People v. Nadey

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

GILES ALBERT NADEY, JR.,

Defendant and Appellant.

S087560

Alameda County Superior Court

129807

June 17, 2024

Justice Corrigan authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Kruger, Groban, and

Jenkins concurred.

Justice Liu filed a dissenting opinion, in which Justice Evans

concurred.

PEOPLE v. NADEY

S087560

Opinion of the Court by Corrigan, J.

Defendant Giles Albert Nadey was convicted of one count

of unlawful sodomy and one count of first degree murder for the

killing of Terena Fermenick. (Pen. Code, §§ 187, 286, former

subd. (c).)1 The jury found that both offenses were committed

with the use of a knife (§ 12022, subd. (b)) and the murder

occurred during the commission of unlawful sodomy (§ 190.2,

subd. (a)(17)(D)). After the first jury deadlocked on penalty, a

second jury returned a verdict of death. This appeal is

automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. BACKGROUND

A. Guilt Phase

1. Prosecution Evidence

Terena Fermenick was sexually assaulted and killed on

January 18, 1996. Her husband, Donald, had just been named

a minister for the Church of Christ in Alameda.2 The couple

were planning to move from Donald’s parents’ home into the

minister’s residence. On the day of the murder, Terena had

arranged for Skyline Chem-Dry to clean the carpets before the

move. The job was assigned to defendant.

1

All undesignated statutory references are to the Penal

Code.

2

Because they share a surname, we refer to the Fermenicks

by their given names.

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The cleaning was scheduled to begin between 2:00 and

4:00 p.m. Terena left the parents’ home in Pleasanton around

noon and brought the couple’s five-month-old daughter, Regan,

with her. Terena called Donald’s mother around 1:30 p.m. to

say she had arrived safely but the carpet cleaner was not there.

When she expressed concern about being alone in the house with

a stranger, Donald’s mother suggested she leave while the

cleaner worked and come back later to pay him. Terena went to

browse at a nearby antiques store but left around 2:05 p.m.,

saying she was late to meet with a carpet cleaner. A Skyline

Chem-Dry work order states that the job began at 2:16 p.m. A

check indicated Terena purchased diapers at a nearby grocery

store at 3:32 p.m. The carpet cleaning work order, completed by

defendant and signed by Terena, indicates that the cleaning

concluded at 3:54 p.m.

Donald had worked a night shift at his second job and did

not wake that day until 4:00 p.m. He called the minister’s

residence around 4:30 p.m. but received no response. He called

unsuccessfully several more times that evening. When Terena

had not arrived by 8:45 p.m., Donald borrowed his father’s car

and drove to Alameda, arriving around 9:15 p.m. He saw

Terena’s car parked nearby and found Regan asleep in her car

seat. Regan’s diaper was very soiled, suggesting it had not been

changed for some time. Donald grabbed the baby and walked

around the outside of the house, looking for Terena. He peered

through a window and saw Terena lying on the floor. Having no

key, he kicked in a window to gain entry. He screamed upon

finding Terena’s “cold, lifeless” body and called 911. Police

arrived around 9:30 p.m. They removed the baby, handcuffed

Donald, and secured the scene. Donald was taken to the

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Opinion of the Court by Corrigan, J.

hospital for a sexual assault examination and then questioned

at the police station.

Terena’s body lay face down on the family room floor. She

was nude except for blue jeans and a pair of underpants

positioned around her ankles. In the primary bedroom, the bed

was stained with human feces and a large amount of blood. The

mattress foam displayed bloody swipe marks, suggesting an

implement had been wiped on it. Terena’s wallet, a credit card,

and a pen lay on top of the bedding. Her nursing bra,

undershirt, and sweatshirt had been removed and left in a heap

on the bed. Her purse, a tennis shoe, and the Skyline Chem-Dry

work order lay on the floor next to the bed. A blood trail led from

the bed, through a hallway, to her body in the family room. A

sheathed hunting knife was found behind a set of blinds in the

primary bedroom. No fingerprints were found on the knife,

which bore no visible bloodstains. Donald testified he had

previously found the knife when he and Terena were cleaning

out the house, and he had placed it on the windowsill. A

serrated paring knife was recovered from a different bedroom,

but it was not tested for fingerprints.

The autopsy revealed one deep incised wound to the left

side of Terena’s neck, as well as seven superficial neck

lacerations, defensive wounds on her fingers and hands, and two

incised wounds to her torso. Her jugular vein had been

completely severed, causing her death. A person generally dies

within three to five minutes after infliction of such an injury.

There were also five lacerations around Terena’s anus

consistent with the insertion of a penis. These injuries were

inflicted before death. There was fecal matter present around

the anus. Its presence could have been caused by sodomy.

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The prosecution theorized Terena was killed shortly after

3:54 p.m., when she signed the work order. A McDonald’s bag

had been found in Terena’s car, and her stomach contents were

consistent with having eaten a hamburger. The food did not

appear digested and could have been eaten less than half an

hour before her death.

Defendant’s supervisor testified that defendant left for the

Fermenick cleaning job around 1:45 p.m. He was wearing white

canvas shoes, blue pants, a white Skyline Chem-Dry work shirt,

and an old yellow raincoat. A small job of this nature would

typically take an hour to an hour and a half. Skyline employees

were supposed to call the office when a job was finished.

Defendant called around 4:15 or 4:30 p.m. with that report. He

said he had stopped by a Jack-in-the-Box in Oakland and was

calling from the area. The secretary asked him to pick up

cigarettes for her on his way back. Defendant returned with the

cigarettes between 4:30 and 4:50 p.m. and behaved normally.

He turned in the completed work order for the Fermenick job

and a $184 check signed by Terena. Defendant had noted on the

work order that he started the cleaning job at 2:16 p.m. and

completed it at 3:54 p.m. The supervisor noticed that defendant

was missing his raincoat and asked about it. Defendant said he

had left it in the Jack-in-the-Box restroom. Police went there

the next day but found no raincoat.

The day after the murder, the police contacted Skyline

Chem-Dry and asked that the person who had cleaned the

Fermenick house come in for questioning. Defendant went to

the station and gave a tape-recorded statement. The next day,

police obtained a search warrant for defendant’s home and

person.

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A Plier’s Plus multifunctional tool was found in

defendant’s bedroom. The testifying pathologist opined that

Terena’s wounds could have been produced by the blade on this

tool, though no bloodstains were detected on it. A writing tablet

in defendant’s nightstand contained drawings of male and

female genitalia and a letter describing defendant’s experience

with anal sex. Pornographic magazines, handwritten material,

and videocassettes were also found in defendant’s bedroom,

along with a book of pornographic stories, including one related

to sodomy. Telephone records from the Fermenick residence in

Alameda revealed that calls had been placed from their phone

to two 1-900 numbers at 3:07 and 3:08 p.m., while defendant

was cleaning the carpets. The phone numbers corresponded to

the Real Swingers Hot Line and the Info Service Entertainment

Line. Each call lasted under a minute.

While his house was searched, defendant was taken to the

hospital for a sexual assault examination. His genital area

appeared dirty and encrusted with flaky material. There was a

reddened abrasion on the head of his penis. A DNA expert later

determined from two types of testing that semen present in

swabs taken from Terena’s rectal area and stains on her jeans

matched defendant’s DNA. From restriction fragment length

polymorphism (RFLP) testing, the probability of this match

occurring at random was one in 32 billion Caucasians.3 Based

on polymerase chain reaction (PCR) testing, the probability of

the match identified was one in 150,000 Caucasians. Sperm was

also recovered from Terena’s vulvar area. Defendant was

identified as the major donor of DNA in this sample, with a

3

It is evident from cross-examination of the DNA expert

that defendant’s ethnic heritage is predominantly Caucasian.

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match probability of one in 1.6 million Caucasians. DNA

recovered from one vulvar swab indicated an additional minor

donor, who was neither defendant nor Terena’s husband

Donald. Based on the unclean condition of defendant’s genital

region, the prosecution theorized that defendant may have

transferred the foreign DNA onto Terena’s body when he

assaulted her.

After defendant’s sexual assault examination, he was

placed under 24-hour police surveillance. At one point,

defendant initiated a conversation with the officers stationed

outside the home he shared with his mother. Saying he wanted

to cooperate, he remarked, “I must be the lead suspect in the

case because I was the last one at the house.” He asked if police

could arrest him at his workplace, rather than at home, to avoid

embarrassing his mother. He also requested that they handcuff

him in a way that would not strain his shoulders. Later,

defendant told the officers he had spoken to an attorney and

been advised not to talk to them. He went inside the house, then

came back to the police car and said, “I’m starting to feel the

weight of this, all this on my shoulders.”

The prosecutor argued defendant forcibly sodomized and

stabbed Terena in the bedroom shortly after she paid for the

carpet cleaning and signed the work order. After the assault,

she staggered to the family room in an attempt to use the phone

and died there.

2. Defense Evidence

Terena’s father-in-law testified that she was apprehensive

about moving to the house in Alameda because she was worried

about safety. There was a good deal of foot traffic on the

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sidewalk in front of the house, and people occasionally walked

through the passageway between the house and the church.

A police officer who responded to the scene reported that

Donald appeared “extremely calm considering the

circumstances.” The officer testified that he meant Donald

seemed to be in shock following the traumatic discovery and

subsequent events. Another officer who was present during

Donald’s sexual assault examination described him as “void of

emotion” and “flat lined.” He made an odd joke to the nurse who

took a pubic hair sample about his hair thinning “on top” but not

“down there.”

Finally, an FBI agent testified that an examination of

defendant’s Chem-Dry van found no evidence of blood or semen.

Nor did the van smell like it had recently been cleaned.

In closing, the defense challenged the DNA match

evidence, claiming the expert was biased and the samples had

been mishandled. Counsel argued that an intruder could have

come into the house after defendant left and assaulted Terena,

accounting for the foreign DNA detected. The defense stressed

that defendant was acting normally when he returned to work,

his clothes were not bloody, and no blood traces were found in

his vehicle.

B. Penalty Phase

1. Aggravating Evidence

After the guilt phase jurors were unable to reach a penalty

verdict, a second jury was empaneled to retry the penalty phase.

Because the new jury had not heard testimony from the guilt

phase, several witnesses testified again to establish facts and

circumstances surrounding the crimes. (See § 190.3, subd. (a).)

The evidence was more condensed than that presented in the

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guilt trial and did not include, for example, evidence of the DNA

matches and defendant’s statements to the officers monitoring

him. We do not repeat this evidence here but discuss any

variations from the guilt phase evidence when they bear on

defendant’s claims of error.

a. Prior Misconduct

The prosecution introduced certified copies of two prior

felony convictions. (See § 190.3, subd. (c).) In 1985, defendant

was convicted of two counts of first degree burglary and served

two years in prison. In 1993, he was convicted of second degree

burglary and petty theft with a prior felony conviction. The

parties stipulated that these felonies were part of a single

incident.

During a January 1990 traffic stop, a three-foot-long club

was found lodged between defendant’s driver’s seat and car door.

He was arrested for possessing a deadly weapon and on

suspicion of receiving stolen property. Defendant was pat-

searched during another traffic stop later that year, and a

concealed dagger was recovered. The knife was in a leather

sheath tucked partly into defendant’s shoe and covered by a

sock. Defendant was again arrested for possessing a deadly

weapon. He was convicted of misdemeanor charges for both

weapons incidents, serving 30 days in county jail for the first

and 19 days for the second.

In 1994, defendant invited 13-year-old Sarah S. to come to

his motel room “to have fun, play cards.” When Sarah arrived

with her younger sister and an 11-year-old friend, they joined

defendant and two of his adult friends in the room. Defendant

took Sarah into the bathroom and offered her

methamphetamine. After they both took the drug, defendant

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hugged her. Sarah used the drug several more times that night

and drank “[m]ore than five beers.” Eventually, she lay on the

bed and passed out. Defendant lay down next to her.

Defendant’s friend Ricky testified that defendant fondled

Sarah’s breasts and pelvic region while she was unconscious.

Defendant admitted he had unsuccessfully tried to have

intercourse with Sarah then put his fingers into her vagina. A

police report was filed about the incident, but defendant was not

charged.

The next year, defendant was living with his father in

Virginia. On the night of April 17, 1995, while driving his

father’s station wagon, defendant followed closely behind the car

of college student Virginia H. As he passed her on a winding,

two-lane country road, a gunshot was fired from the passenger

window of his vehicle. Ms. H. reported the incident to police,

and the next day defendant’s parole officer was contacted.

Defendant told the parole officer he had fired a gun but was

aiming at a bird sitting on a fence and not Ms. H.’s car. Later

that year, the other occupant of the station wagon pled guilty to

shooting a gun from a moving vehicle. He told his wife that

defendant was the actual gunman but “he was taking the rap

basically to keep Al from getting in trouble[,] or more trouble.”

Probation revocation proceedings were initiated, but defendant

was not charged separately for the shooting.

While defendant was awaiting trial on the present

charges, a plastic razor was found in his jail cell. Possessing the

razor violated jail rules because the blade can be used as a

weapon.

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b. Victim Impact

Donald could not function or care for his daughter after

Terena’s murder. He left the ministry and quit a series of jobs.

He described the pain of losing his wife and having to watch

Regan grow up without her. Terena’s mother and older sister

testified about their horror at the manner of her death and how

much they missed her, particularly when the family gathered at

Christmas. Terena’s father was angry and unable to sleep even

with prescribed medication. He missed their hunting and

fishing trips and the walks they had enjoyed together.

2. Mitigating Evidence

Several family members testified about defendant’s life

and his continued positive influence on them. His parents

divorced when he was around four years old. He and his

younger brother initially lived in the Bay Area with their mother

but went to live with their father in Sacramento when defendant

was eight. Defendant was sent back to live with his mother at

age 14 because he had been sneaking out at night, disobeying

curfew, and possibly using drugs and alcohol. He played sports

in high school and enjoyed cake decorating but also seemed

depressed and began skipping school.

After obtaining a high school equivalency degree,

defendant left home and began a relationship with a woman,

with whom he had three daughters. Defendant’s parents

testified that he was a caring father and remained in close

contact with his children, aged 14, 11, and nine at the time of

trial. The girls were being raised by defendant’s father in

Virginia. Each testified that they loved their father and stayed

in regular contact with him by letters and phone. They wanted

to continue that contact. Defendant had become a Christian in

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prison and advised his daughters to go to church. Two of

defendant’s cousins and a childhood friend testified about their

appreciation for defendant’s positive influence in their lives. A

friend described her long correspondence with defendant, which

increased in frequency and intensity after his incarceration.

The defense also called two experts. A psychiatrist

testified that methamphetamine use can cause paranoia and

inappropriate sexual behavior. An expert on prison adjustment

who had interviewed defendant and reviewed his jail and prison

records testified that defendant had a positive attitude and

would likely adjust well to life in prison. There was no evidence

he had ever been assaultive toward staff or involved with a gang.

3. Rebuttal Evidence

A sheriff’s deputy testified about a fight among inmates

involving a razor blade to illustrate the severity of defendant’s

possession of such a blade. The jury also heard evidence that,

in addition to calls made on the day of the murder, defendant

made several calls to phone sex hotlines in November and

December 1995. Finally, witnesses testified about a 1992

incident in which defendant responded to a prank by an 11-year-

old and 12-year-old by exposing his penis and placing it against

their car window.

II. DISCUSSION

A. Pretrial Batson/Wheeler Motions

Defendant contends he was denied his constitutional

rights to equal protection and a representative jury because the

prosecutor exercised peremptory challenges to exclude Black

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women from the jury.4 In general, parties may exercise a

peremptory challenge “ ‘for any permissible reason or no reason

at all’ ” (People v. Smith (2018) 4 Cal.5th 1134, 1146 (Smith); see

People v. Armstrong (2019) 6 Cal.5th 735, 765 (Armstrong)), but

the federal and state constitutions prohibit their use to exclude

prospective jurors based on race or gender. (Wheeler, supra, 22

Cal.3d at pp. 276–277; Batson v. Kentucky (1986) 476 U.S. 79,

89.)

