*1 Dec. S094890. [No. 2013.] PEOPLE,
THE Plaintiff and Respondent, MANIBUSAN,
JOSEPH KEKOA Defendant and Appellant.
Counsel Adams, Court, David S. under for Defendant and appointment by Supreme Appellant. Harris, General, Gillette, D.
Kamala Dane R. Chief Attorney Assistant General, General, Gerald A. Assistant Alice B. Attorney Engler, Attorney Carlile, General, Lustre and Alisha Attorneys M. for Plaintiff Deputy *7 Respondent.
Opinion of two Kekoa Manibusan CHIN, J. convicted defendant Joseph A murder, and one each of attempted of first murder count
counts degree true It also found and mayhem, degree robbery. second aggravated attempted murder, murder, and driveby of allegations circumstance special multiple murder, firearm a a from discharging enhancement of allegations and felony firearm, death, a a and use of causing bodily vehicle great injury personal of with deadly causing great assault a weapon conviction prior juvenile It a of for the two murder convictions. returned verdict death bodily injury. Code, (Pen. verdict modify After the automatic denying application 190.4, death for those court sentenced defendant to (e)),1 subd. trial § 1239, (b).) We affirm (§ automatic. subd. murder convictions. This appeal the judgment.
I. Facts in Monterey Defendant’s arise from events mostly County convictions 31, 1998, and the night morning February during January and dead and Jennifer Aninger which Mathews Frances Olivo were shot Priya a to the head. severely injured by gunshot A. Guilt Phase Evidence introduced evidence trial’s
Only prosecution guilt phase. 1. The 1998 Shootings a in with Norman January
On defendant attended Seaside party Willover and Adam used and awake Tegerdal. They stayed methamphetamine in and into the next Sometime the late through night day. together drove afternoon or in early evening January they Tegerdal’s Marina, a house a Cougar to in where Willover retrieved Mercury backpack also gun. used a small additional amount containing They methamphet- Later returned and Melissa evening, up amine. to Seaside picked Contreras near the house of Tim where defendant Contreras Frymire, out; she hang were Contreras were to drink staying. thought they going did not know in car had anyone gun. station, he and Willover discussed gas
As drove group station, the time the arrived at Contreras robbing group gas About people. it to rob using learned of the and heard defendant Willover talk about gun direction, over the car and drove the At defendant’s Contreras took people. Willover, around until defendant and Monterey upon Seaside group victim, Jacks told Contreras to near Park robbery park spotting potential car their gun and Willover exited the Defendant Monterey. later, no one to rob. having returned 10 to 15 minutes found possession. They statutory are to Code. All further references the Penal unlabeled *8 drove Contreras but soon the over group away, turned driving Defendant, defendant and entered the backseat. after with Willover discussing area, victim at wharf drove the possibility finding Monterey’s group There, Wharf II. sometime defend- Monterey’s after 11:00 Municipal p.m., ant, Willover, and and Tegerdal Aninger Mathews. After spotted Tegerdal asked if women were defendant carrying made U-tum at end purses, of the so the wharf could circle and back observe them. He drove group past U-tum, and women made another the women on the putting passenger car, Willover, side of the where a leather on one and wearing hand glove face, bandana his over was Defendant the car sitting. five to 10 feet stopped said, Willover stuck his head and away. hand out the window and me “give your or me the “give The women did not money” money.” Willover respond. car, then turned into the back toward its other and said occupants, “something like, being these bitches are didn’t me.” They assholes. hear He then turned women, them, back toward started his and He fired pointed gun firing. times, back, arm, numerous Mathews in the and hitting twice in left thigh, and once head hitting in the in the arm. Aninger once upper survived, Mathews died from her but Aninger sustained brain wounds. concentrate, loss, that resulted damage ability in an impaired memory smell, lost sense of motor lost function her left hand. after the
Immediately shooting, defendant made a U-turn and away. sped said, witnesses,” Willover “we couldn’t leave and defendant kind of “just laughed” in Willover also response. “bragg[ed] about how it long [had been] since done that. He said it He was like four hasn’t that in years. had] done [he Defendant, four and it felt and . . . years, needs to it.” good try [defendant] Willover, and Tegerdal they needed cars to avoid agreed change being Salinas, caught. Tegerdal’s Defendant drove to house in where they exited entered Cougar and Monte As drove Tegerdal’s Chevrolet Carlo. Tegerdal Willover acted “like was away, he of what he” had done. “happy,” proud he Defendant also seemed “like was of’ “happy,” They Willover. proud each other on the congratulated giving each other Defend- shooting, “props.” ant said wanted “he to have his turn.”
At some defendant took over and headed back to point, driving Seaside. He and Willover discussed another said he finding victim. Defendant wanted “to to show had try because Willover shot two up,” already [Willover] Seaside, In defendant and Willover Olivo at the people. spotted standing comer of Fremont Boulevard and Avenue. Amador Willover asked defendant he if “to her” or to her” do “do it or “shoot her.” Defendant going nodded, this,” block, said “watch drove around car and maneuvered the so he was closest to Olivo. He the car about feet silently stopped eight away gestured for Olivo to Olivo and looked inside car. approach. approached did, As she his hand shooting. out window put began cried, don’t,” eight Olivo but defendant continued “please shooting, firing through her passed Olivo times. One of the shots nine shots and three hitting *9 her injuries. heart. She died of the Willover was shooting. about” away, “laughing
Defendant drove Defendant game.” it kind of “taking with him.” were like They “laughing the in the He saw gun’s that he had not fired all of bullets clip. became upset and, as well “might roadside he stating an car the occupied along parked bullets,” it. bullets into remaining rid of the rest of the fired get car, in their defendant began chasing When car’s parked occupants Linda friends and Anthony defendant to the Fort Ord home family drove There, McGuiness, Willover and living. Tegerdal his father was where arrival, by removed shell from the car. Awakened casings group’s found the seated in came out of his bedroom and Anthony group McGuiness had for a gas Defendant his car run out and asked living his room. said and, defend- to a friend’s house in agreed following ride Seaside. Anthony directions, the Olivo and on shooting ant’s drove defendant scene of past Seaside, Tim in where was Frymire’s living. to house defendant a.m. he Frymire’s entering, Defendant arrived at house about 3:00 Upon he He “real antsy” indicated wanted to seemed speak Frymire privately. and out He looking saying things Frymire the window.” started “[k]ept hear,” and had the “didn’t want to if he still .22-caliber shells Frymire asked “no,” and defendant had him some months told given Frymire replied, earlier. defendant if he had a in his he needed take it outside. to gun pants, Defendant left After he to look returning, then the house. continued briefly he would better about out windows. then asked defendant if “feel Frymire else,” in gun somewhere and offered to let defendant gun] putting put [the the trunk of two the house and give his car defendant The exited key. defendant car. A few put handgun Frymire’s semiautomatic the trunk later, hours defendant left in the car with and another man. Frymire’s nephew house, latter two later returned the car to without Frymire’s house, defendant, or the after with “a gun. night, returning Frymire’s That face,” at his chest and alternately smile his repeatedly pointed A shootings. television he watched television news about short report later, time contacted Seaside his police suspicion Frymire report shootings. defendant had been involved in the 4, 1998, his house a
On Willover asked Joshua store at Riley February a loaded semiautomatic hand- dark-colored .22-caliber backpack containing boxes of bullets. He told magazines, Riley some ammunition several gun, “heated,” was it had been in some kind of trouble. involved gun meaning residence, That went to learned from interview- night, having Riley’s police There, location. recovered gun’s Willover about ing possible some gun, ammunition extra ammunition. backpack, clips, Ballistics tests showed the matched recovered at the gun bullets scenes shootings from the victims’ bodies. It was the same had Frymire earlier type gun seen defendant in the trunk of car. place Frymire’s
That same arrested defendant at house. A few day, police Frymire’s days later, defendant called from and asked if he Frymire Frymire was prison true.” “being understood defendant to be whether he Frymire asking and not him off.” Defendant made a similar call keeping quiet “ratting Contreras.
2. The Robbery Attempt 14, 1997, On October defendant Tegerdal and were around driving center, Monterey about their lack of At a talking money. defendant shopping car, exited, woman, to a got Tegerdal ran and tried to take her stop up woman, though to the in the held on purse. falling ground to her struggle, car, Defendant ran back to the and drove with purse. gave up, away Tegerdal. Evidence Penalty Phase B.
During phase, introduced victim prosecution evi- impact husband, dence from sister and Mathews’s from Olivo’s two of her four children, 190.3, and (b) (factor her sister-in-law. Pursuant to section factor (b)), it also evidence (1) introduced of the conduct: following prior defendant son, beat the mother of his in 1995 when he frequently up including August nose, her in and the face left her with two black swollen punched eyes, a and 1995, (2) a under her in after bump eye; January becoming enraged during an sister, with his twin defendant knocked her floor and argument to the kicked her, consciousness; defendant, her causing (3) to lose a sawed-off concealing .22-caliber rifle in waistband and .22-caliber in his his ammunition pocket, went for at the looking his sister where she was treatment receiving hospital inflicted; defendant, (4) he had taken injuries by been having police released, station and later returned to the and told the police hospital who had him out to security guard initially “snitches don’t pointed police, last”; (5) in during traffic found defendant in the stop January police car backseat with one round of ammunition in his and stopped pocket, under found the driver’s seat in front him two one of which handguns, (6) used bullets of the same caliber as the bullet found in defendant’s pocket; a traffic arrested on a during July in defendant warrant and stop police (7) a knife in found in a sheath near his a traffic October leg; stop knives, defendant; found one June two near when police defendant, ran Willover was cell with defendant over to placed holding Willover and him him with nose began hitting leaving bloody repeatedly, inmate, while a jail in August and tom clothing; cell, his and riot, orders to leave refused to comply in a participated hitting to induce compliance, used spray an officer who had pepper charged it; wrote a letter (10) defendant later and and cracking his shield protective “get that he liked to in the riot and stating about his role a friend bragging with the guards. rowdy” prison (1) his history regarding from 23 witnesses testimony
Defendant presented (2) the addiction, his use including methamphetamine, frequent of drag history upbringing, his family effects methamphetamine, the effect of that history upbringing. rebuttal, that he had an who testified called expert
In prosecution and had found of witness testimony various and transcripts examined reports when he committed drags under the influence of no evidence defendant was the crimes.
II. Discussion Juror No. 58 A. *11 to allow the trial court’s decision numerous errors in
Defendant alleges her For her fear for alleged safety. No. 58 to remain on the jury despite Juror below, reasons set forth his claims fail.
1. Background 2, 2000, day guilt returned for its second jury On October when letter, deliberations, No. the court gave Juror jury phase foreperson, as a juror attention that my anonymity has been stating: brought my “[I]t 28th, a On Thursday, September for has been compromised, [¶] [this case] to observe walked into the courtroom whom I know personally person However, I me. dismissed this came as a shock to trial. As you may expect, However, this I became aware of this weekend the incident as a coincidence. I Additionally, and family. of both the defendant his as a close friend person to the been revealed already the fact that name has my became aware of understand, not make me this does of his As family. you may members [¶] safety and the My safety as a in this case. juror feel comfortable to continue my incident. Please accept because of this be in my family may jeopardy down as a on this case.” request step No. 58 Juror out of the other jurors’ presence, the court’s inquiry
Upon referred—Christy her letter to whom person first explained Jessica, conversations named a friend of a friend Page—was weekend, Jessica over the Juror No. 58 learned that was a friend Page good mother, court, of defendant’s Juror No. 58 when she came to recognized and talked about Juror No. 58 with a member of defendant’s and family, upon information, Juror No. learning 58’s husband concern about expressed their and Juror No. family’s safety urged ask court to excuse her from the Juror No. then added jury. that the information regarding Page would not affect her verdict or her to be or to impact ability impartial consider the evidence and that objectively, she did not want court her excuse from the that she jury; was not concerned about the possibility service, retribution for her jury became less concerned the more she it; thought about that she had to the given letter court so it would be just situation; aware of the and that she had not discussed the details case with anyone or received information any from Jessica about defendant or his family. events,
Based on these defendant asked the court to Juror No. 58 replace alternate, with an that the information raised arguing substantial doubt as to her to be fair. The trial ability court denied the Juror No. 58’s request, citing answers and demeanor “no demonstrable finding that she reality [was] unable to her duties as a perform juror.” afternoon,
Late that the court received a note from the Juror jury signed by No. 58 “Can we switch from the stating; to the original foreperson coforeper- son for (and purposes reading verdict(s).” The court signing) replied that the had jury discretion to change during deliberations. foreperson mistrial, Defendant then moved that the arguing was evidence request assurance, Juror No. her earlier was afraid to serve on the despite motion, had disclosed her concern to other The trial court denied the jurors. defendant’s finding arguments to be unsupported speculation commenting *12 for requests changes jury “come all the time.” forepersons up The returned its verdict thereafter. Defendant jury shortly then asked the court to remove Juror No. 58 from the The trial court jury. phase motion, denied the the absence of new noting any information. supporting trial, After the it also denied defendant’s penalty phase, motion for new which he based in on Juror No. 58’s part in deliberations. participation
2. Discussion Defendant first asserts the trial court failed to investigate adequately bias, or possibility juror misconduct. He concedes the court incompetence, at first” in a “proceeded properly conducting the letter hearing upon receiving However, erred, from Juror No. 58. it he to conduct a argues, failing to from “switch the jury’s subsequent request receiving second inquiry upon (and reading for purposes to the coforeperson the original foreperson contends, demonstra- “was an overt he verdict(s).” This request, signing) assurances, that,” “the fear of reprisal earlier tion Juror No. 58’s despite active in her thought process . . . was still she had articulated [earlier] doubt her impartial- a reason to By creating her actions as a affecting juror.” to duty investigate possible the court’s “reinvigorated” ity, request misconduct. incident “not every claim fails. As we have explained,
Defendant’s further investigation.” a conduct or warrants involving juror’s requires 21 P.3d (2001) 25 Cal.4th v. Cleveland (People bias, 1225].) juror to investigate possibility “The decision whether to retain or dis the ultimate decision or misconduct—like incompetence, discretion of the trial court. a within the sound charge juror—rests [Citation.] investigate because it fails to The court does not abuse its discretion simply trial. and all new information obtained about any juror [A] [¶]... which, if the court information where hearing required only possesses true, to juror’s ability to be would constitute cause’ to doubt ‘good proven from the case. his duties and would his removal justify perform [Citations.]” 343-344 Ray 13 Cal.4th Here, the court with 846].) any the note from the did not jury provide true, be constitute cause to doubt good information if to would proven disclose, or even hint Juror No. 58’s her duties. It did not ability perform Moreover, at, even were the the reason for the to change request forepersons. of safety note an inference that Juror No. because adequate support concerns, the verdict as foreperson, did not want to and announce sign assurances inference did not the court reason to doubt her give unequivocal would not affect the court earlier that that the information regarding Page day to consider the her verdict or her as a to be ability juror impartial impact be deliberating jurors “may evidence As we have objectively. explained, if their in the room freely reluctant to themselves express particularly act of scrutiny. very mental are immediate processes subject judicial deliberations could about the content of their deliberating questioning jurors Cal.4th at There (Cleveland, affect those deliberations.” trial fore, the deliberative to ensure the sanctity secrecy process, be as should discharging deliberating juror court’s into inquiry grounds that the and should cease once the court is satisfied limited as possible, an has not “is in deliberations and expressed in question participating *13 or otherwise committed miscon intention to the court’s instructions disregard duct, (Id. at and that no exists.” ground discharge other proper assurances, did not the trial court Given these and Juror No. 58’s principles a receiving upon abuse its discretion in conduct second failing inquiry from the jury change forepersons. request in
Nor did the court abuse its discretion to conduct further failing inquiry verdicts, when, after return of the Juror No. 58’s removal requested concedes, from the As defendant new information jury. only penalty phase he the fact that the had returned offered as basis for this was its request jury verdicts about 15 minutes after the court’s about only receiving response That information added to the switching nothing forepersons. question Juror No. 58’s her duties. the court did not ability perform Accordingly, abuse its discretion in further into the matter. declining inquire motion,
