The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY GEORGE BANKSTON,
Defendant and Appellant.
S044739
Los Angeles County Superior Court
VA007955
June 1, 2026
Justice Kruger authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Groban, and
Jenkins* concurred.
Justice Liu filed a concurring opinion.
Justice Evans filed a concurring opinion.
*
Retired Associate Justice of the Supreme Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
PEOPLE v. BANKSTON
S044739
Opinion of the Court by Kruger, J.
After a first guilt phase trial, a jury convicted defendant
Anthony George Bankston of the first degree murder of Benson
Jones; the willful, deliberate, and premeditated attempted
murder of Benjamin Jones; and possession of a firearm by a
felon. (Pen. Code, § 187, subd. (a), former §§ 189, 664, subd. (1),
12021, subd. (a).) The jury also found true allegations that
Bankston personally used a firearm in committing the murder
and attempted murder and had personally inflicted great bodily
injury on Benjamin Jones. (Pen. Code, former §§ 1203.06, subd.
(a)(1), 12022.5, subd. (a), 12022.7.) The jury failed to reach a
verdict on charges that Bankston committed the murder of Noel
Jesus Enrique Sanchez, 1 the attempted murder of Ernest
Johnson, and assault with a firearm on Linda Jones. The trial
court declared a mistrial and the prosecution elected to retry the
charges.
At a second guilt phase trial, a jury acquitted Bankston of
the attempted murder of Ernest Johnson but convicted him of
the first degree murder of Jesus Sanchez and of the assault with
a firearm on Linda Jones. (Pen. Code, § 187, subd. (a), former
§§ 189, 245, subd. (a)(2).) The jury also found true related
1
The amended information refers to this victim as Noel
Enrique Sanchez, but his family and friends testified that his
name was Jesus Sanchez. We refer to him by the latter name.
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assault weapon and firearm-use enhancement allegations.
(Pen. Code, former § 12022.5, subds. (a), (b)(2), (d).)
In a separate proceeding, the jury found true a multiple-
murder special circumstance allegation. (Pen. Code, § 190.2,
subd. (a)(3).) At the penalty phase, the jury returned a death
verdict and the trial court entered a judgment of death. This
appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen.
Code, § 1239, subd. (b).)
As both sides agree, the penalty phase in this case was
marked by errors under the California Racial Justice Act of
2020, Penal Code section 745, subdivision (a), that require us to
reverse the judgment of death. We affirm the judgment in all
other respects and remand for further proceedings.
I. FACTUAL BACKGROUND
A. First Guilt Phase
1. Prosecution evidence
Benjamin Jones testified that on the afternoon of May 18,
1991, he was driving in Los Angeles, accompanied by his sister
Linda Jones and his brother Benson Jones. Benjamin and
Benson dropped Linda off at the corner of Beach and Firestone
to purchase food at a taco truck and parked about 100 feet away
in front of a liquor store. Benjamin testified at trial that this
was a “Blood neighborhood”; Benson, however, was a member of
the rival Crip gang.
Benson was walking away from the car when Bankston
and two other men approached and one of the men asked,
“What’s up Blood?” When Benson turned around and
approached Bankston, Bankston pulled out a .38-caliber gun
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Opinion of the Court by Kruger, J.
and shot him. Bankston then turned and shot Benjamin.
Benjamin could see his sister Linda screaming hysterically.
Bankston returned to Benson, shot him in the neck at close
range, and fled. Benjamin testified that Bankston was wearing
a black-striped gray jumpsuit that had been cut off at the bottom
to make shorts. He identified Bankston from a photo lineup a
few days after the murder and later in court during his trial
testimony. Before the preliminary hearing, Benjamin received
a collect telephone call from someone named “Anthony” who
said, “I’m the one that’s supposed to have shot you and your
brother.” Anthony suggested that Benjamin and Linda “not
come to court” but deal with the shootings “on the street.”
Linda testified that she heard shots and saw Benjamin
and Benson fall; she then saw Bankston shoot Benson again,
shoot in her direction, and flee. Linda also identified Bankston
as the shooter in a photo lineup shortly after the murder and at
trial.
On May 22, 1991, Los Angeles County Sheriff’s Deputy
Michael Patterson pulled Bankston over for a traffic violation.
Bankston had a loaded rifle, which appeared and functioned like
an AK-47, lying in his lap and a loaded .38-caliber revolver was
found on the passenger seat. After his arrest, Bankston told
Deputy Patterson that his nickname was “Ant Dog” and that he
was from “Nine Deuce Bishops.”
Bankston’s acquaintance Paul Torrez testified that
Bankston used the moniker “Ant Dog” and belonged to the
Nine Deuce Bishops, which was a Blood gang, and associated
with the Compton Varrio 70s gang, also called the CV 70s. The
parties stipulated that Bankston had a tattoo on his right
earlobe of the letters CK with two lines drawn through the
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Opinion of the Court by Kruger, J.
middle of the C. Torrez testified that Bankston’s tattoo stood for
“Crip killer.”
Los Angeles County Sheriff’s Deputy Alexander
MacArthur, who was assigned to the Operation Safe Streets
(OSS) gang unit, and who testified both as a percipient and gang
expert witness, said that the Bloods and the Crips were rival
gangs. The intersection of Beach and Firestone Streets, where
Benson and Benjamin Jones were shot, was in Bishop Blood
territory. Following Bankston’s arrest, Deputy MacArthur and
his partner obtained permission from Bankston’s parole officer
to search Bankston’s motel room. They found a cutoff black-
striped grey sweat suit, a red photo album, and an envelope in
the album addressed to “Anthony Bankston.”
Another gang expert, Compton Police Lieutenant
Reginald Wright, testified that writing in Bankston’s album
indicated that the author was an active Blood gang member. On
cross-examination, Lieutenant Wright testified that he had
known Benjamin and Benson Jones in the late 1970’s and early
1980’s, and agreed that the brothers had been “proud” members
of the Atlantic Drive Crips.
The Los Angeles County Deputy Medical Examiner who
performed the autopsy on Benson Jones testified that Benson
died from a gunshot wound to his abdomen that perforated his
aorta. He had also been shot in the neck. A firearms examiner
testified that test bullets fired from Bankston’s .38-revolver had
the same general rifling characteristics as bullets that had been
removed during Benson’s autopsy. The examiner was not able
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Opinion of the Court by Kruger, J.
to conclude, however, that Bankston’s gun was the “only firearm
that could have fired these two bullets.” 2
2. Defense evidence
D.J., Benson’s wife, testified that on the day of Benson’s
death, the couple had argued, and the Firestone Sheriffs were
called. D.J. was pregnant and had previously told Benson that
the father was a man named Nate. Benson’s sister testified that
Nate frequented the area where Benson’s murder occurred.
Apparently to undermine Linda Jones’s identification of
Bankston as the shooter, Bankston presented the testimony of
Sergeant John Babbitt. Babbitt testified that on the day of the
shooting, he spoke with Linda, who described the shooter as a
Black man about 20 to 25 years old, five foot nine to 5 feet 11
inches, weighing about 170 pounds, with short black hair,
wearing black glasses and a “gray with black stripe sweat suit,
cut off at [the] knees,” a white T-shirt, and black shoes. At trial,
by contrast, Linda had testified that the shooter had “no hair,”
and Bankston introduced his Department of Corrections
fingerprint card that described him as 5 feet 5 inches tall.