Batson/Wheeler claims have been evaluated in the trial

court under a three-step framework. “First, the defendant must

make out a prima facie case ‘by showing that the totality of the

relevant facts gives rise to an inference of discriminatory

purpose.’ [Citation.] Second, once the defendant has made out

a prima facie case, the ‘burden shifts to the State to explain

adequately the racial exclusion’ by offering permissible race-

neutral justifications for the strikes. [Citations.] Third, ‘[i]f a

race-neutral explanation is tendered, the trial court must then

decide . . . whether the opponent of the strike has proved

purposeful racial discrimination.’ ” (Johnson v. California

(2005) 545 U.S. 162, 168, fn. omitted.) “[T]he ultimate burden

of persuasion regarding racial motivation rests with, and never

shifts from, the opponent of the strike.” (Purkett v. Elem (1995)

514 U.S. 765, 768.) To support a Batson/Wheeler motion, a

4

Both defendant and the victim were White. A defendant

need not be a member of the excluded group in order to raise a

Batson/Wheeler claim, but “if he is, and especially if in addition

his alleged victim is a member of the group to which the majority

of the remaining jurors belong, these facts may” be relevant to

the court’s analysis. (People v. Wheeler (1978) 22 Cal.3d 258,

281 (Wheeler); see People v. Clark (2011) 52 Cal.4th 856, 906

(Clark); People v. Farnam (2002) 28 Cal.4th 107, 135–136

(Farnam).)

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party must prove “it was more likely than not” that a challenge

was motivated by discrimination. (Johnson, at p. 170; see

Armstrong, supra, 6 Cal.5th at p. 766.)5

Defendant first raised a Batson/Wheeler motion after the

prosecutor had excused two Black panelists. When the court

later paused proceedings to hear the motion, it found a prima

facie case of discrimination because, although one Black female

remained on the panel, the prosecutor had used four out of eight

peremptory challenges to strike Black women. At the court’s

request, the prosecutor provided his reasons for excusing each

panelist in question: Alice S., Victoria E., Harriett D., and

Lorraine D. Defendant’s attorney declined the court’s invitation

to respond and submitted the matter. The court denied the

motion, concluding the reasons given were “facially and racially

neutral.” The court observed, “I don’t believe that any of these

5

A recent enactment provides for a new statutory claim

with a distinct procedure. (Code Civ. Proc., § 231.7, added by

Stats. 2020, ch. 318, § 2.) Effective January 1, 2021, and

scheduled to sunset on January 1, 2026, the new statute does

not require a prima facie showing of discrimination before

reasons for a challenge must be given, and certain reasons are

considered presumptively invalid. (Code Civ. Proc., § 231.7,

subds. (c), (e).) The court must consider only the reasons given,

need not find purposeful discrimination, and must sustain the

objection if it “determines there is a substantial likelihood that

an objectively reasonable person would view race, ethnicity,

gender, gender identity, sexual orientation, national origin, or

religious affiliation, or perceived membership in any of those

groups, as a factor in the use of the peremptory challenge.” (Id.,

subd. (d)(1).) The statute applies only to “jury trials in which

jury selection begins on or after January 1, 2022” (id., subd. (i)),

and no party here contends it could be applied retroactively to

defendant’s trial.

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jurors are excused because of their race, and there is

justification and cause for the excus[al] of each juror.”

When the prosecutor later struck a fifth Black woman,

Doris C., defendant made a second Batson/Wheeler motion.

Defense counsel argued there had been a systematic exclusion

of Black prospective jurors because none of the seated jurors

appeared to be Black, but the court observed that the defense

had also excused a Black woman from the jury. Noting it had

already found a prima facie case of discrimination, the court

asked the prosecutor to explain his reasons for striking Doris C.

Before he did so, the prosecutor observed that he had retained

another Black female panelist, who was later excused by the

defense, and rated her “very highly” because she worked as a

police dispatcher “and as such had some leanings toward law

enforcement.” He explained that his sole concern in exercising

peremptory challenges was panelists’ “relative strengths or

weaknesses regarding the penalty of death,” and he excused

them “based upon what they would do in the penalty phase.” He

then gave specific reasons for striking Doris C. The court found

these reasons “genuine and facially neutral” and denied the

motion. From the record, it appears no Black juror served on

the guilt phase jury.6

6

After hardship excusals and cause challenges, 78 qualified

jurors remained in the venire. Only eight of these were

identified in the record as Black or African American. As to

those identified, the prosecutor used his peremptory challenges

to excuse five, the defense excused one, and two were never

called to the jury box.

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1. Legal Principles

Because the trial court found a prima facie case of racial

discrimination and the prosecutor stated reasons for the strikes

at issue, our analysis focuses on the third Batson/Wheeler

prong. (See People v. Lomax (2010) 49 Cal.4th 530, 570

(Lomax).) At the third stage, the question is whether the

defendant has shown it was more likely than not that at least

one of the prosecutor’s strikes was motivated by intentional

discrimination. (People v. Baker (2021) 10 Cal.5th 1044, 1076

(Baker).) “The answer to this factual question will ordinarily

depend ‘on the subjective genuineness of the race-neutral

reasons given for the peremptory challenge.’ [Citation.] A

justification based on a mischaracterization of the record could

reveal a discriminatory motive [citation], but might reflect a

mere error of recollection [citations]. Likewise, a justification

that is ‘implausible or fantastic . . . may (and probably will) be

found to be pretext[ual],’ yet even a ‘silly or superstitious’ reason

may be sincerely held.” (Ibid.) The question for the trial court

is “ ‘ “the subjective genuineness of the race-neutral reasons

given for the peremptory challenge, not . . . the objective

reasonableness of those reasons.” ’ ” (People v. Miles (2020) 9

Cal.5th 513, 539 (Miles); see Armstrong, supra, 6 Cal.5th at

p. 767.)

Comparative juror analysis, comparing questionnaire and

voir dire responses of challenged jurors with those of similar

jurors from a different racial group, must also be considered

upon review of these claims. (People v. Lenix (2008) 44 Cal.4th

602, 607 (Lenix).) While not necessarily dispositive, this

analysis may offer relevant circumstantial evidence bearing on

the genuineness of the prosecutor’s race-neutral justifications.

(Id. at p. 622.) Compared jurors need not be identical to

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challenged jurors in all respects. (Flowers v. Mississippi (2019)

588 U.S. 284, 311–312; Miller-El v. Dretke (2005) 545 U.S. 231,

247, fn. 6.) But “[i]f a prosecutor’s proffered reason for striking

a black panelist applies just as well to an otherwise-similar

nonblack who is permitted to serve, that is evidence tending to

prove purposeful discrimination.” (Miller-El, at p. 241.)

Because this case was tried before Miller-El and Lenix

established the relevance of comparative juror analysis, the

parties did not explore these issues in the trial court. Defense

counsel did not raise comparisons to jurors the prosecutor

retained, the prosecutor did not explain why he had retained

jurors with characteristics assertedly similar to those stricken,

and the trial court did not press for any such explanation in

evaluating reasons given for the strikes. Accordingly, in

reviewing defendant’s arguments here, we must be “mindful

that comparative juror analysis on a cold appellate record has

inherent limitations.” (Lenix, supra, 44 Cal.4th at p. 622.)

“ ‘When comparative juror arguments are made for the first time

on appeal, . . . the prosecutor was not asked to explain, and

therefore generally did not explain, the reasons for not

challenging other jurors. In that situation, the reviewing court

must keep in mind that exploring the question at trial might

have shown that the jurors were not really comparable.’ ”

(People v. Hardy (2018) 5 Cal.5th 56, 77 (Hardy).) A

comparative juror analysis conducted on appeal is thus

appropriately limited to the stricken panelists and seated jurors

discussed in defendant’s briefing. (Miles, supra, 9 Cal.5th at

p. 541; Lomax, supra, 49 Cal.4th at p. 572; Lenix, at p. 624.)

A trial court’s ruling on the ultimate question of

discriminatory intent is ordinarily reviewed with restraint,

because that court “is best situated to evaluate both the words

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and the demeanor of jurors who are peremptorily challenged, as

well as the credibility of the prosecutor who exercised those

strikes.” (Davis v. Ayala (2015) 576 U.S. 257, 273–274.) “ ‘We

presume that a prosecutor uses peremptory challenges in a

constitutional manner and give great deference to the trial

court’s ability to distinguish bona fide reasons from sham

excuses.’ ” (Lenix, supra, 44 Cal.4th at pp. 613–614.) A third-

stage ruling is thus entitled to “ ‘great deference,’ ” and is

reviewed for substantial evidence, so long as “the trial court has

made a sincere and reasoned attempt to evaluate each stated

reason as applied to each challenged juror.” (People v. Silva

(2001) 25 Cal.4th 345, 385−386 (Silva); see Baker, supra, 10

Cal.5th at p. 1078; Lenix, at p. 613.)

Defendant contends appellate deference is permissible

only if the trial court has performed “an appropriate on-the-

record analysis of the prosecutor’s stated reasons for the strike

or strikes.” This position is contrary to California precedent.

Although a clear record is always helpful, “[t]he law . . . does not

require a court in all circumstances to articulate and dissect at

length the proffered nondiscriminatory reasons for a strike.”

(Baker, supra, 10 Cal.5th at p. 1080.)7 On the contrary, we have

recognized that the “court may make a sincere and reasoned

effort to evaluate a peremptory challenge even if it does not

provide a lengthy and detailed explanation for its ruling.”

(Baker, at p. 1077.) “When the prosecutor’s stated reasons are

7

Recently enacted Code of Civil Procedure section 231.7,

subdivision (d)(1) now requires the court to “explain the reasons

for its ruling on the record” when addressing an objection to the

improper use of a peremptory challenge. As noted, however,

there is no claim that this new requirement applied to

defendant’s trial. (See ante, at p. 12, fn. 6.)

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both inherently plausible and supported by the record,” the trial

court’s ruling is accorded deference even if the court did not

question the prosecutor or make detailed findings. (Silva,

supra, 25 Cal.4th at p. 386.) In deciding whether deference is

warranted, our opinions have thus consistently examined

whether the reasons given for a strike are both plausible and

supported by the record. (See, e.g., Miles, supra, 9 Cal.5th at

pp. 539–541; Hardy, supra, 5 Cal.5th at pp. 78–79.)

Here, the trial court did not elaborate on its rulings and

“could have done more to make a fuller record.” (Miles, supra, 9

Cal.5th at p. 540.) Defendant asserts deference is unwarranted

because the court simply ruled that the prosecutor’s reasons

were “facially and racially neutral” and “genuine” and did not

specifically find that these reasons actually motivated the

strikes in question. The dissent similarly argues the court

should have “resolved th[e] inconsistency” when some voir dire

responses were contrary to the reasons given for a panelist’s

excusal. (Dis. opn. of Liu, J., post, at p. 10.) Yet, we have

repeatedly explained that trial courts are “ ‘ “not required to

make specific or detailed comments for the record to justify

every instance” ’ ” in which they have accepted a prosecutor’s

race-neutral reasons for a strike as genuine. (People v. Stanley

(2006) 39 Cal.4th 913, 936; see People v. DeHoyos (2013) 57

Cal.4th 79, 102; People v. Vines (2011) 51 Cal.4th 830, 848

(Vines).) “A court may make a sincere and reasoned effort to

evaluate a peremptory challenge even if it does not provide a

lengthy and detailed explanation for its ruling. [Citations.]

Under our precedent, ‘[w]hen the trial court has inquired into

the basis for an excusal, and a nondiscriminatory explanation

has been provided, we . . . assume the court understands, and

carries out, its duty to subject the proffered reasons to sincere

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and reasoned analysis, taking into account all the factors that

bear on their credibility.’ ” (Baker, supra, 10 Cal.5th at

pp. 1077–1078.) Although that presumption may be overcome

when the proffered reasons for a strike are implausible or lack

support in the record (see Silva, supra, 25 Cal.4th at

pp. 385−386), or when the rationale behind a prosecutor’s strike

is not self-evident (see People v. Gutierrez (2017) 2 Cal.5th 1150,

1171–1172), the starting point is one of deference. (Baker, at

p. 1078; Armstrong, supra, 6 Cal.5th at p. 777.)8

2. Challenged Jurors

During voir dire, the prosecutor asked all prospective

jurors to gauge their philosophical support for the death penalty

on a ten-point scale. As he explained the scale, a “one” is

“somebody who is never going to give the death penalty to

anyone,” even for the worst crimes. A “ten,” on the other hand,

describes someone who believes death is the appropriate

punishment for any murder. Before addressing individual

challenges, defendant broadly asserts that the prosecutor’s

stated reasons for these strikes must have been pretextual

because the stricken panelists frequently rated themselves at

the same number or higher on this scale than panelists who

ultimately served on the jury. If the prosecutor accepted jurors

8

The dissent urges a different result based on broad

characterizations of the entire Alameda County District

Attorney’s Office filed in a different case and in a different court.

(See dis. opn. of Liu, J., post, at pp. 18–19.) Neither party has

discussed these extra-record materials or sought judicial notice

of them. The materials are not before us in this appeal and thus

cannot properly inform our decision. (See People v. Wilson

(2005) 36 Cal.4th 309, 344 fn. 8; People v. Fairbank (1997) 16

Cal.4th 1223, 1249.)

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who rated themselves a five or a six on his scale, the argument

goes, what reason could he have had other than discrimination

for striking jurors who rated themselves an eight or a ten? The

answer is that, as the record makes clear, the prosecutor did not

exercise challenges based on the numerical scale alone. He

supplemented the court’s voir dire with his own questions

designed to probe each prospective juror’s willingness to impose

the death penalty. While the scale might have offered some

insight, as a starting point, on that issue, additional voir dire

enabled a more nuanced evaluation and a consideration of

whether the panelists’ self-assigned numbers accurately

reflected their views. It is also true that, in selecting individual

panel members, factors other than the initial rating may

reasonably make a given panelist more or less acceptable to one

side or the other.

Because defendant claims all of the five challenges were

improper, we examine the record surrounding each.

“ ‘Excluding even a single prospective juror for reasons

impermissible under Batson and Wheeler requires reversal.’ ”

(Baker, supra, 10 Cal.5th at p. 1071.) We conclude in each

instance the prosecutor’s reasons were inherently plausible and

supported by the juror’s questionnaire responses and voir dire.

Accordingly, our review is deferential, evaluating whether

substantial evidence supports the trial court’s factual findings.

(See Armstrong, supra, 6 Cal.5th at pp. 767–768; Lenix, supra,

44 Cal.4th at p. 613.)

a. Prospective Juror Harriett D.

The prosecutor gave only one reason for striking

Harriett D.: “[G]ranted she said she was a ten philosophically,

but on her questionnaire what she told us was the death penalty

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was a last resort. When somebody tells me that, that tells me

I’m going to have to sit there and, you know, prove something

beyond any possible shadow of a doubt. When they say its’s a

last resort, that means that they will do anything or think

anything of getting away from it.” Reluctance to impose the

death penalty has long been recognized as a legitimate,

nondiscriminatory basis for a peremptory strike. (See, e.g.,

Armstrong, supra, 6 Cal.5th at p. 770; People v. Winbush (2017)

2 Cal.5th 402, 436 (Winbush); Lomax, supra, 49 Cal.4th at

p. 572.) The prosecutor’s reason was plausible (see People v.

Williams (2013) 56 Cal.4th 630, 653 (Williams)), and the record

bears out his characterization of Harriett D.’s questionnaire

response. Asked for her general feelings on the death penalty,

Harriett D. simply wrote, “As the last resort.”