As for the denial of his new trial defendant relies on three sworn one, declarations he filed with the motion. In a defense investigator stated that, that Juror No. 58 said while she was at a soccer sometime in youth game October 2000—she could not recall whether trial in at the was progress case, time—her husband told another she was a in and the parent juror sheriff, other who was a that he knew defendant. In a parent, deputy replied second, verdicts, that, another in the case stated on the Juror juror day No. 58 “told other that she did not want to read the verdict jurors] [the because she knew someone who had a connection with the Manibusan family and she feared for her The declarant understood this statement safety.” to mean that Juror No. 58 “feared that she be in later on if she might danger declaration, read the verdict.” In the third stated two to four Christy Page court, Jessica, weeks after she had a conversation with who was appearing friend, conversation, Juror No. 58’s best Jessica told during Page about a had conversation Juror No. 58 said she had sheriff at a deputy that, baseball Juror No. 58 told Jessica at the youth game, game, that, defendant, sheriff told Juror No. 58 a conversation with deputy during woman,” defendant said “he had killed that he “would do it if “he was again” out of and he “had no did not care” and jail,” remorse and “would not change Defendant also relies on the unsworn statement his counsel made in thing.” that, trial, the new trial motion sometime after Juror No. 58 to” a “spoke[] defense and “told” him “that deliberations on the investigator morning that the verdicts were rendered she told the other day guilty jurors she did not want to verdict and she mentioned that she was sign probably concerned for her personal safety.” court,
In the trial he not that arguing, defendant’s counsel explained trial, the declarations warranted a new but were granting only sufficient to the court to conduct further Similarly, compel inquiry. appeal, defendant does not the declarations warranted Juror argue necessarily Rather, No. 58’s dismissal. he of the new information the argues light declarations the trial court erred in to conduct further failing presented, view, did In his facts that Juror No. 58 showing new inquiry. “[w]ith inform the that she was afraid of retaliation and and also that she jury why, room, friend, discussed the case outside the with her husband even with a sheriff’s of the circumstances showed totality possibly deputy,
55 misconduct more than mere speculation was based on that the of possibility further investigation.” and thus demanded of defense Page fails. The declarations argument
Defendant’s motion, hearsay. in the contain and the statements of counsel investigator, that is based on of a new trial motion evidence offered in Hearsay support to establish an abuse misconduct is insufficient alleged jury ordinarily an evidentiary the motion or to conduct declining discretion in either denying 731, 78, Dykes v. (2009) 46 Cal.4th 810 (People Cal.Rptr.3d hearing. [95 1, 491, v. Avila 1]; (2006) 38 Cal.4th 605 People Cal.Rptr.3d P.3d [43 209 1166, v. Carter 1076]; (2003) 30 Cal.4th 1216-1217 People 133 P.3d [135 1211, 553, Hayes v. 981]; (1999) 21 Cal.4th 1256 People P.3d 70 Cal.Rptr.2d 618, v. Cox 211, 645]; (1991) 53 Cal.3d People P.2d 989 [91 (Cox).) Defendant offers no P.2d 809 Cal.Rptr. 696-700 [280 351] are from this rule. Counsel’s statements deviating general basis persuasive Dykes, v. (People insufficient for the additional reason that are unsworn. declaration, 810-811.) admissible supra, though 46 Cal.4th at juror’s pp. conditions, acts—i.e., statements, conduct, the extent it or references overt events that are and the other senses—is inadmissible sight, hearing, open statement to the extent it indicates what the “understood” Juror No. 58’s juror 1150; v. Steele Code, (Evid. to mean. during deliberations § Cal.4th statements [jurors’ 225] inadmissible]; about a life sentence” “their understanding meaning Steele, 1266.) at p. to recount what Juror
Insofar as declaration juror’s purports verdict, No. 58 “told” the about read the it fails to other jurors wanting establish error. A court must hold an on evidentiary hearing alleged jury when the defendant “a misconduct shows only strong possibility prejudi cial misconduct has occurred. Even a an showing, evidentiary such upon will be unless the evidence hearing generally unnecessary presents parties’ hearing.” material conflict that can be resolved at such only P.2d Hedgecock (1990) 51 Cal.3d Cal.Rptr. 1260] routine (Hedgecock).) These restrictions are because necessary allowing “ examinations ‘would the door to harassment juror jurors postverdict open and . . . and the administration of ultimately damage justice.’ process trial he . . . aware that after sitting through lengthy [Citation.] [0]nce trial, be the most may only courageous juror himself placed prospective (Cox, 53 Cal.3d at will not seek excuse from service.’ [Citation.]” Moreover, 699.) against the extent seek jurors might guard p. “[t]o court, counsel or the by thorough penetrating intrusive posttrial inquiry (Id. these discussion of the merits of the case suffer.” Given might and Juror No. 58’s assurances to the court deliberations principles her her the information would not affect verdict regarding Page impact or to consider the evidence objectively, to be ability impartial *15 about Juror No. 58’s court did not err in the information finding trial warrant further foreperson read the insufficient reluctance to verdict motion, Indeed, trial defendant did not even cite Juror in his new inquiry. Juror No. 58. On declaration in of his argument regarding No. 58’s support issue, this the motion cited his counsel’s unsworn statements about only had Juror conversation the defense with investigator posttrial purportedly other, declaration in unrelated only No. 58. It cited juror’s support that the trial court defendant has not established arguments. Accordingly, abused its discretion in further Juror No. 58’s declining regarding inquire to serve. ability it—that a defendant’s claim fails because the
Finally, premise underlying fear of a defendant establishes bias or other grounds discharge—is juror’s v. Navarette (2003) In Cal.4th People faulty. 1182], its discretion in
66 P.3d we held that the trial court had abused defendant, a who had fear of declining discharge juror expressed that, had concerns about “Defendant assumes because juror explaining; and the of his he was therefore biased safety safety his family’s property, defendant, The record belies this his removal. against requiring assumption. if could no be longer The court asked specifically jurors report unbiased, in did not the matter fair and and juror question] pursue [the verbal to the further . . . .” Juror No. 58’s earlier assurances Again, given as a juror notwithstanding court about her to deliberate ability impartially did not abuse its in fear of on the the trial court discretion any serving jury, further into the issue. that the declarations did not warrant concluding inquiry v. Brown (See (2003) 31 Cal.4th 581-582 did to conduct declining court not abuse its discretion 1137] [trial stating jurors declarations evidentiary hearing, notwithstanding “[a]ll them as a concern that defendant’s would retaliate gang against expressed been and that one he “have thought might result of verdict” member or a member of defendant’s family”].) followed by gang Prison Conditions Jurors’ Consideration of B. a new
Defendant asserts the trial court should have granted penalty phase of evidence during jurors improperly trial in light penalty phase, He relies on information conditions. regarding solicited and received prison latter, In the a defense and Juror A.G. investigator the sworn declarations of “a lot (1) Juror R.M. worked at prison provided Juror A.G. stated inmates,” (2) like for information about what fife in was prison life, it life in isn’t much of information “showed me that while prison life,” of the most compelling still a this information “[o]ne former, death.” In the have convinced the to vote for arguments may about his conversations following investigator reported posttrial defense that Juror R.M. was asked Jurors D.S. No. 58 said jurors: about life it became he worked in state when known questions prison prison to Juror No. Juror R.M. said that was hard for according prison inmates, others, and some but not for that inmates received cable television. Defendant asserts that consideration of this information jury’s because, deliberations “constituted misconduct” to the trial grave pursuant order, court’s at trial no evidence of conditions parties presented *16 prison. on in the defense
Defendant’s
fails.
information
argument
subject
which,
declarations was
as earlier
investigator’s
hearsay,
explained, ordinarily
is insufficient
to establish an abuse of discretion in
a motion for new
denying
v.
(People Dykes, supra,
trial that is based on
misconduct.
46
alleged jury
810.)
Cal.4th at
no
basis for
Again,
deviating
offers
p.
persuasive
declaration,
from this
rule.
Juror A.G.’s
it was inadmis
general
Regarding
sible—and thus insufficient
to
an abuse of
as it
establish
discretion—insofar
state,
on,
to
or
the effect
the information on
purported
his own
speculate
Code,
1150;
and other
(Evid.
jurors’
subjective
reasoning processes.
§
Steele,
v.
People
All, then, that is left to is Juror A.G.’s argument defendant’s support statement that Juror R.M. “a lot of information about what life in provided v. Pride People was like for inmates.” In 3 prison Cal.4th 195 [10 643], 833 P.2d we a similar misconduct claim Cal.Rptr.2d rejected where a juror known other to be a cook “volunteered that by jurors prison sentenced to death are ‘watched’ 23 hours a and ‘allowed to prisoners day exercise’ 1 hour a only day, whereas life are housed in a ‘mainline prisoners ” (Id. setting’ 267.) and have a ‘far greater at We opportunity escape.’ p. are their individual explained: “[L]ay jurors bring backgrounds expected to bear experiences deliberative ‘That do so is one of process. they strengths of It is also one of its .... Such a jury system. weaknesses weakness, however, Otherwise, must be tolerated.’ few verdicts [Citations.] stand, would These were not offended here. The principles average juror [¶] worries that a inmate While undoubtedly dangerous might escape. [the juror’s] statements on this theme were based on his elaborating purportedly inside the he said what citizen experience prison system, only any might inmates assume was true—that death sentenced to are to the subjected form of and that have than tightest security fewer they opportunities escape (Id. other inmates. No misconduct or presumption prejudice appears.” life in Similarly, average undoubtedly wonders what prison about this extent Juror R.M. information like for inmates. To the provided nothing system, his own inside prison based on subject experience citizen not either assume might he information any suggests provided information available sources of true or know from the already many be television, Internet, No and other media. life in including about prison, (See In re Boyette of prejudice appears. misconduct presumption 163, told other jurors P.3d Cal.4th 530] [had movie, “no life from watching what had learned about prison jurors arisen”]; Yeoman would of misconduct or prejudice issue have ‘[j]urors (2003) 31 Cal.4th 1166] [“ at the door of be to shed their backgrounds experiences cannot expected ” and, knowledge among the deliberation room’ “common given laypersons” their involv recounting experiences the effect of drugs, jurors personal about misconduct].) did not commit ing drugs assertion,
Nor, its discre did the trial court abuse to defendant’s contrary *17 on the misconduct of alleged in not an holding evidentiary hearing tion on alleged jury have an evidentiary hearing Juror R.M. As we explained, to search for not be used as a ‘fishing expedition’ misconduct “should misconduct, held when the defense has come only but should be possible that demonstrating strong forward with evidence possibility prejudicial 419.) misconduct 51 Cal.3d at For supra, p. has occurred.” (Hedgecock, Moreover, above, failed to make this showing. reasons detailed so, did not a material had he done because evidence “present[] even the trial hearing,” be at evidentiary] conflict that resolved only [an [could] an hold such a would not have been abuse hearing court’s decision not to 119, (1997) 15 Cal.4th (Ibid.; see v. Jones 195 People discretion. [61 386, made adequate R2d had the defendant 931 Cal.Rptr.2d 960] [even misconduct, neces would not have been hearing “an showing evidentiary ‘a material conflict that the offer of did not present because sary, proof 2 ”]; (1992) Hardy at v. hearing’ People be resolved such only [could] 796, material P.2d no Cal.Rptr.2d Cal.4th 781] [“Because [5 court, did abuse its discretion to the trial it factual was presented dispute .”].) . . . in to hold declining hearing Failure to Testify Discussion
C. Jurors’ of Defendant’s trial, new or at have granted Defendant next asserts the trial court should misconduct, evidence light conducted further into possible least inquiry at trial. He relies his failure to testify discussed deliberations during jurors declaration, (1) “The fact which stated in relevant part: on Juror A.G.’s sworn (2) “It deliberations” the defendant did not came testify up that testified he would that if the defendant consensus of general on a He also relies damage by prosecutor’s questions.” himself to subject declaration, (1) stated in relevant part: defense sworn which investigator’s about the fact talked investigator] jurors Juror No. 58 “told [the (2) discussed jurors defendant did not Juror D.S. “stated testify” defendant, the jurors’ that defendant . . . did not testify.” According fact of his constitutional rights. of this circumstance violated several discussion The defense investigator’s Defendant’s argument unpersuasive. which, is insufficient as earlier ordinarily declaration is hearsay, explained, trial or an a motion for new denying establish abuse of discretion misconduct. alleged jury an based conducting evidentiary hearing Dykes, defendant offers no Again, v. 46 Cal.4th declaration, rule. Juror A.G.’s basis for from this persuasive deviating general insofar as it indicates that defendant’s failure to a role in the testify played deliberations, consideration, is entitled to no because declarations jury’s reasoning misconduct not refer to regarding alleged may jurors’ subjective Code, 1150; Allen and Johnson (Evid. 53 Cal.4th processes. § In re 336]; 264 P.3d 40 Cal.3d Stankewitz [133 1260].) Cal.Rptr. juror’s ambiguous statement about the consensus of nonparticularized “general jury” appears to fall in this It does not relate a comment category. any specific nature, made or offer direct or statements of a factual particular juror quotes but to be Juror A.G.’s characterization of and appears subjective opinion Sard v. Salt Creek Ltd. he (See about what heard. 167 Cal.App.4th 1187, 1214 absence of detail about any supporting 506] [“The to an jurors having ‘agreed’ something contrary do supposedly *18 instruction the reasonable inference that the affidavits were mere supports conclusions about the mental Insofar as the declaration jurors’ processes.”].) indicates the discussed failure it is admissible to jurors testify, defendant’s (People establish misconduct that raises a v. presumption prejudice. 1370, 368, Leonard (2007) 40 Cal.4th 157 P.3d 1424-1425 Cal.Rptr.3d [58 However, 973].) an review of the record shows no substantial independent likelihood the misconduct caused actual harm. As we have previously noted, from is natural for to wonder about a defendant’s absence jurors “[i]t 691, v. Loker 44 (People (2008) the witness stand. Cal.4th 749 [80 [Citation.]” 630, v. DeShannon 580]; (1970) 188 P.3d see 11 Cal.Rptr.3d 982, indeed [“Every lawyer, anyone 988 Cal.App.3d Cal.Rptr. [90 300] sense, common knows that . . . individual do wonder jurors why presum “ innocent defendant does not comments ably testify.”].) ‘Transitory although wonderment and about a defendant’s failure to curiosity’ testify, misconduct, . . .’ (People ‘are innocuous . technically normally [Citation.]” 699, 680, Avila (2009) 634].) P.3d 46 Cal.4th 727 208 Cal.Rptr.3d [94 statement failure “came testify suggests any defendant’s up” observations, and comments about this were brief and subject merely passing Moreover, the record because offers no basis for otherwise. concluding 60 misconduct
defendant showed neither “a strong possibility”
prejudicial
hearing,
that could
be resolved at
only
occurred nor “a material conflict”
to hold an
declining
evidentiary
trial court did not abuse its discretion in
51 Cal.3d at
on this issue.
hearing
(Hedgecock, supra,
Jurors
D. Removal
Cause
Prospective
for
next asserts the trial court erred in
for cause
excusing
Prospec-
Defendant
24, 199,
232,
death
based on their views about
tive Jurors Nos.
below,
For reasons
his claim fails.
penalty.
explained
cause if no reason
A trial court
excuse a
for
may
prospective juror
the death
could consider
juror
imposing
able
exists
possibility
prospective
240,
397,
v. Schmeck
(People
(2005)
Cal.4th
262
37
Cal.Rptr.3d
penalty.
[33
this determina
451].)
mating
118 P.3d
The trial court has broad discretion
894,
v. Moon
(People
1,
P.3d
tion.
37 Cal.4th
Cal.Rptr.3d
[32
591].)
we
the trial court’s
if the record
ruling
“fairly
On
will
appeal,
uphold
it,
the trial court’s determination as to
binding
supports]”
“accepting
state of mind when the
has made
true
prospective juror’s
prospective
v. Mayfield
(People
statements that are
conflicting
ambiguous.
[Citations.]”2
485].)
14 Cal.4th
P.2d
Prospective
as to their
often cannot
clear answers
jurors
give unmistakably
ability
court,
the death
and the trial
aided
its assessment of
by
impose
penalty,
v. Jones
demeanor,
in the
to assess state of mind.
best position
496].)
54 Cal.4th
fails to show error. In response
Under
these principles,
counsel,
court,
and from defendant’s
from
from
prosecution,
questions
issue,”
moral
she was
Juror No. 24
said
“as a
consistently
Prospective
her
to vote for a death sentence. When
ability
“unsure” about both
right
a reasonable
the trial court
if there was
subject by asking
explored
“I don’t know. I
she could consider the death
she replied,
possibility
penalty,
I
don’t know if
could.”
really
Upon
prosecution’s questioning, Prospec-
tive
No.
who
indicated she could consider
voting
Juror
initially
*19
be unable to return a
death
reversed her
and said she would
penalty,
position
when
death verdict
in a case of this nature. She
reversed
again
position
her,
could consider
defendant’s counsel
she
explaining
questioned
the trial
towards a life sentence. When
death
but was likely leaning
penalty
answers,
juror
it needed to
her about her
the prospective
court said
question
she was
“I’m in conflict.” She explained
burst
into tears and interjected,
life out on the street”
“trouble
having
seeing”
“reality
[defendant’s]
2
Schmeck,
(See People v.
to reconsider
this rule of deference.
request
We decline defendant’s
Moon,
263;
People
supra,
v.
p.