James Warner, a former Los Angeles County Crime Lab
firearms examiner, testified that he had examined Bankston’s
.38-revolver. Warner was unable to “eliminate or identify”
whether bullets from the Benson crime scene had been fired
from the revolver. On cross-examination, Warner agreed with
2
Evidence regarding Sanchez’s murder was also presented
at the first guilt phase, but the first guilt phase jury failed to
reach a verdict on that count. For brevity, we recount the facts
regarding this murder in the second guilt phase factual
background.
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Opinion of the Court by Kruger, J.
the prosecutor that his conclusions as to the revolver were
“identical” to those of the prosecution’s ballistics expert.
Compton Police Officer Timothy Brennan testified that on
May 24, 1991, he had interviewed Torrez, who had been
arrested that night on unrelated charges. Torrez told Officer
Brennan he had information about a Compton homicide (the
Sanchez murder) and described Ant Dog and his car. On cross-
examination, Officer Brennan agreed with the prosecutor that
during the interview Torrez said, “All 70’s like Ant Dog ’cause
he would kill . . . whoever they want.” Torrez also described Ant
Dog’s physical appearance and said Ant Dog “claims Nine Deuce
Bishops, and hangs out with the CV 70s.” He also stated that
Ant Dog’s first name might be Antonio, and that Ant Dog had
been released from prison about three months before the
interview.
B. Second Guilt Phase
1. Prosecution evidence
Florentino Melendez testified that on May 10, 1991, at
about 5:30 p.m., he and Jesus Sanchez were walking in a
residential area on Thorson Street toward Laurel Street in
Compton. Melendez heard six to nine gunshots, ran toward
Laurel Street, and hid behind a car. Sanchez ran back up
Thorson Street. Melendez saw what looked like a gray Volvo in
the middle of the intersection. Only the driver, identified at trial
by Melendez as Bankston, was in the vehicle. Melendez and
Bankston made eye contact, and Bankston made a motion with
his gun. Bankston then put the car in reverse and drove off.
Melendez ran to Sanchez, who had been shot and later died.
Sometime after Sanchez’s murder, Bankston called Melendez
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and told him “[n]ot to come to court” and that “we could handle
this out in the street.”
John Aguilera, Melendez’s brother-in-law, testified that
on May 10, 1991, Sanchez and Melendez had attended a
Mother’s Day barbecue at Aguilera’s house. After Sanchez and
Melendez left the barbecue, Aguilera heard gunshots, ran out,
and saw Sanchez on the ground. Aguilera recognized the person
Melendez described as the shooter as Ant Dog, who associated
with the CV 70s. After Aguilera had identified Ant Dog’s
photograph for law enforcement, Aguilera received two or three
telephone calls from Bankston telling him “not to come to
court . . . we can take care of it like men out in the street.” The
parties stipulated that Bankston had been in possession of the
addresses and telephone numbers of Melendez and Aguilera
since June 1991, having obtained the information as a result of
ongoing discovery.
Catalina Franco and her sister, Maria Lopez, testified that
they had also witnessed the shooting and corroborated the
description of the shooting Melendez had given. Franco also
identified Bankston’s car as the car from which the shooting
occurred.
Melendez testified he had been associated with the
Compton Chicano Gang (CCG) gang until the year of Sanchez’s
murder, and Aguilera testified that the CCG controlled the area
where Sanchez was shot. Gang expert Lieutenant Wright
testified that at the time Sanchez was shot the CV 70s and the
CCGs were hostile rivals.
Torrez testified that at the time of the shooting he had
been a member of the CV 70s gang. Bankston, whom Torrez had
known for a few months and called Ant Dog, was from the Blood
gang Nine Deuce Bishops, but was a friend of the CV 70s gang.
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Opinion of the Court by Kruger, J.
According to Torrez, on the day after the shooting Bankston
visited Torrez and told him he had shot a member of the CCG
with an AK-47. Bankston said the shooting occurred on
Thorson, which Torrez identified as CCG’s territory. Bankston
saw two men and shot one of them. Bankston then smiled at the
other man and left. Bankston said he “just rolled by and caught
them slipping,” which Torrez said meant “not looking around.”
Bankston had an AK-47 with him when he visited Torrez, and
Torrez identified it at trial as the same assault rifle Bankston
had at the time of his arrest.
The autopsy revealed that Sanchez sustained two gunshot
wounds, and the cause of death was the gunshot wound to his
chest. Ballistics testimony indicated that a bullet recovered at
Sanchez’s autopsy was consistent with being fired from
Bankston’s AK-47-type rifle.
To establish the firearm assault on Linda Jones, Benjamin
Jones largely repeated his original guilt phase testimony about
the shooting of himself and Benson. Linda Jones also described
that attack and testified that Bankston shot once in her
direction. Ballistics evidence indicated that expended bullets
recovered from the scene were consistent with being fired from
Bankston’s .38 revolver.
The prosecution also introduced evidence about
Bankston’s arrest, the search of his motel room, his photo album
writings, and his gang affiliation, all of which was similar to
evidence presented at the first guilt phase. As additional
evidence regarding Bankston’s gang affiliation, Los Angeles
County Sheriff’s Legal Deputy Maurice Kempner, who worked
at the North County Correctional Facility, testified that about
six months earlier, Bankston told Kempner he was “Blood
affiliated.” Los Angeles County Sheriff’s Sergeant John Baylis
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Opinion of the Court by Kruger, J.
testified that on February 7, 1994, he was standing near
Bankston in the North County Correctional Facility and was
given an out-of-order sign from a law library Xerox machine.
Bankston later admitted the writing on the out-of-order sign
was his. Deputy MacArthur testified that on the out-of-order
sign was written, as relevant, “Antt 2 Dogg,” “CK” with two lines
through the “C,” and “92nd Street Watts Gang, east ‘side’
Bishops Blood.” The trial court precluded admission of the
remaining writing on the sign under Evidence Code section 352.
Lieutenant Wright opined that the writing on the sign indicated
the author was a member of the “East Side Bishop Bloods.”
2. Defense evidence
A Pacific Bell Telephone Company customer service
representative testified regarding bills for the telephone number
associated with Melendez. The representative reviewed bills for
several months following Sanchez’s May 1991 shooting and
identified a handful of collect calls but could not be sure whether
there were any collect calls from a county jail facility.
C. Special Circumstance Phase
At a separate proceeding concerning the multiple-murder
special circumstance allegation, the trial court took judicial
notice of Bankston’s earlier conviction for the first degree
murder of Benson Jones. The prosecutor introduced into
evidence the redacted minutes reflecting the jury’s verdict
regarding Benson’s murder and a redacted copy of the amended
information that included counts 1 and 2 concerning the Jones
and Sanchez murders. The jury found true the multiple-murder
special-circumstance allegation. (Pen. Code, § 190.2,
subd. (a)(3).)
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D. Penalty Phase
1. Prosecution evidence
The prosecution relied on the circumstances of the charged
crimes. It also presented victim impact testimony and evidence
of Bankston’s prior convictions and custodial misconduct.
Benjamin Jones described the May 18, 1991 shooting.
Benson’s last words to Benjamin were to ask him to “[t]ake care
of my boys,” meaning Benson’s sons. D.J., Benson’s wife,
testified that she had known Benson for about 22 years, they
were married on Christmas in 1987, and he had been her best
friend. He was 36 years old when he died. She described seeing
Benson after he had been shot, going to the hospital with him in
the ambulance, and learning of his death. She and Benson had
five sons who were between four and 16 years old at the time of
Benson’s death. They had been excellent students before
Benson’s murder, but one was now in jail and another never
finished school. The jury also heard testimony from one of
Benson’s sons and from Benson’s mother, who stated that
Benson had a total of seven children.
