimp, mother, Harris, with whom he was an affair. Jerlene having Defendant’s children, to care stayed home take of her went work but back to eventually and got off welfare.
(cid:127) Defendant lived family with his until he moved his girlfriend but moved home Findley, back whenever he and which was fought, Findley them, often. Defendant had and many girlfriends with all of but was argued never violent toward and physically any family them. Various members friends also testified about defendant’s nonviolent nature. Harris, sister,
Defendant’s Delora raise him. recalled she helped She him, once went to check on him. and discovered babysitter beating often Defendant came home from the even babysitter very hungry though Jerlene had food for When prepared him. Delora attended junior college another city, defendant her not to begged Delora returned go. regularly Bakersfield, and him took back with her to school.
Defendant’s first introduced him when he five siblings was marijuana A years old. member he introduced defendant to crack cocaine when family 17 years 16 or old. Defendant was also close to Delora’s Smith. Smith daughter, Dracena recalled as child off the of bunk her jumping cutting bunk beds top her, head but Defendant fainted at her open. attempted help sight friends, blood. Smith dated one of defendant’s who had introduced her to out, crack cocaine. When defendant found he counseled on the dangers Smith cocaine, crack so she using Smith testified defendant stopped. always loved, available, wanted be if he the woman was was not he dating would seek attention from other women. had a son they together.
Defendant dated Avonda Jones *16 Jones to he and Jones broke up. Defendant remained close his son after father. good good considered defendant to be and person defendant and interviewed Cecil a clinical examined Whiting, psychologist, child, with attention his As a defendant had been diagnosed members. family disorder, have characteristics deficit and he continued to some hyperactivity did to defendant not have Whiting, of the disorder as an adult. Dr. According good with any cognition, thinking, applying significant problems general abilities, state, or short-term nor his verbal with emotional judgment, long-term memory, ability Dr. found that defendant’s memory. Whiting concentrate, mildly and to hear and understand others were ability impaired, had fear of and that he had some minor disabilities. Defendant learning and friendly talkative dark and of blood. Dr. believed defendant’s Whiting his and of nature was form of for compensation pain past psychological form tendency his and led to his siblings his raised mother being by in Dr. testified that stressful dominating Whiting with women. relationships harsh In Dr. Whiting’s opinion, situations defendant use might language. and characteristics were inconsistent defendant’s personality psychological crimes. others convicted of similar Corrections, Park, James an administrator for former Department and According testified as an in classifications prison operations. expert Park, in he had a few only when defendant was previously prison, discipline Defend- and neither a model nor a problems, problem prisoner. prisoner ant Narcotics Anonymous. had work record and attended above-average infractions, Defendant had but was not violent. some minor rules physically Park life. believed defendant would adequately adjust prison
II. Discussion A. Pretrial Claims
1. Venue Change of selection, for a unsuccessfully change twice Before moved jury venue, had been and he renewed motion after unsuccessfully contends trial court erred denying selected. Defendant prejudicially We disagree. motions.4 asserted in and on defendant contends appeal, We note that this claim most others rights and infringed constitutional to a fair error his state and federal or misconduct he raises 412, 441, Boyer (2006) in footnote
reliable trial. What we stated instances, 581], “In insofar as present in tire case: most Cal.Rptr.3d applies court, all of the explicitly in he to make some or defendant raised issue at all the trial failed
A motion venue be change defendant’s must granted when “there is a reasonable trial be cannot had impartial likelihood a.fair (a).) the county” (§ where the were filed. subd. charges “Reasonable “ likelihood” this context ‘means less than “more than something probable ’ ’ not,” more (People than ‘something merely “possible.” [Citation.]” Proctor (1992) Cal.4th motion, (Proctor).) ruling which the defendant bears the burden “ ‘ “(1) the trial court proof, considers nature and of the gravity
offense; (2) nature and (3) extent media size of the coverage; defendant; status of the community; community prominence *17 ” the v. Famalaro (2011) victim.” (People [Citations.]’ Proctor, (Famalaro); supra, see Cal.4th at 523.) “ is, On the defendant and must show both error that ‘at appeal, prejudice, the time the it of motion was that a trial not be reasonably likely fair could had in the and that it county, that a fair trial was not reasonably likely [Citation], had. we will sustain trial deter Although the court’s [Citations.]’ ‘ evidence, mination of the relevant facts if supported substantial by “[w]e the independently review court’s ultimate determination reasonable ’ (Famalaro, likelihood of an trial.” unfair 52 Cal.4th at [Citation.]” motion, In his first defendant contended had saturated prejudicial publicity Kern and County him from fair trial. Defendant prevented receiving argued the extensive media him sensational and coverage negative portrayed terms, and in a Manning He also that because a sympathetic light. argued area, the of Kem the majority County residents lived in Bakersfield greater most of them had been to the media Defendant also exposed coverage. claimed the state legislators government” Manning, to remember “halt[ed] which had his case implied political overtones. motion,
At the his first hearing testimony by presented Bronson, Chico, Edward J. State a California who University, professor instance, indicated, arguments constitutional he now advances. In each it unless otherwise appears appellate (e.g., that either is of sponte; claim a kind failure to instruct sua affecting rights) erroneous instruction defendant’s substantial no trial action required court it, preserve arguments the defendant to legal the new do not invoke facts or standards apply, merely different from those the trial itself was asked to but assert that the trial omission, court, wrong actually court’s act or as had presented insofar reasons extent, legal consequence violating additional of the Constitution. To that new defendant’s instance, arguments on appeal. constitutional are not forfeited the latter [Citations.] [][] course, merits, rejection, actually on the of a claim that the trial court erred on issue before necessarily rejection newly that court applied ‘gloss’ leads constitutional well. No as cases, separate required provide constitutional discussion is such we therefore none.” He the local newspaper’s of venue. reviewed as an expert change testified residents county Dr. Bronson also coverage. surveyed and television stations’ data, on this case. Based their of defendant’s knowledge about opinions publicity a reasonable likelihood the pretrial Dr. Bronson concluded there was the case. influenced views of detrimentally jurors’ prospective From the case. coverage Bronson reviewed the media defendant’s Dr. 1999, the local only May date of murder in Manning’s mid-April Californian, about case. 48 articles Bakersfield newspaper, published defendant’s first during of those articles were before or Forty-three published trial, television stations ended in a in December 1998. Local which mistrial murder, first most defendant’s trial. about Manning’s during aired 294 reports believed the crime was inflamma- coverage Dr. Bronson newspaper the venire would be community from which tory likely prejudice drawn, “[bjrutal, such citing grisly, ghastly, articles’ use of as language traumatized, viciousness, shocked, anger, stuff of ter- horribly, nightmares, also about the “salience” rible Dr. Bronson testified tragedy, mystery.” [and] case, is, to which the had “grab[bed]” extent case *18 In Dr. the case the community. “caught community’s Bronson’s opinion, the attention” due to “viciousness” of the crime and Manning’s “apparent Dr. innocence.” Bronson testified the articles that newspaper highlighted Caucasian, African-American defendant was and which was a Manning was of in a case in which the dangerous” form “particularly pretrial “publicity” defendant claimed the to the acts. victim consented sexual Bronson also extensive defendant’s
Dr. testified about the of first coverage one, ended in a to a fact that trial mistrial after the deadlocked 11 having jury be inadmissible trial. Dr. the news would at his second Bronson believed that the the African-American coverage juror—who only holdout was implied Bronson, irrational, Dr. the and to juror—was rigid, irresponsible. According articles confidence sources newspaper repeatedly quoted police expressing that defendant “was the and that he had declined three guy” stating right interviewed, he that to be all of which created the was requests appearance guilty. that was survey
Dr. Bronson also designed telephone public opinion Seventy-two administered to 400 Kern residents 1999. County February recognized the knew of the who of case. Of those survey participants percent case, 55 defendant was of guilty the said percent definitely probably murder, and 45 he should receive the death Of those said percent penalty. case, races, Manning’s the knew defendant’s and recognized who 81 percent he her and that he knew was accused of raping sodomizing percent consensual, Hill the he claimed that killed claimed sex knew percent Manning, 47 first trial ended with the dead- percent knew defendant’s one, locked 11 criminal record. knew defendant had a percent case, Dr. Bronson testified that the more about the survey knew participant the more she he or believed defendant was likely guilty. case was “as serious as a can because
Acknowledging get” case defendant was the death facing the “substantial” media penalty, coverage referred to the brutal nature “sexual overlay,” of crime and its the trial court nevertheless denied the It noted the motion venue. change media had covered killed defendant’s claim that Hill prominently Manning, and also had that a similar crime had been committed while reported that, defendant was in The court custody. noted addition presenting case, alternative to the interviewed prosecutor’s theory newspaper trial, the holdout from defendant’s he had not been juror first who explained doubt; convinced of the case the court prosecutor’s reasonable beyond implicitly rejected defendant’s contention that coverage depicted view, vote juror’s as irrational. In the coverage court’s media was “pretty evenhanded” overall.
The trial court declined to its telephonic given survey compelling, find failure to canvass some towns from which adequately outlying Moreover, venire would be drawn. court noted survey participants’ level of was “not a prejudgment tremendous increase” over figure “between 28 and 40 who believe criminal percent” any people guilty.” “probably
With to the respect community status defendant and the trial Manning, court observed defendant was a resident while lifelong county, Manning had come from another state attend and intended to leave college *19 after graduation. The court that the media acknowledged coverage portrayed in a but Manning found had not been very sympathetic light, defendant “demonized.” The court found that in 1997 the had Assembly California of adjourned in honor but there no Manning’s memory, were was significant in the act. political overtones
The trial court concluded had defendant failed to show a reasonable likelihood that he be would unable to receive a fair trial in Kern County. 25, 1999,
On defendant May renewed his motion for of venue. The change sole contention the renewed motion concerned an article supporting published that in edition of The that day’s Bakersfield Californian another reporting inmate claimed defendant had “all but confessed” to killing In Manning. motion, the the found the in the denying second trial court information article articles, was not different from also noted significantly the past article defendant such an making denied admission. reported 18, 1999, of swearing of voir before the at the conclusion dire
On June motion, that the juror question- renewed his again arguing the jury, the case. The of the venire had heard of indicated large naires percentage court denied the third motion. trial times, the last of venue three two change defendant moved for
Although to the trial court did not alter the information motions significantly presented Therefore, is rulings the court’s analysis the first motion. our of for all three motions. same nature legal gravity factor in
Regarding analysis—the first of acknowledged charged the crimes—the trial court seriousness however, case, alone does not standing Even in a factor capital offenses. Famalaro, 21-22; supra, 52 Cal.4th at of venue. change compel 398, 677, 139 P.3 (2006) Cal.4th Cal.Rptr.3d Ramirez [46 d (Ramirez).) gravity discussed the acknowledges Defendant court 64] crimes, but nature of the crimes. Not so. contends it failed evaluate court the case both murder involved explicitly recognized rape To the extent defendant contends the court failed to account for the charges. crimes, nature of cross-racial record contradicts claim. Moreover, we have said in another case that some “[ajlthough prejudice from and . . have arisen the racial difference between defendant . may victims, ‘[tjhis element would follow the of possible prejudice presumably (People v. Lewis other venue . . .’ 43 Cal.4th any case . [Citations.]” event, (Lewis).) 181 P.3d “the any inherent all murder will not in and of itself sensationalism cases capital (People Adcox 47 Cal.3d change necessitate venue.” 906].) Cal.Rptr. to the nature and of the media cover As second factor—the extent trial court local news be “substantial.” age—the Heavy found the coverage venue, but does media in favor of coverage may weigh change (Ramirez, it. denial necessarily [affirming compel of venue in a murder case when the trial court described the change serial “ “ issue, ”].) ‘When is at media as ‘saturation’ coverage pretrial publicity reliance on the of the trial makes good “primary judgment [especially] sense” because “sits in the locale where the said have judge publicity “own had its effect” and base evaluation on may judge’s] percep [the] [the *20 ’ and influence a juror.” tion of the extent of news stories that might depth (Famalaro, at do not doubt 24.) 52 Cal.4th We supra, p. [Citation.]” that 72 given there was substantial finding pretrial court’s publicity, his recognized of the in defendant’s telephonic survey participants percent Moreover, case, of those 55 said defendant recognized case. who percent he or of murder and 45 said should guilty was definitely probably percent 826 the death we have
receive But a trial court’s denial of venue penalty. upheld motions in involving greater cases or and change comparable recognition as such (See measured id. at prejudice, surveys. 19 p. percent [83 case, those, had heard of and of surveyed 70 said the defendant percent murder, was or definitely and 72 said he should probably guilty percent 823, receive death v. People (2013) Rountree 56 Cal.4th 836 penalty]; [157 1, (Rountree) 301 P.3d Cal.Rptr.3d percent surveyed recognized 150] [81 case, those, and of 46 said the defendant was or percent definitely probably 368, 1370, (2007) v. People Leonard 40 Cal.4th guilty]; 1396 Cal.Rptr.3d [58 case, those, 157 P.3d had surveyed heard of the and of 58 percent 973] [85 Ramirez, believed the defendant was percent definitely or probably guilty]; case, 39 Cal.4th at supra, 433 had heard of the and p. percent surveyed [94 those, 52 believed defendant for the percent was charged responsible crimes]; 1, and People (2004) Marlow 34 Cal.4th [17 Coffman 710, Cal.Rptr.3d 96 P.3d the defendants’ percent surveyed recognized [71 30] case, those, and of over said the or percent defendants were definitely guilty].) probably extreme,”
Defendant contends the was in the “unbalanced and publicity record that the does not the trial court’s that it was support finding “pretty evenhanded.” He that the did not coverage merely on the complains report case, of the facts but also or inaccurate employed inflammatory language, court, contained material inadmissible created presumption guilt. however, terms, The bulk of the was framed in neutral contained coverage, material, little inadmissible or he prejudicial defendant’s reported theory did kill and was not otherwise an Manning, convict him in the attempt Famalaro, 22-23; (See media. 52 Cal.4th at (2007) v. Prince 1179, 543, (Prince).) 1218-1219 156 P.3d Cal.Rptr.3d [57 1015] Media coverage not biased because it inflammatory recounts simply inherently disturbing (People circumstances case. v. Panah (Panah).) Cal.4th We that continuous and factual acknowledge extensive accounts bemay prejudicial. Williams Court 34 Cal.3d potentially Superior Williams, 799].) In and his Cal.Rptr. petitioner murder, were brother with the charged rape, burglary, kidnapping, kidnapping (Id. 587.) of a robbery, young woman. robbery Caucasian first, counts, brother was tried convicted on all petitioner’s sentenced (Ibid.) The death. coverage during petitioner’s newspaper proceedings, accurate, while eliciting hostile from the reader. capable response We cited article quoted during brother’s newspaper “ ‘ said, trial as himself take having took Heather upon “[the] Mead’s her and her life virginity, satisfy his own lust and property addition, (Id. article greed about the newspaper trial brother’s the criminalist’s that hairs found at the crime quoted testimony *21 ” “ features,’ and his brother and noted the ‘Negroid petitioner scene had (Ibid.) in recitations Placer that such factual We held were African-American. 117,000 of were African- only population people in which 402 of County, (Ibid.) Unlike American, devastating impact.” have a “could potentially case, after six ending of the first trial’s coverage which involved defendant’s in Williams charges, on the capital and mistrial hung jury weeks trial, which had brother’s yearlong described the coverage petitioner’s media in Williams (Ibid.) The publicity and death verdict.5 resulted in conviction “continual,” lasted “extensive,” inflammatory,” “at times “repetitive,” was at that was and the evidence presented over a of two described years, period (Id. trial. be introduced at likely petitioner’s trial and would brother’s so cases had become 589-592.) at The connection between brothers’ the brother’s that would transfer danger jurors there was a strong potential (Id. 595.) In defendant comparison, verdict petitioner. onto guilty the media coverage, tried in a that was less saturated larger county was tried and was alone. disseminated of which defendant was complains
Most
about
publicity
trial,
murder in
his first
which
May
between
time of
Manning’s
1998;
June
defendant was not
retried until
1999.
ended in December
that
first
remember information
was
Dr. Bronson testified
tend to
people
case,
received, which,
in his
created
presumption
opinion
held, however,
time
We
of
ordinar-
defendant was
have
guilty.
passage
“[t]he
(Prince,
of
ily
publicity.
blunts
impact
widespread
[Citations.]”
prejudicial
Panah,
1214;
supra,
see
35 Cal.4th at p.
was
immedi-
Dr. Bronson
heaviest
acknowledged
coverage
newspaper
time,
diminished
but noted that
after
murder
over
ately
Manning’s
were aired
many
was
for television
because so
stories
coverage
true
opposite
addition,
in his second
argued
defendant’s first trial. In
as defendant
during
venue, the
of his case continued
coverage
and third motions for
change
trial,
were aware
jurors
until the start of his second
and many prospective
this,
television coverage
Based
defendant contends
extensive
his case.
case,
but also
first
not
interest
his
only reignited
his
trial
public’s
information, such as his
arguably
provided potential
prejudicial
But,
in favor of
as
hung
guilt.
ended in an 11-to-one
first trial’s having
noted,
there
“substantial
defendant’s
first
trial
during
the trial court
in a
interview
Manning,
that Hill killed
theory
published
his
coverage”
trial
he felt the
had
prosecution
the holdout
from the first
juror
explained
coverage
if
a reasonable doubt.
media
beyond
kept
its case
Even
proved
trial,
the start of his second
eye
in the
until
public
defendant’s case
to the
court’s erroneous
penalty
and death
due
trial
We reversed the brother’s conviction
(People
v. Williams
venue.
fails to demonstrate that it was so extensive and slanted him as to against him a from fair and prevent receiving impartial trial.