Defendant argues the prosecutor’s reason was pretextual

because Ms. D, described herself as a “10” on the prosecutor’s

scale. It appears from the context of voir dire, however, that she

misunderstood the prosecutor’s question about the scale. He

asked her to rate “how you feel about the death penalty as a

philosophy, as a punishment,” and Harriett D. answered, “It

would have to be at the ten because I mean if you’re going to

pick a death penalty, there is nothing beyond that.” (Italics

added.) This response suggests that Harriett D. was rating how

severe a punishment she believed the death penalty to be, not

how strongly she would be inclined to impose it. Indeed, when

the court interrupted to probe Ms. D.’s response further, she

ultimately placed herself in the middle of the hypothetical scale:

THE COURT: Are you telling us that in every

murder case you feel that the death penalty is the only

appropriate penalty?

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PROSPECTIVE JUROR: No, not in every case.

THE COURT: You want to find out the details

first?

PROSPECTIVE JUROR: Right.

THE COURT: I just wanted to make sure.

PROSPECTIVE JUROR: Yes.

THE COURT: Because when you tell the defense

lawyers you’re a ten, boy, that red flag goes up.

PROSPECTIVE JUROR: Yes.

THE COURT: And they think this lady is going to

pick death every time.

PROSPECTIVE JUROR: No, no, no.

She also told defense counsel her views on the death

penalty were middle-of-the-road, favoring neither punishment:

[DEFENSE COUNSEL]: As I understand what

you’re saying, . . . [¶] [y]ou wouldn’t do that automatically

in every case?

A. No.

Q. Nor would you . . . give life without parole in

every case.

A. Definitely not.

Q. Correct?

A. No. I would — I want to be sure I know what

is going on, what the circumstances are, how they

occurred, and what motivated the person.

Q. Would it be fair to say that — that your

position really is you’re in the middle; it really could be

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death or life? . . . [¶] If you get to a penalty phase, you are

not starting out favoring death —

A. No.

Q. — any more than you’re favoring life? You’re

really more in the middle waiting to see what it’s all

about?

A. Exactly.

When the prosecutor inquired about her “as a last resort”

questionnaire response, Harriett D. stressed the importance of

being absolutely convinced that the person deserves to die before

the death penalty can be imposed. “Because we’re speaking of

life,” she explained, “to be in the position to have to make a

judgment as to whether a person will live or die, you want to try

to be absolute as far as your decision without any remorse or

any — you can’t have second thoughts, because once a person —

if they’ve been sentenced to death, once they die, you cannot

bring them back.” Concerned about the word “absolute,” the

prosecutor asked, “Is it that kind of absolute whether he did it

or not and maybe you’re executing the wrong guy?” Harriett D.

responded, “No. Does this particular sentence deserve this

person to actually go to the death chamber, [or] whatever.”

In summary, Harriett D. ultimately placed herself in the

middle of the prosecutor’s hypothetical scale measuring

attitudes toward the death penalty. She accepted it in theory

and thought she could impose it, but she also thought deciding

to take a life was very serious and she would want to be

“absolutely” certain defendant deserved death. The dissent

points to several of Harriett D.’s voir dire responses expressing

an ability or willingness to impose the death penalty. Certainly,

such responses demonstrated her qualification to serve as a

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capital juror and would likely have been sufficient to defeat a

challenge for cause. But we are addressing a peremptory

challenge. “A prosecutor’s reasons for exercising a peremptory

challenge ‘need not rise to the level justifying exercise of a

challenge for cause.’ (Batson[ v. Kentucky], supra, 476 U.S. at

p. 97.)” (People v. Hamilton (2009) 45 Cal.4th 863, 901.)

Considering her questionnaire and voir dire as a whole, Harriett

D.’s responses could have raised a legitimate concern that the

prosecutor would have to present a more compelling case to her

than would be required to persuade other jurors. Sufficient

evidence supports the court’s finding that Harriett D.’s excusal

was legitimate and not racially motivated.

Comparative juror analysis does not undermine this

conclusion. Defendant compares Harriett D. to two seated

jurors, Juror No. 2 and Juror No. 12, but both were notably

stronger for the prosecution, particularly with regard to penalty

phase concerns.9 Like Harriett D., Juror No. 2 wanted certainty

9

Although we have at times focused our comparative juror

analysis on differences among jurors that relate to the

prosecutor’s reasons for excusal (see Miles, supra, 9 Cal.5th at

p. 544), we need not ignore obvious reasons why a prosecutor

would want to retain some jurors and not others. “When asked

to engage in comparative juror analysis for the first time on

appeal, a reviewing court need not, indeed, must not turn a blind

eye to reasons the record discloses for not challenging other

jurors even if those other jurors are similar in some respects to

excused jurors.” (People v. Jones (2011) 51 Cal.4th 346, 365–366

(Jones).) Citing federal circuit court decisions, defendant urges

us to depart from this precedent. We decline to do so.

Nevertheless, because the prosecutor here stressed that his

challenges were exercised based solely on jurors’ apparent

willingness to impose the death penalty, our analysis focuses

primarily on traits and opinions the prosecutor might

reasonably have viewed as bearing upon this question.

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before she could impose the death penalty, but her concern was

for certainty as to the defendant’s guilt, not over whether death

was warranted. Once the prosecutor and court explained the

difference between guilt and penalty determinations, however,

she affirmed that she would not hold the prosecution to a higher

standard for showing guilt and reiterated her ability to impose

the death penalty. Indeed, her voir dire revealed that she

tended to favor the death penalty for a first degree murder

involving sodomy. While conceding that she “would have to still

be open” to returning a life sentence, she stated that “the death

penalty would still be an overriding factor for me.” And Juror

No. 2 had strong ties to law enforcement, something the

prosecutor rated “very highly.” She had worked for the Internal

Revenue Service’s criminal division, and her significant other

was an Alameda County Deputy Sheriff. These responses

suggested she would look favorably on many of the prosecution’s

witnesses and would be receptive to victim impact evidence in

the penalty phase.

Juror No. 12 was a considerably stronger supporter of the

death penalty than Harriett D. He said on his questionnaire

that it is “warranted” and explained in voir dire his belief that

the death penalty is a deterrent and serves a societal purpose.

When asked during voir dire whether “the death penalty should

be used every time somebody is convicted of murder,” he

responded that “if it’s a first-degree murder where you have

planned and carried out a heinous act and there is some special

circumstance, then — then the death penalty is — I think it

should be done.” He also wrote on the questionnaire that we

cannot “blame all of our ‘wrong doings’ on our past,” which

suggests he would not be overly swayed by mitigation evidence

in the penalty phase. Finally, Juror No. 12 would have been

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attractive to the prosecutor for reasons not directly related to

the death penalty. As an engineer married to a microbiologist,

the juror was familiar with DNA analysis and would have been

receptive to this evidence of guilt. He was also a gun owner,

which could be viewed as consistent with conservative political

views. Because the prosecutor mentioned “liberal” tendencies

as a reason for excusing Alice S. and Lorraine D., he evidently

preferred to seat jurors with conservative leanings.

b. Prospective Juror Lorraine D.

The prosecutor gave several reasons for excusing

Lorraine D. She seemed “very weak on the death penalty,” and

the prosecutor worried she might have a “liberal bent” because

her husband ran a homeless shelter. He explained that her

views could cause Lorraine D. to be overly sympathetic when

considering mitigation evidence. As noted, reluctance to impose

the death penalty is a valid, race-neutral reason supporting a

challenge. (Armstrong, supra, 6 Cal.5th at p. 770; Vines, supra,

51 Cal.4th at p. 850.) Anticipating the defense would present

evidence of drug abuse as mitigation, the prosecutor also

expressed concern that even though Lorraine D.’s sister had

“died of AIDS and crack and things like that, that didn’t seem to

make a big impact on her.” The prosecutor’s explanation for this

reason is somewhat garbled: “And there is a possibility of drug

use in this particular case which would make her familiar with

some sort of drug abuse and I didn’t want to take a chance when

I have a ton of better jurors qualified coming up in the later

rounds.”10 Taken as a whole, it appears that the prosecutor was

10

Here, all potential jurors were questioned before the court

moved to the exercise of peremptory challenges. Thus, the

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concerned Lorraine D. would sympathize with defendant as

someone who, like her sister, had abused drugs. 11

These reasons were plausible and are supported by the

record. Lorraine D. stated on the questionnaire that her

husband ran a homeless shelter and she sometimes helped cook

there. She also disclosed her sister’s heroin and crack use and

recent death from AIDS. With regard to general feelings on the

death penalty, she said, “I do not believe taking one’s life is the

answer, but each situation is different[,] depends on the

circumstances.” (Italics added.) Asked in voir dire to elaborate

on the response, Lorraine D. explained that whether “taking a

person’s life” was warranted depended on the nature of the

crime and the defendant’s “upbringing, what caused them to

come to this point in their life.” The prosecutor followed up on

Lorraine’s mention of “the nature of the crime” to ask whether

“the death penalty would be a possibility for you” if defendant

was found guilty of first degree murder during the commission

of criminal sodomy. She responded, “I can’t really answer to

that like to say that the death penalty would do just for that type

of crime. A lot more would have to be established.” To this, the

court interjected to explain, “[W]e all have a sort of a threshold

advocates knew the views of all those panelists who were

available to be called should a challenge be exercised.

11

It is unclear what the prosecutor meant in saying the

sister’s death from AIDS did not seem to “have a big impact” on

Lorraine D. It appears he was referring to the relative absence

of emotion in her responses to the many questions posed in the

questionnaire probing jurors’ attitudes about drugs. Several

jurors expressed strong anti-drug sentiments in response to

these questions, yet Lorraine D., who had lost her sister to a

drug-related illness two years earlier, said simply that drug use

was “stupid.”

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where we feel that somebody’s conduct would, in your mind, if

he did that, make him eligible for the death penalty. That’s

what he is asking you. [¶] So, if you find the defendant in this

case guilty of assaulting Ms. Fermenick, sodomizing her, and

cutting her throat, without telling us how you would vote, is that

case serious enough in your own mind where the death penalty

could be an option?” Lorraine D. simply responded, “It’s serious”

and did not indicate whether the death penalty was an option in

her mind. Despite these responses, she rated herself an eight

on the prosecutor’s numerical scale, but she refused to agree

that she leaned toward death. Instead, she repeated that any

decision on life versus death would “depend[] on the

circumstances.” She explained that she would need to know how

the crime came about and the circumstances that led the

defendant to murder someone.

Overall, Lorraine D.’s voir dire responses reasonably

support the prosecutor’s view that her support for the death

penalty was not strong and that she would potentially have

sympathy for a mitigation defense. Although she said she was

open to imposing the death penalty in theory, she would not

answer directly when asked twice whether the death penalty

was even an option for her in a case similar to this one.

Substantial evidence supports the court’s ruling that she was

excused for permissible reasons.

Defendant compares Lorraine D. to three seated jurors,

but once again all were objectively stronger for the prosecution.

Although Juror No. 3 also qualified his support for the death

penalty by stating that it is not “a blanket cure for crime,” he

explained in voir dire that he simply meant the penalty should

not be automatic. Whereas Lorraine D. was “not sure” she

would vote to retain the death penalty, Juror No. 3 thought the

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death penalty should be retained because “[t]here needs to be

some ‘ultimate penalty.’ ” The prosecutor could reasonably

conclude Juror No. 3 would be more inclined to vote for death

than Lorraine D. Juror No. 3 was skeptical of psychiatric

testimony, noting that such experts “merely form opinions. No

better than you or I.” Thus, he might be more resistant to that

evidence if offered in mitigation. Finally, Juror No. 3’s assault

weapon ownership and family support for the “right to keep and

bear arms” reflect a conservative viewpoint that this prosecutor

appeared to favor.

Defendant compares Lorraine D. to Juror No. 4 because

the seated juror was a teacher, had personal experience with

drugs, and had qualified her support for the death penalty by

saying it should be used “in certain circumstances . . . depends

on the case.” The seated juror had previously worked in

restaurant management, however, giving her experience in

supervisory positions that involve evaluating circumstances and

making decisions that affect others. Juror No. 4’s use of

marijuana in high school hardly compares to the years of

addiction and ultimate loss of life suffered by Lorraine D.’s

sister. And although Juror No. 4 wanted to consider individual

circumstances, she “believe[d] in” the death penalty in certain

circumstances and did not express the same degree of reluctance

as Lorraine D. about imposing it. She was also a strong

prosecution juror for other reasons. Equipped with a biology

degree, Juror No. 4 had a solid understanding of DNA and

viewed it as “pretty accurate” evidence, unlike Lorraine D.,

whose knowledge came only from the “OJ Simpson case.” And,

like Juror No. 2, Juror No. 4 had strong law enforcement ties.

Her father was a Mountain View Police Department captain,

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and her discussions with him had led her to view the criminal

justice system as “fair and very effective.”

Finally, though she shared some surface similarities with

Lorraine D., Juror No. 7 was also objectively more favorable for

the prosecution. She was a retired education administrator who

now ran her own consulting business. She had no connection

with social work. She expressed stronger support for the death

penalty than Lorraine D., noting she “would probably vote in

favor” of it. And, of all the jurors, she had perhaps the strongest

association with law enforcement and the court system. She had

participated in a citizen’s police academy and previously served

on the Alameda County Grand Jury, including two years as its

foreperson. She was acquainted with an Alameda County

superior court judge and deputy district attorney and had

worked with many police officers on student discipline issues.

Given this background, the prosecutor could reasonably expect

Juror No. 7 to look favorably on the state’s witnesses and to take

a more emotionally detached approach to sentencing than

Lorraine D.

c. Prospective Juror Alice S.

Like Lorraine D., the prosecutor gave several reasons for

excusing Alice S., all of which he believed tended to show her

reluctance to vote for death. He observed that, when the court

asked whether Alice S. could personally impose the death

penalty, “there was a 15-second pause before she gave her

answer.” He noted that Alice S. was “a social worker for special

education children” and seemed to be “liberal.” He was

concerned she lacked “family values that would help me out in

the penalty phase” because she was unmarried and seemed

unfazed by her brother’s murder. Finally, he noted that when

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he asked if the murder of a minister’s wife was significant to her,

she said it was not. There were two errors in this recitation:

Alice S. was a special education teacher, not a social worker, and

it was defense counsel who asked about the significance of a

minister’s wife being murdered. In themselves, these

discrepancies were minor. If misstatements by a prosecutor in

responding to a Batson motion are not consequential, they may

be regarded as simple misrecollection. (See People v. Huggins

(2006) 38 Cal.4th 175, 231.)

Some of the prosecutor’s reasons do not find support in the

record, however. The full question about the murder of a

minister’s wife was: “Since you are active in your church, does

the fact that it is a minister’s wife affect you differently than if

she was the wife of somebody with a different occupation?”

Given the preface to this question and that it was defense

counsel who posed it, Alice S. could simply have intended her

“No” response as a denial that her religious feelings would make

her overly sympathetic to the prosecution. The answer does not

necessarily convey that the murder of a minister’s wife “meant

nothing to her,” as the prosecutor believed. Similarly, the record

of Alice S.’s responses about her family does not clearly indicate

that she lacked “family values” or was unfazed by her brother’s

murder. It is true that Alice S. had never married, and some of

her voir dire responses suggested she was not close to the

brother who had been killed. She knew nothing about the

murder investigation and had only heard about the case

secondhand from a brother who lived in North Carolina, where

the murder occurred. Nevertheless, other answers suggested

she was affected by the murder. Although she and her brother

had “been separated as grown people a long time,” she noted

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that they had been “a pretty close family” and agreed that she

still felt a loss from the murder.

Other reasons offered by the prosecutor find stronger

support in the record. Although Alice S. was not a social worker

per se, she had spent her career working with developmentally

disabled and mentally ill people. We have held that work in

social services is a race-neutral basis for excusal. (See, e.g.,

People v. Streeter (2012) 54 Cal.4th 205, 225 (Streeter).) Perhaps

the strongest support for this panelist’s excusal, however, lies in

her voir dire responses to questions about the death penalty.