Edilberto Enriquez, Sanchez’s younger brother, described
receiving a telephone call on May 10, 1991, that Sanchez had
been hurt, running to that location, and seeing him lying on the
ground. Enriquez was joined by their younger sister, who
started crying. Sanchez, who was 21 years old when he died,
had been like a father to Enriquez. Since the murder, Enriquez
had experienced trouble concentrating and financial difficulty.
The jury also heard from Sanchez’s father and mother.
The prosecution also presented evidence of Bankston’s
1985 conviction for assault with a deadly weapon with a great
bodily injury enhancement, 1987 conviction for attempted
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Opinion of the Court by Kruger, J.
possession of an explosive while in prison, and 1989 conviction
for possession of a firearm by a felon. (Pen. Code, former §§ 245,
subd. (a)(2), 664, 4502, 12021, subd. (A), 12022.7.) The assault
conviction arose from Bankston threatening and shooting an
“East Coast Crip” gang member.
A series of correctional officers and sheriff’s deputies
described a long series of incidents while Bankston was
incarcerated. A correctional officer described Bankston rushing
up behind him, grabbing him by the neck, and pinning him
against a wall with such force he feared for his life. After
another guard came to his aid and Bankston was subdued, the
guards found an eight-inch metal shank, a jail-made knife, in
Bankston’s pocket. Additional testimony indicated that on other
occasions, large metal shanks were found in Bankston’s cell and
that Bankston had stabbed other inmates, on one occasion with
a six-inch shank and on another with a four-foot spear.
The prosecutor also presented testimony regarding four
custodial incidents that the trial court later deemed to be
outside the purview of Penal Code section 190.3, factor (b). The
trial court precluded the prosecutor from relying on these
incidents during closing argument, and instructed the jury that
it could not consider evidence of these incidents in determining
the appropriate penalty.
2. Defense evidence
Bankston presented no witnesses but introduced two
exhibits. One exhibit was a cell inspection sheet, apparently to
show that Bankston was in a different cell than the one in which
one of the weapons attributed to him was found. The other was
a form he had signed in October 1989 declining to speak with
Deputy MacArthur about “this case” when arrested as a felon in
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Opinion of the Court by Kruger, J.
possession of a firearm, apparently to impeach MacArthur’s
testimony that he had then admitted his gang affiliation to
MacArthur.
II. DISCUSSION
A. Representation Claims
Before his trial began, Bankston expressed dissatisfaction
with his appointed counsel and sought to represent himself. He
ultimately represented himself with the assistance of advisory
counsel at both guilt phase trials and the penalty phase trial.
Bankston contends that the trial court should have treated his
expression of dissatisfaction with counsel as a request for
substitute counsel under People v. Marsden (1970) 2 Cal.3d 118,
124 (Marsden), and that his self-representation choice was
involuntary (see Faretta v. California (1975) 422 U.S. 806, 835
(Faretta)).3 Bankston further contends that while he was self-
represented, the court committed reversible error by conducting
two pretrial proceedings in his absence. We find no merit in
these claims.
3
“[A]s to many claims [Bankston] allege[s] for the first time
that the error complained of violated [his] federal constitutional
rights. To the extent that in doing so [Bankston] ha[s] raised
only a new constitutional ‘gloss’ on claims preserved below, that
new aspect of the claims is not forfeited. However, ‘[n]o separate
constitutional discussion is required, or provided, when
rejection of a claim on the merits necessarily leads to rejection
of [the] constitutional theory . . . .’ ” (People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 364.)
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1. Asserted Marsden motion
a. Factual background
On March 25, 1993, during a brief appearance before a
commissioner, Bankston’s counsel informed the court that
Bankston was “talking about having a Marsden [m]otion.” A
hearing on a “Marsden motion,” as reflected in the minute order,
was scheduled for March 31, 1993. On March 31, the court
referred to Bankston’s “request to go pro per,” stating “it is
either a Marsden or Faretta [motion]. I don’t know what the
problem is for the request.”
Later that day, the motion came up for hearing before a
different bench officer, Judge Robert Armstrong, and the judge
asked, “[W]hat . . . would [you] like this court to resolve or
determine today?” Counsel said: “Mr. Bankston had previously
advised [the commissioner] that, I believe, he wanted to go pro
per. Is that correct?” Defendant said, “Yes.” Counsel said, “I
spoke to [Bankston] today, and he advises me he would like to
go pro per.” He added, “The commissioner . . . se[n]t this case
over . . . for Mr. Bankston’s pro per motion.”
The court asked counsel, “Just to straighten out what the
motion is, I assume from what you have said, [counsel], so far,
that it’s the defendant’s desire to represent himself; but have
you, in your handling of this case so far . . . discovered any
reason why, if you have a conflict of interest, that would prevent
you from continuing as Mr. Bankston’s attorney?” Counsel
replied, “No.”
The court then stated: “Mr. Bankston, there are two ways
that we can handle this. One is to have the court find a conflict
between you and your attorney. The fact that you don’t approve
of him or the way he is handling the case is not a basis for
conflict. A conflict is a situation where an attorney represents
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someone whose interests are opposed to yours. For instance,
supposing that your attorney was the attorney of record for a
witness who was scheduled to testify against you. . . . That
would be a conflict. In that kind of situation, [counsel] would
instantly appreciate that conflict and remove himself from the
case and say not only he but his office could not continue to
represent you. That’s why I made the preliminary inquiry of
him. So I can’t find from what he said that there is any conflict.”
The court continued: “Now, a separate question is, first,
you don’t have to accept what he is saying or what I am saying.
If you feel there is a conflict that you want to present, you just
want to let me know what the nature of it is, I would ask the
district attorney to leave the courtroom so you could tell me
privately what you felt the conflict was without disclosing
anything to the prosecution. However, if there isn’t any conflict,
you have a constitutional right to represent yourself.”
The court went on, however, to counsel against self-
representation in such a serious case, note the importance of
having appointed counsel, and inquire into Bankston’s
educational background and prior legal experience.
Bankston asked the prosecutor to leave the courtroom so
that he could “express why I would choose to represent myself.”
The court responded: “[I]f you want to represent yourself, you
have a right to . . . represent yourself. That doesn’t have
anything to do with the prosecution. It’s not a basis for
excluding him . . . from the proceedings.” Bankston said: “I am
opting to represent myself because there is a lot of things that’s
irrelevant to my case that [have] been asked that I feel have no
basis [for] me being found not guilty, or whatever. I have to
choose to represent myself.” The court replied: “But there is no
better person to evaluate that . . . than an experienced
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attorney.” Bankston said: “But [the] irrelevancy of the
questions being asked by the attorney to my family.” Counsel
explained that Bankston objected to “some of the questions I
asked his family, he doesn’t like me asking those questions. He
wants to relate to the court what those questions were that so
offended him.” The court responded: “All right. We will call
this a modified Marsden. I will ask the prosecutors to leave the
room so we can see what Mr. Bankston has to say.”