Cal.4th at
61 could vote for not know whether she told the court she did and twice 232, said she did No. death Juror upon questioning, penalty. Prospective vote for a death sentence she could believe there was reasonable possibility heard what she to base a decision ability solely upon and she doubted her concerns on her religious She based these doubts from the witness stand. knew about the circumstances: she about the death and the following the background she knew some of extensively, case and had discussed it information, These responses justified and she knew some of witnesses. Friend v. People (See the court’s decision to excuse these prospective jurors. 1, 1, 520].) 211 P.3d Defendant points 47 Cal.4th Cal.Rptr.3d [97 a different other nothing jurors’ requiring prospective responses conclusion. Failure Jurors Cause to Remove Prospective
E. for his the trial court erred in denying Defendant next asserts prejudicially 6, 50, 139, 230, and 234. to excuse for cause Jurors Nos. Prospective request defendant, the trial court should have excused these According prospective a death were biased in favor of voting because jurors impermissibly sentence. merits, First, defendant’s fails. argument
For two reasons unrelated to his forfeited his using only challenges, 19 of by peremptory 635, v. Williams People (See claim. 16 Cal.4th Cal.Rptr.2d [66 trial court error in failing 941 P.2d a claim of preserve 752] [“To in favor of the death a defendant must either remove for bias penalty, all dissatisfaction with the challenges jury exhaust express peremptory so.”].) to do Defendant asks us to selected or failure ultimately justify rule, criminal that it defendants with abandon this forfeiture asserting presents “an ‘intolerable’ dilemma”: the “unconscionable choice” between using due final even more to vote for death challenge facing jury likely box, this answers the next to be called into given by jurors preventing v. Hoyos In 41 Cal.4th People as constituted. by accepting jury 528], 162 P.3d we a similar rejected argument, could “Even assuming argument justify explaining: [the defendant’s] it is mere on this challenges, failure to exhaust his peremptory speculation there- contentions of erroneous inclusion are record. [The] [defendant’s Mills (See fore forfeited.” A similar conclusion is here. appropriate (2010) 48 Cal.4th [“acceptance 276] rule for a defense entirely, of this excuse would swallow [exhaustion] in reserve for challenges strategic case wish to hold attorney might every reasons”].) reach claim fails is even were we to
The second reason defendant’s error, defendant be unable to show prejudice. the merits and find would *20 Defendant used his to excuse all of the challenges peremptory prospective of them jurors actually so none sat on his question, jury. “[BJecause [he] challenge any sitting juror cause, did not he cannot show the court’s v. Guerra (People affected rulings right his to an impartial jury. [Citations.]” 1067, 118, 321], 37 Cal.4th P.3d italics Cal.Rptr.3d [40 merits, added.) even were on the Accordingly, argument his sound defendant would not be entitled to relief. claim,
In a related defendant the trial court argues “even-handed” in its treatment of who favored death and those prospective jurors penalty view, who had reservations about it. In his the court time and effort “spen[t] former, rehabilitate” but no such efforts” with the attempting “ma[de] also, asserts, It latter. he used different standards in applying governing rules, to excuse refusing who favored the “equivocal” prospective jurors death while excusing who had reserva- penalty “equivocal” prospective jurors tions the death about Defendant claim penalty. unsuccessfully raised this trial, several times at a motion to the venire. including through quash reasons, claim, For several on though cognizable apparently appeal defendant’s failure to his notwithstanding exhaust peremptory challenges the fact that none of the he pro-death-penalty discusses prospective jurors Whalen People v. (see on served his actually 56 Cal.4th 42-43 (Whalen)), R3d fails on its merits. Initially, 915] that, we observe the court more although than 125 questioned prospective views, about their death jurors defendant his claim premises nine: four the court comparison only for cause because of their disqualified views and five court refused to for cause anti-death-penalty disqualify their views. “The examination of such a small despite pro-death-penalty number of constitutes an jurors limited prospective extremely sample trial court’s overall thereby value of performance, diminishing probative defendant the inference he would have examples proffered by support us draw.” Martinez 47 Cal.4th Whalen, (Martinez)', see 56 Cal.4th at fn. 15 77] [trial court’s treatment of “cannot single establish prospective pattern in violation of defendant’s discriminatory questioning rights”].) addition, In to two of four jurors anti-death-penalty prospective discusses, the record belies his claim that the trial court made no effort “rehabilitate” them when views their ability expressed putting to serve in court doubt. trial its voir dire of Juror began Prospective No. 232 on her indicated had “a by she she noting questionnaire, affiliation that takes a stance on the death religious penalty” explained, “life should be cherished.” The “I think that life juror interjected, prospective is sacred and should not be taken.” The court asked whether this view would *21 She responded, in a case.” the death her “from for voting penalty
“prevent” “elaborate,” time at the same asked her to could.” The court “It possibly not she “would she “indicated” on her her reminding questionnaire, of life without possibility the death vote for either” penalty automatically “No, my I wouldn’t. I guess personal answered: The juror parole. prospective has where there—it for crimes the death should be used feeling penalty tortured, know, murders, where, are children you term like been long multiple but murder is crimes, simple a no guess more of simple—I heinous versus and, to effort qualify in an apparent a—” The court interrupted just stated, “Well, in service, a reasonable possibility there’s for juror prospective Rather than with agree death vote for the penalty?” mind that could you your court, Following “Possibly.” up, the juror ambiguously responded, affiliation, asked, you that in the get way does court “And the religious “It juror responded, the death The prospective for or voting against penalty?” When the the death in the for way voting penalty.” would get probably asked, “Because I would “How?” the juror responded, court prospective a life.” Still taking beliefs about not have to weigh my religious really asked, service, for the court juror to trying qualify prospective apparently than agree rather Again, can take life?” you “But under some circumstances court, not to take a “I would prefer juror prospective responded, explain- to the prospective juror, The court continued its effort qualify life.” mind, do think could you state of you “The is in ing, though, your question, vote, sentence in the—that it was an appropriate make if you thought that read, I unfortunately, I have “From what case?” The prospective juror replied, it, I don’t know if talked a lot about read a lot about this case and have have further, court still responding: it would a death sentence.” The justify probed that the defendant I were tell that were to assume you you “So if which involve circumstances murder and degree special convicted first forth, all those understand special murders and so on and so you multiple situation, could not vote that under that you You are saying circumstances? answered, think I would have “I death The juror for the penalty?” prospective hundred time I can’t say percent for the death So voting a hard penalty. asked, “Is it a now, The court then I a hard time.” but I think would have “No.” juror replied, could?” The you prospective reasonable possibility asked, further, could you all purposes, the court “For Probing practical The in this situation?” prospective the death on anyone impose the juror’s ambiguity think so.” Focusing “I don’t responded, there was at answers, her to get agree made another effort yet court “Well, we here the death she could impose penalty: least a possibility can’t, it’s I say one for thing you with words.” “It’s courtrooms play That leaves the possibility I don’t think so. open another thing you say juror responded, tell me about that?” prospective could. Can you you know, before, you taking person’s I feel that the death penalty, “Like I said beliefs, I, would killing, religious because of something my life is be very hard for me to vote for.” The court then it was “having explained with” the between the difficulty inconsistency juror’s comments prospective voir dire and her in her indication that she “would not questionnaire *22 vote for either” the death or life automatically without of penalty possibility The I But I parole. juror “Right. understand. also was prospective responded: there that I realized sitting later that I about some of the morning thought asked, The court then “Tell me as sit there questions.” now what you your frame of mind is in terms of able to for the being vote death The penalty.” I’m not I prospective juror sure if can what I replied, “unfortunately, separate heard, think have heard before and from what I have I don’t I could vote for the death later the the penalty.” During questioning by prosecution, prospec- answered, “No,” asked, tive when “Do juror you believe are able to vote you for the death of defendant?” this
The court’s Juror 24 featured questioning No. similar efforts Prospective her establish to serve after she views ability death expressed against that her to serve in On her this penalty put ability question. questionnaire, particular provision that, indicated if she “a prospective juror thought instructed,” law should than be different what she would have [the court] following “hesitation or reluctance about the law as instructed.” (Original dire, The court asked her underscoring.) about this answer voir during she confirmed that she would have a the law “[p]ossibly” following problem as the court it. The court then to educate her explained attempted regarding of a duty juror, “have to follow the law” when explaining jurors they that,” “take that oath.” After the “I realize juror prospective interjected, court continued “I its effort: noticed in one of the answers one of the jurors said, . . . I’ll follow law if I don’t with it because the is agree way proper I would see through legislature. . . . And that’s what my legislature. really determine this is about. ... It’s not as a what the law should your job juror be in this courtroom. Your oath as a is to follow the law job your juror with, that I instruct and our can you is to do that If job say you thoroughly. can’t, we need to know that. you That’s where I’m at.” Rather than indicate she could do what the court was asking, prospective juror responded, “Well, that, I I be would able to do but I can’t that I would.” hope guarantee Later, another, successful, the court made more to address a attempt problem- atic on the The juror’s juror response prospective questionnaire. prospective that, had indicated because of the for the death would she potential penalty, hold the to a than guilt higher standard of prosecution phase proof dire, a reasonable doubt. voir the court beyond During asked prospective whether she had heard its discussion about with other juror subject and whether that discussion would answer prospective jurors, “change [her] think in “I the reason that I said any way.” juror prospective responded, hard time that is it be easier for me to I would have a might help—since life for the death I would think judgment somebody’s passing penalty, to, more, if that be able might then I it even were able to prove if is, says if the law “But the question sense.”3 The court replied, makes standard, more would you require is the doubt reasonable beyond proof answered, later The court “No.” juror The prospective than the law requires?” indicated in which prospective response explored questionnaire consider, defendant’s like allowed her to factors the law background abuse, deciding would not be “helpful” substance or possible upbringing parole life in without possibility the death prison “whether factors “auto- sentence,” those and that she would “reject” the appropriate asked, that mean that “does The court on a sentence.” deciding matically whether or in weighing take factors into consideration wouldn’t those you or life without possibility death being sentence was appropriate, *23 answered, to trying what I was maybe “I guess The juror parole?” prospective life, then those was, else’s somebody if I couldn’t judgment—judge say put could, I’m not sure I into because anyway factors wouldn’t come play other establish um, another effort to to death.” The court made convict somebody serve, in court was to that her comment noting juror’s ability the prospective that she “would her indication in the questionnaire “a little bit different” from “Well, I thought The juror responded, consider the death penalty.” prospective weekend, if I could.” The court and I’m not sure about it over the quite she further, to what the the asking juror explain issue prospective explored death was a she said the penalty “moral[] meant on her when questionnaire “Well, that I I’m not sure for her. The juror responded, issue” prospective that I have that else’s life. I’m not sure somebody should sit in judgment further, “do think that you asking, you to do that.” The court right probed responded innocence.” The prospective juror could make decisions of or guilt that, or somebody’s guilt make a decision on she she “could although thought committed,” “not she could she was sure” innocence for the crime to it on the Explaining “need[ed] “make decision punishment.” asked, court “could her the uncertainty, about juror question” prospective that you there is a reasonable possibility envision in mind whether you your answered, “I don’t The juror for the death prospective could vote penalty?” that the determining if I could.” After prospective I don’t know really know. stated, “So the court without the parole, could vote for life juror possibility sentence, sentence, it’s for a voting particular necessarily then it’s answered, “yes,” The death that concerns you.” prospective penalty sentence, I able to being say “So it is by asking, the court followed up with that?” have some problems the death you could vote to enforce penalty, answered, “For by asking, The court concluded “yes.” The prospective juror The on anyone?” the death penalty could you impose all purposes, practical don’t know.” “I don’t know. I really juror responded, prospective response questionnaire exchange, prospective juror, explaining Just before case,” said, “I don’t “try[ing] get out of this about indicating spoken she had someone that, um, somebody else’s life.” judgment on pass feel I could that, discussion shows as to these two preceding prospective the record refutes defendant’s claim that jurors, trial court “swiftly” their remarks and accepted disqualifying discharged them without making effort at any rehabilitation. The court conducted extensive into inquiries remarks raised doubts about ability these prospective jurors serve, at times that offered them asking leading questions opportunities be, change answers. It clarify problematic as defendant may argues, the court asked these effort questions jurors its to establish prospective their to serve ability their notwithstanding views the death expressed against were not identical to the the court penalty asked the questions pro-death- However, jurors discusses. penalty of evenhanded requirement ness in questioning about their views on the death prospective jurors identical does not mandate that trial courts ask every prospective juror (Martinez, supra, questions. 446-447.) Cal.4th at Trial courts have pp. dire, broad discretion the manner of regarding voir conducting including (Whalen, supra, number and nature of about the death questions penalty. Stitely 29-30; v. Cal.4th at pp. 35 Cal.4th 540 [26 discretion, 182].) Pursuant to this courts may conduct “based on the individual questioning characteristics of each [prospective] juror, including juror’s questionnaire answers in-court demeanor.” Mills, Here, 48 Cal.4th at record shows differences notwithstanding any there was no questioning, meaningful *24 difference in the trial court’s effort to establish the to ability serve of Jurors Nos. 24 and Prospective 232 and its effort to establish the to ability serve of the pro-death-penalty jurors defendant discusses. prospective the other two
Regarding defendant anti-death-penalty prospective jurors discusses, defendant’s claim of treatment fails because their voir dire unequal left the trial court with “little responses or no cause to that believe extensive (Whalen, supra, would render them to serve.” questioning eligible 56 Cal.4th at In his questionnaire, Juror No. on whom defend Prospective focuses, ant’s argument answered in the mainly affirmative when asked if he opinions prevent had beliefs or that “religious personal would from [him] sitting judgment in of another person.” (Original underscoring.) Explaining answer, his he wrote: “I am to the death Later in the opposed penalty.” he indicated he questionnaire, the death and “[s]trongly [o]pposed” penalty “I have the death explained: since the time I have voted. opposed penalty My mother and her family Quakers are and I was to it. I am taught oppose Catholic and also me my religion leads to of a life.” He oppose taking also he indicated would “hold” the to a standard proof higher than a reasonable beyond doubt the trial’s because during guilt phase evidence,” for the death potential of the “automati penalty, “regardless vote for circumstances cally other than murder with something special penalty phase trial,” “[allways order to avoid the and vote for life murders, “convicted multiple without someone possibility parole” car, from as special an during robbery, shooting murder attempted its voir dire of The court (Original underscoring.) began circumstances.” “strong expressed that his by noting responses prospective juror questionnaire was way indicated “there no the death against penalty” [he] convictions asked, still The court then “Do you could ever vote for the death penalty.” “Yes, The I do.” court juror probed feel that way?” replied, prospective further, that you “Is there in mind reasonable asking, your any possibility death?” The vote for a someone to prospective could ever death penalty, put to the death “I don’t so. are that I’m My opposed think beliefs juror replied, was for cause required, Not satisfied penalty.” yet disqualification are both about talking further: want to make sure that we court “I probed just find the same are to the death but would Some thing. opposed penalty people Could find that it to be an in certain circumstances. you sentence appropriate to ever be an belief?” The your appropriate given prospective [sentence] No, “No. could Given the I not.” responded emphatically unambiguously, on the consistent answers prospective juror’s unequivocal questionnaire and in examine anti-death- the court’s three his response attempts “ dire, was its by views voir and ‘aided it penalty during undoubtedly ” demeanor,’ juror’s] nothing—including assessment of prospective [the that he follow the indication his could prospective juror’s questionnaire law as the court to make further by instructed inquiry. court—required (Whalen, statements [given juror’s Cal.4th 48-50 pp. prospective could, circumstances, voir dire that under no the death impose she she dismissal indication on penalty, despite was proper questionnaire and the could set aside her death and follow the law opposition penalty instructions].) court’s
Moreover, incorrect in given arguing these defendant responses, simply Juror No. 36 situated” “similarly pro-death- Prospective discusses, Nos. Jurors jurors Prospective prospective *25 139, 230, and 234. In Juror No. indicated her questionnaire, Prospective follow she the death but also indicated she would penalty, strongly supported and, the law set forth the court for a defendant “convicted of by multiple as car, murders, murder an and from attempted robbery, shooting during automatically circumstances,” “would not vote for either life without special possibility parole penalty,” death but all evidence of or the “would consider court, dire, voir the underscoring.) During and decide accordingly.” (Original whether for death asked noting juror’s support penalty, prospective “could under certain circumstances there was “a reasonable she possibility” cases, yes. for of She “In some vote life without possibility replied, parole.” ever to be But about in the before I was called just hearing this beginning, After that I about what had very happened.” explaining felt juror, strongly courtroom, not in a and what the had heard was evidence juror prospective here,” that “are decide from the jurors this case evidence supposed just asked, you court “Can set and decide from [your] opinion only aside what here this The happens juror in courtroom?” “Yes.” The prospective replied, asked, court then “Do see it as a you reasonable could possibility you vote ever for life without of The possibility parole?” juror prospective asked, “I so.” think counsel later replied, Defendant’s “based on questions here, that,” you have in it to me found seems if first murder you degree circumstances, death, and would special “you automatically vote for based on crimes, think about true?” way you these is that The juror prospective “I believe so.” replied, equivocally, Attempting clarify response, would, court mean tell me interjected, “you after the you is guilt phase over, else, before heard vote you you would for the death anything penalty, that what you are The I’m saying.” juror responded, “No. prospective saying I would choose death I have if information.” The court right information, but need inteqected, “Okay, you would some you?” wouldn’t added, juror The The court then “And prospective replied, “Right.” you circumstances, would listen to and aggravating would not?” mitigating you answered, The The juror court then concluded “Absolutely.” its questioning by asking, you “Before decided?” The juror “Before I prospective replied, decided.”