With to the third factor—the size of the respect community—this factor did 1999, a change of venue. In Kern support had a of County population 648,400, it 14th out of ranking California’s 58 counties in size. population We do not find defendant’s reliance on persuasive v. Court Municipal Steffen (1978) 782], 80 623 in which Cal.App.3d the Court of Cal.Rptr. Appeal [145 a for writ of granted petition mandate the trial directing the grant for motion of venue filed in at petitioners’ change San Mateo which County, 575,000. case, the time had a of In that the population had been petitioners charged misdemeanor solicitation of an act of at the prostitution theater (Id. they 625.) where worked. at p. the the Court granting petition, based decision on the its Appeal long-term negative that caused publicity theater to a as a develop reputation the size place frequented prostitutes; (Id. did not into its county figure 626-627.) at analysis. Conversely, General cites several Attorney cases in which for capital motions change were (See, venue denied smaller counties. v. 35 e.g., People Vieira 264, 337, Cal.4th 280-283 Cal.Rptr.3d County, 990] [Stanislaus 370,000]; population Weaver People 26 Cal.4th 905 [111 (Weaver) P.3d Cal.Rptr.2d 29 County, exceeding population [Kern 450,000]; v. Hayes (1999) 21 People Cal.4th 1250-1251 200,000]; Cruz 989 under see County, population 645] [Santa also Rountree, 543,477].) Cal.4th at supra, p. 839 County, population [Kern There,
Weaver is instructive. particularly we affirmed the denial of of venue from Kern change when it was less than County during populous defendant’s We trial. described size” be a county’s “moderate “rela- factor, neutral” was tively noting key consideration whether size of diluted the effect of population (Weaver, adverse publicity. supra, 905; Rountree, Cal.4th at see at p. supra, 839.) Cal.4th As we have p. media explained, coverage case was not so extensive and negative Lewis, as (see us to require presume 450), 43 Cal.4th at prejudice supra, p. and the size of the the conclusion that an county supported unbiased jury could be found. likely defendant,
The fourth factor—community status whether meaning the defendant was known to the before the crime—did not public weigh either heavily against (Ramirez, of venue. change 39 Cal.4th at supra, 434; Famalaro, see at p. Cal.4th supra, p. Although defendant was lifelong resident of the evidence he community, there was no or his were to the known before his arrest. family public We are mindful defendant was an African-American in predomi- that, committed, Caucasian after had been nately community murder 23; Famalaro, supra, record was his criminal published. Williams, social, racial and 48 Cal.3d [“[T]he which could ‘most kind sexual overtones were precisely case] [of defendant.”].) photograph defendant’s Although effectively prejudice’ race, to his one article did refer in the several times published newspaper, *23 a racially to him in his race or refer the did not coverage emphasize Prince, 1214.) supra, Cal.4th at (See p. manner. inflammatory Moreover, the case would follow racial any possible prejudice presumably Prince, 1214.) Defendant supra, 40 Cal.4th at (See p. to other venue. any a factor when racial as prejudice contends such eliminates reasoning possible than Dr. Bronson’s concerns whether to venue. Other change determining however, case, there is no evidence in about the racial overtones of the that were different from significantly record race relations in Kern County in other those counties. victim, whether the fifth of the
Finally, factor—prominence meaning to crime—did not change victim was known before the public support Famalaro, supra, 434; (Ramirez, supra, of venue. 39 Cal.4th at see p. before her 23-24.) at was not known to public Cal.4th pp. Manning Rather, murder, ties the community. and she did not have or extensive long there, and she college she came from another state to Bakersfield to attend graduation. Manning intended to move after her anticipated impending away was a murder came to the attention because she victim. only public’s noted, Nonetheless, Assembly State had as the trial court the California article also Manning’s memory. reported in honor of A adjourned newspaper service, that, due to be buried in Manning to her father’s military qualified there. Even were we assume Arlington National and was interred Cemetery of evidence or her family positions promi implied Manning occupied nence, influenced the jury in the record these factors nothing suggests pool. Williams, Panah, supra, 449; at cf. supra, 35 Cal.4th knew the number of prospective Cal.3d 1126-1131 [substantial witnesses, victim, associated with the her or someone family, potential prosecution].) extensive coverage the local
Defendant contends newspaper’s her everybody’s her and made seem Manning’s part murder humanized cases, that of the case gave But in other features family. any as we have said have inevitably in the wake of the crimes would the victim prominence (See, defendant was tried. e.g., no matter which venue become apparent Prince, addition, prevented contends trial court improperly had so affected public
Dr. Bronson from whether pretrial publicity opining attitudes toward the case that defendant would unable to avail himself of be of innocence that the law presumption response him. In guarantees defense counsel’s inquiry regarding impact publicity pretrial venire, stated, Dr. Bronson likelihood reasonable “[T]here defendant could not have a unaffected jury panel pretrial could afford him the publicity innocence to which he’s presumption entitled.” The prosecutor objected to the answer on the it ground gave legal conclusion. The trial sustained the objection as to the latter portion him Dr. Bronson’s answer and struck the “and could afford phrase of innocence to which presumption he’s entitled.” Defense counsel later asked Dr. Bronson if he had an “would be able opinion whether defendant his trial here in Kern begin with the County proof burden properly The trial court sustained the place?” prosecutor’s objection question called for a legal conclusion. *24 that,
Defendant is correct in whether there is a reasonable determining venue, likelihood that a defendant can receive a fair and trial in the impartial the trial court on evidence may rely such as “qualified surveys public opinion individuals, or opinion testimony by or on the own evaluation court’s offered nature, (Maine of the the frequency, of material involved.” timing Court Superior 68 372], Cal.2d 383 Cal.Rptr. added.) however, italics We the primarily rely, judgment trial court’s (Famalaro, these supra, matters at 24), 52 Cal.4th when p. especially the ultimate issue of the determining (See venue’s fairness and impartiality. ante, 824-825.) at Even the trial court assuming excluding erred Dr. Bronson’s testimony, based on our proffered consideration of the evidence in total Dr. Bronson’s (including we with the trial court’s testimony), agree conclusion that defendant failed to demonstrate there was a reasonable likelihood that he could not receive a fair and trial in the venue. impartial Famalaro, (See supra, 24.) 52 Cal.4th at p. also
Defendant fails to demonstrate a reasonable likelihood that he was is, did not he prejudiced, receive fair and trial. impartial fact Proctor, (See 523.) at supra, 4 Cal.4th With to this second of p. respect part we examine the voir dire showing, of to determine whether the jurors (Id. had a effect on the at pretrial publicity prejudicial jury. p. Among trial, 12 seated jurors defendant’s two about case and nothing knew his the remaining recognized the case but remembered few That specifics. of most the seated had some jurors case does not prior knowledge Famalaro, supra, compel change venue. Cal.4th at ‘The p. [“ case, relevant is not whether question remembered but community whether the . jurors . . had such fixed that they could not opinions judge Rountree, [Citation.]”]; supra, guilt defendant.’ impartially Cal.4th at case].) the 12 had heard about the [eight jurors something On defendant does not appeal, any of of the seated challenge responses outside influ- aside under could they put all of testified oath whom
jurors, we cannot extent defendant contends To the ences and case. fairly try it, not have prejudged of the case but claim are aware jurors believe who (Prince, we rejected argument have previously do automatically 1215), and here. such assertions again Although do so of the record discloses our review jurors’ establish impartiality, independent that was not the seated harbored bias any evidence that no notes, Moreover, General Attorney voir dire. as detected during which tends show sodomy did not convict defendant of and burglary, him, evaluate the but rather was able against fairly it not prejudiced evidence before it. motions for change the trial court denied defendant’s
Accordingly, properly of venue.
2. Selection Jury conducting
a. Manner voir dire a fair trial right Defendant contends the trial court violated his race-related and in individualized limiting questionnaire questions juror As merit. voir dire. will neither of these contentions has explain, we *25 racial potential on bias Adequacy questioning of noted, mistrial, a holdout As defendant’s first trial ended in juror trial, the second who was lone African-American. In for preparation to defendant submitted the trial court proposed juror questionnaire trial five of contained racial bias. The court rejected questions regarding to defendant’s on racial bias and nine remain. questions proposed permitted A is entitled to on issue question jurors prospective racial bias. 48 Cal.4th possible Taylor (People court, however, A wide (Taylor).) trial has voir in should be asked on dire deciding discretion what questions “It if its (Ibid.) biases. abuses that discretion jurors’ determine potential ‘ trial un “fundamentally to ask renders the defendant’s failure questions ‘ “ ’ test the for or is not sufficient to reasonably fair” ‘if questioning ” ’ ” Proc., 223.) (Ibid:, see Civ. bias or Code partiality.’ § For five on racial bias. The trial court here nine permitted questions other duplicated it did the court those questions reject, questions explained issue, in a on a or were phrased information “collateral” questions, sought the court did of the nine questions biased nonneutral manner. light we cannot it abused discretion in say its these five permit, rejecting questions addition, for these reasons. In the court instructed counsel submit a list of for further the court questions by examination for each prospective juror. Thus, defendant had the to further opportunity any juror’s explore potential racial bias. possible
To the extent defendant contends trial court erred not allowing deliberations, from juror his first trial to about that testify even if jury’s Code, (see we assume such evidence would 1150), be admissible Evid. such § not been testimony would have in racial in helpful determining possible bias Thus, us, the second trial’s venire. record before we conclude the into court’s racial bias was inquiry possible sufficient.
(2) Denial motion individual voir sequestered for dire Defendant contends the trial erred his motion to allow denying counsel conduct voir dire of each prospective juror individually from the He separately jurors. other individual voir dire prospective argued was necessary because the cross-racial nature of the was to evoke likely case racial biases. The court denied the to conduct voir request dire on sequestered issue, it did not race “a any stating believe issue in this case.” We huge review the denial of a defendant’s motion for individual voir dire sequestered (Famalaro, abuse of discretion. 34.) Cal.4th at p.
Individual dire voir is not sequestered even constitutionally required, Moreover, in a 606.) case. 48 Cal.4th at capital Taylor, supra, section states, 223 of the Code Civil Procedure dire pertinent part, “[v]oir shall, where any prospective jurors occur in the practicable, presence . . other . .” voir dire be Group may when it is impracticable shown actual, result rather than bias. merely potential, (Taylor, supra, Defendant does that either the trial court’s suggest comments *26 of the other influenced responses prospective jurors any prospective juror. Rather, he the contends nature of voir dire coerced the group prospective answers,” into jurors giving “socially and not honest acceptable giving answers about their actual biases. have Although jurors been prospective may others, influenced by having others’ to in front of by responses, respond is, most, (Lewis, rather actual potential than bias. 43 Cal.4th at supra, Moreover, 494-495.) the jurors writ prospective individually completed ten it the court indicated would questionnaires, question prospective added, however, about their on the death it jurors individually views penalty; Thus, be any “sensitive” matter could also discussed “in confidence.” have defendant could asked to examine a racial prospective juror’s possible Defendant did not a the Accordingly, biases make such on privately. request.
833
discretion
us,
the
did not abuse its
court
before
we conclude
record
voir dire.
for
sequestered
defendant’s
individual
request
denying
challenge
b. Batson/Wheeler
chal-
exercised peremptory
contends the
improperly
Defendant
K.P.,
on
H.C.
jurors,
African-American
against two
lenges
prospective
69,
L.Ed.2d
U.S. 79
(Batson
of
476
Kentucky
the basis
race.
[90
22
258
Cal.3d
(Batson); People
S.Ct.
v. Wheeler
[148
1712]
(Wheeler), overruled in
in Johnson
part
Cal.Rptr.
748]
(Johnson).)
S.Ct.
(2005)
834 of
Three the 69 in the were African- jurors prospective jury pool American.6 the objection, Without exercised his sixth prosecutor peremptory H.C., to excuse was the challenge who African-American. After prosecutor K.P., used his 12th another African- peremptory challenge excuse American, motion, a Wheeler made the excusal citing prosecutor’s motion, of H.C. K.P.7 of his defendant claimed African- support venire, Americans were from the the underrepresented noted holdout juror African-American, his first trial was the H.C. argued excused prosecutor and K.P. because he feared would vote not they guilty.
Without the it court standard was the trial expressly stating employing, motion, denied the facie defendant had failed to a finding make prima The declined trial showing. the to state his prosecutor court’s invitation K.P., reasons for H.C. and the excusing but noted that five of roughly percent in Kern was population County African-American. also stated prosecutor that trial the court the attorneys were “all aware” that the holdout juror African-American, from trial had defendant’s first was but this noted juror voted to convict defendant the One African-American Torigiani burglary. woman served on ultimately jury. defendant’s the
Although trial court did not the will articulate standard it was we using, one, is, assume it used the a wrong whether defendant established “ ” likelihood’ that a ‘strong was on the basis juror peremptorily challenged (Streeter, of race. supra, 54 222 Cal.4th at standard under p. [articulating Wheeler, supra, 22 280].) trial, Cal.3d at court After defendant’s high of that standard for the disapproved facie purposes establishing prima (Johnson, Instead, supra, 166-168.) 545 U.S. at has showing. a defendant the burden of showing the circumstances of the case raise inference (Batson, that the excluded a on juror based race. prospective used, U.S. of which we Regardless standard trial review record and independently high standard apply required by court. (People v. Bell 40 Cal.4th Cal.Rptr.3d (Bell).) facie be made from evidence Although prima showing may any record, we have noted “certain be evidence that will relevant types court, prospective jurors originally only Defendant notes of the 140 trial summoned discharge four were African-American. The court denied defendant’s motion to due venire African-Americans, underrepresentation challenge ruling and he does not on appeal. Many original due their prospective were excused views on penalty death or the hardship lengthy financial trial would have them. caused A Wheeler motion preserves the federal constitutional claim that a prosecutor used (People v. Yeoman peremptory challenge solely juror’s based race. multiracial, 1166].) 117-118 the purposes K.P. was but for motion, defendant’s Wheeler she considered to be African-American. *28 has struck may [opposing Thus the show counsel] purpose. party venire, or from the has all of the identified group
most or of the members . the against group. . . [The used a number peremptories disproportionate only in share jurors question demonstrate the may also moving party] that in all other the this one characteristic—their membership group—and Next, aas whole. the the heterogeneous community are as as they respects as such circumstances when be showing may appropriate supplemented in more than jurors to these same engage the failure [opposing counsel] dire, at ... the all. Lastly, or indeed to ask them any questions voir desultory in order complain a member of the excluded group defendant need not be is, rule; if the cross-section yet defendant] of a violation of representative [the of the group victim is a member alleged and if addition especially [the] these facts also be belong, may which the of the majority remaining jurors 280-281, (Wheeler, 22 Cal.3d at pp. supra, called to court’s attention.” omitted.) fn. dearth of
Defendant’s motion
relied on
relative
primarily
fact
exer
African-American
and the
jurors,
prosecutor
prospective
to the jury
the two who had been called
challenges against
cised peremptory
however,
alone,
his
This numerical showing
box at the time he made
motion.
Streeter,
supra,
(see
of a
facie
Cal.4th
showing
falls short
prima
therein)
cited
because the small number of African-Americans
cases
from this fact
makes
an inference of discrimination
“drawing
jury pool
(Bell,
inference of
alone
Defendant fails demonstrate that as the record also shows apparent an inference of discriminatory purpose H.C. excusáis of Jurors Prospective race-neutral reasons for prosecutor’s university Manning head basketball at the and K.P. H.C. coach worked they of- witnesses because too attended knew eight potential Krone, he both of whom Carolyn at the knew James Ave university; knew juror eight trial. No other potential testified defendant’s prospective witnesses, been concerned reasonably and the could have prosecutor as the case to sit that H.C. too connected to closely was potentially Ave and Krone testified about record indicates impartial juror. Although matters, minor, have been con- may uncontested relatively six other witnesses potential cerned about testimony expected Moreover, his H.C. juror expressed support that H.C. questionnaire, knew. close him had indicated that he or someone for the death but also penalty, race; he or close to of another someone had a bad with someone experience *29 defendant, H.C., him had been discriminated fact that like was against; it African-American would make more difficult the facts for H.C. to consider he knew he objectively; knew a member thought of defendant’s family; and, due to his prominent status have university, “path[] might his crossed” defendant’s or Manning’s. K.P.,
With she stated that her had respect adolescent brother been (a Code, with charged see selling marijuana Health & Saf. felony; § (a)) subd. and thus had a case the Kern court pending County juvenile at the time system of defendant’s trial. on voir dire K.P. stated that Although her case, brother’s case would not affect how she viewed defendant’s prosecutor could reasonably have been concerned might be person biased against and law enforcement prosecution agencies were currently Booker e.g., People (See, her prosecuting brother. 141, 167,
Cal.4th fn. [family member’s with criminal negative is a experience justice system race- neutral reason for a challenge].) K.P. also peremptory explained classes, service would force her to some of her summer school which drop she feared would interfere with her ability to transfer ato four-year college. also could prosecutor have concluded reasonably that KJP.’s concerns about her education completing might impair her to focus on the case ability and serve as an impartial juror.
For first time on us to appeal, asks conduct a comparative analysis prospective jurors’ responses jury questionnaire voir dire. When a trial court during has found no facie prima showing, excusáis, has declined to state prosecutor reasons for the we have (Streeter, declined to conduct a comparative juror analysis. Cal.4th 5; U.S. Collins (9th 2009) fn. but see Cir. F.3d for first-stage Batson [comparative juror analysis employed case].) Justice Liu’s concurring that we must conduct opinion argues juror comparative so, in this situation. But if analysis even we were to do a comparative juror not does aid defendant analysis because record that any fails show witnesses, seated or alternate juror personally knew as eight H.C. potential Herman, did. Detective the detective to whom defendant first admitted to sex having with was the Manning, father a friend of one of seated but jurors, had never met juror Detective Herman. Similarly, another him, seated juror recognized but did not know knew two local law enforcement people employed by agencies, working and had a with three in the office relationship because people prosecutor’s employer his had an “automation” contract with the office. This how- prosecutor’s juror, ever, did anyone not know with associated this case. Alternate Juror R.C. nurse, worked at the Kern as a wife County jail his was registered and his brother reporter, was a sheriff. R.C. knew one of the deputy potential witnesses, inmate, his work. R.C. through heard detention officer refer to he have treated might thought “scum” or a R.C. “scumbag.”
defendant as wit- This far less contact potential defendant with bias. possible nor defendant had, witness and neither this potential nesses than H.C. testified. who were event, or seated that other any prospective similar H.C.’s biases also have had challenged may possible
peremptorily biases made is not determinative because the combination of H.C.’s potential *30 at evaluated who had been different from other sufficiently jurors him v. Mai Cal.4th (See excused him. time because a of a challenge use [affirming peremptory 1050-1051 prosecutor’s views, status, when and death age, penalty familial juror’s prospective to that up her evaluated together, unique among jurors considered made so wit- many other seated or knew juror potential No point].) prospective remain ability or her own to objective. nesses doubt about his expressed K.R, suffered a misdemeanor With to four seated either had jurors respect one; these who had suffered three of conviction or were close someone suffered misde in Kern Another had County. juror convictions occurred best who had suffered a meanor in Kern and had a friend County conviction had juror in The brother one seated County. conviction Kern felony drug in broth child and was Unlike KJP.’s been convicted of molestation prison. case, however, where pending very county of these was in the er’s none that service was tried. K.R also concern being jury expressed Snyder In college. would hinder her to transfer to a ability four-year 1203], Louisiana L.Ed.2d 128 S.Ct. 552 U.S. 483-484 [170 African- challenging for among prosecutor’s justifications peremptorily that he be inclined to might American was the concern prospective juror favor a lesser the trial’s on his impact graduation require sentence lessen because the trial ments. The court high rejected justification, part, had that service juror’s university jury court learned from prospective would not interfere with his education significantly pros requirements; had at least as serious ecutor also had two Caucasian who accepted (Ibid.) the trial court Although juror. as hardships challenged prospective Snyder, K.P. had of the local unlike in knowledge colleges, here some personal interfere with her did not receive assurances service would not jury Liu, J., (conc. *31 (Batson, supra, 97.) 476 U.S. at Each case a raising issue Batson/Wheeler here, is considered on its own merits. As we have reviewed the carefully record and considered the question closely in case before every us this raising issue.
Because defendant failed meet his to burden in facie establishing prima discrimination, showing group the trial court denied his properly Wheeler motion.
c. Denial challenge cause for Defendant contends the trial court denied his for erroneously challenge R.C., cause against nurse at the Kern County who an jail served as alternate juror.
R.C. he stated if on the served it would be a jury, not for him to problem vote not and resume guilty working jail. Defendant moved excuse cause, for if arguing that R.C. voted not he would be to a guilty, returning environment,” “hostile work and therefore would be biased toward the motion, The court prosecution. trial denied defendant’s “I have to stating, make call based what he has told us. He has told us he can be upon fair.”