When the court asked if she “could ever vote to execute another

human being,” Alice S. said, after a 15-second pause, 12 “I’m not

certain.” She then added, “I’m not absolutely, positively sure”

and explained that “the circumstances would . . . influence me

greatly.” She acknowledged that she did not lean toward the

death penalty even for her brother’s murderer:

[DEFENSE COUNSEL]: Did you have in your

mind if they catch the guy that killed my brother I want

him dead?

[Alice S.] No.

Q. So even then that — you still wanted to know

more about it before you had a feeling?

A. Yes.

12

Defense counsel did not dispute the prosecutor’s

characterization of this pause. When given an opportunity to

respond after the prosecutor stated his reasons for excusing the

panelists, defense counsel simply replied, “Submitted.” (See

Jones, supra, 51 Cal.4th at p. 361.)

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As noted, reluctance to impose the death penalty is a valid non-

discriminatory basis for excusal. (Williams, supra, 56 Cal.4th

at p. 653.) Alice S.’s responses support a finding of genuine and

race-neutral doubts about her ability to impose the death

penalty.

“A prosecutor’s positing of multiple reasons, some of

which, upon examination, prove implausible or unsupported by

the facts, can in some circumstances fatally impair the

prosecutor’s credibility.” (Smith, supra, 4 Cal.5th at pp. 1157–

1158.) In such circumstances, “trial courts should attempt to

evaluate the attorney’s statement of reasons as a whole rather

than focus exclusively on one or two of the reasons offered.” (Id.

at p. 1158.) Here, the court listened to the prosecutor’s reasons,

allowed the defense an opportunity to respond, and denied the

motion after the defense submitted with no comment.

Consistent with the prosecutor’s representation that he was

solely concerned with “what [panelists] would do in the penalty

phase,” he gave reasons for each of the challenged excusals that

were based on the prospective jurors’ reluctance to impose the

death penalty and their work in social services or similar

professions he viewed as indicating “liberal” tendencies. He

cited these race-neutral factors for nearly all of the challenged

panelists, including Alice S., and on these issues his reasons find

clear support in the record. Because the court appeared to judge

the prosecutor’s credibility in light of “the reasons as a whole,”

and did not “focus[] on a single stated reason to the exclusion of

others” (ibid.), and because the court was uniquely positioned to

evaluate the prosecutor’s demeanor in determining his

credibility (id. at p. 1147), its ruling is entitled to deference. (Id.

at p. 1158; see Miles, supra, 9 Cal.5th at pp. 540–541.)

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Comparative juror analysis is in accord. Defendant

compares Alice S. to several other jurors who were educators

(Jurors No. 4 and No. 7), unmarried (Juror No. 9 and Alternate

Juror No. 1), or victimized by crime (Juror No. 1). But, again,

all of these jurors were objectively more favorable for the

prosecution than Alice S. As discussed, Jurors No. 4 and No. 7

believed they could impose the death penalty and had strong law

enforcement ties. Juror No. 9, an insurance network

administrator, also had a connection to law enforcement

because her uncle was a retired policeman, and she had stronger

views than Alice S. in favor of the death penalty. Asked her

general feelings, she stated, “If a person takes another life

intentionally, they don’t deserve to live.” Alternate Juror No. 1,

a bank vice president, similarly described herself as “generally

pro death penalty.” In voir dire she explained, “[S]ometimes I

think that if people kill other people they should be killed, too.”

Given their professions and death penalty views, the prosecutor

could reasonably consider Juror No. 9 and Alternate Juror No. 1

more inclined than Alice S. to dispassionately weigh the

evidence and vote for death.

Defendant’s comparison to Juror No. 1 falters on similar

grounds. Juror No. 1 was a rape victim who chose not to press

charges. But that did not mean she was untroubled by the

crime. On the contrary, she thought her experience might

disqualify her from serving as a juror because she thought it was

a particularly “bad crime” “[w]hen somebody forces themselves

on somebody.” Although she did not expect rape to carry a death

sentence, she said, “it’s a big violation,” so much so that

sometimes she thought being murdered would be better because

then the victim would not have to live with memories of the

assault. Although Juror No. 1 thought she could decide this case

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fairly even though it involved a forcible sodomy, the prosecutor

could reasonably expect her to empathize with the victim and

give substantial weight to the circumstances of the offense.

Indeed, Juror No. 1 supported the death penalty and wrote in

her questionnaire that it “should be used more often.”

d. Prospective Juror Victoria E.

The prosecutor’s reasons for excusing Victoria E. were

similar. He stated that Ms. E. “vacillated between death and

LWOP” (life imprisonment without parole) and had said that the

death penalty does not bring back the murder victim. In his

view, Victoria E. was “a wild card,” and what she might do in

the penalty phase was “anybody’s guess.” He explained he did

not want to “take a chance” on her when there were “tons of

better qualified jurors as far as imposing the death penalty

coming up.” As with Alice S., the prosecutor expressed concern

that Victoria E. was “a welfare worker,” which he equated with

“being very liberal.” Finally, he said, “I suspect there’s a

language barrier,” noting that he and Victoria E. had a difficult

time understanding each other during voir dire.

Once again, the record bears out the stated reasons, which

were plausible and connected to the prosecutor’s overarching

goal of picking a jury inclined to impose the death penalty.

Victoria E. seemed to be of two minds about capital punishment.

In her questionnaire, she wrote that a person who kills someone

intentionally should be killed too, but she also indicated that her

views about the death penalty had changed recently because she

had learned innocent people were in prison, and she believed it

would be unfair for someone to die for a crime he did not commit.

She expressed similarly unsettled views during oral

questioning. The court began voir dire by asking if Ms. E. could

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ever vote to execute someone. She responded that she had

“mixed feelings about it” and said, “I don’t have answer right

now.” She explained that “in one sense, I think if they kill[ed]

somebody, they should be killed but, . . . when I think about it

again, if you kill that person, will it bring the other person

back?” Although the death penalty might help victims’ families

feel closure, she thought death would not “solve the problem” of

murder, and she would be “happier” with a penalty of life

without possibility of parole. After the court described specific

facts about this case, Victoria E. repeated that she “would prefer

life without possibility of parole.” Nevertheless, she also said

she could keep an open mind and could choose either penalty.

At this point, the court observed that both sides might have

cause for concern about Ms. E.’s death penalty views, and it

asked if the attorneys might stipulate to excuse her. No

stipulation was forthcoming, and voir dire continued. In

response to the prosecutor’s questions, Victoria E. repeated the

dual views she had expressed in the questionnaire about death

being the proper punishment for someone who commits murder

but also being futile because it cannot bring back the murder

victim. She reiterated her fear that an innocent person might

be put to death.

This record supports the prosecutor’s stated concern that

Victoria E. would be an unpredictable juror in the penalty

phase. She seemed to alternatively favor and oppose the death

penalty. Defendant protests that Ms. E. repeatedly said she was

open to choosing either penalty, but this argument misconstrues

the nature of our inquiry. “Unlike a for-cause challenge under

Witherspoon[ v. Illinois (1968) 391 U.S. 510] and [Wainwright v.

]Witt [(1985) 469 U.S. 412], the issue here is not whether a juror

held views that would impair his or her ability to follow the law.

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Unimpaired jurors may still be the subject of valid peremptory

strikes. The issue instead is whether the prosecutor held a

genuine race-neutral reason for exercising a strike.”

(Armstrong, supra, 6 Cal.5th at p. 773.) Hesitancy about

imposing the death penalty is a valid race-neutral reason for

striking a prospective juror, and the prosecutor noted it was the

rationale behind all of his challenges.

The record also supports the prosecutor’s additional

reasons for the challenge. For the past 10 years, Victoria E. had

worked as an eligibility technician for the Alameda County

Welfare Department. She explained in voir dire that it was her

job to determine whether applicants were eligible for welfare

benefits. It was not unreasonable for the prosecutor to assume

that Ms. E.’s work with welfare applicants might make her

sympathetic toward defendant or disinclined to impose the

death penalty. “A peremptory challenge based on a juror’s

experience in counseling or social services is a proper race-

neutral reason for excusal.” (Clark, supra, 52 Cal.4th at p. 907;

see Streeter, supra, 54 Cal.4th at p. 225.) As for the prosecutor’s

concern about miscommunication, the record supports the

prosecutor’s observation that they seemed to have had trouble

understanding each other during voir dire. At the close of his

questioning, the prosecutor described his 10-point scale at some

length and asked Victoria E. where she would place herself on

it. She responded, “I don’t think I understand it. Maybe you

need to — how will I — before I can choose, I have to have the

evidence to determine what kind — .” The court interrupted to

clarify that the prosecutor was just asking about her

philosophical views, not in relation to this particular case. She

eventually rated herself a “five” in response to the court’s

focused questions about the scale.

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Defendant claims the prosecutor’s reasons for striking

Victoria E. were pretextual because six seated jurors and two

alternates also rated themselves a “five” on the prosecutor’s

scale and expressed that voting for death would be “difficult”

(Jurors No. 2 and No. 5) or would depend on the specific

circumstances (Jurors No. 6, No. 7, No. 9, No. 10, and Alternate

Jurors No. 1 and No. 5). Yet none of these jurors expressed such

strong or shifting sentiments against the death penalty as Ms.

E.

None of the seated jurors in this comparison said they had

“mixed feelings” about capital punishment or suggested the

death penalty might be futile because it would not “solve the

problem” of murder. None said they would be “happier”

imposing a penalty of life imprisonment without parole.

Perhaps most importantly, none were unable to answer the

court when asked if they could vote to execute someone. Juror

No. 2 said, “It would be difficult for me, but I believe that I could

do it,” and then repeated, “I think I could” and “I don’t think I’d

have a problem with it.” Juror No. 5 repeatedly expressed a

belief that he could return a death vote, despite focused

questioning from the prosecutor about how difficult the decision

might be. Asked the question “could [you] ever vote to execute

any human being,” Juror No. 6 answered: “Given the right

circumstances, yes, I can.” When the prosecutor outlined the

facts of the case, Juror No. 6 affirmed that the death penalty

could be an appropriate punishment here. Juror No. 7 similarly

responded that she could vote to execute someone given “the

proper circumstances,” adding, “I feel there are times when it’s

justified.” When the prosecutor stressed the unpleasantness of

returning a death verdict in open court, with the defendant and

his family present, Juror No. 7 repeatedly affirmed, “I believe I

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could do that.” Juror No. 9 also affirmed, “I believe I could” vote

to execute someone. She had also written in her questionnaire

that “[i]f a person takes another life intentionally, they don’t

deserve to live,” a statement defense counsel voiced concern

about in voir dire. Juror No. 10 stated unequivocally “I could”

vote to execute someone. Alternate Juror No. 1 responded

“Probably” when asked this question, explaining her vote would

depend on the evidence presented. As noted above, Alternate

Juror No. 1 had described herself in the questionnaire as

“generally pro death penalty” and said in voir dire that she

sometimes thought “if people kill other people they should be

killed, too.” Finally, like the other seated jurors, Alternate Juror

No. 5 expressed a more definitive ability to vote for death than

Victoria E. If someone had been found guilty after a trial, voting

for death was “not a problem” for him. Asked to explain why he

supported the death penalty, he said, “there’s laws out there,

and the whole reason why we have laws and punishment is to

keep the world from anarchy.”

As the Attorney General points out, several of these jurors

would have appeared more favorable to the prosecution than

Victoria E. for additional reasons. Many had stronger

connections to law enforcement and the criminal justice system

than Victoria E., whose nearest connection was the occupation

of her husband and brother-in-law as security guards. As noted

above, Juror No. 2’s partner was an Alameda County Deputy

Sheriff, and she herself had worked in the criminal division of

the IRS. Juror No. 6’s neighbor was captain of their local police

department. Juror No. 7 had served as foreperson of the

Alameda County Grand Jury, participated in a citizens police

academy, and was acquainted with a judge, a prosecutor, and

several police officers. Juror No. 9’s uncle was a retired

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policeman. Alternate Juror No. 5 had at least six friends in the

San Leandro Police Department, and his roommate worked for

the FBI.

Relatedly, the prosecutor could have had cause for concern

about Victoria E.’s views of law enforcement because she

reported in the questionnaire that her husband had been

stopped for driving while intoxicated but “he was not drunk.” A

close relative’s negative contact with the criminal justice system

is a race-neutral basis for excusal. (See Farnam, supra, 28

Cal.4th at p. 138.) The seated jurors in defendant’s comparative

juror analysis reported no such negative experiences, and some

affirmatively expressed favorable views. For example, Juror

No. 7 expressed “respect [for] the professional work done,” and

Alternate Juror No. 1 thought the criminal justice system “is

fairly effective.” The prosecution might reasonably have favored

such jurors over Victoria E., who lacked contacts with police

officers or criminal justice employees and whose loved one had

a negative experience with law enforcement. These

characteristics and experiences of jurors who served are

consistent with the prosecutor’s representation that he

exercised some challenges because he believed panelists who

had not yet been considered would be stronger candidates from

his perspective.

Defendant also contends a comparison with Juror No. 7

reveals that the prosecutor’s expressed concern that Victoria E.

was “very liberal” was pretextual. He asserts: “Ms. [E.]’s

employment status as a welfare worker . . . would make her no

more liberal than Juror No. 7, who had a doctorate in education

and worked twenty-five years as an administrator in education.”

The comparison does not withstand scrutiny. As discussed in

regard to Lorraine D., Juror No. 7 would have been an attractive

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prosecution juror for a number of reasons. She ran her own

consulting business and, unlike Victoria E., had no connections

with social work mentioned in her questionnaire or voir dire. In

contrast to Victoria E.’s “mixed feeling[s],” Juror No. 7

expressed support for the death penalty and reaffirmed that she

could impose it. And, as noted above, Juror No. 7 had notably

strong law enforcement ties. Given their very different

backgrounds, the prosecutor’s acceptance of Juror No. 7 does not

suggest that his excusal of Victoria E. was motivated by

discriminatory animus.

e. Prospective Juror Doris C.

Finally, defendant argues the court erred in denying his

second Batson/Wheeler motion after the excusal of Doris C. The

prosecutor said he excused this prospective juror for several

reasons: (1) she worked for the county welfare department,

which he thought reflected a sympathetic worldview; (2) she

thought childhood trauma can cause future problems, which he

feared would sway her toward the defense in the penalty phase;

(3) her questionnaire showed animosity toward the police; (4)

she had “a rich-versus-poor attitude,” which he thought would

make her more resistant to some prosecution witnesses; (5) “she

misled us on the questionnaire, as far as I’m concerned”; and (6)

he believed “there were tons of better-qualified jurors more

willing to impose the death penalty that were coming up.” 13 The

record is silent about what the prosecutor meant by the

13

When the prosecutor excused Doris C., there remained 48

panelists who had not been called into the jury box. The

prosecutor would have been aware of their death penalty views

from their questionnaires and voir dire.

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“misleading questionnaire” reason, and he was not asked to

clarify.

Doris C. had worked for the Alameda County Welfare to

Work Department for almost 28 years. In her questionnaire,

she agreed that how a child is raised can have a future impact,

explaining “it can determine their outlook on themselves and

how they relate to others.” Without prompting, she also brought

up the mitigating effects of childhood experience when

responding to voir dire questions about the death penalty. She

volunteered that she “would be open to listening” to such

evidence “because I know that things in your childhood or life

can . . . cause you to do certain things. I understand that.” With

respect to the death penalty, she did say on the questionnaire

that “[i]f you do the crime you should pay the price.” However,

during voir dire she stressed mitigation. She explained she

meant that, while “death is a possibility” for murder, “the things

in someone’s life” could make that penalty inappropriate.

“[M]aybe[] they were on drugs or something like that. Then that

would have an effect on their thinking. So at that point, they

weren’t doing it just for themselves.” Asked by defense counsel

whether she’d be willing to consider mitigating evidence about

the defendant’s childhood and drug abuse, Doris C. answered,

“Yes, I would, because I believe that almost everything that’s

happened in your childhood can affect you,” though she also felt

it was possible to “overcome a lot of it.” These responses are

consistent with the prosecutor’s conclusion that Doris C. would

have been focused on mitigation evidence in the penalty phase.