In her Juror No. indicated questionnaire, Prospective she supported death also but indicated she would penalty, follow law as set forth by and, murders, court for a defendant “convicted murder an multiple car, circumstances,” and from attempted robbery, shooting as special automatically possibility parole “would not vote either life for without or penalty,” the death but “would all consider evidence decide accordingly.” (Original underscoring.) She also indicated that factors the law background consider, allowed her to like defendant’s substance upbringing possible abuse, would be in “whether the death or life “helpful” deciding sentence,” without prison possibility is the parole appropriate that she would “reject” those factors on a sen- “automatically deciding dire, tence.” voir the court asked the her During prospective juror explain factors, “Well, answers regarding background she because I replied, would be to and feel bad for sympathetic his but I think what he upbringing, did is a thing he needs to be accountable his separate actions asked, The regardless of that.” court then “If I were to tell the law you says need certain things, to consider would I’m not to consider you you say going them, what, “Well, no matter Judge?” no. If prospective replied, law, that’s the I then would consider it. But that’s off the just top my asked, head.” To confirm the court “Then prospective juror’s position, you *26 would law?” follow that The “Yeah.” juror replied, prospective
In her Juror indicated she “be- No. 139 that questionnaire, Prospective crimes, murder,” in the death certain that the penalty including for lieve[d] sound,” and Biblically “is she this was that death way penalty reason felt law as set forth follow the consider the death would penalty, that she would not court, evidence and would on the would base by punishment or the death life parole vote for either without automatically possibility in determin- factors reject background would not penalty, automatically to her clarify voir dire on the court’s effort sentence. The relevant focused ing the court’s Upon statement that the death sound.” “Biblically penalty “Well, called for in it’s initial questioning, prospective juror explained: Leviticus, a I can be So that’s believe that it why imposed.” actually. “[I]t’s in that. And that’s is and I believe given Biblically command [that] is a sound as it That the death sound—is as far only—that’s goes. penalty would always that mean you matter.” The court followed “Does by asking, up During “No.” the death The juror replied, impose penalty?” prospective counsel, juror by prospective defendant’s questioning subject added, “a “it is indicated that the death Biblical truth” and stated penalty taken, that, a life is it be the Bible that of the law if man’s should yes, as part whether, then asked redeemed with another man’s life.” Defendant’s counsel circumstances, if “which gives you she found first murder degree special to system law the to vote the death belief as by right your for would penalty, well, now I must vote for the say, kick in time and religion point “I believe I would juror death at this The penalty point?” replied, prospective have to do Yes.” The court had an with exchange prospective that. then It indicated to “to her answers. “You had juror clarify” began by asking, . . . Biblical got your . . . that if to the you penalty phase, [defense counsel] I vote the death did you would kick in and would something penalty, “Yes, I would replied, understand what said?” The you juror prospective he it with extenuating vote for death also said with—was penalty The circumstances.” interjected, “Special circumstances was the—” court circumstances, continued, The then juror “Special beyond prospective circumstances, doubt, I shadow of a if he was found guilty, special death I “Okay. believe I would stand for the The court responded, penalty.” to I After clearly.” want make sure understand this explaining doubt, doubt, standard was reasonable shadow beyond applicable continued, to meant when you you the court “So can me what you explain in? what I’m not understand- said that Biblical views would kick That’s your “Well, went trial through if we ing.” juror responded, prospective instructions, and we then according your the defendant was found guilty, be The court there would went into phase—” interjected, “[a]nd continued, “Right. further instructions there also.” The prospective I to be fair as my Which I course listen to because feel it’s as duty would of in this courtroom I would have know other humanly possible. people would, could a life but I believe I without a doubt there was reason take if there were no I believe I could vote for the death penalty, do that. mean I I me where “No and the instructions led point doubt.” reasonable doubt *27 “Well, asked, had to make that The court you decision.” then would follow the law that I is that give correct?” The you; juror prospective replied, asked, “That’s correct.” its court absolutely the “Would Concluding inquiry, clouded, however, the your view of law be in vote in your determining penalty Biblical views?” The “No.” by your prospective juror responded,
In her No. questionnaire, Prospective Juror 230 indicated she the supported death that “certain crimes penalty, explaining warrant” that definitely punish- ment and that crimes are so the unforgiveable guilty party “[s]ome deserves to be removed from She also indicated she society.” would follow court, evidence, the law as set forth the by would base on the and punishment would not vote for life automatically either without of parole possibility the death she indicated that the penalty. Finally, factors law background allowed her to consider would not be in the deciding between death “helpful” and life without penalty of and that she would possibility parole, “reject” those in on factors a sentence.” relevant “automatically deciding During the dire, voir the court asked she juror what meant an prospective by crime.” The “unforgiveable “I think an prospective juror taking responded, innocent life. who is When person’s Somebody probably age, young ages.” life young is taken “I it person’s away, think needs to be The court punished.” “Well, do responded, see as a reasonable you possibility punishment being death in that penalty just situation described?” The you’ve “Yes. prospective juror If I’m with the evidence that responded, presented death, says shouldn’t be I put yes, could.” She then answered when affirmative the court asked she that” whether “could listen to factors the bad “weigh good factors and then make a The decision.” asked, court then “In some these situations that talked about with you’ve could see own young you mind life without people your imposing possibility parole?” “It would prospective juror depend responded, I circumstances. don’t feel that—I asked know is questions you’ve life, that have previous things in the experience, happened person’s past would I consider that as an excuse and have that life being imprisonment I to death. don’t think so. I think that opposed whatever crime is what should be. Not on if had punishment really based a hard time in they’ve “Well, their The court history.” responded, law doesn’t allow that. The crime, law after this can’t says there’s second Jurors based phase. just say circumstances, on that crime and those the death or life special without have to listen other factors under possibility They parole. the law of then mitigation make a aggravation, Weigh determination. those and come with a decision one or the other for one or the up way choice other. Can do that?” The “Yes.” you prospective replied,
In his Juror No. 234 indicated he questionnaire, Prospective strongly the death did the or she supported “If crime he penalty, explaining, person it.” should He indicated he would on the pay punishment also base *28 of evidence, without possibility for either life automatically not vote would law instructed by follow the as or the and would death parole penalty, under- court, from his previous if were different even the court’s instruction or reluctance would have “hesitation of He indicated he the law. also standing following law of the he a thought particular provision about the law” if underscoring.) (Original instructed.” “should be different than what [he was] answers, whether voir dire the court asked these Exploring The law I tell you?” following would “hesitate juror prospective The court then asked you say.” “follow what juror replied, prospective The to his on the death penalty. view expressed prospective juror explain sir, “Well, it, need for it. And if did to they pay juror replied, they prospective If hang how die. they they I tell if shoot that’s you, they somebody will how How commit the murder is they that’s how should die. somebody, they the law doesn’t The court “You understand that go.” should they responded, “I that. how I feel.” that.” The know That’s juror allow prospective replied, choices, continued, if we to get The court “But the law does allow for two The only juror interjected, two choices.” penalty phase, prospective continued, life The “One the death and the other is “True.” court it, can When should for you say pay without possibly parole. person tell me mean those two choices?” The you prospective juror what within you doubt, answered, “Well, death if he have done it without no proven [is] waiver, be, not, If there is a could then it’s penalty. may imprisonment asked, answer, the you life.” confused court “Can Understandably by catch to me that latter were I didn’t explain you just saying? quite part on it.” The “If the votes life juror imprisonment, prospective replied, then I will it.” The court “Would that be go along just with responded, an- because the are The others with that.” going along prospective juror swered, do “No. The court “You understand that both really.” Not explained, The juror.” sides have individual view of each right prospective [the] answered, of background “Yes.” The court then turned to issue juror factors, he had indicated on his why juror explain asking prospective that such factors would not be determining punish- questionnaire helpful “Well, how treat The it juror depends they ment. prospective responded, then could is what I meant. treat wrong constantly, If people people factor, asked, “Did hear you my be a as far as I’m concerned.” The court then The juror earlier about and bad factors?” good prospective explanation asking, it.” by “Yes. I The court concluded its replied, go along inquiry do.” make mind as to what to you your “Would listen to those before you up The “Yes.” prospective replied, assertion, shows to defendant’s contrary
The discussion preceding not to those of these were similar jurors responses pro-death-penalty No. who Juror No. Unlike Juror repeatedly, 36. Prospective Prospective death his inability declared consistently, unequivocally impose these penalty, pro-death-penalty prospective jurors gave conflicting, equivo- cal, and/or answers that called for further ambiguous extent inquiry. difference, the court’s reflects this treatment questioning properly unequal Thus, situated similarly jurors. the record confirms the Peo- prospective view that difference in the ple’s “[a]ny number and nature of questions” the court asked these “was on the jurors based need to prospective gain definitive understanding potential juror’s position.”
The record likewise that shows Juror No. who is the last Prospective discusses, anti-death-penalty juror defendant is not similar to the prospective discussed above. In her pro-death-penalty jurors questionnaire, Prospective Juror No. indicated had (1) she no beliefs that would her from prevent another, instructions, (2) would follow the as stated the judging law court’s (3) both would “consider” the death had no “supported]” penalty, not, a religious affiliation took stance the on death would penalty, evidence,” of the “regardless “automatically vote for other than something penalty phase murder with circumstances in order to the the special avoid of trial,” not would vote for life automatically either without possibility of or the death but all parole “would consider evidence and decide penalty, accordingly.” underscoring.) She also indicated she would (Original “hold” the to a standard of than proof higher beyond reasonable doubt the trial’s because of guilt In phase for death potential penalty. her on death “I explaining she wrote: have position some penalty, but too religious many conflicts men and feel is gangsters a status prison in a symbol, being We need the part gang. threat Death probably Asked to her Penalty.” explain how death views had penalty changed over time, “I she was for it than I now.” responded, stronger am
The court its began this death inquiry regarding juror’s penalty prospective the “religious views about conflicts” her by asking mentioned. questionnaire The “If I’m for someone to prospective juror responded, responsible sending death, his is that to on or on reflect me God when I The court going go.” asked, “do have some The you concerns about that?” prospective juror answered, it, “Little bit of concern. I’m in conflict If the over know. you is done person truly guilty they’ve they some terrible then things, maybe deserve die.” The court ended its initial whether there inquiry by asking was “a reasonable could for either the juror vote possibility” prospective death or life without The possibility parole. prospective juror answered, whether, “Yes.” The later asked the prosecution prospective juror this, “in a case such as are able to for defendant.” you against vote death this answered, The “I don’t think so. I don’t think I could.” prospective juror Defendant’s then is “[N]obody counsel issue follows: pursued going tell have vote death in case .... here is you this The you only question be will able to consider death and life if to that you you got portion trial in had to do that?” you which make determination. Could The you would consider death but I probably “I could juror responded,
prospective it juror The court told the prospective lean the life imprisonment.” towards to the her responses based on” questions, ask couple [her] “need[ed] in conflict.” The “Pm interjected, The prospective juror attorneys’ questions. continued; have that I could you “I On the one hand stated court can see that. death, I vote for I don’t think could you consider and on the other hand said two answers and how Can those you please death of defendant. explain The for you, tough.” I can this is emotional pretty pretty feel here? see you me, stated, sir,” and the court “Note “Excuse juror prospective responded, “I continued: is juror the witness crying.” prospective [sic] what’s trouble seeing probably here . .. Pm very having sitting respectfiil tried to out The court man’s life on street.” reality of young [the] “What’s issue stating: direct the focus to juror’s prospective question, could you here of mind based whether your question state vote for death. you death and or not don’t think could you consider whether “I are know Those inconsistent.” After prospective responded, are,” asked, that we inconsistency, the court “Can so you please explain *30 “If the know what state of mind is?” The your juror responded, prospective crime, it case and a if was really a heinous prosecution really presented asked, I The a terrible crime and—I don’t know sir. don’t know.” court “Does the death The you you that mean don’t know if could impose penalty?” answered, it.” I don’t know if I could do “That’s correct. prospective Juror No. was The discussion demonstrates that preceding Prospective not, asserts, the he similarly jurors as defendant situated to pro-death-penalty dire, the the doubts increasing discusses. Over course of voir she expressed in her the death a ability culminating sobbing about to impose penalty, conflict” and did not know whether she could she “in proclamation a the death are factors trial “Visible emotion nervousness impose penalty. demeanor, is highly court consider in which may evaluating juror’s properly (People v. Clark relevant to a trial court’s ultimate determination. [Citations.]” 243].) 261 P.3d 52 Cal.4th 897-898 Indeed, the trial court is when particularly appropriate” “[d]eference juror, court bases its on its observations of ruling prospective personal “ confidence, voice, of level of ‘the tone including person’s apparent ” v. Cowan (2010) 50 demeanor.’ Cal.4th Here, 1074].) excusing the trial court it was explained and “the Juror No. 199 because of her inconsistent answers Prospective in the record Nothing she showed” its emotionality questioning. defendant discusses ex- suggests any pro-death-penalty jurors Thus, or emotion. that the trial court conducted reflected similar pressed Juror reflects the differ- different voir dire of No. 199 Prospective properly answers, or treatment. rather than bias unequal ence in prospective jurors’ reasons, the extent and nature insofar defendant claims For the as preceding trial court’s voir dire were different for pro-death-penalty prospective jurors his claim anti-death-penalty jurors, fails.
The remainder of the voir dire record further refutes defendant’s claim. It shows that court excused several jurors pro-death-penalty prospective after conducting brief examination similar to the very examination of Juror Prospective No. anti-death-penalty juror on whom prospective defendant It focuses.4 also shows that principally court attempted rehabilitate several anti-death-penalty jurors prospective precisely manner defendant now it have: claims should whether could by asking follow law and the death consider their penalty notwithstanding personal it.5 “These illustrate the opposition examples court’s effort to be fair.” (Whalen, reasons, 56 Cal.4th at For the defendant’s preceding claim fails.
Defendant’s claim that the court different standards in deciding applied whether to excuse the two also groups jurors fails. When prospective trial, defendant raised issue at this the court stated it had the same applied standard to both whether the groups jurors: views either prospective juror’s or him her “from “prevent” “substantially of his or impair” performance her duties a juror in accordance with the juror’s instructions and oath.” As brief, (See Whalen, concedes in his correct standard. 4 For having after example, Prospective explain Juror No. her views on death asked, penalty, the court “does that you automatically mean that would vote death asked, penalty?” prospective juror replied, probably “I you would.” The court “do see it as possibility person’s a reasonable case degree, in a where been convicted murder the first *31 circumstance, you ... a special impose parole?” that could possibility life without of “no,” juror the prospective replied, After the her questioning. court excused without further 109, 149, 163, 216, court Prospective The conducted a similar voir dire of Jurors Nos. and 231, all the of whom court excused cause the support penalty. for because of their for death summarizing After anti-death-penalty Prospective the views Juror questionnaire No. 64’s reflected, asked, you responses juror you you’re the court “if as a sat here and I told that law, your to the being instructed follow based on to impose conscience not able the death answered, penalty, you could do The prospective juror Morally that?” “I could I not. could Similarly, not.” The court then excused her. exploring after Juror No. Prospective 146’s asked, opposition penalty, you to the death the court “If you I were to instruct had to penalty], you violating the death would be do your [consider able to that without conscience?” mistaken, juror prospective replied, The I not “if am it earlier stated this was afternoon asked, given.” you such instructions are not The court practical purposes, “For all could ever answered, anyone?” the impose penalty juror death on After the prospective “I don’t envision it,” Prospective the court excused him. After Juror No. indicated did “favor the he not asked, cases,” penalty only death at all” and would it consider in “extreme the court “Could you vote penalty for the death at all the it appropriate if evidence indicated was an sentence?” could,” juror prospective asking, The “I I and responded, up by think the court followed “So possibility your imposing penalty?” juror there’s reasonable mind the death answered, not, know, just prefer you go I to “Yes. to there. I wouldn’t want make that choice. continued, that, put way.” requires you you Let’s it that The court if the can “But law to do The prospective responded, follow law?” “I think so.” to defendant’s shows contrary 56 Cal.4th at The record
assertion, All of this standard and evenhandedly properly. court applied on defendant discusses indicated jurors the pro-death-penalty prospective would the law as dire that follow their and/or voir questionnaires instructions, not death automatically set in the court’s impose forth would evidence. The and sentence based on all would determine penalty, to were never able defendant discusses anti-death-penalty jurors prospective from notwithstanding questioning commit to all of these propositions, court, Juror No. 36 Prospective and/or defendant’s counsel. prosecution, an find the death be to the view that he could never penalty adhered the court No. 24 could assure Juror punishment. Prospective appropriate be if the law should thought would the court’s instructions she that she follow could death or that there a reasonable she impose different possibility in tears that she on Juror No. 199 penalty anyone. Prospective proclaimed could death was “in conflict” did not know whether she impose heinous,” Juror “terrible crime.” Prospective even for penalty, “really “no” asked whether there was reasonable possibil- No. answered when could did not think she could she death stated she ity penalty, impose i.e., situation,” the death “on in this “convicted of first anyone impose and the circumstances which involve murders multiple murder degree special forth.” This record does not defendant’s claim and so and so support the trial standard governing court unequally applied pro-death-penalty jurors anti-death-penalty jurors. prospective prospective Discriminatory Peremptory Challenges E Allegedly Defendant next asserts the used prosecution peremptory impermissibly jurors discriminatory Regarding excuse reasons. challenges prospective the 18 chal- jurors using excused prospective prosecution peremptory women, three one to removal of African-American lenges, objected woman, woman, man. He argues Asian one and one Hispanic Hispanic used criteria exclude gender-based race- prosecution unconstitutionally and that is therefore jurors, required. these reversal A when defendant alleges trial three-step procedure applies First, the defendant must make challenges. use discriminatory peremptory *32 a on a facie the exercised based showing challenge that prosecution prima Second, case, a then criteria. if trial court finds facie prima impermissible Third, challenge. must offer reasons for the nondiscriminatory the prosecution justification the trial court must determine whether the offered prosecution’s whether, circumstances, the defendant credible and in all relevant light Lenix 44 Cal.4th (People has shown race discrimination. v. purposeful (Lenix).) 602, 98, “The ultimate burden 187 P3d Cal.Rptr.3d [80 946] with, motivation rests and never shifts persuasion regarding [discriminatory] (Id. from, 612-613.) at pp. [defendant].” we
On review the trial court’s determination “exam appeal, deferentially, ining whether substantial evidence its only conclusions. supports [Citation.]” (Lenix, 44 Cal.4th at “We that a uses presume prosecutor in a challenges constitutional manner deference to peremptory give great the trial distinguish court’s to bona fide from ability reasons sham excuses. as the court long So trial makes a sincere and effort to reasoned [Citation.] offered, evaluate the justifications its are en nondiscriminatory conclusions titled to deference on (People Burgener appeal. [Citation.]” 1].) standards, Cal.4th 62 P.3d these Applying defendant’s claims fail. No. 20 Prospective Juror
1. The used its first prosecution peremptory challenge against Prospective Juror a No. 44-year-old African-American woman. Defendant objected, entire noting that the contained six jury African-Americans. The pool only trial court asked the to give reasons for the thus prosecution challenge, v. Lewis case. impliedly finding prima facie 43 Cal.4th (Lewis).) In response, prosecution 947] that had on her explained indicated that prospective juror questionnaire she the death and had opposed given the reason for her following “I believe opposition: innocent been to many have death people put wrong The then fully.” noted the court’s prosecution “she questioning, said she could vote for and that a more possibly death “life is penalty” severe ended punishment.” noting its that the prosecution explanation by had sat on a prospective juror “hung murder case. jury” previous reasons, the last of Addressing only the stated defense counsel responded served, had not on a but failed on a prospective hung jury, to deliberations because several became ill. The trial court complete jurors then overruled defendant’s “It’s a use of a objection, explaining: proper peremptory challenge.” claim that
Initially, reject we defendant’s the trial court accepted simply “at face prosecution’s proffered justifications value” failed to its perform sincere, to duty meaningful make reasoned evaluation of justifi those Lewis, cations. In we similar “The trial court rejected argument, explaining: denied the after motions relevant voir dire and only observing listening reasons strike prosecutor’s any argument defense supporting [the] the record that the trial court supporting Nothing suggests motion[]. either was unaware its evaluate the duty credibility prosecutor’s Moreover, reasons or that it failed to the trial fulfill duty. [Citations.] court was not required findings its question prosecutor explain because, the record as we neither will reasons were explain, prosecutor’s (Lewis, nor the record. inherently unsupported by implausible [Citation.]” *33 (See here. is 471.) A similar conclusion 43 Cal.4th at appropriate 214, 630, v. Williams People 299 P.3d 56 Cal.4th Cal.Rptr.3d [156 1, Jones People 1185]; Cal.Rptr.3d v. 51 Cal.4th [121 82].) 247 P.3d the also that the record fails to support
We defendant’s claim reject the the explanation, trial court’s determination. Consistent with prosecution’s stated her record shows that Juror No. 20 in questionnaire Prospective that the death because she many she responses opposed penalty “believe[d] stated a innocent have been to death She also belief put wrongfully.” people than death. She that life without was more severe punishment parole her to the in court. reaffirmed death penalty upon questioning opposition answers the with for the legitimate grounds These prosecution provided Juror No. 20’s acknowl peremptory challenge, notwithstanding Prospective that there was “reasonable possibil the court’s edgement upon questioning that, there, are could the death “if the she vote for ity” penalty specifics v. People (See would be judge fairly way able to on which go.” [she] Salcido (2008) 44 186 P.3d Cal.4th 139-140 437] (Salcido) exercise [prosecution “may challenges against prospec peremptory tive who are not so to the death jurors intractably opposed penalty , . . are for cause . but who nonetheless are subject challenge substantially McDermott penalty”]; to the death Cal.4th opposed (McDermott) challenge [upholding 874] based belief that life sentence is more severe than prospective juror’s death].)