R.C. was seated as alternate juror. Defendant did not exercise R.C., or peremptory challenge against exhaust all of his chal- peremptory lenges for the alternate and jurors, he did not dissatisfaction with the express of alternate panel jurors. R.C. never served as a juror defendant’s trial. during 8 days Defendant’s first trial days. lasted his second trial lasted 12 court this claim. We defendant has forfeited contends Attorney General “ ‘ error in claim of who wishes to preserve
agree. “[A] challenge (1) cause must use a peremptory denial of a challenge improper challenges his or her (2) exhaust peremptory to remove the juror question; so; with the dissatisfaction failure to do express justify ’ (2012) Cal.4th (People ultimately selected.” [Citations.]” Souza (Souza).) 277 P.3d Cal.Rptr.3d did because he intentionally claim is not forfeited Defendant contends his selecting the jury his when peremptory challenge not exercise last trial Defendant also claims the with the seated jury. dissatisfaction expressed have who would otherwise jurors rehabilitated prospective court improperly cause, not exhaust he his decision to been excused for which asserts justified circumstances do his when These challenges selecting jury.9 peremptory challenge he not use a peremptory defendant’s claim because did save R.C., his to not exhaust his peremptory he failed to decision justify remove and he failed express alternate challenges jurors, with respect Souza, were selected. dissatisfaction with the alternate Moreover, as never served on defendant’s jury, 54 Cal.4th at R.C. error could have been any prejudicial. there is no assumed possibility & fn. Thomas (People 361].) B. Guilt Phase
1. Admission DNA Evidence *32 177, (2004) 541 L.Ed.2d Washington v. U.S. 36 Citing [158 Crawford his he denied federal (Crawford), 124 S.Ct. defendant contends 1354] who determined statistical right constitutional confront the individual that his DNA was consistent with the recovered from samples frequency noted, analyzed As for the laboratory crime scene. director deputy trial; had not personally DNA testified at defendant’s this witness samples analysis. the DNA performed to the federal Constitution guarantees
The Sixth Amendment (2012) (See Lopez People defendant’s to confront adverse witnesses. right 9 engaged practices trial in other ensure the extent defendant contends To court’s persuaded. we are not Defendant contends trial “designer jury” prosecution, for the to make them Prospective improper attempts Jurors P.P. and V.G. were questioning record, say the abused its broad jurors. reviewing After we cannot trial court acceptable People (See (2013) v. Whalen jurors. questioning prospective 56 discretion its manner of Moreover, 1, 673, 915].) successfully Cal.Rptr.3d Cal.4th 294 [152 29-36 cause, Prospective Juror P.P. was never called into challenged Prospective Juror V.G. for box. 840 569, 559, addition, 469].) 286 P.3d Cal.Rptr.3d [147 not on “testimonial”
prosecution may rely out-of-court statements unless is witness unavailable to testify and the defendant had a prior opportunity 59; cross-examination. at (Crawford, 541 U.S. cf. v.Illinois Williams U.S. __ [183 89, (2012) L.Ed.2d if 132 S.Ct. (plur. opn.) 2221] [even truth, of DNA report test results was admitted was not for its it nature]; testimonial in Lopez, supra, Cal.4th 580-585 [inculpatory portions report defendant’s blood-alcohol were not concentration nature].) testimonial in
The Attorney General contends defendant forfeited this claim by failing (See object 1145, trial. v. Livingston (2012) 53 Cal.4th 1160-1161 139, Code, 274 P.3d Cal.Rptr.3d (Livingston); [140 Evid. § which was a Crawford, dramatic from confrontation clause departure prior law, trial, case was decided after defendant’s 1999 failure to defendant’s object excusable because defense counsel could been have reasonably expected in the anticipate change (2013) law. v. Pearson (People 393, 541, Cal.4th 793].) 461-462 [154 We because, need not address the merits the claim even if there was error, it was harmless a reasonable beyond doubt. Delaware v. Van Arsdall 1431]; 475 U.S. 681-684 L.Ed.2d 106 S.Ct. Chapman U.S. L.Ed.2d 87 S.Ct. California 824].) Defendant admitted that had he sex with on the of her Manning night murder. The DNA confirmed analysis only what defendant already had admitted. The consensual, issue at trial primary was whether the sex was issue; analysis DNA no insight as to this provided defendant therefore could not have been harmed by any presumed prejudice.
,2. Admission Torigiani Burglary Defendant contends the trial court erred his by admitting during second *33 trial evidence of the noted, of Bree burglary Torigiani’s condominium. As the jury defendant’s first trial found him of this crime. guilty trial, the start Before of defendant’s second the the prosecutor requested determine trial court to whether he could introduce evidence of the Torigiani The noted the similarities between the burglary. crimes: similar in close to dwellings each other and to defendant’s proximity the apartment; other; crimes were the within committed in three evening, weeks of each taken; women; were similar items the victims were and perpetrators In request, the dwellings.10 opposing with items from armed themselves in her and had been Torigiani, unlike Manning, noted he knew murder; before; Manning’s after the Torigiani burglary happened apartment window, there was no but through he entered condominium Torigiani’s by Torigiani, confronted when Manning’s of forced into sign entry apartment; The court fled; Torigiani. unlike no was taken from Manning, he jewelry admissible, but it excluded were Torigiani burglary ruled the facts of the burglary. been of the Torigiani evidence that defendant had convicted for the only the Torigiani burglary it could consider court instmcted who committed of determining identity person limited purposes intent. against Manning the crimes perpetrator’s evidence, as evidence sometimes described propensity Character conduct, to is inadmissible generally or to engage specific disposition 1101, Code, (Evid. on a occasion. § conduct person’s specified prove crime, or wrong, civil other that a committed a (a).) subd. Evidence person however, to admitted, not to a person’s predisposition act be may prove fact, act, such as that material commit such an but rather to some other prove 1101, (Id., court’s (b).) subd. We review the trial identity. intent or person’s § evidence, the commission to evidence of including decision whether admit v. Jones crimes, (2011) 51 Cal.4th discretion. other for abuse of (Jones).) 247 P.3d Cal.Rptr.3d (between the act and the uncharged charged “The least degree similarity aof offense) is order to intent. recurrence required prove [Citation.] ‘[T]he instance) to accident negative . tends with each (increasingly similar result. . state, innocent mental good inadvertence or self-defense or faith or other criminal, normal, i.e., intent . tends to establish . . the presence to to be admissible prove an act... .’ order such accompanying [Citation.] intent, similar to sufficiently support misconduct must be uncharged ‘ in each inference the same intent that the defendant “probably harbor[ed] v. Ewoldt (People instance.” [Citations.]’ [Citation.]” 757].) similarity degree “The greatest 402 [27 misconduct to be relevant uncharged prove for evidence of required established, misconduct and the uncharged For be identity. identity distinctive sufficiently share common features that are offense must charged acts. committed both the inference that same person so as support must be unusual of the crimes so ‘The and characteristics pattern [Citation.] (Id. at p. a signature.’ and distinctive as be like [Citation.]” similarities to link insufficient Defendant first contends there were he Manning’s apartment. his intent when entered Torigiani burglary by her brother had been bayonet that a owned Torigiani at defendant’s first trial testified *34 bed to near her bedroom door. from underneath his moved defined, is in as with the Burglary pertinent part, into a entry dwelling intent to (§ commit or It is larceny any felony. 459.) undisputed defendant did not enter or Torigiani’s condominium the intent to rape her; thus, murder he Torigiani was relevant whether burglary only entered Manning’s with a larcenous apartment intent. identical,
We see no of abuse discretion. not Although they crimes were cases, were sufficiently similar. both dwell- entered woman’s within distance of ing his own stole several walking apartment night, items. That defendant committed the the reason- Torigiani burglary supports able inference he also intended to steal from Manning’s apartment. did not Although jury ultimately convict defendant of burglarizing this does not lead Manning’s apartment, to the conclusion that the trial court abused its discretion in the introduction of the evidence. allowing
Defendant next contends the court abused its discretion in not finding Code, (See evidence unduly 352.) Evid. We The facts prejudicial. disagree. § were Torigiani burglary when particularly inflammatory compared Moreover, to Manning’s and murder. rape the trial court instructed the on jury evidence, the limited of this it purpose we followed presume Jones, (See instruction. 371.) at p.
Defendant also contends the trial court allowing abused its discretion by to consider the jury Torigiani as evidence of the burglary identity person who burglarized Even the court did Manning’s apartment. assuming abuse its discretion permitting Torigiani consider the jury burglary for this additional such any error was harmless. purpose, Watson (Watson).) 46 Cal.2d Defendant admitted to murdered, being Manning’s she was apartment night and there was sufficient evidence to his convictions support rape Moreover, murder. did not convict defendant of the burglary and thus evidence Manning’s apartment, could not Torigiani burglary have him with to this prejudiced respect count.
3. Admission Letters Manning’s Defendant contends the trial court abused its discretion into admitting noted, evidence two undated letters written As letter by Manning. one sweetheart,” Hill; addressed “Charles and described her love for the other was addressed to a friend and discussed her with Hill. postgraduation plans
Defendant first contends these letters were irrelevant. In the absence rule, Code, (Evid. all relevant evidence contrary is admissible. § Evidence relevant if it has a contested any tendency prove disprove
843 (Id., any evidence of rape, case of forcible 210.) fact at issue. § sexual the victim consented less that makes it plausible circumstance that 1067, 1114 Guerra 37 Cal.4th People (See intercourse is relevant. other 118, 321], grounds part overruled 129 P.3d Cal.Rptr.3d [40 454, 76, 180 v. Rundle Cal.Rptr.3d 43 Cal.4th 151 [74 People Manning had evidence notwithstanding, 224].) protestations Defendant’s murder, a friend written and had a week before her her love for Hill professed Hill, it less to make plausible tended about her plans postgraduation such, letters As another person. sex with would have had consensual she were relevant and admissible.11 hearsay. unreliable the letters were further contends
Defendant statements, state but “an out-of-court letters were out-of-court Manning’s the matter the truth of it is ‘offered prove ment is when only hearsay 72, Code, v. Jurado (2006) 38 Cal.4th (People (Evid. 1200.)” [41 stated.’ § wrote, (Jurado).) 319, Manning Much of what 131 P.3d Cal.Rptr.3d 400] the first because hearsay place as her future such plans, her then state circumstantial evidence of solely were offered as statements Hill, mind, prove and were not offered feelings her specifically, 758, v. Riccardi (2012) 54 Cal.4th (See People truth of what she wrote. (Riccardi) between [distinguishing 822-823 Cal.Rptr.3d 1] Evidence Code section as under hearsay “statements that were admissible (1995) 38 that were Ortiz nonhearsay”]; and statements Thus, (Ortiz).) statements such Cal.App.4th were admitted. properly letters, “I hand, such as love Manning’s other statements in
On other wrote, hearsay. and thus were for the truth of what she were introduced you,” Jurado, Code, 1200; supra, (See Evid. see also § own feelings descriptions declarant’s] [defendant [“assertions statements, however, states, were admis- other mental were These hearsay”].) as 1250’s state-of-mind exception; under the Evidence Code section sible Ortiz, above, mind was at issue. discussed the victim’s state of Cal.App.4th letters were not trust Manning’s contends
Defendant nonetheless murder. A of her night of her state of mind on worthy representation be admissible under state-of-mind statement that would otherwise hearsay Code, if made under (Evid. (a)(1)) subd. is inadmissible exception § (id., trustworthiness statement’s lack of circumstances indicate the Manning’s ruling the relation erred in nature also contends the trial court Defendant rape, and thus is an element of forcible put “in defendant. Lack of consent ship was issue” noted, relationship Manning’s disproved, and as the nature of always proved be a fact to consent. relevant to the issue of with Hill was 1252). A statement is within the trustworthy § of section 1252 meaning *36 “ manner, Evidence Code when it is ‘made in a natural and not under circumstances of ....’” Ervine suspicion (People 820].) 778-779 does not contend Defendant Manning coerced into the 'or writing letters wrote them with an intent to deceive, and he does not (Se the dispute circumstances of their origins.12 Riccardi, Cal.4th at p. of her were made statements [“None e law enforcement or other persons to whom there have incentive may been an instead, lie or exaggerate.”].) He that the to demonstrate argues, letters fail murder, state of Manning’s mind the time of her which occurred approxi a mately mark, week after she wrote them. This misses the as argument letters were relevant because they reflected the status of Hill’s Manning relationship to her death. prior Defendant argues Manning’s feelings may have changed letters, during ensuing week because she never mailed the and she and Hill discussed their ending after she had written relationship them. But whether their she changed after had written the letters relationship went not to their trustworthiness of their but rather to the if origins weight, any, ought to on letters when place determining her state of mind on the of her night murder.
Therefore, we conclude the trial court did not abuse its discretion admitting Manning’s letters into evidence. on Admission
4. Ruling Blood Evidence Defendant contends the trial court abused its discretion by indicating it would allow the to introduce blood prosecutor evidence that linked arguably trial, him to Manning’s murder. Prior to the start of defendant’s second he successfully moved to limit the about a on testimony bloodstain found one of his shoes in his closet: the trial court ruled the evidence with only respect the bloodstain it would allow to be introduced was that defendant and trial, had Manning been excluded as primary donors.13 the second During defendant to elicit sought from criminalist testimony no blood had been found on the shirt defendant had been on the wearing murder. At night undated, Although the were possible they letters it is to determine when were written. In friend, Manning the letter to her days graduation; wrote there were 31 until Bucholz testified Manning letter, graduate was to Manning June 14. In the “Charles sweetheart” wrote that writing “paper.” Manning she was writing Bucholz testified paper had started for a class about a week before she was killed. trial, At defendant’s deputy laboratory first director for the performed the DNA analysis testified one of defendant’s shoes a spot contained of blood that came more from than blood, one Manning donor. Defendant and primary were excluded as donors of and the results were too secondary “faint” either include or exclude them as donors. On cross- examination, deputy sample secondary director conceded the donor’s blood was so may faint that it not have been human blood. objection, over defendant’s
a conference outside jury’s presence shirt, the lack of blood on he about court ruled that if inquired had been evidence of the blood that be allowed to introduce would did not court’s ruling, inquire on his shoe. In light found on his shirt. about the lack blood discretion may that a court “in its
Evidence section 352 provides Code by the outweighed value substantially exclude evidence if its probative undue of time (a) its will necessitate consumption admission probability issues, or *37 the confusing of (b) prejudice, create of undue danger or substantial a trial court’s under section ruling review jury.” of We misleading 82, v. People (See discretion. abuse of Valdez [144 (Valdez).) Cal.Rptr.3d erred the record does not
Defendant first contends the trial court because of evidence its affirmatively against show that it weighed prejudice however, value. A trial “be inferred from weighing, may court’s probative (Prince, court.” the absence of an statement the trial express record despite the court supra, 1237.) 40 Cal.4th at The record indicates understood Code, its based on the Evidence objection defendant’s was section of his earlier much of the evidence about the blood on shoe excluding ruling confusing unduly that it understood its to exclude duty demonstrates that it the court did not state Although expressly evidence. prejudicial evidence, infer it did and determined may from its we weighed mling that, shirt, the lack of blood on his light in of the evidence about his undue outweighed any value of evidence of blood on shoe probative prejudice. in ruling
Defendant contends the trial court abused its discretion
evidence
the lack
on his shirt
the door” to
“open[ed]
inquiring
about
of blood
shoe,
his
was the
Manning
about
blood on
as neither he nor
primary
Moreover,
observes,
no
the blood on
shoe.
defendant
there was
donor of
his
of
murder.
night
evidence he wore that
shoe on the
particular
as
excluded defendant and
undisputedly
Manning
DNA analysis
on the shoe. But the evidence did
donors of
blood found
primary
People Burgener
donors. In
secondary
exclude either of them as possible
1251],
714 P.2d
overruled
(1986) 41 Cal.3d
526-527
Cal.Rptr.
Reyes
We see no abuse of discretion. Even if we assume the
constituted an
ruling
Watson,
discretion,
abuse of
it was harmless.
At his second defendant did not about inquire Hill’s as drug noted, heard jury testimony that and Manning Hill had discussed ending friends, their because he was too much relationship spending time with his and because she feared he might have her a given transmitted sexually disease.
The Attorney General preliminarily contends this issue is forfeited because trial, defendant about and complaining evidentiary rulings from his first he did not to introduce this evidence attempt during his second trial. As notes, however, trial, before his second trial renewed its prior orders from first trial. Defendant therefore has not forfeited this Richardson (Cf. claim. 1146].) claim, however,
This lacks merit. With to whether Hill’s friend- respect were a cause of friction between him ships Manning, jury his use, second trial heard on With testimony subject. respect drug Hill’s Manning fought Hill and defendant could whether inquire the trial court ruled use; on this any exclude evidence did not drug ruling over his the court’s arrested, did not the court whether Hill had been With subject. respect Code section evidence under Evidence such excluding abuse its discretion in is, issue, to the relevant and collateral unduly 352 as prejudicial Moreover, error was any presumed and Hill’s relationship. status of Manning Watson, heard 836) Cal.2d at because (see harmless and had subjects, had fought variety and Hill over evidence Manning their ending relationship. considered Testimony
6. Exclusion Expert sustaining two court abused its discretion by Defendant contends trial of one his his direct examination during objections posed questions noted, As Dr. Stanley, obstetrician/gynecologist witnesses. expert trauma found on about the indicia sexual testified infertility specialist, in the used commonly Dr. described Stanley procedures Manning’s body. had occurred. to determine whether examination of victims rape rape in Manning’s of these were used Defense counsel asked if any procedures case; answer, could the trial court sustained prosecu- before Dr. Stanley if Dr. knew Stanley tor’s Defense counsel then asked hearsay objection. case, the court Manning’s whether of these were used in any procedures the doctor’s lack of personal sustained based on objection prosecutor’s him from challenging Defendant contends these knowledge. rulings prevented Manning. of the examination performed adequacy or her personal witness about matters within his Any may testify *39 Code, 702, the an (Evid. form of (a).) testimony subd. knowledge. Expert § of knowledge or facts outside the hearsay be based on may personal opinion id., 801, (b).) the subd. expert. § defense counsel inquired
The trial were because rulings court’s proper was the there actually during about were used autopsy, what procedures Al- knowledge. Dr. had such demonstrating Stanley no evidence personal to examine Dr. Stanley defendant was though appear attempting it would examination, did actually the he sufficiency about his the opinion Watson, (see event, error was harmless any ask that question. any presumed who 836) because the forensic pathologist performed 46 Cal.2d used. actually about the testified Manning’s autopsy procedures Mistrial Denial Motion 7. trial, his to exclude the trial court motion granted
Before defendant’s first trial, the court to “bitch.” Before the second references his word using renewed its orders from first trial. On direct examination by prosecu- trial, tor during second Detective Bob Stratton testified that had him, said to “I’m like I conniving just you’re conniving, but didn’t kill bitch.” Outside for presence jury, defendant moved a mistrial based on the detective’s violation of the court’s order. The court a grant refused mistrial, but offered to either strike the statement that instruct the jury African-American males use word “bitch” a manner. nonpejorative solution, Defense counsel to the agreed latter before the detective resumed the court informed the testifying, jury that it was taking judicial notice that “in our society African-American young males use frequently fashion, a word bitch in it whereas is true that nonpejorative generally males, word, Caucasian males and if used that are it in Hispanic they using angry fashion with females.” regard Defendant contends the trial court abused its discretion his by denying ‘“ motion a for mistrial. “A be mistrial should if the is granted court apprised it incurable prejudice judges by admonition or instruction. [Citation.] a Whether incident is particular its nature incurably prejudicial by matter, speculative trial court is vested with considerable discretion on mistrial . .” ruling motions. . A motion for a mistrial should be [Citation.] '“ when “a granted chances of been a fair trial have receiving [defendant’s] ’ ” ’ irreparably damaged.” ‘Although most cases involve prosecu [Citation.] motion, torial or juror misconduct as the basis volunteered witness’s statement can also for a provide basis of incurable finding prejudice.’ 1, (People v. Dement 39-40 [Citation.]” Cal.Rptr.3d [133 292].) 264 P.3d The trial court did not abuse its discretion in defendant’s motion denying brief, because the detective’s prohibited testimony was and “[j]urors today are not to be shocked (People v. Edelbacher likely offensive . . . .” language 47 Cal.3d 1]; see Cal.Rptr. Halsey (1993) 12 Cal.App.4th abuse 47] [no “ discretion in that the allowing testimony defendant called the ‘son victim ”].) of a bitch’ We are mindful of the interracial and sexual nature of the crime, but evidence that defendant once referred to as “the bitch” Manning Moreover, was not so trial incurably new prejudicial required. the situation promptly attempted remedy its belief by explaining *40 the term was not used ain manner. likely pejorative brief,
In his brief and reply second defendant contends the supplemental solicited the prosecutor detective’s about defendant’s intentionally testimony use of the word “bitch.” The detective’s was to testimony response him to “describe prosecutor’s asking defendant’s use of the specifically” word “conniving.” Defendant contends the asked this prosecutor because question he knew that defendant had used two those words in the same sentence. trial, he for motion at has this basis his
Because defendant did not raise at (See Cal.4th Livingston, supra, forfeited the claim on appeal. event, defendant’s not the record does 1160-1161.) support In any realize obviously detective] The stated he “didn’t reading. [the bitch,” that the trial is no indication to and there was use word going explanation. court or defense counsel disbelieved prosecutor’s brief, contends the trial court’s In second his supplemental the word different communities use of notice of how taking judicial purported defendant invited is “bitch” was General correct Attorney improper. Lee by assenting remedy. this error to court’s event, (Lee).) In any Cal.4th concedes, 451 nor section General and we neither section Attorney agree, of of notice. The court’s the Evidence Code kind permits judicial however, remarks, it that the word has suggest make clear was to attempting (Watson, was harmless Any a in some contexts. error nonpejorative meaning error, if to defendant’s 836) anything, 46 Cal.2d because supra, benefit.