In addition, as the prosecutor noted, the juror’s

questionnaire responses reflected both animosity toward the

police and strong feelings about the criminal justice system.

When asked about her views, Doris C. wrote, “[U]nfair system

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at times — the rich go free and the poor are punished.” Asked

about her experiences with the police, Doris C. replied: “My

grandson’s father . . . was killed in his home by an Oakland

policeman and no one has served time or been charged for this

murder.”14 Such a traumatic personal experience could lead this

juror to view police officers with distrust or hostility.15 (See

Winbush, supra, 2 Cal.5th at pp. 436–437; Lomax, supra, 49

Cal.4th at p. 574.)

Defendant’s comparative juror analysis for Doris C. is

fairly cursory. He notes that nearly every juror agreed that

childhood experiences can have some impact on people’s adult

lives. However, in none of the responses he identifies did the

juror relate childhood experiences directly to penalty mitigation,

as Doris C. did. As with Victoria E., defendant asserts that

employment with the welfare department is no more “liberal”

than the substitute teaching of Juror No. 4 or the educational

administration of Juror No. 7. Even accepting this premise, as

discussed, the prosecution could reasonably have viewed these

retained jurors as more favorable. (See ante, at pp. 25–26, 33–

34.) As for views on economic status, defendant compares

Doris C. to three jurors (Jurors No. 5 and No. 12, and Alternate

Juror No. 5) who expressed the view that poverty often leads to

criminal behavior. These general assertions differ from a belief

that the criminal justice system is inherently biased in favor of

14

Doris C.’s daughter and five-year-old grandson were living

in her household at the time of jury selection.

15

Although defendant complains the prosecutor asked

nothing about this event in voir dire, questioning on every issue

of concern is not required. (Jones, supra, 51 Cal.4th at p. 363.)

Given the sensitivity of the topic, the parties’ failure to ask more

probing questions about it is understandable.

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the rich. Defendant identifies no seated juror who expressed

such a view. Nor does defendant attempt to compare Ms. C.’s

hostility toward police to attitudes expressed by any seated

juror. Comparative juror analysis does not support a conclusion

that the prosecutor’s stated reasons were disingenuous.

Accordingly, we conclude substantial evidence supports

the trial court’s rejection of the two Batson/Wheeler motions. It

is also notable that, when the court heard defendant’s first

motion, the prosecutor had passed on a panel that included

Cheryl W, a Black woman. The prosecutor accepted the panel a

total of four times before the defense ultimately excused Ms. W.

“While acceptance of one or more black jurors by the prosecution

does not necessarily settle all questions about how the

prosecution used its peremptory challenges, these facts

nonetheless help lessen the strength of any inference of

discrimination that the pattern of the prosecutor’s strikes might

otherwise imply.” (People v. Reed (2018) 4 Cal.5th 989, 1000

(Reed); see Clark, supra, 52 Cal.4th at p. 906; Jones, supra, 51

Cal.4th at pp. 362–363.)

B. Trial Issues

1. Defense DNA Expert

Defendant raises claims of error and prosecutorial

misconduct regarding testimony and argument about a defense-

retained DNA expert who was not called as a witness. He also

contends the court erred in its handling of a juror note related

to this issue. We conclude: (1) the court properly admitted

evidence that DNA testing materials and notes were shared

with the defense expert; (2) the prosecutor committed no

prejudicial misconduct in eliciting this evidence or commenting

on it in closing argument; and (3) any error in the court’s

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response to the juror’s note was harmless. We also reject

defendant’s claim that the asserted errors had the cumulative

effect of denying him due process and a fair trial.

a. Background

Early in the proceedings, defendant filed a Kelly/Frye

motion16 challenging the results of the DNA testing performed

by Department of Justice criminalist Steven Myers. The

prosecutor explained at a pretrial hearing that he had worked

with one of defendant’s attorneys to send all of Myers’s lab

results and documentation to Dr. Edward Blake, an expert the

defense had retained. The court asked, “[I]s Ed Blake going to

be your expert?” and defense counsel replied, “He will be one of

our experts, yes.” With a view to determining whether an

Evidence Code section 402 hearing on the motion would be

necessary, the court asked if Blake would be preparing a report

with his findings. Defense counsel said they had not asked for

a report and did not “think” they would in the future. Nor would

they definitively commit to whether retained-expert Blake

would be called as a witness. The court eventually held a

Kelly/Frye hearing. After extensive testimony from Myers, the

defense obtained a continuance in order to review the hearing’s

transcript in consultation with Blake. When court resumed,

defendant submitted on the basis of Myers’s testimony and the

motion was denied.

16

A motion pursuant to People v. Kelly (1976) 17 Cal.3d 24

and Frye v. U.S. (D.C. Cir. 1923) 293 F. 1013 seeks to exclude

novel scientific evidence that is not generally accepted as

reliable within the relevant scientific community. (See People v.

Turner (2020) 10 Cal.5th 786, 801.) It should be recalled that

defendant’s trial was conducted in 1999, when DNA evidence

was relatively new.

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At trial, near the close of Myers’s direct examination, the

prosecutor asked if his lab’s testing had consumed all the

available forensic evidence. Myers responded that he had

preserved at least half of every swab “for potential defense

retesting, because really the best way to take care of any risk of

sample mixup is to retest the evidence.” When the prosecutor

asked, “So, if the defense for Mr. Nadey wished to hire another

lab to do their own independent testing, there is enough

evidence remaining so that they can do that,” Myers agreed.

The prosecutor then asked about Dr. Blake in particular:

Q. “Did you as a matter of fact provide your entire work

notes —

[DEFENSE COUNSEL]: Objection. Irrelevant.

THE COURT: Overruled.

[PROSECUTOR]: — entire work notes and copies of

everything you did in this case to a man described as Dr.

Edward Blake, who was hired by the defense in this case?

[DEFENSE COUNSEL]: Your Honor, that is an

improper question. I’d ask that it be stricken.

THE COURT: Overruled. [¶] Go ahead. You can

answer that.

THE WITNESS: Yes. Copies of all of my notes were

provided to Dr. Blake of Forensic Science Associates. It’s

a private forensic firm in Richmond, California. He also

came over to our lab and took his own photographs of

photos in my notes.

[PROSECUTOR]: In fact, was there correspondence

both via the telephone and via the mail with respect to Dr.

Blake to you regarding defense testing in this case?

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A. There was correspondence regarding what notes he

wanted to see. So, for instance, he called to ask to come

over and photograph the photographs in my file because

he felt the photocopies —

At this point, the court sustained a defense objection to

further inquiry into Myers’s thoughts about why Blake wanted

to take the photographs. The prosecutor then presented Myers

with a one-page letter from Blake concerning the Fermenick

case. Defense counsel objected, “Your Honor, isn’t this hearsay

and the subject of the last objection and irrelevant?” The

prosecutor responded that the letter was not offered for its truth,

but “to show the availability of this evidence was there and this

was documentary proof that these two experts conversed with

each other, and the rest, inferences can be drawn therefrom.”

The objection was overruled, and the letter was admitted into

evidence. Myers confirmed that he had received the letter from

Blake “requesting additional pieces of discovery,” and he had

provided Blake with all the items sought.

Defense counsel cross-examined Myers at length

regarding the possibility of contamination and asserted errors

in his testing. He also impugned Myers’s qualifications, noting

that whereas Blake had a doctorate in criminalistics, Myers had

not yet finished a master’s degree.

Although the prosecutor did not refer to Blake by name in

his closing argument, he stressed that the defense had

presented no witness to contradict Myers: “Now, did you hear

anyone for the defense testify to disprove Mr. Myers’ findings or

results? [¶] Not one. Not one. [¶] Here we have the

uncontroverted testimony and unquestioned expert in the field

of DNA . . . .” He then observed: “I rested with Steve Myers’

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testimony. [¶] What was the defense to all this? [¶] None.”

Defense counsel’s closing argument was focused almost entirely

on challenging the state’s DNA evidence. He attacked Myers’s

competence and credibility and explained in laborious detail the

many errors he saw in Myers’s analysis. He also questioned why

none of the “Ph.D.s” in Myers’s laboratory had supervised his

work or reviewed his notes. He observed, “So at best you have

some review by Gary Sims,” another analyst at the state’s

laboratory, “and you know that Gary Sims made big

adjustments when he looked at the work.” Defense counsel did

not mention Blake at any point in his argument, nor did he

explain why the defense was not obliged to present evidence of

its own testing.

When defense counsel concluded his argument, the court

took the luncheon recess. Noting that a juror had handed in a

question, the court remarked, “I do believe that that question

will be answered for you this afternoon.” After the jury left, the

court read the note: “Does the defense have access to a DNA

expert which it could have had as a defense witness, or is there

a limitation of funds to prevent this?” The court observed that

the issue would almost certainly be addressed in the

prosecutor’s rebuttal argument. Defense counsel objected to any

argument about whether the defense had funding for an expert.

The court replied that the issue did not concern funding, but

whether the defense had an expert, and evidence had been

admitted on that subject. He observed that the prosecutor had

“a right to comment on the fact that the defense didn’t call a

particular witness.” Defense counsel again objected and asked

that the prosecutor “be limited to saying that defense hired Ed

Blake to review some records and that’s it, because that’s all

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that’s in evidence.” The court overruled the objection,

remarking “[t]he DA can argue the way he wants.”

Noting that the timing of the juror’s note meant that the

prosecutor alone would have an opportunity to respond, defense

counsel then asked permission “to reopen for just the limited

purpose of explaining to the juror my point of view about hiring

the expert because otherwise it’s an unfair advantage.” The

court refused: “Mr. Horowitz, you argued for five hours and 15

minutes. If you didn’t see fit to cover that issue in your

argument, you’re not going to deal with it now. Denied.” After

the recess but before the jury had returned, defendant’s

attorneys renewed their objections, arguing the court should

have interrupted closing argument to give them an opportunity

to respond to the note. They complained it was fundamentally

unfair that only one side would have the ability to speak to the

issue raised in the note. The court responded: “[I]t’s in the

record that there was a defense expert in this case. It was

addressed by Mr. Myers. [¶] . . . [¶] I can’t believe that the

defense in this case would not anticipate the fact that the

district attorney would address that issue in his argument. I’m

not here to orchestrate the defense argument in this case.

You’re free to argue whatever the record shows. If you left

something out, I don’t think it’s my responsibility to let you

reopen because you left something out of your argument.” The

court later observed that the defense’s failure to call Blake, after

there was evidence of his involvement in the case, was “so

elementary that I felt that you deliberately left that out because

you didn’t want to touch that issue.” The prosecutor said he had

planned to address Blake’s absence all along, beginning when

he learned the defense would not be calling Blake as a witness.

The court denied the defense’s request to reopen.

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As a “compromise” following this ruling, defense counsel

proposed that the court read “one of the appropriate jury

instructions” responsive to the juror’s question. He suggested

CALJIC No. 2.11, which explains that parties need not call

every witness who may have knowledge relevant to the case.

The court responded that this instruction would be given in the

final charge to the jury. It then rejected counsel’s suggestion

that the instruction be read specifically in response to the juror’s

question “so that she doesn’t feel that a question to a Judge is

delegated to the prosecutor.” The court disagreed that would be

the impression given.

The prosecutor discussed Blake in his rebuttal argument.

In response to defense counsel’s attacks on Myers’s credibility

and competence, he reminded the jury of testimony that the

defense’s own expert, “[o]ne Dr. Edward Blake, . . . ha[d] access

to all of Steve Myers’ work, including his notes and the evidence.

If Myers is wrong in anything he has done, then they certainly

would have picked up on it and retested the evidence to exclude

Mr. Nadey. [¶] Wouldn’t they?” He then asked, “Why then

didn’t we see any defense expert here to say that Steve Myers

was wrong or to show by their own expert, the famous Dr.

Blake — not master [sic], as Mr. Myers was, but a doctor — why

didn’t they call him to say that Myers is wrong and that we’ve

got the wrong guy; Nadey is excluded?” He remarked, “You all

know the answer. They can’t.” The prosecutor then directed the

jury’s attention to the relevant testimony about Blake’s

credentials and the materials shared with him. He noted that

Blake’s letter requesting materials bore Blake’s own file number

and concluded there was “no question” the defense had retained

Blake as an expert. He then observed that “for five and a half

hours [defense counsel] is railing on the People’s contaminated

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evidence, on the faulty databases, calling my case garbage in

and garbage out, when they’ve got a D. Crim. sitting there who

has examined this and we don’t see him.”

After reminding the jury that counsel’s arguments

attacking Myers were not evidence, the prosecutor answered his

own question about why the defense had not called Blake as a

witness: “I’m telling you why they refused to hire Ed Blake to

come to court to testify. [¶] One, he found no errors in Steve

Myers’ work, his methods, his samples, his statistical data or his

results; and, [¶] Two, they did not retest because then there

would have been a second finger of DNA evidence of guilt

pointing at Mr. Nadey.” He later summarized his conclusion on

this subject: “The DNA is one in 32 billion. Rectal swabs and

jeans. [¶] If you don’t like it, call your own defense expert to do

it. But, whoops, they don’t want to do that, and they don’t want

to retest it because they know Myers is correct, and they don’t

want another DNA finger of guilt pointing their way. [¶] We

have the now uncontroverted testimony of Steven Myers when

they have hired an expert and refused to call him. That makes

his testimony uncontroverted.” The defense raised no objection

during or after this argument.

In its final charge to the jury, following the prosecutor’s

rebuttal, the court instructed that “[s]tatements made by the

attorneys during the trial are not evidence” (CALJIC No. 1.02)

and that jurors “must decide all questions of fact in this case

from the evidence received in this trial and not from any other

source” (CALJIC No. 1.03). The jury was also given CALJIC

No. 2.11: “Neither side is required to call as witnesses all

persons who may have been present at any of the events

disclosed by the evidence or who may appear to have some

knowledge of these events. [¶] Neither side is required to

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produce all objects or documents mentioned or suggested by the

evidence.” Finally, as relevant here, the jury was instructed

that defendant had a right not to testify (CALJIC No. 2.60) and

that, in making this decision, “the defendant may choose to rely

on the state of the evidence and . . . upon the failure, if any, of

the People to prove beyond a reasonable doubt every essential

element of the charge against him” (CALJIC No. 2.61).

b. Evidence of Defense Expert Involvement

Defendant first asserts the court erred in allowing the jury

to hear evidence that he had retained a DNA expert. He argues

admission of this evidence was so prejudicial that it unfairly

shifted the burden of proof onto him and deprived him of his

rights to due process and the effective assistance of counsel.

(U.S. Const., 5th, 6th, 8th, & 14th Amends.; see Cal. Const., art.

I, §§ 7, 15, 16 & 17.) He further contends the prosecutor

committed misconduct in eliciting the evidence, and in so doing

violated the attorney work-product privilege (Code Civ. Proc.,

§ 2018.010 et seq.) and Penal Code provisions concerning the

disclosure of expert witnesses (§ 1054 et seq.). On the contrary,

the evidence was properly admitted, and the prosecutor did not

commit misconduct in eliciting it.

A criminal defendant’s Sixth Amendment right to counsel

includes the right to have assistance from experts in preparing

his defense. (Alford v. Superior Court (2003) 29 Cal.4th 1033,

1046; see Ake v. Oklahoma (1985) 470 U.S. 68, 83–84.) To

effectuate this right, the defense is also entitled to maintain

confidentiality in communications with its experts. (Alford, at

p. 1046.) But confidentiality can be waived, and a defense

expert’s identity is not necessarily confidential in itself. Here,

defense counsel enlisted the prosecutor’s help in releasing

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Myers’s DNA testing materials to defense expert Blake, and

counsel confirmed in open court that the defense had retained

Blake as an expert. Although Blake did not testify at the

pretrial Kelly/Frye hearing, defense counsel obtained a

continuance of the hearing in order to review Myers’s testimony

with Blake. As a result, the defense’s own disclosures showed it

had retained Blake to review the state’s DNA testing and

results.