Defendant asserts the “actual the offered for the prosecution reason” was the “service on a challenge juror’s previous ‘hung’ jury,” prospective her views about death He because penalty. argues prospective not, fact, did on a served on a that failed serve but hung jury, jury ill, because became deliberations several complete jurors prosecution’s reliance for stated on her service “shows prior jury explanation [its] is for a hidden challenge merely pretext discriminatory purpose.” reasons, First, For several is defendant’s argument unpersuasive. above, shows its concern about the prosecution’s explanation, quoted not, asserts, the service was as defendant “actual juror’s jury prospective prior one additional reason” offered but was prosecution challenge, just reason offered prosecution citing prospective juror’s opposition after death her view relative to life to the of that penalty’s severity Second, her regarding prior imprisonment. prospective juror’s testimony service to the court’s vague Responding quite incomplete. can only prior she stated: “The that I remember thing inquiry, [that had to do farm workers. murdered else somebody Someone case] *34 just about all I remember because I don’t think we labor And that’s camp. went all the actually way through because process everyone that was on were jury, alternates hurt or always getting somebody falling down. So I think kind of diminished everything started all over remember, I don’t know, again. it a you going (Italics full trial.” through Thus, added.) it is unclear from the record that the statement prosecution’s course, was even mistaken. Of the circumstance that a has prospective juror sat on a previously is a hung jury race-neutral neutral legitimate, reason for v. Farnam (People exercising 107, strike. (2002) 28 Cal.4th 137-138 [121 106, v. Turner 988]; 137, 47 P.3d Cal.Rptr.2d 8 Cal.4th 170 [32 762, 878 P.2d Cal.Rptr.2d 521].) Given the prospective juror’s vague uncertain testimony, could be prosecution rightly concerned about her service prior on a in a murder case that failed to reach a verdict. mistaken, even had
Finally, been the trial prosecution court did not err in rejecting defendant’s As we have challenge. “an isolated explained, mistake or misstatement that the trial court recognizes as such is generally v. Silva insufficient (People to demonstrate intent. . . .” discriminatory 25 Cal.4th is, 769].) ‘mistake’ at “[A] least, ‘reason,’ is, very a coherent for the explanation peremptory It challenge. for counsel to err self-evidently possible when exercising ... peremptory challenges. genuine ‘mistake’ is a race-neutral reason. [A] errors, clerical Faulty memory, and similar conditions that might engender a ‘mistake’ ... are not associated necessarily reliance on impermissible v. Williams (People presumed bias. group 16 Cal.4th [Citation.]” Thus, 188-189 P.2d 710].) of a purpose hearing on an objection to “is not to test the peremptory challenge prosecutor’s but to determine memory whether the given reasons are and race genuine [or Jones, supra, neutral.” gender] 51 Cal.4th at Where the p. record that a suggests mistake underlie the may exercise of prosecution’s “ ‘we peremptory challenge, on the rely good judgment trial courts to bona distinguish fide reasons . . . from sham excuses contrived belatedly ” discrimination,’ to avoid acts of admitting group “give great deference to the trial court’s determination that the use of challenges was peremptory (Williams, not for an or class bias improper purpose. [Citations.]” 189.) Given the ambiguity regarding juror’s prospective prior jury other, service and the prosecution’s articulation of unquestionably legitimate grounds for the we find no error in the trial challenge, court’s ruling. Juror No. Prospective
2. used third prosecution its challenge peremptory against Prospective Juror No. a 51-year-old African-American woman. Defendant’s counsel in the objected, answering affirmative when court asked if the objection the dismissal of Prospective objection the “same issue” as presented saying simply, then turned to prosecutor, No. 20. The court Juror stated in *35 question- “The juror Alkire.” The responded: [the “Mr. prosecutor that would or or beliefs opinions that she had religious personal naire] checked the box another She in of sitting judgment person. her from prevent my Based on am one of Jehovah’s Witnesses. and answered I yes, that says of have been a number in there selecting juries, past history personal statements have made similar when Jehovah’s Witnesses occasions That or goes guilt to sit in judgment. indicated were unable they that, in answering question further this case.” The prosecution explained in “the No. only Juror about her views on the death penalty, Prospective neutral, and called it a new and she category, who invented juror prospective sentence another I cannot sit as juror checked it. And then she explained, twice. and underlined the word judge human to die. I am not being judge, Further, asked,] do you there a reason feel why you particular [when said, human on being death I cannot another yes, judge about the she penalty, mankind.” Finally, either. This is our creator’s right judge this who was investigator, added: this discussing juror my prosecutor “[I]n in which sort of back- her answers to the court’s observing questions between a reference tracked from this and created kind of artificial distinction views, felt and her he religious personally to the four walls of the courtroom I truthful in to create that artificial distinction. trying that she was not being her.” have a bad about feeling “This does
In defendant’s the trial court then stated: overruling objection, I do challenge. to me to be a race biased use of a peremptory appear . . . where she remember well this in the juror questioning, quite' particular do did make a in but could wanting judgment differentiation between sit under civil law. I do not that because she had to submit to the civil authorities see this as race based.” being are For reasons
Defendant’s to the court’s challenges ruling unpersuasive. above, the trial court failed to set forth insofar as defendant claims perform sincere, evaluation of the to make a and reasoned meaningful its duty reliance on the we We also his disagree. reject prosecution’s justifications, would, dire, “if called stated she juror fact voir prospective service,” to follow the law.” the laws of the land” and “have into jury “obey statements, was entitled to on rely these Notwithstanding prosecution sitting did not believe in earlier statements she juror’s prospective another could not sit as a to sentence of others and she judgment Lewis, “reason- (See 43 Cal.4th at [prosecution to die. person some “reflecting] could answers have believed” ably questionnaire feelings “true juror’s about the death showed prospective hesitation penalty” automatically dire that she would not and undermined her assurance voir vote for life without possibility parole”].) imprisonment 3. Prospective Juror No. 47 used its fourth prosecution peremptory challenge against Prospective
Juror No. man. Defendant’s 33-year-old counsel Hispanic objected, indicated his intent to each time the object prosecution challenged minority, and added: “This is a Latino man of 33 Answered his years age. questions in the he would consider the death He questionnaire, was not penalty. automatic in either direction. Doesn’t have I recall as anything being particu- to the or larly pro to the defense. And he prosecution negative as much gave Honor, Latin, Latino, as anything, your people extraction have a to be on a right and this is not our jury country right client’s only right to have a cross-section of the but his to be on the community right *36 case, other no facie juries.” Finding the trial court prima overruled objection without asking state reasons for the prosecution challenge. with,
The trial court did not err.6 To begin defendant’s was showing his counsel did more meager; nothing than out that the point prospective was that he said he would consider the death Hispanic, and that his penalty, answers were not in favor of the to the particularly prosecution negative Next, defense. the record does not show that the used prosecution dispro- number of portionate its peremptory challenges against members of Prospec- tive Juror No. 47’s ethnic and does not group disclose how other many were in the It is also that Hispanics jury pool.7 is not a significant member ethnic v. Bell group. prospective juror’s 40 Cal.4th 292].) 598-599 the record Finally, discloses obvious race-neutral reasons for excusing he prospective juror: and two of his brothers had been convicted of previously crimes prosecu- Office, tions conducted District by Monterey County Attorney’s same office that was defendant. The could be prosecuting prosecution rightly concerned about these circumstances notwithstanding prospective juror’s statement his he did not have a despite experiences, negative opinion record, law enforcement or the district office. On this the trial court attorney’s did not err in no facie case. finding prima Juror No. 32
4.
Prospective
The
used its
prosecution
eighth peremptory challenge against Prospective
Juror No.
African-American woman.
44-year-old
Defendant’s counsel
Court’s decision in Johnson predated
Because the trial here
Supreme
United States
2410],
exactly
objected, arguing
grounds
disqualification
that the
had used three of the
noting
eight peremptory challenges
prosecution
women,
one
leaving
it had exercised to remove African-American
only
African-American in the
Without
for the court’s
jury pool.
waiting
response,
is a woman
. . . stated she is not
interjected:
really
“This
who
prosecution
sure if she could vote for the death
She is a
whose brother
penalty.
person
himself
for
and armed
I’m
concerned
robbery.
always
assault
prosecuted
when
have close relatives like that who themselves have been
jurors
pros-
addition,
ecuted on serious
In
she is someone who feels the death
offenses.
out,
an
made to think about the
is
should be
easy way
person
crime
than
and the death
rest of their life rather
take
easy way
Between this
that that’s the easier
out and the fact that
penalty.
feeling
way
she
she
sure if
could
for the
said
she
vote
specifically expressly
really
death
I am
uncomfortable with someone
on the
penalty,
extremely
sitting
jury
who herself can’t vote for death.” Defendant’s counsel
that the
interjected
answers were neutral and that the
use of
juror’s
prospective
prosecution’s
four of his first
to remove racial minorities sent a
eight
challenges
peremptory
about their lack of
“chilling message
equality.”
prosecution replied
most of the
then seated on
were minorities and that no basis
people
existed to infer that it was
out minorities in
singling
exercising
challenges.
its
The trial court overruled defendant’s
“I do not believe after
objection, stating:
*37
that
listening
this is race based.”
prosecutor]
[the
Defendant’s
to the court’s
are
For reasons
challenges
ruling
unpersuasive.
above,
set forth
insofar as defendant claims the trial court failed to perform
sincere,
its
to make a
duty
reasoned evaluation of
meaningful
we
prosecution’s
justifications,
We also
his attacks on
disagree.
reject
true,
stated
for the
prosecution’s
grounds
It
as defendant
challenge.
observes,
that the
dire
juror stated
voir
that she had
prospective
seen her brother for about
that she could vote for the death
years
case,
in an
penalty
Notwithstanding
on
evidence.
appropriate
depending
statements,
these
was entitled to
on the
prosecution
rely
prospective
familial
to her
that
juror’s
convicted brother and her statements
relationship
out,”
she considered the death
“an
that
easy
be
convicted
way
murderers
made
“should be
to live the rest of their life to think about
crime,” and that she leaned
it
towards
life sentence because she considered
Salcido,
139; Lewis,
supra,
(See
to be more severe than death.
44 Cal.4th at
p.
474; McDermott,
supra,
5. Juror No. Prospective against used its 13th challenge Prospective The prosecution peremptory Defendant’s counsel objected, Juror No. woman. 46-year-old Hispanic had used five of the 13 chal- that the commenting prosecution peremptory minorit[ies],” “ethnic that those challenges it had exercised to remove lenges minorities, and had free of resulting jury produced jury primarily After Juror noting would be “overwhelmingly nonminority.” Prospective had challenged No. 156 was second only Hispanic person prosecution Caucasians, the challenges against and that he had used most of his prosecu- weak on the death she Although tor “She is extremely penalty. explained: it, the box that said will consider she then failed to put any checked and her the court when she explanation explanation [her answer] [to] and evidence it was that after avenue of gave only every testimony finally the death She also was exhausted would she consider begin penalty. death Also characterized it as difficult for her to consider the very penalty. consider the death In characterized it as a she possibility might penalty. did not understand either of the basically answer to she questions I here. She has no Based on what saw questions prior experience. she is her those as well as out this answering filling questionnaire, questions, case, I can tell.” to come back with a death verdict in so far as any not going “I think then defendant’s didn’t objection, stating: trial court overruled is race based.” challenge exercise of his peremptory are For Defendant’s to the court’s challenges ruling unpersuasive. above, the trial court failed to reasons set forth insofar as defendant claims sincere, and reasoned evaluation of its to make a duty meaningful perform on the we We also his attacks disagree. reject the prosecution’s justifications, that the argues stated for the Defendant grounds challenge. prosecution’s and no about the death “had no whatsoever qualms penalty” prospective *38 concerns were for the reliabil “reservations about that morality,” “[h]er [its] itself,” convictions, and that “the the nature of the penalty of ity about that would want to be careful very of answers was she gravamen [her] that be to death and want to be sure a who could convicting sentenced person deserved the This two argument ignores prosecu person penalty.” that the had no jury experience tion’s stated concerns: prospective juror prior are on the These and did not understand two of the questions questionnaire. a exercising challenge. for nondiscriminatory grounds peremptory legitimate, 769, 74 P.3d (See v. 31 CalAth 925 Reynoso Cal.Rptr.3d People [3 Turner, Cal.4th at 169 v. People supra, of jury experience]; 852] [lack a one-sided view understand].) Defendant’s also takes argument [ability dire, voir the prospective answers. juror’s During prospective for death and that she “it be difficult” for her to vote very indicated would testimony after avenue of every could consider that penalty “only evidence was exhausted.” Although these statements have been may equivo cause, cal enough avoid for they disqualification provided legitimate, for challenge. nondiscriminatory grounds a exercising peremptory Jurado 38 Cal.4th 400] “ ” statement [prospective juror’s she would ‘find it difficult’ to vote for death basis” for “provided permissible exercise of challenge]; peremptory Salcido, 44 Cal.4th at pp. 139-140 exercise [prosecution “may pe remptory challenges against who are not prospective jurors so intractably , to the death opposed are for . . . subject challenge cause but who nonetheless are to the death The substantially opposed penalty”].) record thus the trial court’s supports ruling.
6. Prospective Juror No. 200 used its prosecution 16th peremptory challenge against Prospective Juror No. woman 40-year-old who was bom and raised in the Defendant’s Philippines. counsel objected, “The stating: motion is that Wheeler simply Asian, indicates this woman both being minority but recall, also I think if the court will and I don’t have accurate statistics up this moment. In the exercised, first 13 challenges were prosecutor women and three were of men and now I don’t know what the number now, three, but it’s least 11 to I don’t know what the last have been. couple But seems to me that there box, are a number of women that are left in the seems to me there is an exclusion of undue exercise of peremptory challenges as to women.” The issue,” court interjected, “This is to which gender [a] stated, defendant’s counsel responded, “yes.” Counsel then “It’s on gender the 16 women, twelve challenges, have been to four have been of men and it’s pattern cannot be denied.” The “Seven out prosecution responded, of eleven right now are women.” The court then overruled the objection, “I do stating: not believe this rises to the level of even a facie prima showing exercise of improper peremptory challenges.”