8. Evidence Sufficiency of evidence was his rape Defendant contends the insufficient support finding. convictions and the circumstance robbery robbery-murder special “The determining sufficiency standard of review for appellate ' the entire record in the most light evidence is settled. On “we review appeal, it to determine whether contains substantial favorable the judgment reasonable, credible, is, and of solid value— evidence—that evidence that is a defendant guilty beyond a reasonable trier of fact could find the from which review, we conducting such reasonable doubt.” [Citation.]’ [Citation.] ‘ fact the trier every the existence judgment “presume[] support ‘Con could deduce from the evidence.” reasonably [Citation.]’ [Citations.] do suspicion flicts and even which is testimony subject justifiable of a for it the exclusive trial the reversal is justify judgment, province and the truth or falsity to determine the of witness credibility judge jury We resolve of the facts which determination depends. upon [Citation.] conflicts; we nor look substantial neither issues credibility evidentiary the sufficiency to review of These same apply evidence.’ principles [Citation.] (Lee, circumstance finding. of the evidence to support special [Citations.]” is the same in cases in which prosecution “The standard of review ‘ it is the “Although duty relies on circumstantial evidence. mainly [Citation.] it that circumstantial evidence a defendant if finds acquit *41 susceptible two one of which other interpretations, suggests guilt [citations], innocencé it court[,] is not the jury, which must be appellate ‘ convinced of the defendant’s “If guilt beyond reasonable doubt. circumstances the trier of fact’s reasonably justify findings, opinion circumstances reviewing also be reconciled might reasonably ’ with a does contrary finding not warrant reversal of the judgment.” ’ (People Rodriguez 1, (1999) 20 Cal.4th [Citations.]” [Citation.]” [82 413, 618].) P.2d Cal.Rptr.2d
a. Rape Forcible “an act of sexual rape intercourse . . . . . . accomplished [][] force, menace, . . . violence, duress, will against means of person’s HO or fear of immediate and unlawful on the bodily injury or another.” person (§ (a)(2).) subd. killed,
Defendant concedes he had sex with Manning on the she night was but contends there was no evidence to the inference that the was support sex nonconsensual. Defendant notes there was no evidence of force physical related to the sexual intercourse: there were no bruises or abrasions arms, wrists, Manning’s legs, and he had pelvic region; no scratches or bruises on him. Both forensic and Dr. pathologist acknowledged Stanley that the lack of genital trauma did not sexual preclude of a possibility assault, “the as genital ‘absence of trauma is not inconsistent with nonconsen v. Berryman (People sual intercourse.’ Cal.4th [Citation.]” 40], overruled Cal.Rptr.2d on another part point Hill 800, 823, fn. 1 673].) suffered Manning multiple blows to her head and had been stabbed at times, least 57 and the forensic testified these pathologist could have injuries unconscious, rendered her which would have the absence of explained to defendant or injuries trauma. vaginal lack of
Manning’s consent was supported by substantial circumstantial evidence. In addition to the evidence of love for her Manning’s boyfriend, Hill, there was evidence defendant and Manning had an acrimonious relation- his constant ship: calls to the phone her apartment disrupted studying her; annoyed she had asked Bucholz to tell him to his calling; and stop had called the girlfriend and threatened apartment which Manning, prompted Moreover, her to call and then later confront him and Bucholz. police shorts, shard of was found underneath glass had Manning’s she implying been hit addition, with a glass before her shorts were object removed. Hill, defendant, had accused Manning her to a sexually exposing this, transmitted disease. From a reasonable could have juror concluded that active Manning sexually Hill. The evidence only only Manning *42 the to police, was his statements consensual sex with defendant in engaged matters. Defendant to the about other he to lied having police and admitted Manning’s the of night to stories as his whereabouts gave also inconsistent the conviction. rape evidence supported murder. We conclude substantial circumstance and Robbery robbery-murder special b. in the posses of taking personal property is “the felonious Robbery will, of means . . and person’s] accomplished sion of another . against [the to take not harbor the intent (§211.) If a defendant does force fear.” theft, is a the fear is the taking another’s at the time force or applied, property 203, 253 Cal.Rptr.3d a (People Burney not robbery. the 639].) during of murder circumstance special “[T]he murder be committed ‘in commission of a that the robbery requires order but the robbery, special advance felonious independent purpose’ [the] incidental to felony merely is not when the circumstance established (Ibid.) murder.” concedes, guilty
As the General defendant not Attorney finding failed must have concluded that burglary, necessarily jury intent. entered with larcenous that defendant prove Manning’s apartment Therefore, robbery- robbery to sustain defendant’s conviction circumstance, after he had have formed the intent to steal murder special attacking but before her. entering Manning’s apartment he to determine when Defendant contends the evidence was insufficient disagree. formed the intent to steal. We Defendant had been the apartment several and therefore was familiar with its layout times previously, realized he alone contents. The could have inferred that once he jury her. he to seize the to rob decided apartment Manning, opportunity Moreover, it took that the amount time General observes Attorney himself, to clean attack and and then Manning, attempt defendant to arm kill no that intent to steal was could have inference his supported up evidence, have a reasonable trier of fact could of this afterthought. light before concluded that defendant decided to steal Manning’s belongings not scenario does also another killing may her. That evidence support v. Foster render the verdict. the evidence insufficient support 105].) (2010) Cal.4th Closing Prosecutor’s Argument 9. his during closing argument gave
Defendant contends the prosecutor finding “lured” it into improperly mistaken law jury impression burglary he robbery. had committed The prosecutor explained intent at time but entry, larcenous did required explain before use of required larcenous intent force. robbery prosecutor’s failure, contends, to find invited him guilty robbery *43 without when he formed a larcenous intent. determining notes, trial,
As General the defendant failed to and Attorney object event, therefore this claim is forfeited on the claim appeal. any is meritless the because record indicates the prosecutor’s robbery definitions were correct. the the burglary trial court instructed that if Finally, jury instructions, said the its the anything by attorneys conflicted with was to jury follow the court’s instructions. Absent evidence the to we any contrary, Jones, the (See did so.14 51 presume jury 371.) Cal.4th at supra, 10. to Objection Closing Argument Defendant’s Defendant contends the trial court his counsel from improperly prevented noted, his As one presenting closing argument. of Manning’s neighbors testified that around 10:00 on of murder she saw p.m. night someone in a television set front of carrying Manning’s apartment, but was unsure who it was. During closing argument, defense counsel discussed interview taped with the in her neighbor which asked about she had prosecutor person seen and when she him. saw Counsel told the “Listen to the . . . jury: tape. is that he can turn prosecutor] looking something around and use [The against later. . . . doesn’t he ask neighbor] Why those questions [the [about when the witness saw that if so And the person they answer important. are] is, he because is not there to he going there so he can investigate, going find to something against use her when she testifies because—.”
The on initially the basis that defense objected counsel was evidence,” outside but then “arguing any objection. withdrew the Defense continue, “No, counsel asked if he and the could trial court you may replied, not. sustained.” Objection
Counsel latitude great has to during closing argument urge evidence, he conclusion or she believes can be drawn from but counsel (See may argue (2010) not facts not evidence. v. Collins People 49 Cal.4th 175, 384, 32].) P.3d 209 232 A trial court may Cal.Rptr.3d interpose [110 622, (See sustain own People (2012) its v. Fuiava 53 Cal.4th 680 objections. 147, 568].) P.3d Cal.Rptr.3d 269 [137 14 instructing To the extent defendant contends the trial court jury erred
robbery charge attacking required Manning, him form a larcenous intent before no such necessary: correctly jury robbery, was the court instruction instructed on the elements of trial, request clarifying forfeiting failed to instruction thus this claim 802, (People 931].) v. Bolden appeal. Cal.Rptr.2d 58 [127 555-557 P.3d was a on the counsel’s comment argument
Even if we assume defense inconsistencies, error for trial court to and that it was witness’s purported Watson, Cal.2d at (See harmless. sustain error was objection, any if give free consider what weight, any, not significantly hamper and the court’s did testimony, ruling neighbor’s should be drawn from argue defendant’s what inferences ability (1998) Cal.4th Frye defense. evidence otherwise present 183], on other overruled part Cal.Rptr.2d 390, 421, Cal.4th fn. 22 v. Doolin grounds People 11].) 11. Instructions Jury *44 Third
a. party culpability Defendant the on third jury culpabil- contends trial court’s instruction party his of the case. The court instructed the ity theory jury, omitted erroneously than the “You have heard evidence that a other pertinent part: person, person defendant, have committed the offense with which the defendant is may The is to the other charged. guilt not required person’s prove an if reasonable doubt. Defendant is entitled to the beyond acquittal to the guilt.” evidence raises a reasonable doubt in mind as defendant’s your sentence, the “Such evi- Defendant’s instruction also included proposed itself, dence but the may, raise reasonable doubt as to defendant’s by guilt,” not the court to instruct this granted jury prosecutor’s request commented of the sentence because on the weight it particular improperly evidence.
A be that trial court to instruction may give jury required requested case, but it theory give defense need not pinpoints argumentative (See instruction. or v. Hartsch 49 Cal.4th duplicative 673, 232 (Hartsch).) Defendant the trial court’s refusal to include this sentence contends is, admitted “denuded” the instruction of its intended meaning, any to raise a doubt. evidence third was sufficient reasonable culpability party trial on reasonable We As the instructed disagree. jury properly evidence, doubt, third elements of and the party sufficiency culpability, crimes, the each were entitled consider charged piece desired, as free to the evidence as much or as evidence and were they give deemed sentence was little as weight they proposed duplicative proper. that evi- correctly conveyed because court’s instruction adequately itself, sufficient raise a reasonable by dence third culpability, party doubt. no As there was need to that evidence defendant’s highlight argument itself, of a third could raise a reasonable doubt as to party’s culpability, by defendant’s the court did not guilt, err giving jury proposed instruction. The other court’s instructions reasonable doubt and burden of proof adequately conveyed argument, therefore defendant’s proposed Hartsch, instruction was duplicative. supra, [“the reasonable doubt instructions defendants give ample opportunity impress upon jury evidence of another be considered in must party’s liability weighing whether the its prosecution has met burden of proof.”].) Felony-murder
b. circumstance special Defendant contends the trial court’s written instruction on felony- murder circumstance special was erroneous because it listed the improperly elements in the which to find the disjunctive, jury allowed the impermissibly special true based on one allegation element. The trial court only orally instructed the with a modified version of No. CALJIC 8.81.17 as follows: “To find that the circumstance in these instruc- special referred to tions as murder in commission of rape, sodomy, robbery burglary true, One, it must be that the murder was while the proved: committed defendant was in the engaged commission or commission of a attempted two, rape, and/or sodomy, robbery that the murder was burglary; committed in order out carry or advance crime of commission *45 therefrom, rape, robbery or sodomy, or to facilitate the or to burglary, escape words, avoid detection. In other to in these circumstances referred special instructions are not established if the sodomy, was rape, robbery burglary incidental to the merely added.) commission of the The (Italics murder.” court’s interlineated written instruction omitted the “and” before “two.”
The it Attorney General concedes would be the instruction error if were written in the disjunctive. v. Friend however, notes, 520].) She the written correctly instruction contained no connector. The actually provided court also correct oral instruction. Absent the inclusion of an disjunctive express instruction, written be listing that must “separate proved elements clearly (Ibid.) of each We implied proof necessary.” was independently the interlineated acknowledge written instruction was a model of clarity, but even were to assume we it no reasonable ambiguous, there is (Ibid. likelihood the ) it in an jury applied manner. impermissible C. Penalty Phase
1. Juror Misconduct Defendant contends the trial erred court his motion for a by denying mistrial to dismiss a due to by failing misconduct. juror alleged deliberations, for phase had retired penalty after the
Shortly felt No. 6 that Juror indicating a note to the trial sent foreperson to the courtroom No. 6 returned her. Juror to intimidate trying defendant was to the listening “I was and counsel. She explained, with the court to speak me and And the defendant. [defend- I had over towards witness and glanced words mouthed some then he—he at me. And locked And he eyes. glared ant] determine she could whether head.” When asked me and then shook his I mouthed, wrong. “I could be Juror No. 6 responded, defendant had what what he But from mean, was mouthing. what he I could have misunderstood words, Juror said, she misunderstood I hate whether you.” Regardless and seemed “confrontational” contact was eye that defendant’s No. 6 stated other time made contact one eye had briefly Defendant and Juror No. 6 angry. to be ability not affect her the encounter did incident. She stated before this serve, added, “I would but could continue to She felt she fair or impartial. No. 6 Juror explained otherwise.” guys thought understand if you perfectly the other jurors. had communicated experience she Juror arguing phase, a mistrial as to penalty Defendant moved for had about what she experienced with the other jurors No. 6’s communication motion, it was stating proper The trial court denied the was improper. in the courtroom. what was to observe and consider happening time to counsel some explore for the to allow day court dismissed the jurors measures, if be any, might required. what remedial to further denied defendant’s request next court the trial court day, On the she No. arguing to excuse Juror Juror No. 6. Defendant moved question denied the request. but the court to remain ability impartial, lacked know, went out you you then jury: The court instructed “[A]s Friday 3:30 p.m. of the trial at about on the phase deliberate penalty Thereafter, indicating . . sent out note you at about 4:30 . p.m. afternoon. *46 threat, to the defendant was intimidate trying number felt a that one of your rejoined you individually juror to the juror that We juror. spoke had shared told us for the day. juror before we briefly adjourned [she] on conduct of which was based of the basis you perception [her] the courtroom. had observed in defendant [she] trial, can draw “Now, you of a capital in the penalty phase as jurors courtroom, inasmuch demeanor in the defendant’s inferences based upon However, you the trial. in this character is issue phase the defendant’s as observations, positive your inferences based upon personal can draw only may you observed. Nor have juror may on what another and not negative, have you personally conduct ambiguous any speculate upon observed.”
856 asked,
The trial court then “Is there who anybody has concern that any that have anything you shared with the observation of that as juror, opposed to their observed, to ability what depend upon they versus your ability on what observed depend you is in going from keep you any way being fair and After each impartial juror?” answered in the juror delibera- negative, tions resumed.
Section 1089 provides a trial court if dismiss it may juror finds the is unable juror to perform his or her includes duty, which engaging in serious and willful v. Daniels People (See misconduct. (1991) 52 Cal.3d 815, 122, 866 802 P.2d Cal.Rptr. 906].) [277 Defendant contends Juror No. 6’s observations were akin to her information. relying extrajudicial “ ‘It is misconduct for a juror to consider material extraneous to the [citation] record. Such conduct creates a [Citations.] presumption prejudice may be rebutted aby that no showing prejudice actually occurred.’ [Citation.]” (People Williams 287, v. (2006) 268, 40 Cal.4th 333 148 P.3d Cal.Rptr.3d [52 47].) The trial court’s decision to or retain a discharge is reviewed for juror v. Osband People abuse of (See discretion. (1996) 622, 13 Cal.4th 675-676 26, P.2d Cal.Rptr.2d 640].) [55
During penalty phase argument, comment on a prosecutor may defendant’s courtroom People Elliott demeanor and behavior. (2012) 535, 59, Cal.Rptr.3d 494].) 269 P.3d [137 in Similarly, People Williams Cal.3d 971-972 Cal.Rptr. 395], in denying capital defendant’s automatic application verdict, modify trial court relied in on its part observations his courtroom demeanor. In the trial affirming court’s we ruling, noted the court did not err because demeanor evidence was relevant whether determining the defendant had remorse or expressed was otherwise worthy sympathy. (Ibid.) If a as a finder fact judge on a may rely defendant’s courtroom trial, demeanor during of a penalty phase capital and a prosecutor may behavior, comment on such then jurors also may on their own rely observa v. Nesler tions of a defendant. Defendant’s reliance on Cal.4th 87], as a misplaced, juror that case received evidence extrajudicial about the defendant at a bar and then Nesler, it conveyed other Unlike deliberations. during Juror demeanor, No. 6 observed defendant’s courtroom which could have been observed by anyone in the present courtroom. We therefore reject that a suggestion defendant’s courtroom demeanor during penalty phase of a trial—even if capital observed actually one akin to only person—is *47 extrajudicial information.
A significant theme in defendant’s case in mitigation was his history nonviolence; his courtroom demeanor therefore was relevant in the evaluating what she Thus, did rely upon No. 6 if Juror of that evidence.
truthfulness vote, not misconduct her it was in determining in the courtroom observed her to evaluate so, could have helped her observations her to do because 971-972.) Williams, 44 Cal.3d at supra, v. (See defendant’s case. People from is not Moreover, profit a defendant permitted as a matter of policy, (See v. misconduct. or otherwise improper his or her disruptive 635, Cal.Rptr. 44 Cal.3d 1154-1156 Williams caused her to become incident 901].) argues To the extent fair him, could remain the trial court that she Juror No. 6 told biased against Accord- to the contrary.15 discloses no evidence and the record impartial, her as a juror. by retaining trial did not abuse its discretion court ingly, her sharing misconduct by Juror No. 6 committed Defendant contends deliberations, remaining jurors which during exposed observations observe. Even if we did not they about defendant personally evidence her observations to by relating Juror No. 6 committed misconduct assume rebutted because any prejudice adequately other jurors, presumption inferences based could not draw they the trial court instructed the jurors the contrary, Absent evidence to another have observed. juror may on what Jones, none, (See followed this instruction. and we find we presume Moreover, Juror hearing concerning during 51 Cal.4th at observations, and no juror the court individually jurors, No. 6’s polled to be fair and impartial. the incident his or her ability indicated would impair defendant’s its discretion in denying the court did not abuse Accordingly, for a mistrial. motion and Judicial Misconduct
2. Prosecutorial by referring that the committed misconduct Defendant contends and that the trial argument, to “Willie Horton”16 during penalty phase to disregard to admonish failing also committed misconduct by the remark. Horton, the attack on who had witnessed Jack
During penalty phase, defendant’s testified about appearance victim Beatrice robbery Thompson, testimony, reference to Horton’s the attack. In his closing argument, during denying to further request court erred in his the extent defendant contends the trial To it inquiry its was sufficient: we no abuse of discretion because examine Juror No. see encounter, to examine her. permitted parties and it also examined her about the furlough prison committed a murder while on Willie Horton was an inmate who Dukakis; support of Michael Dukakis’s by then Massachusetts Governor program supported Right election. during presidential Arizona program was an issue raised Life 3; 1004 & fn. Del Vecchio 2003) Bayless (9th F.3d Political Action Com. Cir. 1363, 1399, (dis. (en banc) (7th 1994) opn. of Dept. Corrections 31 F.3d fn. 1 Illinois Cir. J.).) Ripple, *48 858 stated, curls, “You heard from Mr. Horton about but jeri then saw, curls, he
what he said was jeri I it is a matter guess of definition where the hair is short. Even Willie really Horton said he had on the hooded sweatshirt, the same garment, same kind of—.” At which type point trial court “You said interjected, Willie Horton.” The prosecutor apologized, and continued with his argument. General contends Attorney this claim is forfeited because defendant
failed to that the trial request court admonish the the remark. disregard 913, We agree. Stanley (2006) v. 952 Cal.Rptr.3d [47 420, event, 736].) In any this claim lacks merit. The context of the prosecutor’s singular use of “Willie Horton” indicates he and was misspoke, not referring to defendant or otherwise to associate defendant with attempting court, Willie Horton. When corrected prosecutor apologized, there is in the nothing record to remark suggest prosecutor’s intentional.
D. Constitutional
Challenges to
Death Penalty
Defendant makes numerous constitutional
to California’s death
challenges
scheme, but
penalty
we
acknowledges
have
these
previously rejected
challenges.
The trial court need not instruct
(1)
they should
life
presume
without the
imprisonment
possibility
is the
parole
sentence
appropriate
(2) their findings regarding
(Valdez,
factors must be
aggravating
unanimous.
179-180,
55
Cal.4th at
therein.)
cases cited
The absence of
intercase
review
(Ibid.)
proportionality
is not
unconstitutional.
“California
homicide law and the
circumstances
special
in section 190.2 adequately
listed
narrow the class of murderers
for the
eligible
death penalty.