During the hearing outside the prosecutor’s presence,
Bankston said he felt that nobody would fight for his freedom
more than he would. He also appeared concerned that aspects
of counsel’s investigation, including some of the questions posed
to his family members, were not pertinent to ascertaining
whether Bankston was guilty. The court explained to Bankston
that defense counsel had many years of experience and had tried
murder cases. The court stated, “ ‘I, as a judge, would certainly
not restrict [his investigation]. . . because the whole field is open
to him. He is a capable and experienced attorney.’ ”
Although stating that Bankston had a constitutional right
to represent himself, and “[i]f that’s what you want to do, you
got it,” the court strongly discouraged him from electing self-
representation. It suggested a defendant had as much chance
of successfully preparing himself for trial in two months as the
judge would preparing himself to perform brain surgery. The
court stated, “I wouldn’t give you better advice . . . than to say
don’t do it.” It observed that the prosecutor was trained and
experienced, and “it would just be an unfair match for you. . . .
So I can’t deny you your right to go pro per, but I can counsel
you against it.”
Bankston said: “I been with [counsel] fighting this case,
and it is a capital case. My views I presented to him maybe how
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these cases could have occurred. I am saying I am not the
suspect, period. . . . I’m saying through all the discussions we
had so far, I am not satisfied right now. I feel that I have a
better chance of fighting this myself. Even if I do get the death
penalty or life without parole, I [would] be more comfortable
[than] sitting here every night wondering why did I let him
defend me.” The court responded, “If you want to represent
yourself, . . . you will be given your pro per privileges.” The court
noted that the case was old, that it would be tried “before the
summer is gone,” and that “[y]ou can’t get a legal education in
two or three months.” It asked Bankston, “Would you like to
have some kid who just graduated from law school trying your
case?” Bankston replied, “But this is not a kid. This is me
fighting for my life here.” He added, “I [am] just hoping with my
strong desire to prevail in this case, I can research adequately
to present some kind of defense that’s going to be favorable to
me — more favorable than what I been getting with [counsel].”
The trial court granted Bankston’s motion for self-
representation. Following the closed hearing, the court
recounted for the prosecutor Bankston’s desire to represent
himself, stating, “[H]e is adamant that’s what he wants to do.”
b. Analysis
Bankston contends that when he appeared in court for the
hearing on his motion, the trial court was obligated to conduct a
Marsden inquiry but “made no effort” to do so. He asserts that
the court instead erroneously informed him that a Marsden
inquiry was limited to determining the existence of an actual
conflict of interest, leaving him no choice but to represent
himself. The record does not support the claims of error.
Under Marsden, a defendant may seek to have appointed
counsel discharged upon a showing that “ ‘counsel is not
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providing adequate representation or that defendant and
counsel have become embroiled in such an irreconcilable conflict
that ineffective representation is likely to result.’ ” (People v.
Taylor (2010) 48 Cal.4th 574, 599.) When a defendant seeks
substitution of appointed counsel under Marsden, “ ‘the trial
court must permit the defendant to explain the basis of his
contention and to relate specific instances of inadequate
performance.’ ” (Ibid.) “Although no formal motion is
necessary” to trigger a duty to conduct a Marsden inquiry, “there
must be ‘at least some clear indication by defendant that he
wants a substitute attorney.’ ” (People v. Mendoza (2000)
24 Cal.4th 130, 157.)
When the representation question first arose, counsel
briefly indicated Bankston was “talking about” a Marsden
motion, and the minute order reflected that a “Marsden motion”
had been scheduled. But the record also shows that when the
motion subsequently came up for hearing on March 31, the
bench officer initially responsible for hearing the motion was
evidently uncertain of the precise nature of Bankston’s request
and understood that Bankston may instead have been seeking
to represent himself.
When the matter came before Judge Armstrong for
hearing later that afternoon, Bankston’s attorney informed the
court that Bankston had previously advised the commissioner
he wanted to go pro per, and Bankston confirmed that was
correct. Counsel said he had spoken to Bankston earlier that
day, “and he advises me he would like to go pro per.” Counsel
added, “The commissioner . . . se[n]t this case over . . . for
Mr. Bankston’s pro per motion.”
At that point Judge Armstrong, “[j]ust to straighten out
what the motion is,” expressed his understanding that Bankston
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was seeking self-representation, but also inquired about any
possible conflict of interest — an issue most relevant to a
Marsden, not a Faretta motion for self-representation.
Bankston ultimately responded that he wanted a hearing to
explain why he wished to represent himself. But he also
requested that the hearing be held outside the prosecutor’s
presence, as would occur in a Marsden hearing. And counsel
explained that Bankston objected to inquiries counsel had made
of Bankston’s family. Concerns about counsel’s performance are
also most relevant to a Marsden hearing. At this point, the
court, either still unsure of the exact nature of the motion or
simply wanting to accommodate Bankston’s desire for a hearing
outside the prosecutor’s presence, said: “All right. We will call
this a modified Marsden.”
Once at the hearing on the motion, however, there was no
ambiguity as to the nature of Bankston’s motion. Counsel
clearly stated, and Bankston confirmed at length, that Bankston
sought to represent himself. Bankston did express
dissatisfaction with counsel, but at no time during the hearing
did he ask to substitute different counsel, as opposed to
representing himself. In other words, despite counsel’s initial
brief mention of Marsden six days earlier, Bankston did not
ultimately make a Marsden motion. “Given [Bankston’s]
insistence on self-representation, the trial court was under no
obligation to conduct an inquiry into any dissatisfaction
[Bankston] might have with his appointed counsel so as to
necessitate substitution of counsel.” (People v. Mendoza, supra,
24 Cal.4th at p. 157.)
Although Bankston argues otherwise, the record contains
no indication that the trial court dissuaded Bankston from
making a proper Marsden motion. Bankston contends the trial
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Opinion of the Court by Kruger, J.
court made it seem that the only way to remove counsel was to
establish an actual conflict of interest; confronted with this
inaccurately narrow description of a Marsden motion, Bankston
says he felt “he had no choice but to represent himself.” But
Bankston made it clear that he was seeking to represent himself
at the very start of the hearing, before the trial court said
anything about his representation at all. The trial court then
asked counsel about any conflict, described the type of conflict
that would require counsel’s removal, and gave Bankston an
opportunity to privately raise any conflict he wished to discuss,
stating that Bankston did not “have to accept what [counsel] is
saying or what I am saying.” When Bankston addressed the
court directly, he expressed his dissatisfaction with counsel, but
then went on to explain his view that nobody would fight harder
in his case than he would and stated that he would be more
comfortable accepting the outcome, even the death penalty, if he
represented himself.
In sum, the record does not support Bankston’s claim that
the trial court erred in failing to make a Marsden inquiry or that
the court’s reference to a conflict of interest prevented him from
asking for substitute counsel.
2. Faretta motion
a. Factual background
As noted, Judge Armstrong granted Bankston’s Faretta
motion after a lengthy hearing in which the court discussed the
disadvantages of self-representation. Judge Armstrong
reviewed the gravity of charges Bankston was facing, noting
“the case is about as serious as it can get.” The court emphasized
that unless Bankston had experience in capital trials and knew
the law, he would be at a “tremendous disadvantage” without an
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Opinion of the Court by Kruger, J.
attorney. Explaining that the court would not assist Bankston,
Judge Armstrong stated, “[Y]ou need an attorney at your side
who is able to look out for your rights and protect you at all
stages of the proceedings.” Judge Armstrong asked how far
Bankston had gone in school, and he replied, “Senior high.” In
response to the court’s further inquiry, Bankston said that he
had never represented himself, but had “dabble[d]” in the study
of law in the prison law library. The court cautioned Bankston
that he had no real chance of successfully preparing himself for
trial and that he would be unfairly matched against a trained
and experienced prosecutor. Ultimately Judge Armstrong
granted the motion.