Defendant he argues made a facie that the prima showing prosecu tion impermissibly excused Juror No. Prospective 200 based on both her former, and her ethnicity gender. Regarding as the discussion preceding shows, defendant’s counsel did at trial other than nothing to observe that the was “a prospective juror minority Asian.” Both this court and others have declined to recognize as a “minority jurors” cognizable group purposes a claim that the prosecution has excused a for discrimina prospective juror (See reasons. v. Davis tory 46 Cal.4th *39 322, 78]; 208 P.3d People Neuman 571, v. (2009) 176 578 Cal.App.4th [97 715]; Gray v. Brady Cal.Rptr.3d (1st 296, 305-306; 2010) Cir. F.3d 592 People Greene 2001) 282 A.D.2d (N.Y.App.Div. 344].) 757 N.Y.S.2d [724 And defendant made no that the showing had excused other prosecution any reasons, fails of the same For these his claim juror ethnicity. prospective ethnicity. as he bases it on the prospective juror’s insofar it The juror’s It also fails insofar as he bases on the prospective gender. a exercising challenge against record shows before peremptory Prospec 200, times. No. the as constituted six tive Juror prosecution accepted times, to two first four there were four six women on The last panel. The times, a the seat including there were women on woman in seven panel, No. 200 later whom subsequently that Juror Prospective occupied, The other women acceptance containing excused. prosecution’s panels that was not motive in its suggests challenge strongly gender Prospective 1, v. Dement (See People Juror No. 200.8 53 Cal.4th 19-20 [133 People v. Garcia 292]; 264 P.3d 52 Cal.4th Cal.Rptr.3d v. Lenix 751]; 747-748 946].) P.3d Cal.4th Moreover, reasons discloses and race-neutral gender- record obvious this could have excusing juror. Specifically, prosecution prospective on the death juror’s been concerned about the views prospective penalty latter, of a life sentence. when asked severity Regarding prison a more she had an as to whether “death or life is whether opinion prison “yes” severe answered and explained; punishment,” prospective is life. Also behind living watching not “Being prison exactly ‘quality’ shoulder or in fear that other inmates kill might probably your living you former, difficult.” after her Regarding indicating very questionnaire “death would the death she penalty, explained she consider really warranted,” and held this because she must be that she view penalty “heard on television where death was warranted penalty had instances [the] out due to evidence but later found innocent certain defendant] [the have been into.” could (Original underscoring.) looked prosecution about subse- notwithstanding juror’s concerned these answers prospective voir dire would follow the reasonable acknowledgment during that she quent On standard and would not require anything greater doubt prosecution. record, err in to make the trial court did not that defendant failed finding Juror No. 200. facie showing regarding Prospective prima Electric Belt Shock G. rights next the trial court violated his constitutional
Defendant argues counsel, a fair reliable determination due and to trial and process, him without first an belt trial wear electric shock by ordering jury, including Prospective woman in the ultimately women sat on the seat Seven occupied. had Juror No. 200 *40 of “manifest The court showing necessity.” compounded
requiring error, asserts, draw he to instruct not to inferences by failing any from the use. device’s 1998,
This issue arose in when the sheriff’s department first December asked the court to order to wear the belt. court noted the defendant record, on the that it had seen to warrant such an request commenting nothing order and would wanted that it have to hold if the sheriff hearing pursue the matter. Defendant’s counsel later moved for an order the use forbidding in court hearing restraints trial. At a deferred during July ruling motion, on the record that it wanted to review the to determine explaining issue, whether it had ruled not sure on the that it was “off the previously top (as head” electronic legal what standards use of an belt governed [its] shackles), and that needed it information opposed regarding updated defendant’s conduct. in defend- During hearing pretrial September ant’s counsel informed court that defendant had to wear the belt agreed “in lieu of or shackles other form of restraint.” on this any Based representa- tion, trial, the trial court ordered to wear defendant the belt and he did so. record, are
Initially, correct on this People defendant has forfeited review of this appellate issue. We reached a similar conclusion on a recently record in v. McWhorter similar 47 Cal.4th 375 [97 There, to defense counsel’s response 692]. unshackled, request the defendant be the trial ordered court removal of chains, restraints, the defendant’s waist but not of his that the leg reasoning defendant was seated at the counsel table and the could restraints not be leg (Ibid.) observed others by courtroom. We found that unanimously counsel, defense though requesting unshackling, “thereafter initially acqui esced in the selected the trial court . . made remedy by . and no further objection, waiving claim to the thereby any appeal absence of respect further into the manifest need for the inquiry leg concealed restraints. Here, defendant, (Ibid.) motion, his through initially objected to [Citations.]” belt, the use of either shackles or a but trial stun after the court expressly issue, deferred the he not failed to for a he only press ruling, informed the court he would wear the belt lieu of “in shackles or other form of any record, restraint.” Given this defendant not now raise the issue on may appeal. event, issue,
In had even defendant review of the any preserved error, even were we find would not be entitled relief. Nothing “ belt, in the record saw the have suggests any juror consis ‘[w]e ” found tently unjustified shackling unadmonished harmless . . .’ any absent such evidence. (People v. Foster 50 CalAth 1322 [117 *41 658, 105].) 242 he argues although requested P.3d Defendant Cal.Rptr.3d belt, have the jurors no the the court should instructed instruction regarding to demeanor that be attributed “disregard may sua to the defendant’s sponte death upon the of a device of or causing permanent injury presence capable However, held, activation.” as we have when restraints accidental previously an instruction give are visible to the the court should not such jurors, invite to the because “it initial attention might absent defendant’s request, avoided.” and thus would otherwise be restraints create prejudice [that] Duran P.2d Cal.3d 545 Cal.Rptr. [127 the belt had 1322].) Defendant also threat argues physical posed “psycho- the defense.” that his to “ability logical impact[s]” “impaired]” participate However, his lacks in the record and is inconsistent argument any support at trial to the belt and his failure to mention agreement with his wear express v. Howard People (Cf. Cal.4th in his new trial motion. issue any error in [finding requiring 28-30 972] based the defendant’s failure to express of a stun belt harmless wearing discomfort, to that defendant was defense counsel’s failure alert the court a about of reason nervousness any plausible absence apprehensive, activated, to sentencing and the failure being stun belt defendant’s reasons, claim. belt].) mention the stun For these we defendant’s reject Aggravated Mayhem Evidence H. Sufficient of California, he is when In of person guilty aggravated mayhem “[a] extreme indifference manifesting or under circumstances unlawfully, she intentionally or of another well-being person, psychological physical or another disfigurement being or of human disability causes permanent limb, her body.” a human a or member his or organ, being deprives concede, (§ makes 205.) The and defendant this definition People agrees, crime, intent such conviction mayhem requires a aggravated specific “that acted the specific a reasonable doubt the defendant proof beyond v. Assad (2010) 189 (See maiming injury.” intent to cause requires [“Aggravated mayhem Cal.App.4th 699] maiming intent cause the injury.”].) specific and, this intent Defendant the evidence was insufficient establish argues thus, He not contend his conviction. does mayhem to sustain aggravated two head injuries gunshot requiring sustained—a wound Aninger to restore and a to the arm nerve gunshot graft wound surgeries requiring disability disfigurement.” constitute or “permanent hand function—do not Instead, of the show “that (§ 205.) any he the evidence does not asserts disfiguring intended to inflict Aninger] permanent participants [on closely attack following shows “a sudden indiscriminate but injury,” only that his After robbery.” noting heels of an ineffectual upon attempt conviction was based on a he further asserts theory aiding abetting, was not a natural and aggravated mayhem consequence probable attempted robbery. claim,
In evaluating “we the whole record to determine defendant’s review whether rational trier fact could found have the essential elements of any the crime . . . doubt. must beyond reasonable record disclose [Citation.] verdict—i.e., reasonable, substantial evidence to evidence that support *42 credible, of solid value—such that a reasonable trier of fact could find the test, a reasonable doubt. In guilty beyond applying [Citation.] we review the evidence in the most favorable to the light prosecution of presume the the existence of fact the could support judgment every have deduced the reasonably from evidence. ‘Conflicts and even [Citation.] is do the testimony subject to reversal of justifiable justify suspicion [that] a for it judgment, is the exclusive of the trial province judge jury to determine the of a witness and truth or the credibility the of facts falsity upon which a determination We resolve neither depends. credibility [Citation.] conflicts; issues nor we evidentiary look for substantial evidence. [Citation.]’ A reversal for insufficient evidence ‘is unwarranted unless it [Citation.] “that no appears upon whatever is there sufficient hypothesis substantial ’ evidence to (People Zamudio support” verdict. jury’s [Citation.]” 43 105], Cal.4th 181 P.3d italics omitted (Zamudio).) crime, a intent element
Regarding specific of a we have that explained a circumstantial, defendant’s state mind is almost “[e]vidence inevitably but circumstantial evidence is as sufficient as direct evidence a support conviction.” v. Bloom 48 Cal.3d Cal.Rptr. Moreover, 698].) the standard of review applies insufficient evidence claims circumstantial evidence is the involving same as standard review that direct applies involving claims evidence. “We logical ‘must inferences have drawn from accept jury might circumstantial evidence. it ‘Although jury’s is duty [Citation.]’ [Citation.] a defendant if it acquit finds circumstantial evidence of two susceptible reasonable one which and the other interpretations, guilt inno suggests cence, it not the jury, appellate court must be convinced of the defendant’s a reasonable guilt beyond doubt. Where [Citation.]’ [Citation.] the circumstances the trier of fact’s reasonably justify findings, reviewing court’s conclusion the also circumstances be reconciled might reasonably with a contrary does not warrant the finding reversal. judgment’s [Citation.]” (Zamudio, 357-358.) Cal.4th pp. these we defendant’s claim. As defendant
Applying
principles,
reject
suggests, a
could have
juror
concluded from the evidence that the
perhaps
attack”
“a
and indiscriminate
only
prompted by
sudden
Aninger shooting
But,
reasons,
the “ineffectual”
several
robbery attempt.
“frustration” about
First,
reasonably
upon getting
also could have
concluded otherwise.
juror
Willover, whose head and hand were
money,
no
to his demand for
response
car,
begin
and immediately
of the
did not
react
hanging
simply
out
already
Instead,
car,
into
toward its other
so
he first turned back
occupants,
firing.
his comment
Only
making
he
on what had
after
transpired.
could comment
window,
women,
did
stick his hand out of
point
he turn back toward
claim,
Second,
to defendant’s
there was
his
and start firing.
contrary
gun
that Willover
reasonably
from
could have
concluded
evidence
which
from
fire
Willover shot
specific body part.”
Aninger
very
toward
“direct[ed]
in the face—her
fore
close
five to
her once
feet—hitting
range—only
evidence,
arm, near
in the
head—and once
her face. This
viewed
upper
the inference that
reasonably
most favorable to
light
prosecution,
supports
asserts,
not,
did
fire
but focused his
indiscriminately,
Willover
as defendant
head,
is a
part
body.
which
vulnerable
Aninger’s
particularly
attack
decisions,
the head
In
have held that the
the victim was shot in
we
fact
prior
*43
People
(See
(2011)
to
52
Mendoza
can
an
of an intent
kill.
v.
inference
support
v. Turner
People
1056,
808,
(2004)
1];
P.3d
Cal.4th
1071
263
Cal.Rptr.3d
[132
Mayfield,
v.
People
406,
182,
505];
P.3d
34 Cal.4th
422
99
Cal.Rptr.3d
[20
768;
207,
v. Adcox
supra,
People
(1988)
Cal.3d
240
Supporting
(Santana), which
547,
301 P.3d
The third reason defendant’s claim fails is there was powerful evidence something for the other than impetus Aninger shooting frustration from an ineffectual As drove resulting robbery. away defendant scene, said, witnesses,” from the “we Willover couldn’t leave defendant evidence, kind in viewed “just laughed” light This most response. favorable the conclusion that prosecution, reasonably supports shooting frustration, head was not a sudden and act of Aninger indiscriminate witness, but was a deliberate and calculated effort to silence as a by her either her some other killing by inflicting as brain “permanent disability”—such (Cf. damage—that would her from her v. identifying assailants. prevent People Whisenhunt 44 Cal.4th 186 P.3d 496] [79 of defendant’s actions after inflicting fatal wounds support finding [evidence kill]; intent to v. regarding Lookadoo 66 Cal.2d 608, 425 P.2d Cal.Rptr. circumstances after the killing 208] [evidence competent show deliberation and may premeditation].) “[A] intend both to kill or her his victim and to disable or disfigure that individual unsuccessful,” if the to kill is attempt and evidence that is sufficient establish a defendant’s intent to kill the victim can also be “sufficient establish the intent to disable or permanently disfigure victim.” v. Ferrell, 833-834; see Cal.App.3d pp. People D’Arcy 48 Cal.4th evidence 949] [“the showed that defendant had concurrent intents to maim and . murder . .” victim].)10 *44 evidence, viewed in the to light most favorable also prosecution, result, the conclusion that
reasonably supports Aninger shooting was frustration, not of of but a shared and by desire defendant Willover to shoot someone for sadistic simply Willover made almost no effort to rob pleasure. Instead, Mathews and he did Aninger; not even out of the car. he get simply seat, out, said, sat in the leaned and me He passenger “give your money.” conclusion, In rejecting this Werdegar’s concurring opinion Justice and but dissenting all J., ignores (See post, Santana. Werdegar, our recent decision opn. p. conc. & dis. of at held, to explain why, Santana unanimously fn. It fails as firing range” “close of from leg three shots into the unresisting “strongly finding” and buttock area of an supports victim a (Santana, 1012), disabling injury” of to inflict a firing 56 Cal.4th at but “inten[t] range from close of unresisting two shots into the face area an victim of does not. decisions, disagree Consistent with we Werdegar’s concurring these with Justice and that, cases, dissenting opinion except in rare and intent exceptional an to kill and an intent to exclusive, permanent disability mutually cause are such that evidence sufficient to show necessarily (Conc. J., post, precludes finding former opn. Werdegar, of latter. & dis. of at 104-106.) pp. started from robbery shooting very and any thought abandoned quickly to to attempt refusal or comply close not because of women’s range, hear After the neither shooting, because did not him. they but simply escape, take their to from attempt anything nor defendant made any Willover victims; instead, drove Noth- away. and they immediately wounded helpless that, so, did they any regret, suggests they expressed in the record ing frustration, having any or about not obtained money. anger, disappointment done, Instead, he” had he was of what Willover acted “[h]appy,” proud “[l]ike Defendant also seemed shootings. and defendant congratulated Willover, he Willover. congratulated “looked like was of’ proud “happy,” when Willover said “couldn’t leave laughed” they Defendant kind “just since he years how” it had been four witnesses.” Willover about “bragg[ed] “it had like and remarked that felt something good.” done also reasonably was the Olivo murder regarding There evidence defendant and Willover were the conclusion that actions of supports for After desire shoot sadistic pleasure. driven shared to someone by simply Aninger, it felt Mathews and how had to shoot commenting “good” about he to to it.” Defendant said “wanted try Willover said that defendant “needs He then drove “try have turn” and wanted to to show up.” his [Willover] street, he down the so could shoot around for “looking anybody walking just After the them,” somebody.” he wanted his turn to shoot because “[j]ust Olivo, Willover, around who “knew” were “driving group spotted defendant, shoot,” for to asked “are you going for someone looking her,” her,” “do it do or are you going or are “to you going shoot said, and, He all this.” then her.”11 Defendant nodded “like “watch bragging,” Olivo, about five maneuvered the car so his seat was closest to stopped her, inside her to As she looked feet from away gestured approach. defendant, car, word to rob any without or saying making attempt out, Olivo, cried out Olivo firing. his hand window started put don’t,” eight a total of defendant continued shooting, firing but “please Olivo; he made no effort to take from shooting, anything nine After the shots. had done. about what he away, he left her there and sped laughing simply it like kind “taking him.” were “laughing They Willover about the a television news report That as defendant watched game.” night, alternately his he “a smile on face” repeatedly pointed had shootings, *45 evidence, a juror reasonably and From all of this his chest the television. asserts, not, was shooting have concluded that the Aninger could looking could and were for someone defendant testimony that defendant Willover had earlier redirect examination. Contreras during prosecution’s came from shoot Contreras reviewing a looking Upon defendant could rob. later group that the for someone testified shootings, just she confirmed police days her three after transcript of interview with looking, not someone to and Willover were that interview that defendant statements testimony is consistent rob, with could The latter for someone defendant shoot. but making attempt her. any without rob that defendant shot Olivo evidence
a “sudden and indiscriminate attack” bom of “frustration” over an “ineffec- tual” but was the robbery result of a desire defendant and attempt, Willover shared to kill or to cause either to silence permanent disability, potential witnesses or for sadistic simply pleasure.