[Citations.]
[f] . . .
fiD
The death
statute
penalty
is not unconstitutional because it does
a reasonable
require ‘findings beyond
doubt that an
circum-
aggravating
(other
190.3,
stance
than
(b)
(c)
factor
or
evidence)
been
§
has
proved,
factors,
aggravating factors
outweighed
or that death
mitigating
is the
sentence.’
appropriate
Cunningham
Nothing
(2007)
[Citation.]
California
856,
856],
Defendant contends the errors he amounted alleges cumulatively to revers- ible error. To the extent there are instances in which we have found error or *49 existence, reach the same conclusion resulted. We
assumed its no prejudice after cumulative effect. considering their
III. Conclusion J., Baxter, J., J., J., J., Kennard, and Werdegar, Corrigan, Cantil-Sakauye, C. concurred. aof
KENNARD,
J., Concurring.
challenge
pro-
A race-basedperemptory
(Batson
Kentucky
(1986) 476
L.Ed.2d
is
U.S.
unlawful.
spective juror
asserts,
(Batson).) That rule was
violated,
defendant here
Defendant, Black, and murdering who was charged robbing, raping, Bakersfield, At Kern college County. White student her apartment trial, those defendant’s first unable to reach a verdict on charges, was voted for an as the sole Black with the other juror, disagreeing jurors, retrial, for a Before defendant moved acquittal. unsuccessfully change evidence included a that Blacks in Kern finding venue. The supporting poll were far than Whites believe defendant was County likely guilty less and to he be executed if convicted. charged offenses believe should retrial, (H.C., On contained three Black only prospective venire a Batson K.P.,1 B.M.). when the used and Defendant made motion prosecutor K.R, B.M. and at a time when had not H.C. challenges against peremptory motion, that defendant had been called. The trial court denied yet ruling on race. The that the were based showing challenges made facie prima his reasons for the give then declined court’s invitation to called; Later, (a officer) was neither B.M. correctional challenges. party which convicted defendant her and she served on challenged jury, murder, the commission of found that the murder occurred in rape a verdict of death. returned robbery, race,” counsel, being without Although K.P. herself as of “mixed defense described
disagreement appearance. as prosecutor, from the described K.P. Black
II Batson, 476 U.S. the United Court States set forth Supreme for a three-stage trial court’s evaluation of claim that a process peremptory (1) to a was challenge based race: prospective juror objecting party the challenge must make a facie that the prima showing challenge based; it; racially challenge that made must party explain was, not, the trial court then decides whether more than challenge likely *50 Here, based. the second and third did not occur because the trial racially steps court at ruled the first that defendant had made stage not the requisite prima facie showing. ruling Was trial court’s That is the issue right wrong? here; decisions, its resolution calls for rather a detailed discussion of two both Johnson, from the same arising case: v. Cal.4th People supra, 30 followed Johnson v. 162 by U.S. L.Ed.2d California S.Ct. 2410].
Johnson was a Black charged defendant his White murdering girl infant daughter. friend’s The prosecutor challenges exercised peremptory each of the three Black against on the The trial court prospective jurors panel. motion, denied Johnson’s Batson that he had failed make ruling a prima facie that the showing were race A of challenges based. peremptory majority this court the trial court’s upheld reasoned that to make a ruling; majority facie prima showing that a challenge was based peremptory “impermis race), sible bias” group to the must (including objecting challenge party show it was “more than not” likely that based on such challenge was Johnson, v. at impermissible grounds. supra, Cal.4th (People p.
I dissented in People v. Johnson. I both with the disagreed majority’s “more than not” likely standard and with its that the had holding not made a facie that the had race- prima showing challenges peremptory based reasons. I for said: “The threshold a case establishing facie prima low, should be so that close cases are not decided at the relatively stage first of the after the inquiry, only but trial has heard the judge prosecutor’s Johnson, . . . .” v. explanations (People supra, (dis. 30 Cal.4th at p. opn. Kennard, of J.).) I concluded that a facie of case race-based prima peremptory that, arises from “those if challenges actions reasonable unexplained, permit (Ibid., of omitted.) inference or motive.” italics improper purpose dissent in v. Johnson then addressed this My People question, pertinence here: In that a defendant to a did concluding objecting peremptory challenge (as not make the court showing, facie does required prima may majority here) consider race-neutral for the not reasons were possible challenge stated I it is had said: prosecutor? apparent “[I]f neutral reasons for the challenges, then would not pattern challenges the trial In such cases to an inference of discriminatory purpose. rise
give mle not case. But that should need not find a facie court prima [Citations.] the challenges.” on the basis for when the trial court can only speculate apply Kennard, J.), Johnson, (dis. opn. 30 Cal.4th supra, v. (People added.) Black challenged prospective italics With two three respect . to show they their or written . . stands out “nothing in oral jurors, responses “the (Ibid.) Because pattern would be unacceptable” prosecution. . . . created jurors] each of three Black challenges prosecution [to there no (ibid.), were discriminatory reasonable inference purpose” I concluded that the (ibid.), “neutral for the challenges” obvious explanations facie prima erred in that defendant Johnson had made ruling trial court (id. on race challenges were based showing peremptory prosecutor’s 1341). Court defendant Johnson’s granted petition The United States Supreme had dissenting certiorari and reversed. As I done my opinion Johnson, Johnson high California *51 not” to establish a facie likely this court’s “more than standard rejected prima Rather, a can be made evidence showing. showing “by facie prima producing that discrimination has sufficient to the trial to draw an inference permit judge (Johnson 170.) v. U.S. On the facts of occurred.” at California, supra, p. it, said, the case before court an inference could be drawn such high White killing because the case involved a Black defendant his charged child, three Black only girlfriend’s challenged prospec prosecutor ) (Id. tive on the at jurors p. panel. 173. consideration, stage, With to a at the facie of prima possible court’s respect in v. race-neutral reasons for a court Johnson challenge, high peremptory cautioned trial courts in needless against “engaging imperfect California speculation can a answer be the reasons for a when direct challenge] [about (Johnson v. 545 U.S. by California, supra, obtained asking simple question.” 172; id., on a I 173.) at see at no view high expressed point p. p. Johnson, is A court find may had made in dissent in v. which this: my People that the of when it is “apparent no facie discrimination prima showing Johnson, supra, had neutral for the v. challenges.” (People reasons prosecutor demonstrates race- added.) Cal.4th at When record italics p. obvious, consider- that are rather than merely speculative, neutral grounds decision in Batson high is consistent with the court’s grounds ation such (Batson, supra, all relevant circumstances” that courts “should consider arises that a 96) a reasonable inference determining U.S. in whether p. based on race. challenge was peremptory jurors peremptorily
Unlike the three Black by prospective responses Johnson, by in v. here certain People responses challenged by prosecutor Prospective Jurors K.P. and H.C. out be show would they “stand[] Johnson, to the (People unacceptable” prosecution 30 Cal.4th at Kennard, situation, (dis. J.)). In that opn. dissent my said, Johnson “the not to an inference of pattern challenges give rise [does] discriminatory the trial court need not find a facie case.” purposed prima and] (Ibid.) Juror K.P. dire
Prospective testified voir that her facing brother was at the Thus, felony charge Kern Juvenile Court for County drugs. selling here, time trial a member of K.P.’s family immediate of defendant’s being office prosecuted same that was There- defendant. prosecuting fore, the here had an obvious race-neutral reason for the peremp- tory challenge—the adversarial ongoing between a member relationship KJP.’s immediate family the prosecutor’s office. H.C.,
As to Juror he Prospective said to this “Would “yes” question: fact that it you make more difficult for [defendant] Aftican-America[n] consider all the facts in the case were a Black than if he objectively man?” This response indicated race to be defendant’s could cause H.C. biased in favor of defendant and therefore against obvious prosecution, race-neutral reason for him. challenging
Justice notes that concurring the two Black opinion challenged Liu’s “were strong of the death supporters and both clear answers penalty, gave would be suggesting they (Conc. and able to willing it.” impose opn. Liu, J., case, post, But capital prospective juror’s support *52 in the abstract is not the the death concern. Given penalty prosecution’s only of nature our system, adversary prosecution understandably prefers are in the jurors who more vote likely guilt to and for the death penalty case Here, tried. being it is that doubtful Jurors K.P. and H.C. Prospective inclined, ante.) 861-862, would be in so of their light statements. pp. When, here, I now consider in another Justice Liu’s concurrence: as a point court reviewing discerns from the record that a challenge is peremptory by a race-neutral supported reason not stated should the by prosecutor, court also consider whether that reason to other not “applied equally jurors” Liu, J., (Conc. challenged by of at post, prosecutor? opn. As Justice Liu consideration of such from explains, information flows logically that, the United States Court’s statement in whether a Supreme determining has made a facie case party that has a prima challenged opposing party race, juror because of prospective should consider “all relevant (Batson, situation, circumstances.” 96-97.) at U.S. But that this court has noted in decisions that it would not past comparative engage (See, 205, Streeter (2012) v. People juror analysis. e.g., Cal.4th 225-226 v. Clark People 481, 754]; 52 Cal.4th (2011) 278 P.3d & fn.5 Cal.Rptr.3d [142 Bonilla ; 225, 856, & fn. 13 Cal.Rptr.3d 243] 907-908 84].) I 347-350 [60 however, circumstances that those I am now persuaded, decisions. joined What comes to mind can relevant in this context. to other be jurors pertaining States Supreme are of United in this of view words change oft-quoted comes, one and so “Wisdom too often never Court Justice Felix Frankfurter: (Henslee Union Planters it because it comes late.” ought merely not reject 259, 1949, Bank (dis. opn. L.Ed. S.Ct. 335 U.S. Frankfurter, J.).) here, however, alter view my does not juror analysis Applying comparative motivated racially case that defendant failed to establish facie prima for the The race-neutral reasons challenges. readily apparent peremptory Jurors H.C. K.P. do peremptory challenges Prospective prosecutor’s Unlike not by prosecution. other any jurors challenged apply H.C., race no alternate said defendant’s Juror or Prospective sitting juror would more for the to look all objectively make it difficult juror had, K.P., facts. And unlike Juror no alternate or sitting juror Prospective trial, the same family being the time of an immediate member prosecuted office that was defendant. prosecuting above,
For I rejecting the reasons stated defendant’s join majority of two claim that peremptory challenges prospective prosecutor’s were based on race. Defendant, aman,
LIU, J., Concurring. was charged black raping trial woman in Kern Defendant’s first murdering County. white young holdout guilt. in a to one in favor of hung resulted divided 11 retrial, the American on the Before defense was lone African juror jury. venue, black showing results change survey moved for presenting other residents of the were less than white or significantly likely county that his crime merited residents defendant as prejudge guilty prejudge if The motion was denied. guilty. the death he found penalty *53 the to selecting challenges the second used jury, prosecutor peremptory box. Defendant the two seated in the jurors jury first black prospective excuse on the basis of race. jurors that the struck these objected, claiming prosecutor that had not made a facie prima showing The trial court concluded that the was therefore not to of discrimination and prosecutor required invited the to these strikes. The trial court nevertheless prosecutor explain strikes, declined. Ultimately, for the but the prosecutor state his reasons death consisted of 10 defendant and sentenced him to that convicted jury and one black juror, juror. white one jurors, Hispanic Today’s holds that defendant failed to a opinion make facie prima showing (Batson Batson violation. v. Kentucky of a 476 U.S. L.Ed.2d 79 [90 (Batson).) 106 S.Ct. It concludes that of this case do circumstances 1712] not “raise an inference that the a based excluded prosecutor juror prospective ante, on race.” at (Maj. This opn., p. questionable compelled result reason, our by and for that I precedent, join court defendant’s rejecting Batson claim. however, our Batson jurisprudence
I write to observe that on separately, discrimination, what is to show a facie of required prima including case our case, decision in the present noticeably out of set appears step principles First, forth by the United States Court Supreme in two crucial respects. by the record for scouring nonobvious reasons that might explain peremptory of strike a and juror, minority by relying negate such reasons circumstances, inference of discrimination otherwise from the arising court has elevated the improperly standard for a facie case establishing prima beyond court has a showing high trigger deemed sufficient , Second, to state prosecutor’s obligation the actual reasons for the strike. while regularly invoking nonobvious reasons that a have might given a striking minority this court has prospective juror, erroneously of prohibited the use analysis to test whether a comparative juror hypoth- esized reason was likely actual reason for a strike. Such a particular disavow, which prohibition, today’s opinion restates does not precludes courts from all reviewing relevant circumstances on a considering bearing claim of discrimination.
Both infirmities
vitality
threaten Batson's
a
by
restricting
improperly
ability to
party’s
be
probe peremptory challenges
may
unconstitutionally
discriminatory. As the
high
has
“racial discrimination in
emphasized,
of
selection
‘casts doubt on the
integrity
judicial process,’
[citation],
fairness
a criminal
in doubt.”
places
proceeding
(Powers
v. Ohio
U.S.
L.Ed.2d
S.Ct.
(Powers).) Such discrimination harms not
“A
only the accused.
venireperson
excluded from
service
of race
a
because
suffers
profound personal
(id.
. .
413)
humiliation
.”
significant
loses “a
p.
opportunity
(id.
Further,
409).
civic
life”
“the entire
participate
has a
community”
(Batson,
interest
strong
the fairness of our courts.
865 our the fairness of confidence in 85-86.) at Nor does it “public promote at (Id. of justice.” system about I have dovetails with concerns expressed
The discussion that follows
in a third case
filed
and
today
another case
our Batson
in
jurisprudence
986, 1060
57 Cal.4th
(See
(2013)
term.
v. Mai
People
decided earlier this
630,
Liu,
699
(2013) 56 Cal.4th
(conc.
J.) (Mai);
v. Williams
of
opn.
Liu,
A
214,
J.) (Williams).)
of
(dis.
opn.
299
Cal.Rptr.3d
1185]
[156
reflected in
reality
amply
“The
of
generation
practice,
Batson observed:
ago,
challenge
that the [peremptory]
state- and federal-court
shows
many
opinions,
been,
be,
discriminate against
has
used to
and
times
may
unfortunately
discrimi
racially
trial
to be sensitive
black
courts
jurors. By requiring
enforces the mandate
use of
our decision
natory
challenges,
peremptory
the heterogeneous
the ends of
In view of
and furthers
equal protection
justice.
Nation,
criminal
and
justice system
our
for our
population
public respect
we
that no citizen is disqualified
the rale of law will be
if
ensure
strengthened
99,
fn.
(Batson,
his
476 U.S.
from
service because of
race.”
jury
echoed, extended,
omitted.)
and
these concerns
high
court has
amplified
Powers,
400;
v.
U.S.
Edmonson Leesville
times since.
many
supra, 499
660,
2077];
L.Ed.2d
111 S.Ct.
(1991)
Concrete Co.
Yet consider this fact: In Batson claims adjudicating decades, has unlawful discrimination cases over the two this court found past in once—and that was a more than 12 years ago selection case jury only venire and stmek all five members of the which Hispanic an acute to the sensitivity presence his own words “revealed through be would not on the and an evident belief jury panel Hispanics Hispanics for the Silva prosecution.” (People favorable (Silva).) Like I am my colleagues, take their trial judges seriously confident that California’s prosecutors need not selection. But one to avert racial discrimination responsibility our and trial excellence and integrity prosecutors the overall question wonder, uniformity of the remarkable in order to light courts pause whether we have years, this court’s Batson decisions over past decided, when Batson was level of as vigilance. Today, maintained proper context, black that our it rooted in social troubling reality, history justice are more about the fairness of our criminal skeptical citizens generally ensure confidence in Yet it is precisely public than other citizens. system *55 our courts and their verdicts that Batson “forbids the to prosecutor challenge on potential jurors solely account of their race or on the that assumption as jurors black a will be unable group to consider the impartially State’s case (Batson, supra, a against black defendant.” at 89.) 476 U.S. I have serious p. Batson's mandate. doubts as to whether our has held true to jurisprudence I.
The Fourteenth Amendment to United States Constitution a prohibits from party using to a peremptory challenges strike prospective juror because Batson, Batson, supra, of his her race. 89.) 476 U.S. at In p. high court set a forth to three-stage analysis determine whether the prosecution has First, violated this mandate. a defendant must a facie establish case prima discrimination that the “by showing of the relevant totality gives facts rise (Id. Second, an inference of 94.) at discriminatory once the purpose.” p. defendant “makes a facie showing, the burden prima shifts the State to come forward with a neutral explanation for challenging” prospective (Id. 97.) at at the third question. p. Finally, court stage, must consider the of relevant circumstances to it totality determine whether is more than not that the likely were based peremptory challenges on impermissible (Id. 98.) discrimination. at p.
The present case involves Batson’s
first-stage
a defendant
requirement
Batson elucidated this require-
make a
facie showing of discrimination.
prima
of Swain v. Alabama
against
ment
backdrop
According
first must show
he is member
[citation],
racial
cognizable
and that
has exercised
group,
to remove from the venire members
the defendant’s
peremptory challenges
(Batson,
supra, race.”
U.S. at
court later held
p.
Although
high
that a defendant need not share the race of the
in order to'
challenged juror
Powers,
Batson
supra, (see
assert
claim
402),
U.S. at
“[r]acial
identity between the defendant and the
. .
excused
.
one
person
may provide
of the easier cases to establish both a
facie case and a conclusive
prima
(id.
“Second,
showing
416).
discrimination has occurred”
wrongful
fact,
there can be no
as
which
entitled to
rely
the defendant
*56
that
a
selection
jury
practice
constitute
challenges
that
dispute,
peremptory
” (Batson, at
a
to
who are of mind
discriminate.’
‘those to discriminate
permits
circumstances”
to
other relevant
“any
defendant
96.) Finally,
may point
the
p.
discrimination,
black
against
“a
of strikes
including
‘pattern’
of
suggestive
dire
voir
during
and statements
and “the prosecutor’s questions
jurors”
(Id.
A defendant
96-97.)
at
challenges.”
his
exercising
examination and in
of
case if this “combination
a
facie
the burden of establishing
prima
meets
(Id.
96.)
at
of
discrimination.”
p.
raises an “inference
factors”
purposeful
Batson,
v. Wheeler
(1978)
The court then high the Batson applied first-stage facts inquiry black, defendant, before it. The who was had been of murdering convicted his white (Johnson 19-month-old child. girlfriend’s 545 U.S. California, supra, had used three to strike all prosecution challenges peremptory three black jurors on When the defense prospective objected, panel. Instead, the trial did not seek an judge from the explanation prosecutor. trial judge that her own “explained examination of .the record had convinced *57 her that the strikes could be prosecutor’s race-neutral reasons. justified by that the black Specifically, judge opined venire members had offered or confused (Id. 165.) answers their written at equivocal questionnaires.” p. On this court appeal, affirmed trial court’s but ruling “acknowledged case involved relevant’ circumstance that a black defendant ‘highly ’ child,” “his ‘charged killing White girlfriend’s that ‘it looks certainly that all three suspicious African-American prospective were removed (Id. from at jury.’ p. [Citation.]” court,
The high
the issue in
analyzing
a brief
said that “the
paragraph,
inference of discrimination was sufficient to invoke a
by
comment
the trial
’
close,”
review,
“we
judge ‘that
are very
and on
the California Supreme
Court
that ‘it
acknowledged
certainly looks
suspicious
all three African-
American
were
prospective jurors
removed from the jury.’
Those
[Citation.]
inferences that discrimination
have occurred
may
were sufficient to establish
(Johnson
a
facie case under Batson.”
prima
California,
v.