Nevertheless, defendant contends it was misconduct for

the prosecutor to call the jury’s attention to Blake’s involvement

by questioning Myers about it at trial, and error for the court to

permit such questioning. His primary theory appears to be that

admission of this evidence violated the work product privilege.

Defense counsel did not object on this ground, however, but

merely objected that questions about Myers’s correspondence

with Blake were irrelevant and “improper.” Failure to object on

the specific ground later asserted, including the work product

privilege, forfeits that ground on appeal. (People v. Zamudio

(2008) 43 Cal.4th 327, 354 (Zamudio); see Evid. Code, § 353.)

But even assuming counsel’s objection to the questions as

“improper” was sufficient to preserve the claim, it fails on the

merits.

Defendant’s argument relies heavily on People v.

Coddington (2000) 23 Cal.4th 529 (Coddington). There, only

some of the psychiatrists who had examined the defendant

testified, and the prosecution learned about examinations

performed by other experts. (Id. at p. 603.) The trial court ruled

that the nontestifying experts’ reports were protected by the

work product privilege, but it allowed the prosecutor to elicit

evidence about their examinations and to comment on that

evidence in closing argument. (Id. at p. 604.) We concluded the

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prosecutor’s questions and commentary violated the work

product privilege, reasoning that the privilege encompassed

counsel’s decisions about whether an expert who has been

consulted is likely to give favorable testimony. (Id. at pp. 605–

606.)

Coddington is distinguishable. There, the prosecutor

discussed experts and reports that had never been disclosed by

the defense; he learned about them “through jail sign-in sheets

and social contacts.” (Coddington, supra, 23 Cal.4th at p. 603.)

Here, defense counsel voluntarily disclosed to the prosecution

that Dr. Blake was their expert. By making this disclosure, and

encouraging their expert to communicate directly with the

prosecution expert about the case, the defense effectively waived

any work product protections applicable to Blake’s identity and

role. (See Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th

201, 214.)

Further, Coddington’s holding has been superseded by

statute. (See Zamudio, supra, 43 Cal.4th at p. 356.)17 In 1990,

after Coddington’s trial, the electorate enacted Penal Code

section 1054.6, which states in relevant part: “Neither the

defendant nor the prosecuting attorney is required to disclose

any materials or information which are work product as defined

in subdivision (a) of Section 2018.030 of the Code of Civil

Procedure.” The referenced statute establishes two levels of

privilege for different types of attorney work product.

Subdivision (a), relates to written work product, which is

absolutely privileged: “A writing that reflects an attorney’s

17

As in other cases, we express no opinion on Coddington’s

“continuing efficacy.” (Zamudio, supra, 43 Cal.4th at p. 356,

fn. 16.)

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impressions, conclusions, opinions, or legal research or theories

is not discoverable under any circumstances.” (Code Civ. Proc.,

§ 2018.030, subd. (a).) Under subdivision (b), all other attorney

work product that is not contained in such a writing is protected

by a qualified privilege, which may be overcome if the court

concludes denial of discovery would result in unfair prejudice or

injustice. (Code Civ. Proc., § 2018.030, subd. (b).) By

specifically referencing only subdivision (a) of this statute,

Penal Code section 1054.6 “ ‘ “expressly limits the definition of

‘work product’ in criminal cases to ‘core’ work product, that is,

any writing reflecting ‘an attorney’s impressions, conclusions,

opinions, or legal research or theories.’ ” ’ ” (Zamudio, supra, 43

Cal.4th at p. 355; see People v. Bennett (2009) 45 Cal.4th 577,

595 (Bennett).)

Even assuming the defense did not waive work product

protections applicable to Dr. Blake’s involvement, no writing

constituting core work product was disclosed in Myers’s

testimony, which described the sharing of his notes with Blake,

allowing Blake to visit his laboratory and examine photographs,

and corresponding with Blake about the testing notes. Blake’s

letter was admitted into evidence over a hearsay objection, but

it was not received for the truth of any contents, only as evidence

of the cooperation between the two experts.18 It did not discuss,

reveal, or in any way reflect defense counsel’s “impressions,

conclusions, opinions, or legal research or theories.” (Code Civ.

Proc., § 2018.030, subd. (a).) The fact that the evidence

concerned the potential retesting of samples by a defense expert

is not sufficient to establish a violation of the work product

privilege or Penal Code section 1054.6. (See, e.g., People v. Scott

18

Defendant does not renew the hearsay argument here.

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(2011) 52 Cal.4th 452, 489; Bennett, supra, 45 Cal.4th at p. 595;

Zamudio, supra, 43 Cal.4th at p. 352, 355.)19 “The mere fact

that a piece of evidence was given to the defense says nothing

about what the defense team did or did not do with the

evidence.” (Scott, at p. 489.) Moreover, testimony establishing

“that forensic evidence was made available to the defense does

not constitute comment on the ‘exercise of’ the work product

privilege.” (People v. Gray (2005) 37 Cal.4th 168, 208.) Because

defendant has failed to establish a statutory violation, his

related constitutional claims fail as well. (Scott, at p. 489;

Zamudio, at p. 355, fn. 15.)

Defendant also contends the evidence was unduly

prejudicial and irrelevant, though only the latter objection was

raised at trial. Again, assuming the claims were sufficiently

preserved, they are unavailing. The DNA match identifying

defendant as the source of semen found on the victim’s body was

critical in establishing his guilt. It was apparent from

defendant’s opening statement, if not before, that a fundamental

part of the defense strategy would be to attack the validity of the

state’s DNA testing, and in particular the credibility of its

expert, Myers. Evidence that a defense expert had reviewed all

notes from Myers’s testing, and that samples had been

preserved to allow retesting, was relevant to show that Myers

19

Nor did admission of the evidence violate the discovery

statute. In People v. Combs (2004) 34 Cal.4th 821, 862, no error

occurred when the prosecutor obtained a nontestifying expert’s

report through the defendant’s own disclosure, rather than the

court’s discovery order. Here, defense counsel themselves

alerted the prosecutor to Blake’s involvement and worked with

the prosecutor to facilitate Blake’s review. Blake’s identification

did not result from any court order. There was no discovery

violation. (See id. at pp. 861–863.)

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had professionally performed the testing and to support his

credibility by showing that the evidence was made available for

defense scrutiny. (See People v. Foster (2010) 50 Cal.4th 1301,

1357 (Foster); People v. Bolden (2002) 29 Cal.4th 515, 552–553.)

Although the defense did not attack Myers specifically until

cross-examination, the court had discretion to permit evidence

related to his credibility during his initial examination. (See

Evid. Code, § 765, subd. (a); People v. Alvarez (1996) 14 Cal.4th

155, 207.) If the jury had been left with the false impression

that the DNA evidence had been kept from the defense, they

may have ignored it, believing the defense had been put at an

unfair disadvantage.

Defendant’s related claims of prosecutorial misconduct,

even assuming they were preserved, fare no better. The

prosecutor’s questions merely sought to elicit relevant evidence

that Myers’s work had been reviewed by an outside expert.

“ ‘ “Although it is misconduct for a prosecutor intentionally to

elicit inadmissible testimony [citation], merely eliciting

evidence is not misconduct.” ’ ” (People v. Mills (2010) 48 Cal.4th

158, 199.) The fact that evidence, or an inference drawn

therefrom, is harmful to the defendant’s case does not mean the

evidence is unfairly prejudicial. “As we have repeatedly

explained: ‘ “In applying section 352, ‘prejudicial’ is not

synonymous with ‘damaging.’ ” ’ [Citation.] ‘ “ ‘[A]ll evidence

which tends to prove guilt is prejudicial or damaging to the

defendant’s case.’ ” ’ [Citation.] The ‘prejudice’ which

section 352 seeks to avoid is that which ‘ “ ‘uniquely tends to

evoke an emotional bias against the defendant as an individual

and which has very little effect on the issues.’ ” ’ ” (People v. Cage

(2015) 62 Cal.4th 256, 275.) Nor are we persuaded that

testimony about a defense expert’s involvement in the case

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improperly shifted the burden of proof onto defendant. (See

Foster, supra, 50 Cal.4th at p. 1357.) The jury was instructed

that the prosecution bore the burden of proving defendant’s guilt

beyond a reasonable doubt (CALJIC Nos. 2.61, 2.90) and that

neither side was required to call all witnesses who might have

relevant knowledge (CALJIC No. 2.11). We presume it followed

those instructions. (Bennett, supra, 45 Cal.4th at p. 596.)

c. Response to Juror Note

Defendant next raises several arguments regarding the

court’s handling of the juror note asking if the defense had

access to a DNA expert. The court indicated that a juror handed

the note to the clerk when returning from a recess. It appears

the court read the note while counsel was arguing. Because the

note was submitted during defense counsel’s summation,

defendant asserts the court should have either interrupted

counsel’s argument and alerted him to the note, allowed counsel

to reopen and present argument addressing the note, or

instructed the jury in response to the note. Defendant contends

that, by denying the defense request to reopen but allowing the

prosecutor to address the issue in rebuttal, the court deprived

him of the opportunity to present a defense and made Blake a

“de facto” witness for the prosecution. He argues these errors

deprived him of due process and a fair trial. Defendant also

takes issue with the court’s statement in response to the note, “I

do believe that that question will be answered for you this

afternoon,” apparently referring to the prosecutor’s rebuttal

argument. Defendant argues this statement evinced judicial

bias and implicitly endorsed the prosecution’s position.

A trial court has not only the power but “the duty . . . to

control all proceedings during the trial,” including the

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arguments of counsel. (§ 1044; see People v. Gonzalez (2006) 38

Cal.4th 932, 951.) It is accordingly given broad inherent and

statutory discretion to limit both the length of argument and the

matters addressed. (People v. Edwards (2013) 57 Cal.4th 658,

743 (Edwards); Gonzalez, at p. 251; see Herring v. New York

(1975) 422 U.S. 853, 862.) We conclude the court’s response was

generally within its discretion, and any error in its statement to

the juror was harmless.

The court indicated that the juror handed the clerk a note

near the end of defense counsel’s argument, when the jurors

returned from a recess. The court did not abuse its discretion in

allowing counsel to finish his argument without interruption.

Interrupting an advocate’s properly conducted closing argument

to raise an unrelated issue would have been irregular and

potentially disruptive to counsel’s effective advocacy. (See

§ 1044.) Nor was the court obligated to allow the defense to

reopen and address the note’s question. Defense counsel

implicitly acknowledged as much when he conceded reopening

would not be required if the juror asked another question. “The

decision to grant or deny a motion to reopen . . . remains in the

discretion of the trial court.” (People v. Monterroso (2004) 34

Cal.4th 743, 779 (Monterroso).) Because the prosecutor had

already commented on the absence of defense testimony

controverting Myers’s results, it was reasonable for the court to

assume defense counsel would be addressing the topic in his

final remarks, or that any failure to do so was a strategic

decision to avoid emphasizing unfavorable evidence. As the

court repeatedly admonished the defense team, they knew

evidence about Blake’s involvement had been admitted, and the

prosecutor’s initial argument had highlighted defendant’s

failure to present evidence undermining the DNA match. The

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juror’s note raised no new issue. It simply reflected the juror’s

awareness of a contrary argument. If the defense chose not to

provide an explanation for Blake’s failure to testify, it was not

the court’s responsibility to interfere with that strategic

decision. Moreover, even when defense counsel asked

permission to reopen his argument, he never described what he

actually intended to say in response to the juror’s note. The

court did not abuse its discretion in declining the request to

reopen so that counsel might express an undisclosed “point of

view” as to the decision to hire an expert. It appears any

assertions along that line would have been improper to the

extent they would not have been based on evidence or

reasonable inferences therefrom but instead counsel’s own

explanation of strategic decisions made by the defense.

For the same reasons, the court acted within its discretion

when it refused to limit the prosecutor’s argument. Evidence

had been properly admitted about Blake’s review of the DNA

testing, and the prosecutor was entitled to comment on this

evidence in final arguments. The defense could have anticipated

that the prosecutor would remark on Blake’s failure to testify,

even without the note. Indeed, the prosecutor observed that he

had planned to address Blake’s absence all along. Although the

court’s refusal to limit the prosecutor’s argument meant that

only one side would be addressing an issue that was of interest

to at least one juror, that difficulty would have arisen for the

defense even absent the note. The court’s rulings were within

its discretion.

It is a closer question, however, whether the court erred in

responding to the note itself. The court did not read the note

aloud in the jury’s presence. Instead, it addressed the juror

directly: “Juror Number 7 handed me a question, and I can tell

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Juror Number 7 that I do believe that that question will be

answered for you this afternoon.” It is possible to construe this

comment as a reference to the final jury instructions, which

were also given that afternoon. However, the juror may well

have thought the court was referring to the prosecutor’s rebuttal

argument. Just before addressing the note, the court had

mentioned that the prosecutor would be presenting a response

to the defense argument in the afternoon.

The court’s comment about the note was problematic.

After consultation with counsel, the court should have provided

a neutral response to the juror’s question or advised the juror it

was unable to respond. By leaving the impression, even if

unintended, that the juror would find her answer in the

prosecutor’s argument, the court could be viewed as deferring to

the prosecution or even aligning itself with that party.20

Assuming the court erred in its response to the note,

however, defendant suffered no prejudice. In assessing

prejudice, a reviewing court’s “ ‘ “role . . . is not to determine

20

The comment was not so clearly erroneous as the one we

encountered in People v. Serrato (1973) 9 Cal.3d 753, however,

despite defendant’s attempt to equate the two. In Serrato, the

trial court prefaced its final instructions by telling the jury,

“ ‘what you have to decide is, I suppose, fundamentally, whether

there is enough of an explanation given by the defense case with

reference to these particular contraband items. Is it enough for

you, as citizens, to feel satisfied?’ ” (Id. at p. 766.) We held the

“thrust” of that comment “was to reverse the burden of proof on

the only contested factual issue in the case.” (Ibid.) The same

is not true here. The court’s oblique statement that a juror’s

question would be addressed in the afternoon could not

reasonably have been construed as shifting the burden of proof

or in any way lightening the prosecution’s obligation to prove

guilt beyond a reasonable doubt.

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whether the trial judge’s conduct left something to be desired,

or even whether some comments would have been better left

unsaid. Rather, we must determine whether the judge’s

behavior was so prejudicial that it denied [the defendant] a fair,

as opposed to a perfect, trial.” ’ ” (People v. Abel (2012) 53

Cal.4th 891, 914.) The court’s comment here was limited and

fleeting, and would have had meaning for only one juror. Only

Juror No. 7 knew the question she had asked, and only Juror

No. 7 may have interpreted the court’s response in one of the

problematic ways discussed. But any prejudice that may have

resulted from the court’s comment would have been dispelled by

the final instructions read that same afternoon. In addition to

CALJIC No. 2.11’s admonition that neither side is required to

call all relevant witnesses, jurors were instructed pursuant to

CALJIC No. 17.30 that they should form their own conclusions

and disregard any statements suggesting the court’s assessment

of the facts or witness credibility. (See Abel, at p. 916.) “That

instruction reminded the jury of the trial judge’s role as an

impartial presiding officer” whose function was not to comment

upon evidence or draw conclusions from it. (People v. Cook

(2006) 39 Cal.4th 566, 598.) “Defendant offers no reason to

believe the jury failed to follow this instruction.” (Monterroso,

supra, 34 Cal.4th at p. 784.) Finally, even if the juror

understood the comment to be an endorsement of the

prosecutor’s argument, that would simply mean the court

agreed that the defense had access to an expert witness. But

this fact was clearly established by the evidence in the case. At

its worst, the court’s comment would have merely confirmed

what the evidence showed. Furthermore, because the

prosecutor’s argument did not respond to the note’s question

about whether the defense was provided funding for an expert,

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the juror may well have been left with a lingering concern for

unfairness, a concern that would have benefited the defense.

d. Prosecutor’s Rebuttal Argument

Defendant next asserts the prosecutor committed

prejudicial misconduct by commenting in rebuttal argument on

Blake’s failure to testify. As noted, the prosecutor questioned in

rebuttal why the defense had not called Blake to describe the

claimed shortcomings in Myers’s work or to present his own

contrary findings. The prosecutor suggested no such testimony

had been offered because Blake had found no errors and any

retesting of the evidence would have confirmed the DNA match.