This discussion necessarily refutes defendant’s argument regarding abettor, i.e., his as an aider and liability that aggravated was not a mayhem natural and probable consequence From the evi attempted robbery. dence, a could juror reasonably have found that aggravated was a mayhem natural and probable of either consequence robbery defendant and Willover Mathews, attempted perpetrate against Aninger or their to shoot someone for sadistic purpose A reasonable pleasure. person defendant’s would have or position should have known that aggravated was a mayhem foreseeable reasonably (See of either consequence plan. People Medina 46 Cal.4th 209 P.3d need not have [consequence been a strong 105] but probability “under only, all the case,” factual circumstances of the individual a possible consequence that might Thus, have reasonably been contemplated].) evidence was sufficient to support defendant’s aggravated conviction. mayhem not,
This conclusion is as defendant and Justice Werdegar’s concurring assert, v. Sears People dissenting opinion inconsistent with 62 Cal.2d (Sears). (Conc. 401 P.2d Cal.Rptr. & dis. 938] opn. post, J., There, Werdegar, 103.) at confession, p. based on a partly a jury convicted the defendant of the first degree murder of his stepdaughter, Elizabeth. We reversed the conviction because the defendant was not advised (Sears, of his right counsel or his right to remain silent. 740-744.) at pp. (id. “For guidance of the court on retrial” 740), at we p. [trial] also stated that (1) to obtain a conviction based on the murder theory “felony mayhem,” the prosecution must show that the defendant acted with the intent “specific to commit mayhem,” (2) the cannot prosecution make this showing evidence that the defendant turned on Elizabeth and struck her “several times with a steel when she pipe” his happened upon ongoing assault on her mother (Id. and shouted at evidence,” him to stated, stop. we “[S]uch (Ibid.) “does no more than indicate an indiscriminate attack.” Unlike the Sears, evidence in which showed an only unplanned reactive attack with a steel on someone pipe victim, in an interceding ongoing assault on another here, the evidence above, as discussed showed a deliberate and planned head, shooting, focused on the victim’s in order to prevent victim from her identifying assailants and/or for sadistic As also discussed pleasure. above, this evidence reasonably justifies of an jury’s finding intent cause permanent disability disfigurement. v. Anderson
Likewise
distinguishable
“Distilled their are “more Werdegar’s concurring dissenting opinion properly Justice to a because on “inferences favorable jury” they depend drawing advanced intent to from facts to show specific permanent [cause [defendant] [no] That on though disability]. approach inapplicable appeal. ‘[E]ven be circumstantial might court itself believe evidence may appellate innocence, alone does not reconciled with the defendant’s reasonably of the trier of fact. warrant interference with the determination [Citations.] circumstantial, ... the evidence at trial is direct or Whether presented fact could any remains whether reasonable trier of relevant inquiry appeal As a reasonable doubt.’ guilty beyond have found defendant [Citation.] earlier, which contains evidence from record substantial explained here, instructions controlling on the guided, by reasonable as jury proper could found a reasonable doubt ... beyond specific have legal principles [a] v. Park intent permanent disability].” [cause 815].) 71-72 Cal.App.4th
I. Instructions Accomplice find that asked the trial court to Based on trial testimony, to instruct as a matter law and Tegerdal Contreras and were accomplices trial their corroboration. testimony required the jury accomplices, a factual presented denied the that the evidence finding court request, had as to whether Contreras and Tegerdal to resolve question
93 intended to aid and in the crimes’ commission. Accord- assistance provide it instructed the if Contreras and to be ingly, Tegerdal found jurors they their corroboration. Defendant asserts the accomplices, testimony required trial court’s ruling constitutes error because the evidence estab- prejudicial lished that and Contreras were as matter of law. Tegerdal accomplices California,
In conviction can not be had the testimony of upon “[a] an unless it be accomplice corroborated such other evidence as shall tend by to connect the ....”(§ defendant with the commission of the offense rule, For of this an is “one who is liable to purposes “accomplice” prosecu for the tion identical offense the defendant in the charged against on trial (Ibid.) in cause which the of the testimony given.” “This accomplice [citation], definition all to the crime aiders encompasses principals including v. and abettors and (People coconspirators. Stankewitz [Citation.]” 817, Cal.3d 23].) P.2d As defendant in his Cal.Rptr. explains brief, as an aider liability and abettor requires proof person question crime with promote[d] perpetrator’s knowledge “aid[ed] unlawful and perpetrator’s an intent to assist in the commission purpose v. Williams of the target (People crime.” Cal.4th 637 [75 1035], 181 P.3d omitted.) italics As defendant also explains brief, in his whether a witness is an is a of fact for the accomplice question unless no reasonable exists as to facts or the inferences to be dispute drawn from them. 55 Cal.4th 145-146 [144 Valdez (Valdez).) 924] Defendant concedes that neither nor implicitly Contreras was Tegerdal however, direct perpetrator crimes. He that both were argues, neverthe- less liable as because they “knew of and shared the intent to rob” principals and “actively assisted and encouraged the events.” Regarding [szc] Mathews, crimes and against Aninger defendant argues: “Contreras and car, were more Tegerdal than mere had passengers. Tegerdal provided Contreras, knowing was an robbery activity that would in. they engage with the same had driven the car knowledge, the unsuccessful search for earlier and it robbery subjects only matter of chance that she was when driving Willover shot and [Aninger Had that robbery Mathews]. successful, been both Contreras and Tegerdal to share in the expected proceeds.” Regarding Olivo shooting, argues: clear “Despite after opportunity first and depart shootings, Tegerdal] [Contreras elected to stay Willover when reached Tegerdal’s [defendant] house. a different Tegerdal provided automobile in case the first had been seen at the first drove that car. shooting initially not their sole Although continued to activity, they be the lookout for potential robbery targets, were not in the car by or with of the fact that the happenstance ignorance the earlier could recur. Neither expressed disapproval events at the wharf events, tacitly continue both approved their by willingness course of action.” *48 evidence, Contreras, the though fails because argument defendant’s
As to in the the intent to assist she had to permit finding requisite sufficient crimes, a matter of commission not as finding did target compel aid and that “has the effect of giving have an act law. As we explained, of the criminal knowledge purpose and “is done with encouragement” aided, to assist in fulfillment may indicate that the actor intended person “an as the basis for may and therefore serve the known criminal purpose,” v. Beeman aider and abettor’s intent. an regarding alleged inference” 60, 1318], added.) 547, italics 674 P.2d (1984) Cal.3d Cal.Rptr. 35 559 [199 “However, other precludes the act be done with some may purpose ... [that] claim, Contreras testified (Ibid.) relevant to defendant’s criminal As liability.” was it her (1) during night question at trial follows: at no point as defendant had (2) thought she intention to rob or to shoot anyone; purpose something,” and drunk or “[g]et to out” night “just hang invited her out about the robbery entered the car had she known and she would not have of that was night, take in the events (3) she did not part planning plan; defendant and Willover might receive of what any never told she would part share in the her mind that she would and did not have in robbery, obtain by drive or leave when she (4) away and she did not of any robbery; proceeds defendant, her at who lived with she was afraid had the because opportunity record, it house, did. On this find her and shoot her if she would Frymire’s necessary had the intent decide whether Contreras was for the trier of fact to Williams, v. 43 supra, People (See was an to establish that she accomplice.12 not establish as the crimes did assisting of acts Cal.4th at 637 p. [evidence 2 v. Fauber state]; (1992) Cal.4th People mental matter of law the requisite Tewksbury 24, [same]; (1976) People 831 P.2d 834 249] [same].) The P.2d 544 Cal.Rptr. 1335] 15 Cal.3d 960-961 [127 an as accomplice to she was jury refused instruct court therefore properly v. Gordon (1973) Cal.3d People (See a matter of law. to the are in the facts dispute
Cal.Rptr. 298] [“where for liability accomplice, and intent of the asserted witnesses] knowledge for the jury”].) of fact question prosecution focus on The regarding Tegerdal. is much closer question an intent to out get that he did not “have at trial testimony
Tegerdal’s Contreras, statement she telling police prior in a during testimony, trial admitted That her and drove to Jacks may got into the driver’s seat robbery plan when she have known about Valdez, (Cf. Cal.4th at 147 [conflict contrary conclusion. compel Park does not as to of fact police question created testimony prior and statement between trial accomplice].) witness was an whether them”; did
car and and rob not touch go up [Aninger Mathews] time at the wharf when Willover gun any during night; surprised crimes; started did not drive commission of the shooting; during sug- cars after the first to further defendant’s gested switching shooting, However, but to avoid detection. also shooting spree, Tegerdal simply Contreras, (1) testified as follows: before he knew the “basic picking up (2) of that entire was to and rob defendant and purpose night go somebody”; had Willover told him “to with” the “and be cool and go along robbery plan would get some of he went with the because money”; along plan [he] he “hadn’t had for so after money long”; leaving station gas wharf, before he in a conversation about going finding participated do”; someone to rob “knew that that’s what we were going 31st, before the day Saturday, January shootings” “[s]ometime *49 occurred, at the wharf he knew the the gun in car “was to be used to going Park, commit a (6) after the left he robbery”; Jacks was group “personally” for “looking who be people might good (7) for targets robbery”; upon Mathews, and Aninger he asked “if had spotting they or or any bags purses , something,” because “if didn’t . . . what would the be point try them”; (8) rob “there was an agreement between in the car that everybody and were [Aninger (9) for a he likely targets robbery”; suggested Mathews] the switch to his other car to group avoid detection the by went with police, house, defendant, the to his into group got his other car with and Tegerdal, Contreras, and, so, without asked being to do drove the personally group (10) away; “might have been the driving” down streets of Salinas up rob”; “looking (11) someone to turned the over to driving defendant was tired of getting This record little driving.” “[b]ecause [he] furnishes that, for the support assertion People’s “although [Tegerdal] furnished trans- he lacked portation, the intent to aid in the commission of the crimes.” however, because, we need Ultimately, not decide this even question defendant, were we to with he agree would not be entitled to relief. Error of the kind he is harmless if the alleges record contains “sufficient corroborating v. Lewis evidence.” (2001) 26 Cal.4th 34].) circumstantial, evidence “Corroborating be may slight, entirely
and entitled to little consideration when
alone.
It need
standing
[Citations.]
not be sufficient
to establish
element of the
offense or to
every
charged
establish the
facts to which the
precise
testified.
It is
accomplice
[Citations.]
‘sufficient if it tends to connect the defendant
the
crime in such a
as
way
(Valdez,
the
satisfy
that the
the truth.’
jury
accomplice
telling
[Citation.]”
J. Section (b) factor instructions prior Defendant asserts its penalty phase erred that his instructing alleged prior criminal the trial court activity, by use and knives involved guns necessarily express implied possession *50 violence; (2) to instruct the threat of force or failing of force or violence or were or to find that the knives the to find necessary possession on elements as the to find that mere (3) jury possession, or daggers; dirks permitting use, for violence was sufficient. to of an with object potential opposed error, a court the first alleged Defendant’s fail. arguments Regarding to the of whether jury does not err to submit by failing question use, use, threat of force or or defendant’s acts involved attempted 705, v. Nakahara (People (2003) 30 Cal.4th 720 Cal.Rptr.2d violence. [134 whether the acts occurred is 223, 1190].) Although question 68 P.3d an involving of those acts factual matter for the characterization jury, violence, thereof, the threat legal use of force or or implied express 203, (Ibid.; Burney v. People (2009) 47 Cal.4th the court to decide. matter for error, 348, 639].) the second alleged Regarding Cal.Rptr.3d 259 [97 on the elements of a trial court has no to instruct duty “absent a request, Taylor (People (b). v. admitted under factor crimes unadjudicated [Citations.]” Here, 87, 574, 12].) P.3d 229 (2010) 48 Cal.4th 654 Cal.Rptr.3d [108 regarding failed to instmctions defendant’s counsel not only request crimes, court should use he maintained that the of the unadjudicated elements 13 Contreras, she was an were defendant correct regarding true even The same would be a matter of law. accomplice as
97 done,” to have “as alleged “a of what English plain description is] [defendant sections,” the court Code doubt as whether to Penal opposed expressed a reasonable on what the beyond should instruct prosecution prove “ha[d] the third alleged to establish those crimes. alleged Regarding doubt” not, error, of a “is our law already recognizes possession weapon circumstance, an act committed with actual or force or every implied violence,” and that factual circumstances surrounding possession” “[t]he v. Bacon must “indicate an threat of violence. implied [Citation.]” 723, Here, 204].) Cal.4th P.3d 240 [116 trial court did not abuse its discretion in the circumstances finding a threat Defendant surrounding involved of violence. was possessions at the time he these The which were guns, probation possessed weapons. issue, similar to the to commit the crimes now at used weapons defendant, were concealed beneath the seat in front of defendant had directly live ammunition in his of the same caliber as the concealed pocket weapons, and he admitted to his officer that he had probation purchased weapons. knives, had which were found next to where defendant was right sitting, fixed blades and were seven to nine inches in overall who length. Tegerdal, here, defendant when he committed the crimes at issue was driving both cars which knives were found. This evidence was sufficient ibid.; v. People (See warrant a of an threat of finding violence. implied Michaels Cal.4th 535-536 P.3d 1032]; Ramirez 50 Cal.3d 1186-1187 Cal.Rptr. 965].) P.2d event, In error of these any any regarding defendant’s possession weapons was harmless. The heard that defendant committed numerous testimony acts, other criminal the mother unadjudicated beating of his child including attention; that she medical to the severely enough beating his sister required head, unconsciousness on her an point stomping leading eyewitness *51 her; believe that defendant was to kill a few hours after trying administering the to look for his sister at the a concealed beating, going carrying hospital, ammunition; sawed-off and live detained and shotgun after arrested being by to the had returning who police, hospital threatening security guard him to Willover in June when reported police; beating they briefly 1998 cell; riot, same in into occupied holding prison charging participating shield; force guard enough bragging to split guard’s protective riot, in a letter to a friend about his role in the that he liked to stating “get evidence, with the Given this no reasonable exists rowdy” guards. possibility evidence of defendant’s affected prior weapons possession Lewis, (See verdict. 43 Cal.4th at
98 Possibility Evidence Without the Regarding
K. Exclusion of of Life Parole the trial court erred in his motion denying
Defendant asserts
prejudicially
“that
have addressed
testimony
to introduce at the
would
penalty phase expert
of
of the common
about life without
misperceptions
some
possibility
motion,
In his
defendant
because
do
argued
“potential jurors
parole.”
of
believe that a sentence of life in
without
prison
possibility
parole
allow him “to
means that a
will never be
the court should
paroled,”
person
. . .
the source of the
testimony
present expert
explaining
misconceptions
of
He
of life
without
concerning
prison
possibility
parole.”
(1)
convicted killers . . . were
stated that the
would
expert
explain
“many
(2)
under different laws than those which exist
some
today,”
convicted
California inmates sentenced to death had become
because
eligible
parole
(1972)
court’s decision in Furman v.
L. Other Issues He ac- his convictions. other challenges Defendant makes numerous claims, but asks us similar rejected we have knowledges previously decisions. We his reject request. reconsider our prior the guilt the jurors during err to instruct by failing The trial court did not murder was on whether had to agree unanimously that they phase Tully (People (2012) 54 murder. v. felony and deliberate or premeditated 173].) 282 P.3d Cal.4th Cal.Rptr.3d [145 CALJIC guilt not err by giving during phase The trial court did evidence), (motive), and 2.52 (flight). 2.51 Nos. 2.06 (attempts suppress Jurado, Friend, supra, v. 52-53; supra, v. (People at 47 Cal.4th pp. 125-126.) Cal.4th pp. evidence by excluding
The trial court did not err penalty phase crimes, old when he committed because Willover was only years conviction to life without possibility parole he was sentenced upon 1104, 1141-1142 v. Moore (People (2011) rather than death. 51 Cal.4th 1153].) 253 P.3d (§ 190.2) “is not broad California’s death statute impermissibly defendants. death-eligible narrows the class [Citation.]” adequately Brady (2010) 50 Cal.4th (Brady).) 312] uncon cases is not
The lack of intercase review proportionality capital (Valdez, supra, 180.) 55 Cal.4th at p. stitutional. 190.3, of, on, section instructions application penalty phase (a), imposition
factor do not allow for arbitrary capricious (Brady, 50 Cal.4th at death penalty. (1) they the trial court need not instruct jurors
In the penalty phase, as an criminality aggravating not consider acts of unadjudicated may prior those that defendant committed circumstance unless find they unanimously acts; as mitigating; factors are relevant (2) only criminal certain sentencing a reasonable doubt the burden of beyond has prosecution proving factors, exist, circumstances the mitigating that they outweigh aggravating are as to make death appropriate punishment; and that so substantial they exist, factors must find a reasonable doubt beyond aggravating factors, death the are as to make so substantial outweigh mitigating must be circumstances aggravating their findings appropriate penalty; *53 100
unanimous;
(6) the
has the burden of
prosecution
persuasion regarding
make;
ultimate
(7)
determinations
must
there
penalty phase
life
favoring
(8)
should
life
presumption
imprisonment;
they
impose
without the
if
find that the
imprisonment
possibility
parole
mitigating
(Valdez,
supra,
circumstances
outweigh
aggravating circumstances.
55
v.
179;
1302,
Cal.4th at
McKinzie
54 Cal.4th
p.
[144
Zamudio,
(McKinzie);
supra,
281 P.3d
Cal.Rptr.3d
The trial court need not delete factually factors inapplicable sentencing (Valdez, supra, from the 180.) instructions. 55 Cal.4th at penalty phase p. in the Including penalty instruction’s list of phase potential mitigating 190.3, (§ factors such as “extreme” adjectives (d), factors and “substan- (g)) (id., tial” factor does not erect an (g)) barrier to the impermissible jury’s (Valdez, supra, consideration of evidence. mitigating 180.) 55 Cal.4th at p. need not During penalty jurors make written phase, findings regarding (Valdez, supra, 55 Cal.4th aggravating factors in at determining penalty. 180; McKinzie, supra, 1364.) 54 Cal.4th at p. p. instructions were not penalty phase broad or impermissibly vague “ ‘ to determine whether
directing jurors factors were “so aggravating substantial with the factors that it comparison mitigating warrants death ’ ” (Valdez, supra, instead of life without 180.) 55 Cal.4th at parole.” p.
CALJIC No. 8.88 does not misstate law by asking whether the jurors death, circumstances rather than whether death is the “appropri “warrant[]” v. punishment. (People Duenas ate” 55 Cal.4th 887].) 281 P.3d International law does not bar a death sentence rendered in imposing accord with state and federal constitutional and statutory requirements. (Valdez, Cal.4th punishment.
The death is not cruel or unusual inherently Booker 51 Cal.4th 366].)
M. Cumulative Error Defendant contends the he errors amounted to revers- alleges cumulatively ible error. To the extent there are a few instances in which we have found existence, error or assumed its no resulted. We reach the same prejudice conclusion after their effect. considering cumulative
IQ. Disposition affirmed. is judgment The J., J., Kennard, J., Baxter, concurred. J., and Corrigan, C.