After Bankston had represented himself for several
months, the case was transferred to Judge James Bascue. The
court confirmed that Bankston was self-represented but had not
previously signed a written waiver of his right to counsel. The
court provided him with a self-representation form to complete
and asked whether standby counsel had been appointed.
Bankston responded that he was moving for “standby
counsel/advisory counsel.”
The next day, Bankston submitted his completed self-
representation form to the court. A portion of the form stated:
“If the Court grants this petition and if I am permitted to
represent myself, I understand I will have to conduct my own
defense by myself and without the aid of [a] lawyer.” Bankston
had not initialed or checked the box next to this sentence and
had crossed out the language “and without the aid of [a] lawyer.”
When the court asked him about it, Bankston explained that
“not only are you maybe appointing me standby counsel” but
that he also had a lawyer in court, Jackson Chandler, who he
wanted the court to appoint “[t]o advise me.”
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Opinion of the Court by Kruger, J.
The court told Bankston that he would be heard on the
question of advisory counsel, but clarified: “I am saying that if
I do not grant you advisory counsel, you will have to conduct
your own defense by yourself without the aid of a lawyer. Do
you understand that?” Bankston replied, “Yes, I understand.”
The court repeated the question, and Bankston again said he
understood. The court also confirmed that Bankston understood
that if he gave up his right to represent himself, the court would
appoint an experienced trial lawyer to try the case for him. After
additional discussion and admonitions, the court found that
Bankston made a knowing, intelligent, and voluntary waiver
and denied his motion for advisory counsel. The court declined
to appoint Chandler as standby counsel, finding there was no
preexisting relationship with Bankston and expressing concern
about the manner in which Chandler had approached
Bankston’s family. Instead, the court tentatively appointed
Albert De Blanc as standby counsel and transferred the case to
Judge Nancy Brown, who conducted all further proceedings.
At Bankston’s first hearing with Judge Brown, Bankston
stated that he had previously requested “standby and advisory
counsel to assist me.” The court replied that Bankston was not
entitled to advisory counsel. When the court encouraged
Bankston “to carefully consider representing yourself,”
Bankston affirmed that he was “totally willing to accept the
consequences of representing myself in this case.” At a later
hearing, Judge Brown informed Bankston she had reconsidered
his motion and would appoint Mark Borden as advisory counsel
to replace DeBlanc, who had been relieved. (See post, p. 30.)
The court explained that Bankston could seek Borden’s advice
and that Borden “will assist you in any way he can regarding
the defense of your case, but he is advisory counsel only. . . . So
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Opinion of the Court by Kruger, J.
he will be seated at counsel table with you, but he can be seen
but not heard.” Borden remained Bankston’s advisory counsel
for all further trial court proceedings.
Judge Brown also reviewed with Bankston the written
self-representation form he had previously completed. The
court noted that the form stated that Bankston would have to
conduct his defense without the aid of a lawyer, but that with
the appointment of advisory counsel “you will have the aid of a
lawyer, but not as lead counsel. You are still in pro per.”
Bankston said, “Right.” The court went over the advisement
that Bankston had the right to have an experienced trial lawyer
represent him, and had Bankston complete another self-
representation form acknowledging that right and other
standard advisements. Finally, Judge Brown asked, “So now
you do understand, sir, because you were represented by the
public defender before, you do understand that you have a
constitutional right to be represented by counsel at all stages of
these proceedings?” Bankston said that he understood. The
court confirmed, “And is it your desire to represent yourself in
this trial, which is a very serious case, with the understanding
that I have appointed Mr. Borden to assist you as advisory
counsel?” Bankston said, “Yes.” The court asked: “[Y]ou do
understand that he will be seated there at counsel table with
you. He can be seen, but not heard. You have to do all the
talking.” Bankston replied, “Yes.” The court stated: “All right.
[The] court finds that the defendant understands his right to be
represented by counsel and he does knowingly, intelligently and
understandingly and voluntarily give up his constitutional right
to be represented by counsel.”
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b. Analysis
Bankston contends that he did not voluntarily, knowingly,
and intelligently waive his right to counsel and that the trial
court therefore erred in granting his motion for self-
representation. We reject the claim.
“The Sixth Amendment secures to a defendant who faces
incarceration the right to counsel at all ‘critical stages’ of the
criminal process.” (Iowa v. Tovar (2004) 541 U.S. 77, 87
(Tovar).) Criminal defendants also have the right to waive
counsel and represent themselves. (Faretta, supra, 422 U.S. at
p. 807.) But “[w]hile the Constitution ‘does not force a lawyer
upon a defendant,’ [citation], it does require that any waiver of
the right to counsel be knowing, voluntary, and intelligent.”
(Tovar, at pp. 87–88.)
In evaluating the validity of a waiver, “we examine the
record as a whole to see whether the defendant actually
understood the consequences and import of the decision to waive
counsel, and whether the waiver was freely made. [Citation.]
There is no prescribed script or admonition that trial courts
must use in warning a defendant of the disadvantages of self-
representation.” (People v. Mickel (2016) 2 Cal.5th 181, 211–
212; see also Tovar, supra, 541 U.S. at p. 88 [“The information a
defendant must possess in order to make an intelligent
election, . . . will depend on a range of case-specific factors,
including the defendant’s education or sophistication, the
complex or easily grasped nature of the charge, and the stage of
the proceeding”].) Although the high court has stated that
“[w]arnings of the pitfalls of proceeding to trial without
counsel . . . must be ‘rigorous[ly]’ conveyed” (Tovar, at p. 89), it
is also true that “[c]ountless disadvantages might result from a
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
waiver of the right to counsel,” and the trial court “need only
inform the defendant in general terms of the most common
disadvantages” (People v. Frederickson (2020) 8 Cal.5th 963,
1003).
Bankston contends his initial Faretta waiver was
“coerced” because the court gave him “a legally erroneous choice:
he could either have [counsel] replaced upon demonstrating an
actual conflict of interest between himself and his counsel, or he
could proceed in pro. per.” Bankston claims that the court
affirmatively misled him about his right to effective assistance
of counsel by suggesting he was entitled only to conflict-free
counsel, not to effective counsel.
But as we have already explained, the trial court’s
statements did not put Bankston to any such choice. Bankston
expressed his desire to represent himself at the outset of the
Faretta hearing, before any remarks from the trial court about
his representation, and later indicated that he wished to
represent himself because nobody would fight for his freedom as
hard as he would. Nor would the trial court’s statements have
been reasonably understood to mean that Bankston was not
entitled to the effective assistance of counsel. The court referred
to conflict as a basis for removing counsel in the context of
clarifying the nature of Bankston’s Faretta motion and options
for resolving it. Because Bankston consistently asserted his
desire to represent himself, and never sought to replace his
lawyer, there was no reason for Judge Armstrong to explore the
topic of counsel’s effectiveness and no basis for viewing his
remarks as defining or limiting the nature of representation to
which Bankston was entitled.
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Opinion of the Court by Kruger, J.