Defendant now asserts these arguments improperly shifted the

burden of proof by implying he had a duty to produce evidence,

deprived him of the presumption of innocence, infringed his

Fifth Amendment right to silence and his Sixth Amendment

right to effective assistance of counsel, and violated both the

attorney work-product privilege and Penal Code provisions

governing the disclosure of expert witnesses. (U.S. Const., 5th,

6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16 & 17;

Code Civ. Proc., § 2018.010 et seq.; § 1054 et seq.)

A prosecutor’s conduct violates the federal Constitution

when it “ ‘so infect[s] the trial with unfairness as to make the

resulting conviction a denial of due process.’ ” (Darden v.

Wainwright (1986) 477 U.S. 168, 181 (Darden).) “Conduct that

does not render a trial fundamentally unfair is error under state

law only when it involves ‘ “ ‘the use of deceptive or

reprehensible methods to attempt to persuade either the court

or the jury.’ ” ’ ” (Bennett, supra, 45 Cal.4th at p. 595; see People

v. Friend (2009) 47 Cal.4th 1, 29 (Friend).) When a misconduct

claim “focuses on the prosecutor’s comments to the jury, we

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determine whether there was a reasonable likelihood that the

jury construed or applied any of the remarks in an objectionable

fashion.” (People v. Booker (2011) 51 Cal.4th 141, 184–185

(Booker).)

Although the prosecutor’s arguments were vigorously

presented, they were fair comment on the state of the evidence

in the case. The primary defense offered at the guilt phase was

that the state’s DNA collection and testing were flawed and led

to a misidentification of defendant as the perpetrator of the

sodomy and murder. Defense counsel spent nearly the entirety

of his lengthy closing argument discussing these alleged flaws.

Yet, although there was evidence that the defense had retained

an expert to review the DNA testing, neither this expert, nor

any other, was called to testify on the topic. “We have long held

that a prosecutor may make ‘ “comments based upon the state

of the evidence or upon the failure of the defense to introduce

material evidence or to call anticipated witnesses.” ’ ” (People v.

Steskal (2021) 11 Cal.5th 332, 351 (Steskal); see People v.

Gonzales (2012) 54 Cal.4th 1234, 1275 (Gonzales); People v.

Stevens (2007) 41 Cal.4th 182, 210; People v. Lewis (2001) 25

Cal.4th 610, 670.) Such comments do not invade the attorney

work product privilege. (See Zamudio, supra, 43 Cal.4th at

pp. 352, 355.) The prosecutor did not argue that defendant had

a duty to produce evidence, nor did he attempt to shift or lighten

the state’s burden of proof. (See Bennett, supra, 45 Cal.4th at

p. 596.) But he was entitled to point out that the defense had

presented arguments only regarding its theory of DNA

mishandling, and the logical witness who might have presented

evidence to support this contention had not been called. (See

Stevens, at p. 210.) While it is true that neither side is required

to produce certain evidence, it is common for both sides to

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comment on the absence of potentially available evidence. Both

parties will often, and legitimately, note that certain testimony

is uncorroborated by any other witness, or that no fingerprint,

photo, document, or forensic evidence supports the other side’s

theory.

People v. Kaurish (1990) 52 Cal.3d 648 applied these

principles to argument about an absent expert witness. Kaurish

initially intended to call a serologist who was a consulting

expert. He changed his mind when the prosecutor sought leave

to explore certain topics on cross-examination. (Id. at pp. 679–

680.) At Kaurish’s request, the court later barred the prosecutor

from commenting in argument about the serologist’s failure to

testify. (Id. at p. 680.) “Nevertheless the prosecutor, while not

mentioning [the expert] by name, referred to the absence of a

defense serologist” using a female pronoun. (Ibid.) We rejected

Kaurish’s claim of prejudicial error, explaining that the

prosecutor was “entitled to comment on the state of the

evidence, including the lack of conflicting serological evidence.”

(Ibid.) Because the record indicated the jury already knew of

the specific person the defense had retained as an expert

serologist, we concluded no prejudice could have resulted from

the prosecutor’s allusion to her by pronoun. (Ibid.)

Case law has also firmly established that prosecutorial

argument about absent witnesses does not infringe a

defendant’s rights under Griffin v. California (1965) 380 U.S.

609. Interpreting the Fifth Amendment privilege against self-

incrimination, “Griffin held that ‘the prosecution may not

comment upon a defendant’s failure to testify on his or her own

behalf. Its holding does not, however, extend to bar prosecution

comments based upon the state of the evidence or upon the

failure of the defense to introduce material evidence or to call

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anticipated witnesses.’ ” (People v. Gomez (2018) 6 Cal.5th 243,

299; see People v. Thomas (2012) 54 Cal.4th 908, 945; People v.

Szeto (1981) 29 Cal.3d 20, 34 (Szeto).) Here, the prosecutor’s

rebuttal argument “did not refer to the defendant’s failure to

testify, but to the failure of the defense to call witnesses to

contradict the testimony of the prosecution’s witnesses or to

offer any evidence in opposition to the prosecution’s case.

Griffin . . . does not prohibit the prosecution from emphasizing

the defense’s failure to call logically anticipated witnesses or the

absence of evidence controverting the prosecution’s evidence.”

(People v. Mitcham (1992) 1 Cal.4th 1027, 1051.)

A prosecutor’s ability to comment on absent witnesses is

not unbounded, however. In People v. Wash (1993) 6 Cal.4th

215, the defense called Wash’s friend and an aunt. The

prosecutor cross-examined them about the statements they had

made to defense-retained experts. (Id. at pp. 250–251.) In

closing, the prosecutor criticized the defendant’s failure to offer

expert psychiatric testimony in support of his mental state

defense. Similar to the argument here, the prosecutor in Wash

observed, “ ‘[W]e’ve had a couple of guys lurking around in the

background on this case, Dr. Rosenthal and Dr. Seligman. They

were out talking to people, and then we never heard from

them.’ ” (Id. at p. 262.) We observed without further

explanation or citation that, because “neither expert testified at

trial, their names should not have been invoked by the

prosecutor during closing argument.” (Ibid.)21 Yet, based on the

21

It is not completely clear from the opinion whether the

names of Doctors Rosenthal and Seligman were mentioned in

prior testimony. Here, by contrast, Dr. Blake’s name was used

repeatedly during Dr. Rogers’s examination.

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authorities permitting prosecutorial comment on the state of the

evidence, we concluded in Wash that the remarks did not

constitute error or misconduct. (Wash, at pp. 262–263, citing

Szeto, supra, 29 Cal.3d at p. 34 & People v. Ratliff (1986) 41

Cal.3d 675, 691.) The same is true here. The prosecution was

permitted to comment on the state of the evidence as presented

to the jury. Unlike Wash, the jury here heard evidence, not

simply that Blake had been retained by the defense, but also

about his credentials, his review of Myers’s results, and his

opportunity to retest the evidentiary samples. The defense

attacked Myers’s credibility as an expert by emphasizing his

lesser academic credentials as compared to Blake’s doctorate.

The prosecutor was not required to ignore the evidence about

Blake, or tiptoe around it in his argument, simply because the

defense chose not to call Blake to testify.

Steskal, supra, 11 Cal.5th 332 sounded a related note of

caution. Steskal did not call his wife to testify about why he

“ ‘all of a sudden . . . decided to act out’ ” on the day of the

murder. (Id. at p. 350.) In closing argument, the prosecutor

pointed out the lack of evidence supporting the defense on this

issue, noting “ ‘the person that was perhaps the best witness to

talk about the defendant before the murder and after the

murder, who I can’t call because of the marital privilege, they

don’t call. They don’t call Nannette Steskal.’ ” (Ibid.) We

rejected the defendant’s prosecutorial misconduct claim based

on long-standing case law allowing such commentary on the

defense’s failure to introduce material evidence or call logical

witnesses. (Id. at p. 351.) However, we also made clear that

argument is improper if it invites speculation, suggests the

defense has the burden to prove innocence, lightens the

prosecution’s burden, or suggests a defendant may not “ ‘simply

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stand[] on his right to have the state prove his guilt.’ ” (Id. at

p. 352.)

After asking why the defense would have failed to call

Blake, the prosecutor answered his own rhetorical question. He

posited that Blake could have offered no helpful testimony for

the defense because Blake found no errors in Myers’s work and

because any retesting of the forensic evidence would have

produced a second set of DNA results confirming defendant’s

guilt. The arguments were forcefully presented and close to the

line in specifying particular conclusions to be drawn from

Blake’s failure to testify. However, defendant failed to object

and therefore forfeited his misconduct claim.

“To preserve a misconduct claim for appellate review, a

defendant must make a timely objection and ask the trial court

to admonish the jury to disregard the remark (or conduct) unless

such an admonition would not have cured the harm.” (Booker,

supra, 51 Cal.4th at p. 184.) At no point, either during the

argument itself or during earlier proceedings, did the defense

object that the prosecutor’s presentation was improper.

Defendant asserts his misconduct claim was not forfeited,

however, because any objection would have been futile. (See

People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).) He relies on the

court’s refusal to limit the prosecutor’s rebuttal argument and

its accompanying comment that “[t]he DA can argue the way he

wants.” But in this same exchange, the court reminded defense

counsel of his right and obligation to object if the argument was

improper: “He can say whatever he wants. You can’t tell him

what he is going to say. If he says something, you don’t like it,

object.” Moreover, defense counsel’s objections did not touch on

whether it would be permissible for the prosecutor to speculate

about why the defense had not called Dr. Blake. As a result, the

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court had no opportunity to rule on that issue, and the claim is

forfeited on appeal. (See People v. Lucas (1995) 12 Cal.4th 415,

473 (Lucas).)

On the merits, although the question is closer for these

remarks than for other aspects of defendant’s prosecutorial

misconduct claim, we conclude the argument was not

misconduct. “Prosecutors have wide latitude to discuss and

draw inferences from the evidence at trial.” (Lucas, supra, 12

Cal.4th at p. 473.) Defense counsel had spent considerable

effort trying to discredit the DNA evidence, both in Myers’s

cross-examination and in closing argument. There was evidence

that a defense expert with superior credentials had reviewed

Myers’s work, yet that expert did not testify. The prosecutor

was entitled to remark upon this state of evidence. The

proposed inferences about Blake’s absence were logical given the

evidence of this expert’s prior involvement. “Whether the

inferences drawn by the prosecutor were reasonable was a

question for the jury to decide.” (Id. at p. 474.) We rejected a

prosecutorial misconduct claim for similar reasons in Gonzales,

supra, 54 Cal.4th 1234. There, the prosecutor argued the

defense could have presented testimony from a child witness’s

advocate or psychologist, asserting its failure to do so meant the

jury should conclude those experts would have contradicted the

defense claim that the child’s testimony had been influenced.

(Id. at p. 1274.) That speculation was even more questionable

than what occurred here, particularly given the potential

privileges involved. Nevertheless, we concluded the defendant

fell “well short of showing the sort of deceptive, reprehensible,

and prejudicial argument that would constitute misconduct.”

(Id. at p. 1275.) So too here, the prosecutor’s argument was not

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deceptive or reprehensible, rendering the trial fundamentally

unfair. (See Bennett, supra, 45 Cal.4th at p. 595.)

Nor is it reasonably likely the jury construed the

prosecutor’s remarks in an improper fashion. (See Booker,

supra, 51 Cal.4th at pp. 184–185.) The jury was instructed both

before and after closing argument that attorney statements are

not evidence (CALJIC No. 1.02), a point the prosecutor also

stressed in his own argument. Jurors were specifically told to

disregard an attorney’s interpretation of the evidence if it

differed from theirs. And, as noted, they were instructed that

the prosecution bore the burden of proving defendant’s guilt

beyond a reasonable doubt (CALJIC No. 2.90), that neither side

was obligated to call all witnesses who might have relevant

knowledge (CALJIC No. 2.11), and that defendant was entitled

to rely on the state of the evidence as well as the People’s failure,

if any, to prove the charges beyond a reasonable doubt (CALJIC

No. 2.61). Thus, even assuming the comments were improper,

defendant has not shown they were prejudicial.

e. Cumulative Prejudice

Finally, defendant asserts that, taken together, the

admission of evidence about Blake’s involvement, the court’s

response to the juror note, and the prosecutor’s rebuttal

argument about Blake had such a cumulative effect of

unfairness that he was deprived of a fair trial. Defendant did

not raise this argument or assert any constitutional objections

below, including in his post-verdict motion for new trial.

Assuming the claim was not forfeited, it fails on the merits.

Having reviewed each of defendant’s contentions in detail, and

in the context of the trial as a whole, we conclude the admission

of evidence and argument about Blake’s involvement did not

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render defendant’s trial so fundamentally unfair that he was

denied due process. (See Bennett, supra, 45 Cal.4th at pp. 594–

596.)

2. Confrontation Issues

Defendant next claims his Sixth Amendment right to

confrontation was violated when a pathologist who did not

conduct the autopsy related the report’s findings to the jury. We

conclude that much of the examination was proper, and any

error in admitting other testimony was harmless beyond a

reasonable doubt. (See Chapman v. California (1967) 386 U.S.

18, 24 (Chapman).)

Dr. Paul Herrmann, the pathologist who performed

Terena’s autopsy, was out of the country at the time of trial. The

prosecution called Dr. Thomas Rogers to testify in his place. Dr.

Rogers had worked with Dr. Herrmann for 20 years at a forensic

medical group that performed autopsies for the Alameda County

Coroner’s Office. Dr. Rogers was present for some of the autopsy

and had a “vague recollection” of it when he reviewed the case

for trial.

Without objection on hearsay or confrontation grounds,

Dr. Rogers testified about the autopsy, as well as the autopsy

report and its accompanying photographs. He described all of

the significant wounds shown in the pictures, including

lacerations around the rectum and the stab wound that

completely severed Terena’s jugular vein. When shown a

multipurpose tool taken from defendant, Dr. Rogers opined that

it was consistent with the implement used in the stabbing.

Based on photographs that showed hemorrhaging from the

rectal lacerations, Dr. Rogers concluded these wounds were

inflicted before death. He did not express an opinion as to why

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fecal matter was found to be present in that area but agreed that

sodomy was a possible explanation. A photograph of stomach

contents showing nondigested food indicated Terena could have

been killed within half an hour after eating. Dr. Rogers also

identified evidence samples taken in the autopsy. He described

the process by which swabs would have been collected from

different areas of the body and preserved in sealed evidence

envelopes. Based on his knowledge of office procedures and his

knowledge of Dr. Herrmann’s practices, he explained that all

tissue samples would have been dried, packaged, and then

refrigerated before being transmitted to the coroner’s office. At

the close of trial, the court admitted the autopsy photos and

swabs into evidence. The court refused to admit the autopsy

report itself, however, noting it contained a large amount of

material not covered in Dr. Rogers’s testimony.

The federal confrontation clause guarantees criminal

defendants the right to confront adverse witnesses. (U.S.

Const., 6th Amend.) In Crawford v. Washington (2004) 541 U.S.

36, 53–54, 68 (Crawford), the United States Supreme Court

departed from its previous precedent (Ohio v. Roberts (1980) 448

U.S. 56) to hold that the admission of “testimonial” hearsay

against a criminal defendant violates the Sixth Amendment

right to confrontation unless the declarant is unavailable and

the defendant had a prior opportunity for cross-examination.22

Based on Crawford and cases following it, defendant asserts his

confrontation rights were violated by portions of Dr. Rogers’s

22

Because the prosecution proceeded by way of grand jury

indictment rather than a preliminary hearing, defendant would

have had no opportunity to cross-examine Dr. Herrmann at a

preliminary hearing.