II. Since Johnson California, v. this court has described the burden that a defendant must meet at Batson’s first the high accordance with court’s step ante, 833, 834; clarification of that standard. maj. opn., v. People 50, 608, Lancaster 41 Cal.4th 74 Cal.Rptr.3d [58 [“A 157] establishes facie case of discrimination prima ‘by producing evidence sufficient to the trial to draw an inference that permit judge (Johnson[ discrimination has occurred.’ 545 U.S. at California], supra, 170.)”].) This court has also declined to accord deference to a trial court’s
869 case when facie to establish prima a defendant failed determination that than not” likely likelihood” or “more “strong have may trial applied (2007) v. Bell (See People court. the high standard disapproved by whether is unclear 453, it 582, P.3d 151 [“Where Cal.Rptr.3d standard, the record indepen- we review trial court the correct applied the legal and resolve question court’s standard dently ‘apply high a juror’ excused that the the record an inference whether supports (2013) Cal.4th basis.”]; v. Pearson People on a discriminatory prohibited 793]; v. Carasi P.3d Cal.Rptr.3d 616].) Today’s opinion Cal.4th 1293 [82 ante, 834-835.) at pp. follows this (Maj. opn., properly approach. standard, Nevertheless, stating Johnson correctly while California circumstances variety facie case court has found no prima discrimination, including an inference seem to raise clearly adequate In such from those in Johnson v. very circumstances not different California. us, cases, reached that result before we have the one now including obvious, have might that a prosecutor but not reasons invoking possible, in order minority juror did given—but actually give—for striking *58 arise from discrimination that would otherwise an inference of negate commits our Batson one doing, step jurisprudence circumstances. In so routinely we warned against: mistake that Johnson v. very California claims of resolve erroneously “rely[] judicial plausible speculation 173.) at 545 U.S. (Johnson California, supra, p. discrimination.” Moreover, in a lop- cases judicial conspicuously our employ speculation that might race-neutral characteristics explain sided When way. hypothesizing into barred juror, categorically inquiry the strike of a we have particular but who was struck only to the juror whether those characteristics apply struck, though comparison who were not even such also one or more jurors a for reason of clearly any hypothesized informs the explanatory power deciding instruction that strike. This runs afoul court’s high “[i]n first step, at Batson’s showing” whether the defendant has made the requisite (Batson, 476 U.S. supra, relevant circumstances.” courts “should consider all 96-97, added.) at italics pp. standard of Johnson v. is that our application upshot California’s cuts off inquiry of discrimination prematurely a facie case
establishing prima others, our approach In this case and actual motivations. into prosecutor’s a when speculation first authorizes “needless imperfect at Batson’s step under- thereby question,” be obtained by asking simple direct answer can answers “to actual framework’s objective produce Batson mining infected have may and inferences that discrimination suspicions 172.) at (Johnson 545 U.S. California, supra, p. selection process.” A. case,
In the present struck the first two black prospective who were jurors available for challenge. a third Ultimately, black prospective juror, officer, who worked as a correctional was to serve on the permitted jury. Given the small number of black I jurors, agree that prosecutor’s strikes of two jurors black did not amount to pattern raises conclusively ante, an inference of discrimination. (Maj. 835-836.) at At the same opn., pp. time, I note that the numbers here—two out two black prospective were struck at the time of defendant’s Batson motion, two out ultimately of three were struck—are not so dissimilar from the three-out-of-three pattern Johnson v. that the high court considered virtually dispositive. California (Johnson v. California, supra, 545 U.S. “ ” A of strikes ‘pattern’ against prospective jurors of a race is particular one only “example” “relevant circumstances” that must be considered determining whether defendant has established a facie case. prima (Batson, supra, Snyder, 96-97; U.S. see 552 U.S. at even one [striking on the juror Constitution]; basis race violates the federal v. Montiel Here, [same].) that, there are several additional circumstances when considered together with the prosecution’s strikes the first two black panelists available for challenge, are sufficient easily to raise inference of discrimination. First, defendant was a black man who accused and murder- raping “
ing young white social, woman. As the court acknowledges, racial ‘[T]he *59 and sexual overtones were [of kind which could precisely case] “most ” ante, defendant.’ effectively prejudice” (Maj. 829.) at In a opn., such p. case, a exercise of prosecutor’s peremptory challenges against prospective jurors of the defendant’s race may be suggestive of racial especially Powers, supra, 499 U.S. at motivation. identity between p. [“Racial the defendant and the excused person might in some cases be the explanation for the of prosecution’s adoption the forbidden and if the alleged stereotype, form, race bias it takes this may one of the cases provide easier to establish both a facie case and a prima conclusive that showing wrongful discrimina- Johnson, supra, 30 Cal.4th at occurred.”]; tion has fact p. [the that “this case involves an African-American defendant charged killing ” ‘his White child’ girlfriend’s is relevant to whether a “obviously highly Wheeler, facie prima case existed” where prosecutor struck three black jurors]; supra, Cal.3d at defendant need not be a member of the [“the excluded in order to of a violation of group complain representative rule; is, cross-section if he yet if in addition especially alleged his victim is a member of group which the majority remaining jurors Madison attention”]; to the court’s also be called facts may these
belong, circum- 677 F.3d Commissioner (11th 2012) [“relevant Cir. it racially of case ... if is . matter . . . . ‘the subject stancés . include . .’”].) . sensitive ethnically him have led
Second, facts that might of specific was aware prosecutor race this case would cause juror’s nature of racially sensitive believe selection, of its motion for as part salient. Before to be particularly venue, residents of Kem survey County submitted a of the defense change of African that 16.7 percent revealed survey conducted The expert. races, Americans, prejudged of members of other in contrast to 57.5 percent of that 11.1 percent same also survey reported defendant as guilty. races, Americans, members of other to 47.3 of in contrast percent African if defendant be the punishment the death would appropriate believed penalty found were guilty. the fact that racial division was concrete evidence such
Even more and murder the rape to convict who had refused single juror As defense jury. first trial the sole African American in the was charges motion, the concern that his Batson this fact raised argued making counsel he on their race because was African Americans “excusing prosecutor time.” on such Acting presumptions will not vote they guilty feels cannot “strike black venire Batson what precisely prohibits: prosecution case be simply men on the will biased they particular assumption (Batson, light black.” 476 U.S. because the defendant is the strikes of the first two black prospec the facts known to the prosecutor, for an least called challenge explanation. tive available for jurors strong struck were whom the the two black Finally, prosecutor clear answers suggesting the death and both gave penalty, supporters Juror H.C. indicated and able to it. willing Prospective would be impose they seldom,” “too and he death was used on his that the penalty questionnaire dire that he could vote for voir during affirmed unequivocally repeatedly “actually she could Juror K.P. if it. asked Prospective When death,” I he believed K.P. responded: vote return verdict “[I]f what I thought, and all that and that’s and . . . all the guilty weighed options I have no that.” voting then would problem *60 these circumstances is more California,
Under Johnson totality to raise an inference of discrimination. than adequate
B. conclusion, various a today’s opinion hypothesizes reaching contrary these two striking could have offered for that the prosecutor explanations The court jurors. observes that H.C. worked at the prospective university knew in eight witnesses the case. The potential court also notes several H.C. his responses gave on have caused juror questionnaire might concern for the one prosecutor, answer that defendant’s including indicating race would make it more difficult for H.C. to consider the facts objectively. K.P., As for the court observes that her brother had been arrested for selling and that the case marijuana was in Kem court at the juvenile pending County time of defendant’s trial. The court notes that also K.P. said service classes, would force her to some summer school drop interfering potentially with ability ante, her to transfer to a four-year college. maj. opn., 835-836.)
The court’s reliance on these reasons to the inference hypothesized negate of discrimination otherwise from the arising circumstances reveals two related errors in our of Batson’s application first-stage inquiry.
1. First, the mere fact that court can find possible race-neutral reasons in the record for a inference strikes does not prosecutor’s negate an of discrimina- tion at Batson's first step. high recognized this principle Johnson v. itself. In contrast to our opinion high court today, California Johnson v. declined to engage any speculation as to possible California strikes, reasons for the even prosecutor’s though it was aware-that the trial judge’s “own examination of the record had convinced her that the prosecu- tor’s strikes could be race-neutral justified by reasons. Specifically, judge that the black venire members had opined offered or confused equivocal (Johnson answers in their written questionnaires.” v. California, Instead, 165.) U.S. at the high court found an inference of discrimination Batson's first based on the fact step that the all three black struck in a jurors case where a black prospective defendant was charged killing his white child—full girlfriend’s stop.
Because it all too to comb the record easy and find some legitimate reason could have had for prosecution striking minority juror, dispelling an inference of discrimination otherwise from the arising totality circum stances more than a “requires determination that the record could have race-neutral reasons supported for use of prosecutor’s his peremptory (Williams (9th challenges.” 2006) Runnels Cir. F.3d Of course, there bemay circumstances where the explanation prosecutor’s strike of a is so obvious that there is little or particular juror no reason to think else (See, could have motivated the strike. anything v. Jones e.g., People Liu, (conc. J.) Cal.4th 982-983 struck opn. juror] [“[The married to convicted murderer. None of the seated or alternate *61 cases, trial In such backgrounds.”].) in their similar anything remotely
had they may to idle inquiry; not subject prosecutors need not and should courts for purposes claim simply “a reject spurious interposed and justifiably swiftly However, (Wheeler, 22 Cal.3d at supra, or delay.” of harassment reasons is into apparent California], inquiry light [Johnson “[i]n to that apparent, attributable the strikes are so clearly insofar as only relevant inference, or is no longer any suspicion, that there reason non-discriminatory 2005) (7th Cir. (United States v. Stephens those strikes.” discrimination in earlier, to Batson designed framework is 516.) As noted 421 F.3d “[t]he may that discrimination and inferences actual answers suspicions produce uncertainty The inherent process. infected the selection [Citation.] have in against engaging counsels discriminatory purpose present inquiries can be obtained when a direct answer speculation needless imperfect 172; (Johnson v. California, 545 U.S. asking simple question.” had good have might not matter that the prosecutor see ibid. [“ ‘[I]t does ”].) reason were stricken.’ ...[;] they matters is the real reasons [w]hat here, reasons for a Where, but not obvious only record reveals possible as a Batson strike, claim at the first step reliance on such reasons to reject and defeats the essential framework short-circuits effectively three-step the prosecutor’s reasons for a strike were into whether the possible inquiry actual reasons. Kennard, pending charge contends that
Justice writing separately, brother and H.C.’s indication K.P.’s County against Kem juvenile it difficult for race make more that defendant’s would his juror questionnaire him reasons for race-neutral facts were “obvious” objectively to consider the ante, Kennard, J., 861-862.) It (Conc. strikes. prosecutor’s opn. these however, the court claims that no other member of telling, others, voir reasons, During reason. “obvious”—and for good were any dire, and you’re hear the evidence you asked H.C.: prosecutor “[I]f charged more of the crimes the defendant committed one or persuaded him, of his ethnic to find him because guilty would hesitate you against on H.C.’s And elsewhere questionnaire, H.C. answered: “No.” background?” in this “If it to develop to the were checked “Yes” in response question: H.C. of white testimony black contradicts the case that the witnesses testimony witnesses, give be able equal would things being you all other equal, [to] concern the mitigate any prosecutor tend to credit to both?” These responses in this objectively consider the facts H.C.’s ability have had about might course, concern about have had genuine still could case. Of prosecutor to eliminate obvious as But such concern was not so any H.C.’s objectivity. the record. actual concern on state his the need for brother, isolation, K.P., her considered charge against As for pending But it is a far less obvious strike. the prosecutor’s may explain appear white that no fewer than six seated jurors—five one realizes when explanation *62 874
and one Hispanic—each disclosed a similar negative association (See criminal justice system. 876-879.) at post, At Batson’s first pp. stage, “reliance on common juror characteristics that could explain prosecu tion’s all peremptories three of Batson’s into the collapsing steps ‘risk[s] ” facie (Bennett (7th prima inquiry.’ 2010) Cir. F.3d 592 792 Gaetz (Bennett).) it Again, be that the may K.P.’s pending charge against brother obvious, actually why prosecutor struck K.P. But it is given far from what we know about several whom the did strike. jurors prosecutor
2. I will elaborate in a moment the comparative juror analysis relevant to K.P. discussion, As a to that preface it is to important note the second error in our first-stage Batson jurisprudence today’s opinion This court perpetuates: categorically rejects relevance of juror at Batson’s comparative analysis first Today’s our rule: step. opinion restates “When a trial court has found no facie and the prima showing, has declined to state his reasons for excusals, we have to declined conduct a comparative juror analysis. ante, 836.) at (Maj. This rule is opn., [Citation.]” inconsistent with flatly our obligation consider “all relevant circumstances” in whether a deciding defendant has made a facie case of prima (Batson, discrimination. supra, at 96-97.) U.S. pp.
Comparative juror analysis involves determining a race-neutral .whether reason that a have had party might striking also prospective juror to one or more applies prospective whom the did not It is party strike. relevant, “one form of circumstantial evidence that is but not necessarily on the issue of dispositive, intentional discrimination.” v. Lenix (People (Lenix).) As the high court has “If a explained: prosecutor’s reason for proffered black striking panelist as well to an applies just otherwise-similar nonblack who is permit serve, ted to that is evidence tending discrimination to prove purposeful be (Miller-El, considered at Batson’s third 241.) step.” supra, U.S. at p. By the same if a court’s logic, reason for a hypothesized strike of a prosecutor’s black panelist as well to an “applies just otherwise-similar nonblack who is serve, permitted that is evidence tending to prove discrimina purposeful tion to be considered” at (Ibid.) Batson’s first step.
Before the high court’s decisions in Miller-El and Snyder, this court had refused to conduct juror for the time comparative analysis first appeal either Batson’s first or third stage, such an holding be “unreliable inquiry and inconsistent with the deference courts trial reviewing give to necessarily Johnson, courts.” (People supra, Cal.4th at Miller-El and Snyder in extensive third engaged comparative juror at Batson’s analysis cases had proven that the defendants in those deciding in the course
stage Miller-El, Snyder, 241-252; racial 545 U.S. discrimination. *63 decisions, we supra, engage now 483-485.) light 552 U.S. at those pp. Batson’s third at analysis even if stage comparative juror analysis (Lenix, supra, 607.) 44 at not conducted below. Cal.4th p.
At Batson’s however, resist comparative this court continues to stage, first no where the “has little or use analysis on such juror analysis theory actual rationales.” hinge proffered does not on the analysis prosecution’s 209, (People 313, v. Bonilla 160 P.3d (2007) 41 Cal.4th 350 Cal.Rptr.3d [60 (Bonilla).) that the Even when a court reasons hypothesizes prosecution 84] a has held that have for our might given striking consistently juror, precedent other it is the struck with juror unnecessary inappropriate compare to see whether reasons also have hypothetical might applied v. Streeter People 205, (See, 225-226 & fn. 5 e.g., (2012) them. 54 Cal.4th 481, 856, Clark People 754]; (2011) P.3d v. 278 Cal.Rptr.3d [142 (Clark); People 225, & fn. 13 261 P.3d v. Cal.Rptr.3d 907-908 [131 243] Hawthorne 67, 80, 330, 46 3 Cal.4th fn. [92 Bonilla, 343, 245]; 347-350.) at pp. at Batson’s first is stage
Our
on
juror analysis
prohibition
comparative
established law. Batson
made clear that in determining
contrary
clearly
case,
“all
a
a court must consider
whether
defendant has made a
facie
prima
(Batson,
supra,
a
96-97.)
relevant
at
If
court
circumstances.”
476 U.S.
have
for
might
given
race-neutral
reasons
hypothesizes
prosecution
a
isn’t it relevant
whether those reasons
striking
juror,
particular
inquire
whether a
to other
tests
equally
jurors? Comparative juror analysis
applied
for
is
to have been the actual reason
striking
juror
likely
reason
proffered
Miller-El,
241; Lenix,
supra,
supra,
44
for the strike.
545 U.S. at
p.
618,
13.)
is
Cal.4th at
fn.
Such
relevant whether
comparison
equally
Batson’s third
at
reason was
for examination
prosecution
proffered by
court,
by
Attorney
or whether the reason was
the trial
stage
by
proffered
Batson’s first
General,
by
stage.
this court for consideration
fairness,
not
courts
Many
This
dictated
novel.
by logic
approach,
Batson’s
first
have
the relevance of
recognized
comparative juror analysis
1139,
v. Newland
Boyd
(9th
2006)
F.3d
Cir.
467
1149
stage.
(See,
e.g.,
whether
[“[Bjecause
court
determining
assists
juror analysis
comparative
discrimination,
to an inference of
of the circumstances
rise
totality
gives
trial
is called
even when the
we believe
analysis
appeal
at the first
showing
step
ruled that the defendant failed to make a
facie
prima
of the Batson
v. Davis
analysis.”]; (2008)
Consider the two reasons that today’s for the opinion hypothesizes pros- First, ecutor’s strike of K.P. K.P.’s had brother been in Kern charged County juvenile court with selling could marijuana, says prosecutor have been concerned that K.P. be biased “might against the prosecution currently law enforcement that were agencies (See, her brother. prosecuting v. Booker People 141, 167, e.g., 51 Cal.4th fn. [family negative member’s with the experience justice criminal is a
system race-neutral reason for a peremptory challenge].)” (Maj. opn., ante, 836.) at But if criminal p. “negative with the experience justice system” concern, was one might expect prosecution have been equally concerned three seated about who had been jurors convicted misdemeanors earlier, in Kern for County—one misdemeanor assault and four battery years earlier, a second for drunk driving years four third misdemeanor theft. A fourth seated had a best friend who been petty juror had convicted of a felony crime in Kern drug County years two three earlier. A fifth had a brother had who been convicted of a misdemeanor about four earlier. years aAnd sixth seated had a juror brother who had been convicted child molestation and was in California state currently prison. K.P., had immedi jurors, unlike the seated observe that
My colleagues district attor the same by ate family “currently” being member prosecuted ante, 837; at see (Maj. opn., p. was defendant. office that ney’s prosecuting case, was . . . none of these pending id. brother’s at K.P.’s p. [“Unlike tried.”]; conc. was being opn. in the where defendant very county Kennard, J., eludes ante, [same].) of this distinction at The significance p. had themselves believe that who might me. If one anything, reasonably had members family been convicted or whose close friends or immediate not more crimes Kern would be if County equally prone been convicted of had brother attorney’s juror to bias this district office than whose against Indeed, its been but not charged support hypothesis convicted. brother, the her charge against struck K.P. because of the pending Booker, 141, a case where a black court cites had been convicted struck had a brother who juror prosecution (Id. 164; ante, at Although at see manslaughter. maj. opn., p. p. Booker, 164), it in that “felt outcome was fair” juror (People said, “A with the criminal justice system context we negative experience 13). (id. is fn. challenge” a valid neutral reason for a peremptory criminal fully We have held juror’s often conviction prior concern when rejecting and understandable reason for legitimate prosecutorial *65 a (See, (2010) 49 Cal.4th People Batson claim. v. Lomax e.g., had suffered misde juror prior P.3d Cal.Rptr.3d 377] [stricken meanor conviction for stolen Williams receiving property]; 268, 148 had juror Cal.4th 47] [stricken suffered the convictions driving pros “two under influence misdemeanor case, was ecuted that one of which by trying the same office was this Here, fact trial”].) why the I do not see the five before years approximately convictions, charges, that six seated had rather than jurors pending prior members—and, in the case against themselves their close friends or family County of at least the Kem by three seated convictions obtained jurors, have District Office within the four Attorney’s past years—would posed the the unadjudicated charge lesser concern to than pending, prosecutor against K.P.’s brother.