What is more, at no time after the hearing at which
Bankston’s Faretta motion was granted did Bankston seek to
relinquish his self-representation status and have counsel
reappointed. Instead, Bankston repeatedly confirmed his desire
to represent himself in lengthy colloquies with Judge Bascue
and Judge Brown, at one point stating, “I’m totally willing to
accept the consequences of representing myself in this case.” In
sum, Bankston fails to demonstrate he was coerced into
representing himself.4
Bankston also asserts that his waiver of counsel was
invalid because at a series of hearings following his initial
waiver of counsel, Judge Bascue and Judge Brown did not advise
Bankston as to the “difference between his Sixth Amendment
right to the assistance of counsel at trial, and his right to
represent himself at trial with advisory counsel.” Bankston
further contends he was “never admonished that he was waiving
his Sixth Amendment right to counsel and would be fully
responsible for his own representation even though he was
proceeding with advisory counsel.”
Bankston suggests that when a defendant seeks self-
representation and also requests advisory counsel, the trial
court must advise the defendant about the difference between
representation by counsel and self-representation with advisory
counsel. Without deciding whether such an advisement would
4
The circumstances here are distinct from the cases on
which Bankston relies, People v. Hill (1983) 148 Cal.App.3d 744
and People v. Cruz (1978) 83 Cal.App.3d 308. In Hill, the
defendant made clear that he did not want to represent himself
but was doing so only because he felt current counsel was
inadequate. (Hill, at pp. 750, 754.) And in Cruz, the defendant
moved for reappointment of counsel. (Cruz, at p. 319.)
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
be constitutionally required, we conclude that Bankston was
fully informed of his right to representation by counsel and of
his responsibility for his own defense even after the
appointment of advisory counsel.
When Bankston first waived his right to counsel and
successfully moved for self-representation status before Judge
Armstrong, there was no discussion of advisory counsel. Judge
Armstrong made it clear that if Bankston represented himself,
he would not have an attorney and would be responsible for his
own defense. Nothing in Judge Armstrong’s statements could
have suggested to Bankston that circumstances would be
different if he later chose to proceed with advisory counsel.
Later, reviewing Bankston’s waiver of counsel, Judge Bascue
again explained Bankston’s right to have an experienced trial
lawyer appointed to represent him and impressed upon
Bankston the fact that he would have to conduct the defense by
himself if the court denied his motion for advisory counsel. The
court then denied that motion. When Judge Brown later
appointed advisory counsel for Bankston, she explained
multiple times that Bankston could seek advisory counsel’s
advice but that Bankston would be responsible for the defense
and would have to “do all the talking.” Judge Brown also
repeated Bankston’s right to be represented by counsel, as he
had been for the first part of his case, and reviewed with
Bankston the two written self-representation forms he
completed. In sum, in the course of a lengthy series of colloquies,
the court repeatedly confirmed that Bankston understood his
right to counsel, that he wanted to surrender that right and
represent himself, and that he understood he would be
responsible for his own defense even after the court appointed
advisory counsel to assist him.
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Opinion of the Court by Kruger, J.
Bankston further contends that his waiver of counsel is
invalid because the self-representation forms he completed for
Judge Bascue and Judge Brown “did not explain the
circumstances under which [Bankston] had the right to replace
his appointed counsel.” This omission does not affect the
validity of Bankston’s waiver of counsel. Again, a defendant’s
motion to represent himself does not trigger a trial court’s duty
to inquire or advise concerning the possibility of substituting
counsel instead. (People v. Mendoza, supra, 24 Cal.4th at
p. 157.)
Finally, Bankston asserts that his waiver of his right to
counsel was not knowing and intelligent “because he was not
adequately advised regarding the nature of the capital
proceedings, the meaning of capital charges, and the possible
defenses available to him,” and that any penalty phase would
include “its own complex and unique set of requirements,
evidentiary rules, and standards of proof.” But the record
indicates that Bankston was well aware of these matters. Judge
Armstrong told Bankston a year before trial began that the case
was “about as serious as it can get” because he faced possible
penalties of life imprisonment or the death penalty for charges
including two counts of murder. Moreover, contrary to
Bankston’s assertion, the record indicates he was well familiar
with the concept of distinct guilt and penalty phases of the trial
and other aspects of the capital proceedings. The record of the
nearly two years between Bankston’s arrest and his motion for
self-representation is replete with references to this distinction.
In addition, after Bankston had been granted self-
representation status, and before he appeared before Judge
Bascue and Judge Brown, he engaged with the court and
prosecutor on questions the court would pose during jury
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
selection, including questions specific to the possibility of a
death penalty, and he focused on obtaining aggravating
evidence the prosecutor intended to introduce at the penalty
phase, requesting the evidence and stating his need for it.
Detailing some of the aggravating evidence, the prosecutor said
he would be seeking to use it “in the penalty phase of your trial,
should we get to that point.” Bankston’s exposure to
proceedings while represented and the record of his conduct as
his own counsel reveal that he was aware of the nature of the
capital proceedings and the defenses it would require. Contrary
to Bankston’s argument, the trial court was not required to
advise Bankston in greater detail of his available defenses or the
procedural and evidentiary requirements at any penalty phase.
(People v. Riggs (2008) 44 Cal.4th 248, 277 [the trial court is not
required to advise the defendant of “aspects of the substantive
law of a capital case” because they are not “dangers and
disadvantages arising from a decision to represent oneself in a
capital trial”].)
3. Ex parte hearings
a. Factual background
Bankston next claims the trial court erroneously
conducted two pretrial proceedings in his absence. The first
proceeding occurred on August 30, 1993, when the prosecutor
and Mark Borden, who would later be appointed as advisory
counsel, appeared before Judge Brown. Bankston had not yet
arrived at the courthouse.
The court explained to Borden that the week before, Judge
Bascue had appointed De Blanc as Bankston’s standby counsel.
The court and Borden discussed De Blanc’s availability and
qualifications to work on a “grade-four” case. The court
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Opinion of the Court by Kruger, J.
discussed with the prosecutor why the only reporter’s transcript
was denoted “Volume two.”
Because Borden was unfamiliar with the case, the court
informed him that the Thursday before, Bankston had
unsuccessfully requested appointment of advisory counsel. The
court was of the view that “there is no such animal as advisory
counsel,” and said that if Borden were appointed, it would be as
standby counsel. It explained, “[Y]ou sit in the courtroom, but
you do not talk to the defendant under any circumstances
whatsoever.” The court and Borden then discussed Borden’s
pending cases and his availability for trial. Borden said he was
“more than willing to take this case” and review the apparently
extensive materials if Bankston was willing to waive time.
Borden added that he did not think the court would “be able to
get any attorney in here who is going to be ready in the next
30 days to do a death penalty case even on a standby status
because basically you are put in a worse position because you
don’t control the tactical decisions.” He noted that if defendant
“wants to drop the ball” and have standby counsel step in
halfway through trial, “you are stuck in a tactical position worse
than if you . . . prepared the case from the get go.” The court
replied it was familiar with the difficulties “not only of a pro per
death penalty case, but also as to the situation standby counsel
would be placed in.” The court expressed concern about
Borden’s schedule and suggested investigating whether another
attorney was available “who could get ready in a reasonable
period of time.” Borden said that he could “probably be ready . . .
by the end of the year” or “within 90 days.”
The court stated that Bankston had been given an
eyewitness identification expert, a jury selection expert, and an
investigator. Borden said he had met the investigator, who was
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Opinion of the Court by Kruger, J.
apparently present. The court suggested Borden speak with
Bankston about waiving time until the end of the year, and
noted that the case was old.
Borden asked for the “court’s idea of standby counsel.”
The court replied: “You stand by. You do not advise him in any
way whatsoever.” They discussed court standby counsel
resources. The court again said that it had told Bankston it
would not appoint advisory counsel, adding, “I don’t know of
anyone who would be willing to undertake that type of
situation.” Borden replied, “Worst of all possible worlds.” The
court said, “Worst of the worst of the worst. So he’s either pro
per or he’s not. And I have told him that in open court about
25 times.”