Cantil-Sakauye, a car driving and WERDEGAR, J., Concurring Dissenting.—Defendant co- of the when, passengers, one encouragement, knowledge with his window and Willover, side leaned out the passenger defendant Norman bullets, resulting Mathews Aninger Priya Jennifer victims sprayed I concur Aninger. injuries and severe and permanent Mathews’s death the murder of convictions of defendant’s affirming the majority’s opinion I dissent from part murder of Aninger. and the attempted Mathews as to aggravated mayhem conviction of that affirms defendant’s opinion the conclusion evidence supports As I no substantial Aninger. explain, with the Willover, mayhem, acted aggravated for the offense required or intent to inflict on disabling disfiguring a specific Aninger permanently that defend- likewise, the conclusion no evidence supports substantial injury; on his status as ant, as the nonshooter premised whose culpability a abettor, Willover inflict intended that aider and specifically Willover’s Because reversal of on the victim. disfiguring injury or disabling permanently of the other convictions count would not undermine the legitimacy this one I concur. of the death otherwise penalty, imposition I. three charge undergoes a criminal of evidence strength supporting for the all protection
different assessments during legal proceedings, the committing magistrate weighed by accused. The evidence is preliminarily of an or, way by if the by grand jury People proceed less commonly, trial, at usually by is then made indictment. The critical assessment therein, evidence, conflicts resolves weighs unless waived. The jury verdict, seek may a defendant of witnesses. After the credibility evaluates Thus, the time the case by a motion for a new trial. further review by filing has, court, in the normal the evidence an strength reaches appellate forth the case, sets accurately evaluated. The therefore majority been fully with a an court is confronted standard of review when appellate deferential view, majority’s But to the contrary claim of insufficient evidence. ante, of the evidence is (Maj. one for the merely jury. opn., sufficiency review, and case, a deferential standard 92.) In this even applying to the judgment presuming in a favorable light the whole record viewing record, I find an from that all facts deducible reasonably the existence of “ ‘ credible, reasonable, . . . and of solid value that is absence of “evidence guilty beyond find the defendant trier of fact could from which reasonable ’ ” reasonable doubt” of aggravated mayhem. v. Jones Cal.4th 1136], Jackson v. citing Virginia 443 U.S. 317-320 L.Ed.2d 2781].) 99 S.Ct. I because, reach this conclusion although People presented evidence ample that defendant and codefendant Willover acted with a intent to kill specific her, no evidence was Aninger, intended presented to maim as that offense is defined in Penal (All Code section 205. further statutory references Code.) are to the Penal
Section 205 states in “A pertinent part: is of person guilty aggravated when he or mayhem she under unlawfully, circumstances ex manifesting treme indifference to the or physical psychological of another well-being causes person, intentionally permanent disability or of another disfigurement limb, human or a being human of a deprives being or member of organ, his section, or her For body. of this it purposes is not to an necessary intent prove (Italics to kill.” added.) In contrast to the crime of in section simple mayhem 203,1 which a crime general is intent (2001) v. Villegas 92 1217, 1226 Cal.App.4th see Cal.Rptr.2d 1]; People (1965) v. Sears 62 [113 737, 330, Cal.2d 745 938]), Cal.Rptr. “the unambiguous [44 of section 205 language compels conclusion that the intent to specific cause the is an element maiming injury of aggravated v. mayhem” (People 828, (1990) Ferrell 218 283]; 833 Cal.App.3d see v. Cal.Rptr. People [267 (2010) Assad 189 195 Cal.App.4th Cal.Rptr.3d [“Aggravated [116 699] mayhem intent requires to cause the specific I do not maiming injury.”]). read otherwise, to majority opinion say and consider the issue of the intent requirement aggravated to be one mayhem (See of settled law. 1 Witkin & (4th Cal. Criminal Epstein, 2012) Law ed. Crimes Against Person, 90, pp. [aggravated § 878-879 mayhem intent to requires specific inflict a maiming injury].) I
Although
are
agree Aninger’s injuries
sufficient to
qualify
permanently
or
that
disabling
disfiguring,
such maiming injuries resulted from the attack is
hence,
not itself sufficient
(and
evidence to
that
defendant)
Willover
prove
Assad,
specifically intended to inflict injuries of that type. (People
supra,
v.
195;
189
at
v. Park
112
Cal.App.4th
p.
People
64
Cal.App.4th
[4
attack,
815].)
a
Although controlled and direct
or one of focused
or limited
be sufficient to
scope, may
demonstrate the
intent to inflict
specific
a
it is well
maiming injury,2
established that an indiscriminate attack or
1
provides: “Every person
Section 203
unlawfully
maliciously
who
a
deprives
human
disables,
useless,
being
body,
of a member
disfigures,
of his
or
or renders it
or cuts or disables
nose, ear,
tongue,
puts
eye,
or
out an
or
lip,
guilty
mayhem.”
slits
or
2
People
v. Santana
(three
See
explosion disabling disfiguring injury. permanently involving two cases issue years ago court addressed the almost This Sears, In mayhem. crime murder based on the
felony
simple
737,3
murder on
degree
defendant
with first
charged
Cal.2d
As this court
on the commission of mayhem.
based
felony-minder
theory
crime,
intent
is a
mayhem
general
the crime
explained, although
simple
murder
to elevate a killing
degree
required
reliance on
to.first
felony
(62
to inflict a maiming injury.
the defendant had
intended
proof
specifically
case,
this court
Cal.2d
then to the facts of
observed
Turning
at p.
times
struck
several
that “the evidence
that defendant
victim]
discloses
[the
another,
one
in a laceration of
of the blows resulted
lip;
steel pipe;
than
an
But such
does more
indicate
evidence
no
laceration
nose.
attack;
does not
premise
specifi-
indiscriminate
it
support
his victim.
cally intended maim
such a
showing
the absence of
In
commit
an
give
intent
the court should
specific
mayhem,
(Id.,
added.)
italics
instruction on
murder
felony
mayhem.”
*56
v. Anderson
People
followed Sears' s
We
that same
holding
year
later
case,
763,
43],
(1965)
P.2d
In that
evidence
Speaking instructions, the trial court erred instruct- by court found jury appropriate because “no substantial evidence ing the on murder jury felony mayhem a defendant intended to commit finding specifically mayhem.” that supports Anderson, v. (People supra, felony- 63 at “To establish a Cal.2d p. murder, to the defendant intended must that prosecution prove specifically inflicting specific to Cal.Rptr.3d (intentionally cuts to victim’s face sufficient show deep 884] Park, 61, maim); People supra, v. and (bludgeoning 112 65 victim’s head Cal.App.4th intent teeth, knife the victim lost several sufficient stopping mouth with a steel once had sharpener, People Campbell (1987) Cal.App.3d v. disfigure); intent 1653 specific [239 show 193 head, Cal.Rptr. (striking stopping with a and brick the face victim screwdriver on 214] severed, maiming specific intent to inflict a partially once ear was sufficient to indicate her injury). 3 478, People Cahill 5 People v. Sears v. ground was on Cal.4th overruled another 582, 509-510, 17 P.2d 1037]. footnote 853 [20 104
commit the Yet the record here does not disclose substan felony. [Citations.] tial evidence commit showing intent to The evidence does specific mayhem. attack, no more than indicate an it indiscriminate cannot independently on the uphold verdict based defendant entertained the precise premise Sears, Thus, v. intent to commit we said in specific mayhem. People supra, 745, at ‘In the absence such a intent p[age] showing specific [62 Cal.2d] to commit the court give should an instruction on mayhem, jury ” (Id., 358-359, added.) murder at felony mayhem.’ italics pp. have
More-recent cases cited Anderson Sears with v. approval. Assad, 195; supra, People 189 v. Lee 220 Cal.App.4th at p. Cal.App.3d 434]; Ferrell, 325 v. 218 at Cal.Rptr. People supra, Cal.App.3d [269 835; see v. 51 Cal.4th p. People Gonzales
253 P.3d the rule in the context of murder [recognizing felony mayhem]; 185] v. People Kelly (1990) Cal.3d Cal.Rptr. 516] Park, rule]; [acknowledging Cal.App.4th [same].) of this established majority rejects applicability authority,
instead several scenarios to Willover and posits possible alternative suggest acted have with the intent to may inflict specific permanently attack, that this disabling disfiguring injury targeted Aninger: Willover aimed at a from close specific body that Willover and part range, witnesses, defendant desired eliminate shot the victims any for their own sadistic These theories are of pleasure. questionable validity. That (and Willover defendant) “targeted” hence is a in that the Aninger given, her, found he intended to kill such but does not raise an targeting inference that he also to maim specifically Similarly, intended her. that he *57 to an desired eliminate witnesses inference intended to kill that he supports but says about whether he acted with an intent to maim. nothing Certainly that Willover Aninger and shot for sadistic does not pleasure essence, raise an inference that logically intended to maim. In what the comes down to is that the fact shot once in the majority opinion was Aninger arm, face, and face once in her which is near her of itself “can upper support an inference of intent to an cause or permanent disability disfigurement.” ante, 88.) at I (Maj. opn., p. disagree. rea,
The mental or the crime mens of of is aggravated mayhem component, inflict a the intent to or on the specific permanent disabling disfiguring injury is, victim. the intent the That it is to inflict a but allow victim grievous injury live. The of the to law illustrates this “First codified in history point. the crime of in the common originated English law. mayhem [Citations.] common of early law crime from mayhem person dismembering prohibited reduced substantially or another ‘an which disabling person, causing injury
105 the not displacing Though in combat.’ formidability the victim’s [Citations.] Act, in later definition, enacted England’s Coventry law common an without include ‘mere disfigurement the crime of to mayhem expanded in intentionally the ability,’ injury attendant reduction in if fighting Santana, the crime 1003.) Although 56 Cal.4th at flicted.” (People supra, p. of the common vestiges’ of in section 203 “contains ‘verbal mayhem simple ‘ may “the rationale of the crime law Act of modem Coventry and and normal be to be of the natural completeness said the preservation not, as face and body, originally, preserva human appearance assistance of his to the effective right military tion of the sovereign’s ’ words, of In section 203 ‘protects integrity other subjects.” [Citations.] ” at (Santana, victim’s person.’ is in (which crime codified mayhem This of the common law of history element to 203) content for the mental required applicable provides § (§ in 205). Sections 203 205 are crime of statutory aggravated mayhem indeed, crime both address the together; materia thus should be read pari of an of word “maim” v. Keenan older form the mayhem, wound, disable, 687]), “to which means Cal.App.3d Cal.Rptr. of) (the cause hurt to. to of use disfigurement or bodily Subsequently: deprive limb, etc.; mutilate; (Oxford English Diet. Online cripple.” 2, 2013].) maiming of the list of Dec. Because <http://www.oed.com> [as or (“cuts in disables the or out an injuries tongue, eye, section 203 or puts death, nose, ear, slits all describe an short injury phrase or lip”) of in be as used section should “permanent disability disfigurement,” necessity read That disclaims light. expressly in section feature intent to is for the telling, key distinguishing mayhem kill proving die of homicide the assailant’s intention that his victim should not versus disability physical but should live with the emotional injuries, pain Thus, argument or disfigurement. despite prosecutor’s not, may case4 and the stated an intent to kill absent maim, analysis,5 majority’s here,6 for an intent to logically unusual facts substitute present body range, you person’s close argued: repeatedly pistol He “If shoot a into another dies, If the specific aggravated mayhem proved. person crime has been intent commit you you person manages guilty aggravated . . . are guilty are of murder. If the to live mayhem.” decisions, *58 that the the victim was shot majority prior reasons: “In we held fact have to now find that the same support the can an inference of an intent kill. We head [Citations.] disability disfigurement.” to or support permanent fact can an inference an intent cause ante, 88.) (Maj. p. at opn., 6 unusual, contradictory mental Although simultaneously logically entertain person can 459, D’Arcy People v. 48 257 example, states. Cal.4th For 949], lighting fire. We by dousing gasoline and her on the defendant killed the victim her with theory, degree felony mayhem murder first murder on upheld the defendant’s conviction for had concurrent intents to maim noting “the evidence showed that that [the] 106 intending
because to kill someone an intention that victim presupposes will die and thus will survive attack and suffer living ensuing disfigurement. or disability “ ‘ short, “reasonable, credible, In to no evidence that is majority points ’ ” Jones, v. (People supra,
and of solid 960) value” 57 Cal.4th at from p. which the could have found a reasonable that jury beyond doubt when Willover shot he and defendant Aninger, entertained contradictory objec- tives that should die and that she Aninger also should live while suffering or permanently disabling disfiguring injury. that the
My concern is into majority’s analysis inject will confusion If, reasons, law where before none existed. as the fact same majority kill—i.e., can an intent to that the victim was shot in support the head—“can an inference of an to support intent cause disability disfigure- permanent ante, will, ment” 88), at (maj. many cases of murder as a opn., p. attempted matter, also logical involve aggravated mayhem, raising the question whether the trial court is to deliver instructions on the other obligated jury Further, deliberate, crime. future cases albeit involving indis- planned criminate, attack on a victim can now be elevated to one of aggravated Sears, People mayhem, clear line back despite dating to v. authority Anderson, 737, v. People supra, 63 Cal.2d Cal.2d such attacks the intent lack crime. required prove
n. I thus from the dissent decision to affirm majority’s defendant’s conviction I in the aggravated mayhem. concur in all majority opinion other respects, the decision to affirm the including as it is not penalty judgment, reasonably would possible have returned a more in the jury favorable verdict v. absence of the error. Cal.4th 1060 [99 Kraft Brown 68]; P.3d 46 Cal.3d P.2d faced with error not Cal.Rptr. penalty phase [“when 1135] violation, federal to a constitutional we will affirm the amounting judgment unless we there (i.e., realistic) conclude is a reasonable that the possibility would jury have rendered a different verdict had the errors not error or occurred”].)
Liu, 1, concurred. (Id., murder That evidence the defendant told a witness: [the showed victim].” “ ” (Ibid.) going just [light ‘I’m not kill her. I later want her on But he told the fire].’ “ ” (Ibid.) same ‘going witness that the victim. On the evidence in he to kill’ state of the one, D’Arcy, other, it was for or both intents decide whether defendant held when he the crime. evidence is this case. present committed No such
107
J.,
defend
to address
write
and
LIU,
Dissenting.—I
separately
Concurring
a
strike against Prospective
used
claim that the prosecutor
peremptory
ant’s
(1986)
This trial fulfilled colleagues record satisfies my sincere, make a and reasoned evaluation” prosecutor’s meaningful the . . . ‘at and did not justifications accept[] justifications proffered “simply ” ante, But the trial court’s unexplained face value.’ (Maj. opn., court actually us the dark to what evaluation the trial leaves as ruling is that the made. To conclude that deference is unwarranted not conclude evaluate actually trial or that the trial court did wrong court’s ruling court, that an when strike. It is conclude given appellate reasons not know what went into the trial faced with an does ruling, unexplained (See it can defer. U.S. v. court’s and thus has to which nothing judgment (7th 2011) there in the record nothing Cir. 648 F.3d Rutledge [“if decision, which we can nothing the trial court’s then there is reflecting does, defer”].) the court falls routinely Filling gap presumptions, *60 108
short of the careful
by high
(see
court
inquiry required
precedent
Snyder v.
Louisiana
1203];
U.S. 472
L.Ed.2d
128 S.Ct.
Miller-El v. Dretke
2317])
In the I would affirm the trial court’s present Batson based on ruling an review of the independent record. The reliance prosecutor’s on Prospective Juror No. 20’s death views is substantiated firmly the record. The by checked the box on her questionnaire indicating she the death opposed death; she the view that life in penalty; expressed was worse than prison she said innocent had been to people wrongly death. In of these put light facts, defendant has not shown it is more than not that the likely prosecutor’s concern was no pretextual. Ultimately, seated juror similar views expressed on the juror voir dire. questionnaire hesitate, however,
I would rely on the prosecutor’s assertion that “I have an absolute policy rid of whose getting only people jury experience in a hung resulted It is hard jury.” to know what to make of such an unqualified and single-minded statement before had a chance prosecutor to strike or other who have fit the accept jurors might Without description. some indication from the trial court as to such a statement why sweeping credible, I would not much appeared the mere put weight assertion itself. The record in this bears case out hazard of such an potential crediting assertion. Two seated jurors’ sole on a experience had resulted in a jury hung Juror No. had a in jury. served on a drunk jury driving case resulted ain hung jury, yet as constituted prosecutor jury four times accepted after Juror No. was seated. Juror No. 28 had served on a in a civil jury case regarding contract that resulted in dispute a hung jury, yet prosecutor as constituted seven times was accepted jury after Juror No. 28 called. A third seated No. had juror, served on two one of previous juries, which had resulted in as hung jury, yet prosecutor accepted constituted seven times after Juror No. 94 was seated. The prosecutor’s out, it “absolute turns was not absolute all. policy,” My is not that the trial point court should have had the clairvoyance know, made, at the time Batson motion the prosecutor’s stated Rather, reason would later turn out to be false. I mention what happened case as tale with cautionary broad assertions of respect crediting “absolute the nuanced and policy” exercising individualized process court, strikes. a trial peremptory Inquiry by an opposed unexplained elaboration, elicit ruling, relevant may help or assurances qualifications, assertions as of such credibility a reasoned evaluation judicial permit strike. basis a peremptory above, that the Werdegar I with Justice agree
In to the reservations addition *61 In all aggravated mayhem. convict defendant of insufficient evidence was I join opinion. court’s other respects, 21, 2014. denied January for a was rehearing petition
Appellant’s J., granted. should be that the Werdegar, petition opinion