Second, with KJP.’s the court that as would interfere posits serving juror education, as to summer school forgo taking she would be forced college ante, the The court that (Maj. prosecutor classes. opn., speculates her education completing could have concluded that K.P.’s “concerns about case and serve as an ability impartial juror.” her to focus on the might impair course, (Ibid.) major Of if to summer classes was a having school drop detriment, More for but she was not. K.P. would have been excused hardship, similar—and, case, to in one very other point, jurors complained One manager white seated was sole juror similar—hardships. he he would be unable to find American was concerned Legion post, someone to him for the full trial. length of the He would also be replace to forced miss a Marine had week-long convention he commit- League Corps which, observed, ted to as the trial attending, court was . . . “[o]bviously like do.” something would Another white seated raised almost juror [he] the same concerns as K.P.: she was also a precisely college student would also be forced to out of summer for she then drop school classes which was When asked court registered. if she would able the same by be to take Snyder, supra, classes next (Cf. she said she was unsure. 552 U.S. at year, 483-484 pp. sought to the strike of a black [prosecution panelist explain ground teaching as a serving juror would interfere with his student at Batson’s court obligations; high third rejected explanation stage, observing that two white had jurors disclosed hardships].) comparable
One could certainly and the attempt draw distinctions between K.P. situated similarly jurors nonblack not strike. whom did prosecution the fact K.P.’s brother was Perhaps currently being prosecuted crime somehow caused the be more concerned with prosecutor marginally K.P. than with six seated who had similar past experiences criminal justice system. Perhaps believed that her prosecutor dropping summer school classes would be a distraction to K.P. because K.P. particular was also to transfer to a attempting four-year college, something white seated who was juror forced her school was not drop summer classes to do. trying Perhaps thought KJP.’s potential hardship marginally greater than the mentioned the volunteer potential hardship manager Legion American post. other posits speculative and, distinctions prosecutor might have found relevant for good measure, adds that “the combination of K.P.’s biases differentiated potential ante, 837-838, her from other prospective jurors.” (Maj. opn., italics added.) *66 fact,
We can as an that stipulate, inarguable no two are ever jurors exactly alike, and it is easy concatenate various differences so as to enough a individuate But juror. high court has never a particular “announce[d] rule that no is unless the situation of the individuals comparison probative identical all and there is . compared respects, no reason to one. . . accept se rule per win Batson claim A a that defendant cannot a there is an unless Batson inoperable; potential exactly identical would leave juror [nonblack] (Miller-El, are supra, jurors not of a of set cookie cutters.” products U.S. at 6.) (and fn. Even are p. assuming distinctions above I significant are), do not think they the need to such fine distinctions posit among jurors why reveals is relevant and prospective juror analysis comparative Batson’s Batson’s first at first stage. a important step requires only showing discrimination, sufficient to an inference of permit not that discrimina proof (Johnson v. California, tion more likely than not the reason for strike. supra, 168-170.) U.S. at The a pp. reasons possible prosecutor might at Batson’s first not probative a are striking juror especially
have given must be the distinction The finer are obvious. they truly unless stage who was juror and a nonblack who was struck between a black juror drawn not, actually explains distinction it is that the purported the less likely KJP.’s charge against whether pending It is at least debatable strike. convictions than the prior to the concern prosecutor brother was greater it And or members. family close friends or their suffered six seated by interfere service would worry debatable K.P.’s is at least whether the similar than to the prosecutor concern greater with her studies was out of did not want to drop student who college the white worry expressed first The had already registered. for which she the summer school classes these debatable to resolve Batson is not proper place stage inquiry totality But lawfully. have acted may The well points. prosecutor discrimination, trial and the an inference of in this case permits circumstances his reasons. to state court should have asked actual of the Batson inquiry sum, is to ensure purpose to invite discriminatory, are not a minority juror reasons for striking here, Where, discloses only the record reasons. as courts to guess possible a court of a minority juror, reasons for the strike but not obvious possible of other circumstances on that basis—in the face should not conclude a failed to establish prima the defendant discrimination—that suggestive a obvious it is that hypothesized And in how determining likely facie case. strike, must consider a court reason was the actual reason for prosecutor’s motives, including circumstances” on the bearing “all relevant prosecutor’s 96-97; see U.S. at supra, (Batson, analysis. comparative juror Miller-El, Batson analysis court’s first-stage 545 U.S. at p. “the relying judicial speculation in this case underscores imprecision (Johnson California, supra, discrimination.” resolve claims of plausible Miller-El, not call for Batson 173; does challenge U.S. at see [“A basis.”].) The court applies mere exercise in rational thinking any up discrimination, facie case of elevated standard for unduly establishing prima and evaluate the actual to elicit analysis designed collapsing three-step to generate analysis designed for a strike into one-step reasons prosecutor’s reasons for the strike. and validate judicially hypothesized
III. above, judg- with today’s concurrence *67 my the Notwithstanding analysis v. Johnson decisions that our recognition applying ment stems from 162, on the erroneous have settled supra, firmly 545 U.S. California, has not and the court high erroneous result today, produces approach or further explains law that any intervening supersedes expounded v. Latimer (1993) (See set forth in Johnson standards California. 1203, 144, Cal.4th 1212-1213 858 P.2d stare Cal.Rptr.2d [discussing 611] decisis]; U.S. __, __ [186 Alleyne v. United States L.Ed.2d Williams, 133 S.Ct. (conc. J.) [same]; cf. opn. Sotomayor, 2164] Liu, (dis. J.) Cal.4th at supra, opn. court’s rule of deference p. [this trial court at Batson’s third to Miller-El and step, Snyder, adopted prior be decisions].) should reconsidered in of those our light But the fact that jurisprudence entrenched the need a course appears quite only heightens for correction by authority. to a higher Today’s adds of decisions opinion pattern this court that needless and to defeat “engag[e] speculation” imperfect Batson’s objective of “actual eliciting answers to and inferences” suspicions (Johnson of discrimination. v. California, 172.) U.S. at supra, 545 p.
In People
court nowhere that in Johnson the trial court’s acknowledged v. California “ ‘ which finding “grounds have might reasonably upon ’ ” 900) challenged (Hoyos, no role in the question” played Batson one step Johnson v. 545 U.S. at analysis. California, supra, 165, 173.) pp. Clark, man, defendant, Cal.4th a black was charged the murder of a white rape 14-year-old with the attempted girl murder of a
kidnapping who was also white. attempted 15-year-old girl selection, (Id. at 872-873.) used pp. During jury prosecution peremptory on four of the black seated in challenges five box. prospective jurors court, record, (Id. 904-905.) This upon independently reviewing *68 (Id. at facie case. pp. to establish a that the defendant failed prima held these two of challenged had not that the 908.) The court observed prosecutor so and had to do at his first black jurors opportunity four prospective (Id. at on the jury. to serve juror and final black prospective the fifth permitted Clark, reasons Further, race-neutral suggested the record 906.) according p. black the four excusing prospective have had for might that the prosecutor licensed another was a law judge, One was an administrative jurors. 907.) at (Id. homeless. p. services for the religious counselor who led pastoral obvious. were not at all reasons As to other two jurors, hypothesized voir dire that during and said “had taken courses in college psychology” One the other in their mind’ with them ‘something wrong murderers “must have but the death penalty “he had no voir dire that during problem said could be ‘hoodwinked’ be and anyone believed that facts could manipulated nonblack (Ibid.) any whether Without attorneys.” inquiring by corrupt courses or harbored had taken did not strike psychology whom prosecutor “the record fails to concluded that the court attorneys, simply some distrust excused the four jurors question an inference that the prosecutor support Rather, for grounds the record reflects race-neutral because of their race. (Id. 908.) at at issue.” challenges p. peremptory Clark, that “the holding noting Justice Kennard dissented from this from the the members of the identified group struck ‘most or all of prosecutor cause, challenged jurors that “the four venire’ after excusáis [citation]” race, characteristic, ‘as and otherwise were that of their shared one only the “defend [citation],” and that as a whole’ community as heterogeneous and the victims appear ‘a member of the excluded ant was group’ [citation] the remaining which the majority have been members of ‘the group (conc. at & dis. (Clark, p. jurors belong’ [citation].” observed, to an Kennard, rise J.).) gave These facts she together, opn. (Id. 1011-1012.) inference at pp. of discrimination at Batson' s first step. strike, this court has for a reasons prosecutor’s speculating possible the record. In People reasons that not limited itself to possible appear Cal.4th 472 Hartsch where the facie case of discrimination the court found no
(Hartsch), prima seven, five, black of the first the first and five struck four of prosecutor the trial the time 485-486.) The court observed (Id. at panelists. motion, two black had accepted court heard the Batson ‘akin officer in position as a school resource one “was employed panelists: ” the death the other “favored (id. 485), at to law enforcement’ p. (id. . African-Americans that “. . 487). The court also noted penalty” to their represen- in a roughly equal on the panel proportion were represented were slightly underrepre- candidate . . .” whereas whites tation in the pool (Id. reasons appearing went on to nonracial posit The court sented. black against four of the five strikes have explained in the record that might *69 882 (Id. 488-489.) at
jurors. But the court undertook no comparative juror reasons, to determine analysis whether the such as one black hypothesized juror’s “reluctance purported to resolve conflicts in the and evidence discom- (id. fort with scientific 488), evidence” at to one or more nonblack p. applied jurors who not struck. were A fifth black who was struck in juror Hartsch was “a of the death supporter ” who believed it
penalty ‘too seldom’ no and imposed “gave responses in her that questionnaire would to have a plainly appear given (Hartsch, pause.” at 488.) The court p. acknowledged 489, “the objective factors (Id. ... are unclear.” at supporting challenge p. “However,” 16.) said, fn. the court “the of a challenge single apparently discrimination, qualified does not racial prospective juror suggest ‘particu larly “given role that legitimate factors have in a subjective may prosecutor’s decision” to challenge or challenge jurors peremptorily. subtle ‘Myriad nuances’ not reflected on the record [Citation.]’ [Citation.] [¶] attitude, attention, may shape attorney’s jury selection strategy, ‘including interest, body facial language, (Ibid.) and contact.’ expression eye [Citation.]” assertions, these making the court in speculative Hartsch did not mention “ the high court’s admonition that Constitution forbids even striking ‘[t]he ” single for a prospective juror discriminatory 552 purpose.’ (Snyder, supra, 478.) U.S. at Nor did Hartsch mention that the in Snyder high refused (much to credit a actual prosecutor’s less reliance on a hypothesized) case, black juror’s demeanor—in that “nervousness”—to a strike explain where the trial court had made no on the record “specific finding concerning demeanor.” juror’s] (Snyder, [the
These
of our court stand in stark
precedents
contrast to a
body
substantial
of decisions
other
courts
have found an inference of
discrimination
circumstances less
suggestive
racial discrimination than those
here.
present
(See,
(9th
943,
Crittenden v.
e.g.,
Ayers
2010)
Cir.
624 F.3d
955-956
(Crittenden)
facie
[prima
case where
struck the
black
prosecution
only
who
prospective juror,
similar to two white
appeared
jurors many respects
and whom the
had tried
prosecution
to strike for cause
her
basis of
general objections to
death
(9th
2009)
U.S. v. Collins
Cir.
551
penalty];
914,
F.3d
(Collins)
921-923
facie case where
[prima
struck
prosecution
black
only
who was not
prospective juror,
questioned
length by
prosecution
appeared
general
be
situated to other
similarly
jurors
serve];
who were allowed to
U.S. v.
(10th
2006)
Abdush-Shakur
Cir.
F.3d
465
458, 470
two out of three
[“Striking
minority
members ...
is sufficient
panel
claim,
satisfy defendant’s
facie
prima
Batson
when the
especially
were
stricken.”];
two
apparently
Heno
only
v. Sprint/United Management
(10th
2000)
Co.
Cir.
208 F.3d
Heno met her
facie case
prima
[“Ms.
by showing
used a
to strike the
Sprint
black
on the
peremptory
only
juror
(7th
Morse v.
panel.”];
1999)
Hanks
Cir.
172 F.3d
facie case
[prima
venireman, voir dire was “perfunc-
black
only
where
struck
prosecution
clear basis for
that would
expose
had not
“an answer
tory,”
given
juror
1989)
F.2d
Eagle
U.S. v. Roan
him”];
(8th Cir.
state want
remove
was American Indian
facie case where defendant
[prima
U.S. v. Clemons
(3d
stmck the lone American-Indian panelist];
prosecution
have
1988)
clearly
facie case “would
[finding
Cir.
843 F.2d
prima
*70
stmck
in
where defendant was black
prosecution
been
case
permissible”
831,
State v.
(2008)
Unlike our most of the cases above engage specula- precedents, tion as to a have stmck a In few why might minority juror. prosecutor reasons, the death cases that do nonobvious such as a views on juror’s posit record, reasons in the and the court penalty, hypothesized appeared a to test whether reason comparative juror analysis hypothesized employed Crittenden, 956; F.3d at supra, the actual reason. likely p. Collins, supra, 921-922.) 551 F.3d at All of the cases are united pp. that Batson's first is not meant to be onerous understanding step particularly at that it is for the defendant to know with because point “impossible (Johnson at California, supra, all the relevant facts v. 545 U.S. certainty” of the Batson test 170) and because second p. “proceeding step puts (Collins, 920). burden on the At the second only slight government” need state its actual reasons for only striking minority step, prosecution discrimination; The does not bear burden to any juror. disprove ‘ “the defendant carries the ‘burden of ultimately persuasion’ “prove ’ This burden of existence of discrimination.” purposeful persua- [Citation.] with, from, of the strike.’ sion ‘rests never shifts opponent [Citation.]” (Johnson 170-171.) v. California, pp. constitutional racial overriding interests discrimination eradicating selection and confidence ensuring system in our public justice 171-172; Powers,
(Johnson California, supra, supra, 545 U.S. at pp. 411-414; Batson, supra, U.S. at with the 87-88), 476 U.S. at pp. together low actual reasons for cost to state its comparatively requiring party essentially have led striking minority juror, some states prospective Batson's first State v. Rayfield (See, eliminate S.C. 106 step. e.g., 764; Melbourne v. State 247]; (Fla. 1996) S.E.2d 679 So.2d State v. Parker State Holloway 930, 940; (Mo. 1992) 836 S.W.2d 166, 171-172].) Conn. 636 A.2d This court has not obviously adopted and I do “it us to do so. But we have approach, urge recognized is the better for the trial court to have on the practice put prosecution record its race-neutral challenge, contested explanation any peremptory even when the trial court has conclude no facie case may ultimately prima (Bonilla, essence, been made out.” we Cal.4th at fn. to the Batson ask, *71 have counseled a “don’t against don’t tell” approach because to state assist the trial inquiry requiring party its reasons “may court in and will courts evaluating challenge reviewing assist certainly whether fairly assessing constitutional violation been established.” any has Hartsch, (Ibid.; supra, 17.) see Cal.4th at fn. p. case illustrates the with our doctrine. present problems Despite case,
racial overtones of this it is that the struck entirely possible prosecutor the two black But race-neutral reasons. prospective jurors legitimate, reasons, because the trial court did not we state his require can what only as to his actual reasons were. Such speculate speculation— with, without, but even dis- especially comparative juror analysis—cannot the reasonable inference of the circum- lodge discrimination from arising claim, Batson here. cut stances To short the of defendant’s as analysis today’s does, subverts the opinion established framework for out unlawful ferreting discrimination in the exercise of strikes. peremptory
IV. The confluence of and another decision filed today’s opinion questionable Williams, supra, (see 630) earlier this term 56 Cal.4th a few broader prompts about the Batson observations state of our jurisprudence. not, Batson's
Whether intended or
our
at
first
rise to a
approach
step gives
tacit
if the
understanding
does not state its reasons for
prosecution
either
the trial
did not
striking minority
because
ask
prospective juror,
answer,
or because the trial court asked but did not
a reviewing
require
court will stand
to fill in the blank with
ready
speculation
presumptions.
at Batson’s third
This mode of
rationalization
our
judicial
approach
parallels
where a trial court
denies
simply
in the
situation
step
not-infrequent
cases,
or
In such
our precedent
motion with no explicit
findings
analysis.
“the
the trial
so
as
ruling
long
holds that deference to
court’s
required
are neither contradicted
excusing
reasons for
prosecutor’s
juror
Reynoso
31 Cal.4th
record nor inherently implausible.” (People
Williams,
supra,
see
(Reynoso);
Williams,
(see
at
Williams
Cal.4th at
I have discussed in
pp.
As
p.
Mai,
Liu,
(see
supra,
(dis.
J.))
and in another case filed today
709-713
opn.
rule,
Liu,
(conc.
J.)),
at
which conflicts
opn.
1059-1067
and indeed
with
state and federal
ample
authority, permits
compels appellate
silence,
the result that a Batson claim
courts to rationalize a trial court’s
with
court,
be
there
indication that any
even when
is no affirmative
may
rejected
trial or
has
evaluated “all of the circumstances that bear
carefully
appellate,
(Snyder, supra,
the issue” of
discrimination.
552 U.S. at
upon
purposeful
Miller-El,
239; Batson,
478;
supra,
see
past cases, 892-898.) cases. appen., post, at those 102 this court pp. Among Batson error—and found only instance was over 12 single years ago in a case where the in the had first trial prosecutor, believing jury “ ” ... on racial all five struck members of ‘hung grounds,’ Hispanic and venire all but announced his desire not to have serve any Hispanic person (Silva, 375, omitted.) on the second supra, 25 Cal.4th at italics It is jury. p. that for much true 20 we standards that were less past years, applied than those set forth the United States Court protective eventually Supreme Miller-El, in Johnson which were released June jointly California Nevertheless, Batson issues over the 2005. of our 102 decisions involving 59 Miller-El, two decades were filed after Johnson v. and not past California one of those decisions found Batson error. single most Batson claims raised in our court Even assuming, realistically, insubstantial, difficult are not cases that have it is fairly identify presented 886 Williams, supra, (See, Cal.4th at 649-663
closer questions. e.g., pp. instance, and, struck first five black women in box in each [prosecutor death penalty; stated that would hesitate to vaguely challenged juror impose assess trial had notes and could not judge taking independently stopped women; at defense reasons for least two black prosecutor’s striking principal 771, v. Thomas People woman]; a black 53 Cal.4th witness was reason . . . why obvious Cal.Rptr.3d 1109] [“no Clark, would have chosen to strike” two black prosecutor jurors]; prospective supra, black 52 Cal.4th at four of five 904-908 struck pp. [prosecutor reasons at Batson subject one were not jurors; prospective hypothesized step Hartsch, supra, & Cal.4th at 488-489 juror analysis]; comparative pp. juror fn. 16 reason for strike of a black prospective apparent qualified [no v. Mills penalty]; who death supported all 176-181 challenged prosecutor 276] [“the box”; in the six African-Americans who were one time or another seated death struck one black because of her views on juror prospective were minor differences with views of nonblack who penalty, despite Hoyos, supra, struck]; all 41 Cal.4th at struck 902-903 [prosecutor reasons at Batson three female jurors; step Hispanic prospective hypothesized one were not It is no doubt true that subject juror analysis].) comparative is, (People be, selection should individualized “[j]ury highly process” Williams, (conc. J.)), 40 Cal.4th at and there opn. Corrigan, are “subtle nuances” that “are seldom the written record” many captured by (id. inherent 339). But even for the allowing fact-specific judgments each case and the “great many legitimate may factors that advocate (ibid.), consider in the exercise of challenges” nearly properly peremptory by this court’s Batson absolute of results uniformity produced jurisprudence is striking. contrast, a number of federal courts of attentive to the
By proper appeals, of Batson’s framework, declined to have application three-step repeatedly Batson since Johnson v. affirm erroneous or in the rulings years inadequate and Miller-El. Price v. Cain 2009) (See, (5th Cir. 560 F.3d e.g., California Quarterman (5th (Reed); Reed v. 284, 287; 2009) Cir. 555 F.3d *73 Hardy U.S. v. Williamson Harris v. 269, 277; (5th (7th Cir. 2008) Cir. 533 F.3d 555, Rutledge 942, 965-966; U.S. v. 2012) (7th 2011) F.3d Cir. 648 F.3d 680 McMath (Taylor); 560; U.S. v. U.S. v. Taylor 901, (7th 2011) F.3d Cir. 636 906 657, 665-666; U.S. Stephens 421 (7th 2009) (7th 2005) Cir. F.3d Cir. 559 Ali v. Hickman Paulino v. 503, 518; 1174, 1196; (9th 2009) F.3d Cir. 584 F.3d Harrison Green v. LaMarque 692, 703; (9th Cir. (9th 2008) Cir. 542 F.3d 351, Kesser v. Cambra 1028, 1033; 2006) F.3d 2008) (9th 532 F.3d Cir. 465 1108-1109; Williamsv. Runnels 1102, 2006) (en banc); (9th Cir. 432 F.3d (Adkins); Adkins v. Warden Madison (11th 2013) Cir. 710 F.3d 1333, 1339; Commissioner McGahee v. Alabama (11th 2012) Cir. 677 F.3d Corrections (11th 2009) 1267.) Dept. Cir. 560 F.3d This body an additional our court authority reason for as whether provides skepticism maintained has level of proper vigilance.