After a recess, Bankston was present in the courtroom.
Borden said he had explained the options to Bankston, and
Bankston would need about five minutes to make up his mind.
The court told Bankston it had read his case file. It also
explained that De Blanc did not have the necessary
classification to serve as standby counsel in a death penalty
case, so the bar panel had sent Borden. If Bankston wanted
Borden appointed as standby counsel, Borden would need to
familiarize himself with the case and would not be prepared for
trial until “close to the end of the year.”
Bankston appeared to agree to Borden’s appointment as
standby counsel, but observed that he had “someone that I have
been consulting with that is familiar with the case that would
be interested in pursuing the case.” He added, “[I]f somebody
has to be appointed [as standby counsel], I just don’t understand
why it cannot be that individual that is familiar with the case
and that would definitely have this process rolling smoothly in
this courtroom.” The court replied that Bankston’s motion to
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Opinion of the Court by Kruger, J.
appoint Chandler had already been ruled on and the court would
not rehear it. The court stated it was “not appointing
Mr. Chandler, absolutely, not in any capacity.” Bankston said
that standby counsel would be “of no benefit to me” because “I
don’t have any . . . intention of relinquishing my pro per status.”
He observed, however, that if Chandler were standby counsel,
“he would freely answer any questions I have.” The court
appointed Borden as standby counsel, and Borden said he would
“be in with an order for [the court] to sign on this matter.” The
matter was continued to September 13, 1993.
The second challenged proceeding occurred on
September 7, 1993. Borden, who had a proposed order
appointing standby counsel, and a prosecutor, but not Bankston,
were present in court. The court stated it had done “some
reading over the recess” and was going to revisit the issue of
advisory counsel once Bankston was present. Borden noted an
appearance was scheduled for September 13. He also expressed
confusion about whether his appointment would be vacated.
The court replied, “Absolutely not,” stated it had previously
relied on case law involving cocounsel, not advisory counsel, and
that it would have to “start on the issue of advisory counsel
which [Bankston] has requested at least five or six times.” It
added, “If anything happens, it’s going to be an increase as
opposed to a decrease in [Borden’s] services.” Borden said he
had some paperwork pending before a different judge and was
“just trying to get the grasp on where we’re going to go on that.”
The court stated that on September 13, when Bankston would
be present, it would go through the “entire colloquy of whether
or not he should have advisory counsel.” It would also by then
have reviewed Borden’s proposed order. The court told Borden:
“If I appoint you as advisory counsel, then you are not only
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Opinion of the Court by Kruger, J.
advisory, but you are standby as well. . . . But as I understand
it, even advisory counsel can only be seen and not heard because
the court cannot take away the defendant’s aura of representing
himself.” A time for the hearing on September 13 was agreed to
and the hearing was adjourned.
At the September 13, 1993 hearing, Bankston, Borden,
and the prosecutor were present. The court told Bankston it had
decided, based on Bankston’s argument and motion, to appoint
Borden as advisory counsel. The court explained that it had
been wrong about the law concerning advisory counsel and that
it had discretion to appoint such counsel. It explained that
Bankston could seek Borden’s “advice regarding all of those
persons that you feel would assist you in the presentation of
your case and the defense of your case. . . . [H]e will be at your
side ready, willing and able to advise you when you seek such
advice. He will assist you in any way he can regarding the
defense of your case, but he is advisory counsel only. And he
cannot take away from you your right to serve as your own
attorney in pro per. So he will be seated at counsel table with
you, but he can be seen but not heard.” The court also informed
Bankston that Borden had “dropped by an order for the court to
sign last week, but you weren’t here and the matter wasn’t on
calendar so we didn’t have any proceedings outside of your
presence.” Borden remained Bankston’s advisory counsel for all
further trial court proceedings.
b. Analysis
A criminal defendant “is guaranteed the right to be
present at any stage of the criminal proceeding that is critical to
its outcome if his presence would contribute to the fairness of
the procedure.” (Kentucky v. Stincer (1987) 482 U.S. 730, 745.)
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That right is not violated when “his presence bears no
reasonable, substantial relation to his opportunity to defend the
charges against him.” (People v. Harris (2008) 43 Cal.4th 1269,
1306; see People v. Caro (2019) 7 Cal.5th 463, 479 [noting that
the California Constitution and Penal Code section 977
subdivision (b)(1) confer a similar right to be present if the
proceeding has a reasonable, substantial relation to a
defendant’s opportunity to defend the charges against him].)
Here, Bankston asserts that the hearings on August 30 and
September 7 were critical proceedings because they addressed
his right to advisory counsel. He contends that his presence was
imperative because he was representing himself when the
hearings occurred.
Contrary to Bankston’s assertion, the hearings bore no
substantial relation to Bankston’s opportunity to defend against
the charges he faced. The hearings involved discussion of the
availability of panel attorneys available to take an appointment
as standby counsel, scheduling issues, a few background details
about previous appointments and rulings regarding Bankston’s
representation, the judge’s intention to revisit one of its rulings,
and the numbering of the reporter’s transcript. The trial court
did not rule on the appointment of either standby or advisory
counsel in these hearings but waited until Bankston was
present to do so. In other words, the hearings were largely
devoted to scheduling and administrative matters of a sort that
do not ordinarily implicate a defendant’s right to be present and
to have counsel at a critical proceeding. (See, e.g., People v.
Clark (2011) 52 Cal.4th 856, 987 [trial court’s ex parte contact
communication with jurors implicating defendant’s right to be
present and to be represented by counsel was not a critical stage
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Opinion of the Court by Kruger, J.
of the trial when it involved scheduling and administrative
matters].)
But even assuming it was error to hold these discussions
in Bankston’s absence, the error was harmless under any
standard. Bankston arrived midway through the first hearing,
received an oral summary of it, made an argument for the
appointment of his preferred counsel over Borden, and
eventually agreed to the appointment of Borden. At the second
hearing, the trial court did not reconsider Bankston’s motion for
advisory counsel but waited until a later date when Bankston
was present.
Although no essential business was conducted in his
absence, Bankston argues he was prejudiced because he was not
there to hear Borden’s various statements about scheduling and
the difficulty of acting as advisory counsel; if he had, Bankston
says, he might have tried to prevent Borden’s appointment in
favor of Chandler. The argument finds no support in the record.
Once present at the August 30 hearing, Bankston did
unsuccessfully propose Chandler’s appointment to Judge
Brown, noting that Chandler was “familiar with the case” and
“would definitely have this process rolling smoothly in this
courtroom.” The court was adamant that it would “not appoint[]
Mr. Chandler, absolutely, not in any capacity.” Although
Bankston received a transcript of the hearing two months after
the hearing — and well before trial — he never raised concern
over Borden’s remarks in the trial court. Borden thereafter
served as Bankston’s advisory counsel through both guilt phases
and the penalty phase, and Bankston raises no criticism of
Borden’s work in this role.
Insofar as Bankston argues that reversal is warranted
based on deprivation of his rights to representation at critical
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Opinion of the Court by Kruger, J.
stages or to conduct his own defense as a self-represented
litigant, those arguments fail for the same reasons.
B. Jury Selection Issues
Bankston contends that the voir dire was inadequate to
reveal prospective juror biases and that the trial court
improperly limited the use of peremptory challenges. We reject
these claims.