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testimony. Although defendant did not raise a hearsay or

confrontation objection below, the claim is not forfeited because

his trial occurred five years before Crawford was decided. (See

People v. Garton (2018) 4 Cal.5th 485, 505 (Garton); People v.

Pearson (2013) 56 Cal.4th 393, 461–462 (Pearson).)

Setting aside testimony about Dr. Rogers’s background

and expert qualifications, the topics covered in his examination

can be grouped into four different categories (see Garton, supra,

4 Cal.5th at p. 505): (1) statements in Dr. Herrmann’s autopsy

report relating his observations and opinions; (2) testimony

describing or explaining photographs from the autopsy;

(3) testimony conveying Dr. Rogers’s own opinions based on

information conveyed in the autopsy report or his examination

of accompanying photographs; and (4) testimony describing the

custom and practice Dr. Herrmann would have followed in

collecting and preserving evidence samples for forensic analysis.

As we explain, only the first category of statements raises a

potential confrontation clause issue.

“Whether a challenged statement is hearsay is always the

threshold question” in analysis of a Crawford claim. (People v.

Turner, supra, 10 Cal.5th at p. 820, fn. 19.) Hearsay is defined

as “a statement that was made other than by a witness while

testifying at the hearing and that is offered to prove the truth of

the matter stated.” (Evid Code, § 1200, subd. (a).) Documents

such as letters or reports are very often hearsay because they

are prepared out of court and generally offered to prove the truth

of their contents. (See People v. Sanchez (2016) 63 Cal.4th 665,

674 (Sanchez).) The same is not true of photographs, however.

A “statement” for hearsay purposes is defined as the “oral or

written verbal expression or . . . nonverbal conduct of a person.”

(Evid. Code, § 225, italics added.) “Only people can make

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hearsay statements; machines cannot.” (People v. Leon (2015)

61 Cal.4th 569, 603 (Leon).) Accordingly, “[i]t is clear that the

admission of autopsy photographs, and competent testimony

based on such photographs, does not violate the confrontation

clause.” (Ibid.; see Garton, supra, 4 Cal.5th at p. 506.) A

significant portion of Dr. Rogers’s testimony was explicitly

based on autopsy photographs, explaining what they depicted

and his opinion as to what those depictions signified. He

referred to photographs in evidence, using them to discuss many

of Terena’s wounds, including lacerations to the rectal opening

indicative of penetration, and his own estimate of her time of

death in relation to food consumption. The photographs were

not hearsay, nor was Dr. Rogers’s testimony based on his

examination of them.

It was also permissible for Dr. Rogers to testify about his

own independently conceived opinions, even if those opinions

were based on inadmissible hearsay. (See Leon, supra, 61

Cal.4th at p. 603; see also People v. Perez (2018) 4 Cal.5th 421,

457 (Perez).) “Any expert may still rely on hearsay in forming

an opinion, and may tell the jury in general terms that he did so.

Because the jury must independently evaluate the probative

value of an expert’s testimony, Evidence Code section 802

properly allows an expert to relate generally the kind and source

of the ‘matter’ upon which his opinion rests.” (Sanchez, supra,

63 Cal.4th at pp. 685–686; see Garton, supra, 4 Cal.5th at

p. 506.) Dr. Rogers gave several of his own opinions, including

how soon Terena would have died after the severing of her

jugular vein, whether defendant’s multipurpose tool could have

been used to inflict the stab wounds, whether rectal injuries

were inflicted before death, and how soon death occurred after

she had eaten. These opinions were Dr. Rogers’s own; they are

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not contained in the autopsy report. Although they may have

been based, to varying extents, on hearsay statements in the

report, it was permissible for Dr. Rogers to rely on this material

in forming his own opinions. (See Evid. Code, § 802; Sanchez,

at pp. 685–686.)

Portions of Dr. Rogers’s testimony were potentially

problematic, however. A “hearsay problem arises when an

expert simply recites portions of a report prepared by someone

else, or when such a report is itself admitted into evidence. In

that case, out-of-court statements in the report are being offered

for their truth.” (Leon, supra, 61 Cal.4th at p. 603.) Here, Dr.

Herrmann’s autopsy report was marked for identification but

not admitted into evidence. However, it is evident from Dr.

Rogers’s testimony that, in response to some questions, he

referred to the autopsy report, and he may have relayed some

details from the report in giving his answers.23 To the extent

23

Defendant notes that, when asked about the cause of

Terena’s death, Dr. Rogers replied: “Incised wound to the neck.”

Defendant then refers to Dr. Herrmann’s report, which reads:

“CAUSE OF DEATH: INCISED WOUND OF THE NECK.” He

urges that Dr. Rogers must have simply reported Dr.

Herrmann’s opinion, rather than giving his own. This

conclusion is not supported by the record. It is not surprising

that two forensic pathologists would conclude an incised wound

to the jugular vein caused the decedent’s death and would

describe the cause using that professional nomenclature. It is

clear from this record, however, that Dr. Rogers examined

photos showing the severed vein. He described one of the

autopsy photographs as showing the left side of the body, blood

covering the body, and “an incised defect on the left side of the

neck.” A fair reading of the record is that, in recounting the

cause of death, Dr. Rogers was giving his own opinion, rather

than simply repeating Dr. Herrmann’s statement. This reading

is consistent with Dr. Roger’s later testimony. Asked “how long

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Dr. Rogers was simply relaying the contents of the report to the

jury, his testimony constituted hearsay. Under the United

States Supreme Court’s Crawford jurisprudence, admission of

this hearsay violated the confrontation clause if it was

“testimonial.” (Crawford, supra, 541 U.S. at p. 53; see id. at

pp. 53–54; Bullcoming v. New Mexico (2011) 564 U.S. 647, 657.)

Although the high court has discussed the topic in a number of

decisions (see, e.g., Bullcoming, at pp. 658–659; Davis v.

Washington (2006) 547 U.S. 813, 822), it has yet to articulate a

comprehensive definition of the term “testimonial.” (See People

v. Amezcua and Flores (2019) 6 Cal.5th 886, 912.)

Primarily because the trial here occurred before

Crawford’s newly adopted approach to analyzing the

admissibility of testimonial hearsay, the parties did not parse

precisely when Dr. Rogers was giving his own conclusions or

simply relating statements from Dr. Herrmann’s report. In an

abundance of caution, because the record is sometimes unclear

on the distinction, we assume for purposes of this review that

Dr. Rogers’s testimony conveyed some testimonial hearsay from

the report. However, any confrontation error was harmless

beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24;

see Pearson, supra, 56 Cal.4th at p. 463.) The jury received

ample evidence of Terena’s wounds and sexual assault from non-

hearsay sources, including the autopsy and crime scene

photographs and police testimony. Moreover, the condition of

her body and the cause of her death were undisputed. (See

would a person survive after having suffered the injury to the

neck that you previously described?” Dr. Rogers answered, “I

can’t say exactly; however, it would be my opinion that most

people are going to die within a three- to a five-minute period

after sustaining an injury of that nature.”

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Garton, supra, 4 Cal.5th at p. 507; Perez, supra, 4 Cal.5th at

p. 457.) The defense did not contest the manner of Terena’s

death. Instead, it challenged who had caused it.

In an attempt to establish prejudice, defendant points to

Dr. Rogers’s testimony about how Dr. Herrmann would have

collected evidence swabs from Terena’s body. Defendant

stresses that the evidence obtained in these swabs was critical

in establishing the DNA match that linked defendant to the

present crimes. The forensic evidence was manifestly

important. However, Dr. Rogers’s testimony about the evidence

collection was not hearsay. He did not recite facts from the

autopsy report about how tissue samples were obtained and

preserved. In fact, the autopsy report includes no description

whatsoever of the swabs in question. The report only mentions

evidence collection in two places, where it notes that fibers

adhering to blood on Terena’s fingers were “removed and placed

into evidence.” Sergeant James Taranto testified that he was

present and observed the collection and preservation of evidence

swabs from Terena’s autopsy, and Dr. Rogers testified about his

office’s general custom and practice of collecting, marking, and

preserving swabs for forensic examination and memorializing

the chain of custody. He then gave opinions about how he

believed, based on these standard practices, Dr. Herrmann

would likely have obtained the samples here. This testimony

related no out-of-court statements. Accordingly, it was not

hearsay and did not violate the confrontation clause.24 The

24

In Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305,

308, the high court held that “ ‘certificates of analysis’ ”

reporting the results of drug testing were testimonial hearsay.

The majority took pains, however, to stress that the

confrontation clause does not demand live testimony for each

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testimony was also admissible under Evidence Code

section 1105, which expressly authorizes the admission of habit

or custom evidence. To the extent testimony about how Dr.

Hermann may have collected the samples lacked foundation,

defendant forfeited any such claim by failing to raise this

objection. (See People v. Jackson (2016) 1 Cal.5th 269, 366–367

(Jackson).) Nor would defendant have been prejudiced by any

error in the admission of this testimony. The defense never

suggested there was any problem with Dr. Herrmann’s

collection of the swabs. On the contrary, defense counsel argued

vigorously that Herrmann’s slides were “so good” but criminalist

Sharon Smith had hopelessly contaminated them, resulting in

inaccurate DNA results. Given this defense theory of the case,

any error in admitting testimony about Dr. Herrmann’s

procedures was harmless under any standard.

3. Juror Misconduct

Defendant claims the court conducted an “inadequate and

improper” investigation of juror misconduct and that this

misconduct infringed his constitutional rights to a fair trial by

an impartial jury. We conclude the court’s inquiry was adequate

and there was no prejudicial misconduct.

link in the evidentiary chain of custody: “[W]e do not hold, and

it is not the case, that anyone whose testimony may be relevant

in establishing the chain of custody, authenticity of the sample,

or accuracy of the testing device, must appear in person as part

of the prosecution’s case. While the dissent is correct that ‘[i]t is

the obligation of the prosecution to establish the chain of

custody,’ [citation] this does not mean that everyone who laid

hands on the evidence must be called. As stated in the dissent’s

own quotation [citation], ‘gaps in the chain [of custody] normally

go to the weight of the evidence rather than its admissibility.’ ”

(Id. at p. 311, fn. 1.)

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a. Background

After the jury deliberated and returned guilty verdicts, a

bailiff found what appeared to be two typewritten poems in the

jury room, both signed by Juror No. 1. The court read them into

the record, and we quote them in full. The first reads:

JUROR # 1

What kind of person could do such a crime?

This is the thought that runs through my mind.

The brutality and nature of this attack —

Surely was a vicious act.

The day seems so long, focusing on facts;

I start to get pains in my neck and my back.

The details are very long and graphic,

My mind seems like it’s weaving in traffic.

Both sides arguing to prove their points,

Listening so hard you feel it in your joints.

The Jury enters and leaves in a row,

Emotions and feelings unable to show.

You’re instructed not to talk about the case;

Your insides churn; the tension in your face.

For someone to hold all of this in

Really should be considered a sin.

A part of you has to stop living

While on the jury you are sitting.

Some of the evidence I have seen

Are in my thoughts and in my dreams.

No one said it was going to be easy,

Talking about blood and samples of feces.

I can’t wait ’til the end of this trial

So I can release my soul of this bile.

The second poem reads:

JUROR RESPONSIBILITY

The responsibility of someone’s life in your hand —

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Only a juror would understand.

Is he guilty? Or is he not?

In your mind this battle’s fought.

If there is a reasonable doubt,

“Not guilty,” the jury will shout.

If the evidence is so compelling,

“Guilty,” is what they’ll be yelling.

Justice certainly will prevail

If a guilty man is put in jail.

An innocent man shall be free.

These decisions are up to WE.

WE as a jury need to find

If — or if not — he did the crime.

Clear up any of your confusion

Before you come to your conclusion.

Remember WE all must agree

Whether or not he’s guilty!

At defense counsel’s request, the court questioned Juror

No. 1 about the poems. She said she had written them at home

after hearing all the guilt phase evidence. Although she initially

thought she had given the poems to the other jurors after they

returned guilty verdicts, she later corrected herself and said

they had been shared during deliberations. She explained that

another juror had typed up the poems, “brought them in,” and

gave them to the other jurors. When the court asked if anything

about the poems had affected her ability to be a fair juror in the

guilt phase, Juror No. 1 replied to the contrary and explained

the poems were simply meant to express her feelings about the

difficulty of serving as a juror. She affirmed that she had

followed the court’s instructions and had not spoken to anyone

about the case.

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The court announced its intention to ask all jurors three

questions: (1) whether they had read the poems; (2) whether the

poems had affected their guilt phase verdicts; and (3) whether

the poems would compromise their ability to be fair in the

penalty phase. Juror No. 1 apologized and offered that she had

written one of the poems “because the one lady was struggling.

You know, I mean it wasn’t — nobody was pressuring her. I felt

for her, to tell the truth.” After the juror left, defense counsel

expressed concern that Juror No. 1 might have collaborated

with another juror to type up the poems in order to persuade a

holdout juror to return a guilty verdict. The court believed its

proposed questioning would reveal if any such misconduct

occurred. Defense counsel objected, however, and urged the

court to explore all the factual circumstances surrounding how

the poems were used. The court refused, noting that jurors

would have an opportunity to say whether the poems had any

influence on their verdicts.

The court then examined each juror individually, apart

from the others, and posed its three questions. Juror No. 2

confirmed that the poems were handed out during deliberations.

She said she had read the poems, although she did not say when,

and stated they did not in any way affect her decision. Defense

counsel protested that the questioning was insufficient and

urged the court to explore why the poems were distributed. The

court declined to do so.

Juror No. 6 had read the poems before voting but said they

did not influence his decision in any way. Juror No. 7 could not

remember exactly when she read the poems but was certain they

had “[a]bsolutely” no effect on her verdict. She believed the

poems were simply an expression of the author’s feelings and

conveyed the responsibility jurors felt. Likewise, Juror No. 8

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and Juror No. 10 were uncertain when they had read the poetry

but said it had not affected their verdicts. Juror No. 3, Juror

No. 5, and Juror No. 9 each reported that they had not read the

poems until after the guilt phase verdicts were returned. Juror

No. 3 observed, “I think it was just one person’s way of

expressing the whole feeling of the whole trial.” Juror No. 4 had

not read the poems at all and was waiting until trial was over.

Juror No. 11 said he had not yet read the poems. As

background, he offered that Juror No. 1 had written them in her

juror notebook, and it was noted “during the deliberative

process, that she likes to write poetry.” Another juror, whom he

believed was Juror No. 7, took the pages home to be typed, and

she did not distribute them until the first day of the penalty

phase. Based on this sequence of events, Juror No. 11 opined

that “probably not all of the jurors even heard or had access to

[the poetry] until [the guilt phase] was over.” Juror No. 12, the

foreperson, could not recall whether he had read the poems

before voting. He thought the poetry was not distributed until

“the very end of the deliberations.” It did not affect his verdict,

and he reported that no one referred to the poetry at any time

during deliberations. “As a matter of fact,” he said, “I think if

you poll most of the people, probably half of them don’t even

remember what was in there.” In his opinion as foreperson, the

poems “in no way affected any of the deliberations.” 25 All jurors

25

At defense counsel’s request, the court also questioned the

alternate jurors about their exposure to the poems. Apparently,

once the penalty phase began, the alternates joined jurors in the

jury room when court was not in session. Because the alternates

did not participate in guilt phase deliberations, the questioning

focused on whether, even if they had seen the poems, they could

remain fair and unbiased should they serve during the penalty

phase. Like all of the seated jurors, all averred that they could.

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also confirmed their ability to remain fair in the penalty phase.

Because this jury was ultimately unable to reach a penalty

verdict, those responses are not repeated. The only question

here is the impact of the poems, if any, on the guilt verdicts.

After this questioning, defense counsel requested a further

inquiry and moved for a mistrial on the ground that two jurors

had “conspire[ed]” to use the poems to pressure a holdout juror.

He also argued Juror No. 7 had lied in saying she was uncertain

when she read the po

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