Our track record is even more remarkable when considered in of what light we learned over the same about the have period prevalence persistence racial in the exercise of well as the mecha- strikes as disparities peremptory nisms of conscious and unconscious bias that fuel those disparities, especially when it comes to black and black In a recent of how defendants. study exercised all North prosecutors challenges trials of peremptory capital Carolina inmates on death row as of 2010—a total of July 173 proceedings 7,421 strikes—the authors found that involving twenty-year “[o]ver examined, we struck black venire at period eligible members prosecutors about 2.5 times the rate struck they venire members who were not eligible state, black. These remained consistent over time and disparities across and did not diminish when we controlled for information about venire ,” members that bore on the decision to strike them . . . potentially including crime, status, views on the death with penalty, prior experience employment O’Brien, A and whether the knew any (Grosso in the trial. & participant Stubborn Legacy: Overwhelming Jury Race in Selection Importance of 173 Post-Batson North Carolina Trials Capital 97 Iowa L.Rev. 1533-1534, 1542-1543, Further, (Grosso O’Brien).) & found study state strike rates are “although black venire always higher against members, members than other venire against disparity significantly (Id. 1550; id. at in cases greater with black defendants.” see p. p. [“In defendants, cases with non-black strike rate was 51.4% average against black venire members and 26.8% all other venire members. In cases against defendants, with black strike rate was 60.0% black venire average against (fns. members 23.1% other venire against omitted)].) members.” The North Carolina of the factors we con- study explained “[n]one eliminated trolled in the the effect regression analysis of race in jury selection. While we found non-racial factors that were relevant many highly strike, to the decision to none was so associated race or so closely it could serve as an alternative of the racial frequent explanation ... A black venire member disparities. was still more than twice as likely (2.48 1) to be struck the state even when other relevant characteristics O’Brien, (Grosso were held constant.” & supra, 1554.) Iowa L.Rev. at The authors that “we cannot account for a acknowledged venire member’s body often cite as rel- physical appearance language—factors litigators (Id. evant to their decision to strike.” “But factors like these *74 Moreover, to the race of the venire member. should be unrelated generally than were associated more with some racial groups even if these factors others, to be and the factor very strong quite that association would have (Ibid.) racial the observed disparities.” frequent explain and 1997 between 1981 A of 317 trials study capital Philadelphia Challenges The Use Peremptory al., (Baldus et similar reported findings. Murder Trials: A Legal Empirical Analysis J. Capital (2001) 3 U.Pa. jurors, of the black 3.) Const. L. On struck 51 average, percent prosecutors had they but nonblack whom only jurors, percent comparable (Id. a black B.) involving at col. In to strike. table cases opportunity p. victim, (57 defendant and a nonblack was even greater percent disparity (Id. C.) of race in versus 24 table col. The role percent). p. such characteristics selection remained even when nonracial significant juror education, were taken and answers to voir dire as age, occupation, questions (Id. 68-72, 122.) into account. at pp. Morning The Dallas
Applying methodology Philadelphia study, trials in Dallas felony News examined strikes peremptory noncapital al., A Process Juror the first 10 months of 2002. et during (McGonigle Discriminate, Analysis but Say They Elimination: Dallas Prosecutors Don’t Jurors, Are Black They Likely Reject Shows More Morning The Dallas 21, 2005), 24658335].) 1A Using regression News WLNR (Aug. status, education, to control for socioeconomic analysis age, occupation, dire found that excluded study answers to voir questions, “[p]rosecutors eligible from at more than twice the rate rejected blacks eligible juries they fact, trait black was the most whites .... being important personal toward .... Jurors’ attitudes affecting jurors rejected which prosecutors role, but even when blacks criminal issues also justice played important rejected answered the same blacks were key questions way, whites Done, (Ibid.; Was Analysis see How Morning The Dallas rates.” higher 21, 2005), 24657224].) WLNR News 19A (Aug.
The above are consistent with other studies of actual trials. findings Center, Louisiana Black Strikes: A Study Racially Crisis Assistance the Jefferson Parish District Challenges by Use of Disparate Peremptory Rose, Accused Race Challenge Peremptory (2003); Office Attorney’s Data One County or Gender Discrimination? Some Law & from During Race and Peremptory Challenges 695; al., Hum. Behav. Turner et Dire: Do Prosecution and Agree? Voir 14 Crim.Just. J. Defense showing study are also consistent with research They experimental likely role of a are much more to the assigned participants In one researchers study, strike black than nonblack jurors. comparable *75 told had a strike left to use on one of two participants they single peremptory with “Juror #1” characteristics unattractive to potentially prosecutor: who, earlier, awas married male several had 43-year-old “journalist years misconduct,” written articles about and “Juror #2” was a 40-year-old police divorced male executive with little scientific Who “advertising background voir dire that he was stated of statistics because are during they skeptical Norton, Race-based Race- (Sommers Judgments, easily & manipulated.” neutral Examination Use and the Experimental Peremptory Justifications: Procedure Challenge (2007) 265.) Batson 31 Law & Hum. Behav. were to one of two either Participants randomly assigned conditions: Juror #1 (Id. white, 266.) as black and Juror #2 as or vice versa. at depicted #1, found study that as to Juror struck him 77 of the participants percent time when he was black to 53 compared time when he was percent white, #2, and as to Juror struck him 47 participants time when percent he was black (Id. to 23 of the time when he was at compared percent white. 267.) when asked Interestingly, struck a why they particular juror, race; study mentioned participants rarely virtually all “cited as participants their most either Juror #l’s important justification familiarity police (Id. 267-268; misconduct or Juror #2’s about statistics.” skepticism see al., Prosecutorial et Discretion in An Em- Peremptory Challenges: Hayden pirical Investigation Use the Massachusetts Jury Selection of Information Process 768, 784-785, 13 New L.Rev. Eng. 787-788 selection [jury simulation study selected involving randomly found that prosecutors were more participants to ask about likely race when prospective juror’s white, defendant was black than when defendant was and that “a prosecutor would be reluctant very remove white juror by challenge peremptory involved, where a black defendant without first making sure completely that there removal”]; is solid justification his see & generally Sommers Norton, Race and Jury Selection: Psychological on the Perspectives Peremp- tory Challenge Debate 63 Amer. Psychologist course, different,
Of case is every there are circumstances and nuances these studies cannot fully address. A court cannot adjudicate broad we can decide one patterns; only case at a time. But are patterns comprised individual cases decided in accordance with and when legal those principles, of results to the we have principles produce uniformity degree seen our Batson one has to wonder whether it can jurisprudence, be true that the really exercise of strikes in the cases come before our court differs peremptory so from the robust and radically consistent observed elsewhere. patterns
Like I am confident that our my colleagues, trial courts take their seriously where, to combat unlawful discrimination in But responsibility selection. here, clear that a trial court has the correct standard it is not applied as *76 no that a court must reviewing indepen first there is dispute Batson’s step, ante, at (Maj. examine the record and correct standard. opn., dently apply to assess 834.) At third our trial courts are best positioned Batson’s step, p. are a stated reasons because they “experienced of credibility prosecutor’s 97) they and because (Batson, dire” 476 U.S. at supra, p. in voir supervising ’ ” “ ' in the events” “have first-hand and observation of critical knowledge can be a 626). 44 But (Lenix, courtroom Cal.4th at selection supra, p. jury strike, a trial a and and in context of lengthy particular complex process, at (Williams, 56 Cal.4th have notes” taking supra, court may “stopped 716 (id. at p. the record of voir dire 651), it have to consult may neglected p. Liu, (Snyder, demeanor” (dis. J.)), of it not have recalled “may juror’s] opn. [a 479), at it have declined to may engage comparative 552 U.S. supra, p. (Mai, of counsel urging supra, juror analysis despite standard 1048), (Reynoso, supra, it have erroneous may applied legal p. Kennard, F.3d at (dis. J.); of Taylor, supra, Cal.4th at 933-934 opn. pp. under the 905-906), or it have made an unreasonable may judgment pp. 266; Adkins, (Miller-El, 545 U.S. at supra, of circumstances totality supra, p. 1255; Reed, 382). F.3d at Because it is 710 F.3d at supra, p. p. it be alert to these occasional lapses, of courts to responsibility appellate across whether our uniform of affirmances virtually pattern seems fair to ask of review meaningful 102 cases over the demonstrates years appellate past Batson claims in accordance with standards. proper legal decisions, of it is
When examines the our Batson legal underpinnings one unlawful this court has almost never found why not difficult to understand of deference where selection. Reflexive application discrimination to, as to the reasons in the record to defer judicial speculation there is nothing none, offered limited and for a strike where the has unduly combine to erect a virtu- of juror analysis grudging application comparative we hurdle Batson claims to surmount. As appellate judges, for ally impossible and the these modes of rationalization predictable are familiar with lawyerly But a of speculation of their repeated application. jurisprudence consequences “actual answers to does not serve the of goal producing and presumptions infected the jury and inferences that discrimination have may suspicions 172.) 545 U.S. at Nor (Johnson v. California, supra, selection process.” whose members are “the to be tried right by jury does it adequately protect (Batson, U.S. at criteria.” nondiscriminatory selected pursuant 85-86.) of speculation presump- Most importantly, jurisprudence it in all our tions—and the stark results has wrought—cannot inspire citizens, measure of race or full background, equal of whatever (Id. our justice.” “confidence in the fairness of system sum, our Batson jurisprudence vigilance falls short of the required Nevertheless, of the laws. the constitutional guarantee equal protection denial of under I concur court’s precedent, compulsion and, defendant’s Batson claim join in all other opinion respects, court. 2013. rehearing was denied November
Appellant’s petition *77 LIU, APPENDIX TO CONCURRING OPINION OF J.
Batson claims decided
Court,
the California
1993-2013
Supreme
1. People
v. Jones
899,
(2013)
57 Cal.4th
916-920
v. Mai
People
986,
2.
(2013)
57 Cal.4th
1046-1054
People Harris
804,
(2013)
3.
v.
57 Cal.4th
833-838
v. Edwards
People
658,
4.
(2013)
Cal.4th
697-699
v.
People DeHoyos
79,
(2013)
5.
101-116
Cal.Rptr.3d
[158
P.3d
1]
Lopez
6.
Cal.4th
1046-1050
Cal.Rptr.3d
570,
7. Cal.4th 649-663 *78 People v. Pearson 393, 541, (2013) 8. 56 Cal.4th 420-423 Cal.Rptr.3d [154 P.3d 297 793] v. People 1302, (2012) 54 Cal.4th McKinzie
9.
1310-1322
Cal.Rptr.3d
[144
427,
10. Cal.4th 783-797 Cal.Rptr.3d [144 P.3d 281 1] v. Streeter People 205, (2012) 481,
11. 54 Cal.4th 220-226 Cal.Rptr.3d [142 P.3d 278 754] People v. Thomas 771, 533,
12. 53 (2012) Cal.4th 795-796 Cal.Rptr.3d [137 P.3d 269 1109] People Elliott 535, (2012) 59,
13. v. 53 Cal.4th 559-574 Cal.Rptr.3d [137 P.3d 269 494] v. Dement People 1, (2011) 496,
14. 53 Cal.4th 18-21 264 Cal.Rptr.3d [133 P.3d 292] v. Clark People 856, 225, 52 (2011)
15. Cal.4th 903-908 Cal.Rptr.3d [131 P.3d 261 243] 769, v. Blacksher (2011) Cal.Rptr.3d 52 Cal.4th 800-803 People
16. [130 191, P.3d 370] 617, 706, v. Garcia (2011) 52 Cal.4th 746-750 People Cal.Rptr.3d
17.
[129
18.
[124
19.
[121
20. [121 P.3d 82] 722, 141, People Booker (2011)
21.
v.
Cal.4th
161-169
Cal.Rptr.3d
[119
401,
850,
People
Cowan
(2010)
22.
v.
50 Cal.4th
445-451
Cal.Rptr.3d
[113
23.
Cal.Rptr.3d
49 Cal.4th
569-578 [112
24.
485-190
Cal.Rptr.3d
25.
Cal.4th
105-109
549,
26. Cal.4th [108 87, P.3d 229 Cal.Rptr.3d 12] 158, 153, Mills (2010) v. 48 173-185 People Cal.Rptr.3d
27. Cal.4th [106 P.3d 226 276] 852, 850, v. 47 885-896 People Taylor (2009) Cal.Rptr.3d
28. Cal.4th [102 P.3d 220 872] 539, 322, v. People Davis (2009) 46 582-584 Cal.Rptr.3d
29. Cal.4th [94 P.3d 208 78] 67, 330, 77-84 Hawthorne (2009) v. 46 Cal.4th People Cal.Rptr.3d
30. [92 P.3d 205 245]
894
v. Hamilton
31.
People
(2009)
863,
45 Cal.4th
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Cal.Rptr.3d
[89
286,
People 636, v. (2008) 44 126, Cal.4th Cruz 654-661 Cal.Rptr.3d [80 P.3d 970] Lenix v.
People (2008) 602, 98, Cal.4th 611-631 Cal.Rptr.3d [80 P.3d 946]
People
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v.
(2008)
93,
54,
44 Cal.4th
135-144
Cal.Rptr.3d
[79
People
(2008)
652,
208,
43 Cal.4th
671-682
Cal.Rptr.3d
[76
People
Lewis
415,
(2008)
588,
43 Cal.4th
468-482
Cal.Rptr.3d
[75
264,
People
v.
Kelly
(2007)
763,
531,
Cal.4th
778-781
Cal.Rptr.3d
[68
297,
People Hoyos (2007) 41 872, Cal.4th 899-903 Cal.Rptr.3d P.3d 528]
People
Thornton
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461,
44.
People
Stevens
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182,
196,
41 Cal.4th
192-198
Cal.Rptr.3d
[59
45. People Lancaster 50, v. (2007) 608, 41 Cal.4th 73-78 Cal.Rptr.3d [58 158 P.3d 157]
895 453, 582, v. 151 Bell (2007) 40 Cal.4th People Cal.Rptr.3d 46. 594-601 [54 P.3d 292] 287, 268, Williams (2006) v. 40 People Cal.Rptr.3d
47.
Cal.4th
312-313
[52
48. 39 [47 P.3d 140 775] 420, 913, v. People Stanley (2006) Cal.4th 934-945 Cal.Rptr.3d
49.
39
[47
50. 39 Cal.4th 677-680 [47 P.3d 140 657] 1096, People Johnson (2006)
51.
v.
38
Cal.Rptr.3d
Cal.4th
1098-1104 [45
1,
52. 38 Cal.4th 643-645 133 Cal.Rptr.3d [42 P.3d 1013] 1, 491, v. People Avila (2006)
53. 38 Cal.4th 540-558 133 Cal.Rptr.3d [43 P.3d 1076] 175, 593, People (2006)
54.
v.
38 Cal.4th
226-236
Huggins
Cal.Rptr.3d
[41
55. 38 102-108 Cal.Rptr.3d Cal.4th [41 P.3d 131 400] 397, v. 240, Schmeck (2005) 37 People
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59. 199-205 [30 Roldan 701-703 60.
896 v. Panah 395,
61.
People
(2005)
672,
Cal.4th
438-442
Cal.Rptr.3d
[25
62.
People
(2005)
554,
35 Cal.4th
346-349
Cal.Rptr.3d
[25
112,
65. People Haley (2004) 283, 877, 34 Cal.4th 304-308 Cal.Rptr.3d [17 P.3d 170] v. 536, 66. People (2004) 743, 33 Cal.4th 552-557 Cal.Rptr.3d [15 Griffin 344] 67. People Cleveland (2004) 704, v. 32 Cal.4th 730-734 Cal.Rptr.3d [11
236,
68. People 946, (2003) 131, 31 Cal.4th 969-971 Cal.Rptr.3d [4 P.3d 53] v. People Reynoso (2003) 903,
69.
769,
31 Cal.4th
907-929
Cal.Rptr.3d
[3
70. People (2003) 93, 186, 31 Cal.4th 115-119 Cal.Rptr.3d [2 P.3d 1166] People Johnson 1302,
71.
v.
(2003)
1,
30 Cal.4th
1310-1325
Cal.Rptr.3d
[1
370,
Cal.Rptr.2d P.3d 572] McDermott 75. 966-981 654, 51 P.3d
897
545,
703,
Cash
People
(2002)
Cal.Rptr.2d
76.
28 Cal.4th
723-726
v.
[122
77.
Cal.4th
[121
106,
78. 26 Cal.4th (2001) v. 115-119 [109 P.3d 357] 543, Anderson People 25 (2001) Cal.Rptr.2d v. Cal.4th 568-570
79.
[106
575,
80. 25 Cal.4th 376-386 (2001) Cal.Rptr.2d v. [106 P.3d 769] Ayala (2000) 243, 532, v. People 24 6 Cal.Rptr.2d
81. Cal.4th 264-269 [99 P.3d 193] 69, v. Box People 1153, 5 (2000)
82. 23 Cal.4th Cal.Rptr.2d 1185-1192 [99 P.3d 130] 377, v. Jenkins People 900,
83. 22 (2000) Cal.4th 992-995 Cal.Rptr.2d [95 P.2d 997 1044] Ervin 48, 623, v. People
84. 22 74-77 (2000) Cal.Rptr.2d Cal.4th 990 [91 P.2d 506] Hayes (1999) 1211, People 21
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86.
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Cal.4th
745-746
Cal.Rptr.2d
[85
87.
18 Cal.4th
316-317
Cal.Rptr.2d
[75
88.
17 Cal.4th
Cal.Rptr.2d
293-295 [70
89.
Cal.4th
663-668
Cal.Rptr.2d
[66
90.
Cal.Rptr.2d
[61
91.
14 Cal.4th
People Mayfield
726-727
Cal.Rptr.2d
P.2d
485]
92.
192-199
Alvarez
*83
1164,
93. People
(1996)
v. Jackson
13 Cal.4th
1195-1198
Cal.Rptr.2d
[56
49,
94. (1996) v. 13 People Arias Cal.4th 134-140 913 Cal.Rptr.2d [51 P.2d 980] 1171,
95. People Davenport (1995)
v.
11 Cal.4th
1199-1203
Cal.Rptr.2d
[47
800,
96. (1994) v. Crittenden People 9 Cal.4th 114-120 Cal.Rptr.2d [36 P.2d 885 887] 137, (1994) 762,
97.
Turner
People v.
8 Cal.4th
164-172
Cal.Rptr.2d
[32
98.
v.
People
7 Cal.4th
Fudge
Cal.Rptr.2d
1095-1098 [31
P.2d
36]
877,
(1993)
705,
99.
v.
People Montiel
5 Cal.4th
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Cal.Rptr.2d
[21
100. People Sims Cal.4th 427-432 Cal.Rptr.2d P.2d 992]
101. v. Garceau People 170-173 Cal.Rptr.2d P.2d 664] 102. Cal.4th Cummings 1281-1283 [18 Liu’s notes concurring opn. education Justice plans. opinion interfere 878) at also service would post, a seated juror explained classes, not juror trying with her to take school but this ability summer could take missed classes any transfer to another and she college “probably” (conc. also notes opn. néxt school during year. concurring opinion Liu, J., 878) of an American post, manager one seated was the sole juror had concern about his to find someone ability who Legion post expressed trial, was a volunteer length him for the full but this replace juror any hardship by serving jury; thus would have suffered economic he also had been able to find a previously substitute “one or two weeks.”8 Moreover, H.C., as with the combination of K.P.’s biases differenti- potential ante, ated her from other jurors. 836-837.) prospective to the response comments in Justice general Liu’s concurring opinion about this court’s Batson/Wheeler jurisprudence, and his that trial suggestion courts, judges court, or at least this appellate have not adequately addressed racial discrimination that is selection occurring during jury courts, California’s it is true that this court has claims of most rejected note, however, Batson/Wheeler error two during last decades. We trial rulings a Batson/Wheeler if see sustaining objection ever rarely review or appellate even mention in an trial court appellate opinion; only no rulings use of finding improper are reviewed in peremptory challenges Batson, As the appellate opinions. court observed in high “We have confi dire, dence that trial judges, voir experienced will be able to supervising decide if the circumstances concerning use of prosecutor’s peremptory creates a challenges facie case of prima discrimination black against jurors.”