1. Adequacy of the general voir dire
Bankston contends the trial court’s general voir dire —
meaning the voir dire separate from the death-qualification
process — was inadequate in several respects. In particular, he
contends the trial court erred in (1) refusing to ask prospective
jurors open-ended questions “on key issues likely to expose the
jurors’ actual biases and to support challenges for cause,” and
(2) using a “short-cut voir dire procedure that resulted in
unexplained, contradictory responses by the prospective jurors,
and made it impossible for the jurors to answer the questions
truthfully and in a meaningful manner.” These errors,
Bankston argues, prevented him from learning about the
prospective jurors’ potential biases, including, in particular,
their “thoughts about gangs and gang members.” As such,
Bankston contends the voir dire violated his Sixth, Eighth, and
Fourteenth Amendment rights to due process, an impartial jury,
and a reliable death judgment. We reject the claim.
a. Factual background
Before the first guilt phase, the trial court informed the
parties it would not use a jury questionnaire but would instead
personally question prospective jurors orally. The court invited
the parties to propose voir dire questions, and if the court
believed the questions were relevant, it would ask them. In
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response, Bankston submitted more than 50 suggested
questions covering all aspects of the trial. The court stated it
would “very carefully voir dire this jury, and . . . ask all
appropriate and proper questions that Mr. Bankston” and the
prosecutor had proposed. Bankston responded: “All right. And
I have no problem with that. That’s why I submitted them as
you asked.”
The trial court reviewed Bankston’s proposed questions
with him, modifying some and rejecting others that either did
not go to any basis for excusal or were duplicative of the court’s
own questions. Bankston did not object to these revisions.
During voir dire, the court asked all but one of Bankston’s eight
suggested questions, as modified, regarding the prospective
jurors’ knowledge of and views regarding gangs and gang
members. It also accommodated defense input that might
suggest additional questioning. For example, when the defense
observed during a recess that two prospective jurors, who had
not been individually questioned by the trial court, had
appeared to be hesitant in response to a question about the effect
of a death verdict, the court acknowledged it had not observed
the hesitation but “certainly [would] inquire” and ask the two
prospective jurors “whether or not they believe death means
death and life means life for the rest of your life.” The following
day, the court made this inquiry. The court also asked the
parties during a recess if there was “[a]nything else you picked
up that I didn’t,” and told Bankston: “[A]s soon as I finish all of
these questions that have been submitted here. . . . [I will] give
you an opportunity to phrase any additional questions that you
want to ask as follow up based upon their answers. The same
with [the prosecutor] if there is any follow up.”
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
Before the second guilt phase, the court again declined to
use a jury questionnaire. Bankston submitted a new list of
proposed questions and asked the court to disregard his earlier
list, noting he had “deleted a lot of the gang allegations on these
questions.” The court again reviewed the proposed questions
with Bankston and the prosecutor, noting how some questions
would be modified. On Bankston’s new list he proposed only one
question about the prospective jurors’ views about gangs: “Do
you have any biases that would affect you in any way from being
fair and impartial regarding the following [areas]: . . . gang
al[l]egations.” The court revised this question to ask, “Would
gang affiliation affect their ability to be fair and impartial[?]”
Bankston thanked the court, adding, “[A]ny amendments you
might suggest, I would take them wholeheartedly.” The
prosecutor then requested that prospective jurors be asked
additional questions about gangs, including their “knowledge,
training, or education regarding gangs,” involvement in
“discussions about changing the law in gang cases,” and views
on gang members testifying as witnesses. During voir dire, the
court asked Bankston if there were any other questions he
would like the court to ask, and he said, “No. I’m satisfied, your
honor.”
At each guilt phase, the court generally conducted voir
dire, including death-qualification voir dire, in front of all of the
prospective jurors in a panel. Twenty-five prospective jurors
were seated in and in front of the jury box, while the remaining
prospective jurors sat in the public section of the courtroom. The
prospective jurors in and in front of the jury box answered a
series of biographical questions that were written on a
courtroom board, and the court asked follow-up questions. The
court then generally asked these prospective jurors, as a group,
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
voir dire questions. Some of the questions called for a yes or no
answer, such as whether the prospective jurors knew Bankston
or his advisory counsel, or whether they had been arrested for
or convicted of a crime. If the answer was yes for any
prospective jurors, they raised their hands and discussed the
matter with the court. If no one raised a hand, the court moved
on to the next question.
Before general voir dire for the first guilt phase trial, the
trial court told prospective jurors it would ask them a long series
of questions. “After I finish all of these questions, and we’ve
gotten all of your answers — and I want everyone to listen very
carefully to the questions. And those of you who are not seated
up here, I want you to make a written note of any answers that
would differ so that when you’re called to be seated up here, I’ll
say to you, ‘Would your answers differ in any way?’ You can look
at your written note and say this answer would differ and this
answer would differ, if that is the case.” Thus, when prospective
jurors in the audience were later questioned by the court, they
were generally asked if they had any “different” or responsive
answers to the questions asked earlier. The court gave a similar
explanation to prospective jurors before the second guilt phase.
Bankston raised no objection to this procedure at either guilt
phase.
b. Analysis
Bankston has forfeited his claim of error based on the
conduct of the general voir dire by not objecting below to the
court’s questions to prospective jurors or to its procedure of
asking all of the prospective jurors to listen to the questions
asked of those in and in front of the jury box and to write down
any responsive information. (People v. Salazar (2016)
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
63 Cal.4th 214, 240 [the defendant forfeited his claim that the
trial “court failed to adequately explore” the prospective jurors’
gang views by failing to object]; People v. McKinnon (2011)
52 Cal.4th 610, 640 [“We have repeatedly required that an
objection be interposed in the trial court to preserve jury
selection issues other than [death qualification issues],
including inadequate voir dire”].) Nor, to the extent Bankston
raises the claim, did he object to the trial court’s decision not to
use a jury questionnaire.
Bankston’s claim also fails on the merits. “No hard-and-
fast formula dictates the necessary depth or breadth of voir dire.
[Citation.] . . . Jury selection, we have repeatedly emphasized,
is ‘particularly within the province of the trial judge.’ ” (Skilling
v. United States (2010) 561 U.S. 358, 386; see Morgan v. Illinois
(1992) 504 U.S. 719, 729 [the United States Constitution “does
not dictate a catechism for voir dire, but only that the defendant
be afforded an impartial jury”]; People v. Harris (2013) 57
Cal.4th 804, 831 [a trial court “has wide discretion in deciding
what questions should be asked on voir dire to determine
potential jurors’ biases”].) “ ‘To be constitutionally
compelled, . . . it is not enough that . . . questions might be
helpful.’ ” (Skilling, at p. 387, fn. 20.) Rather, a trial court
“ ‘abuses [its] discretion if its failure to ask questions renders
the defendant’s trial “ ‘fundamentally unfair’ ” or “ ‘ “if the
questioning is not reasonably sufficient to test the jury for bias
or partiality.” ’ ” ’ ” (Harris, at p. 831; see Skilling, at p. 387,
fn. 20.)
At the time of Bankston’s 1994 trial, “the jury selection
provisions of Proposition 115, codified in Code of Civil Procedure
former section 223, applied to this case. (Code Civ. Proc., former
§ 223, added by Prop. 115, as approved by voters, Primary Elec.
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
(June 5, 1990); Tapia v. Superior Court (1991) 53 Cal.3d 282,
299−300 [jury voir dire provisions of Prop. 115 apply to all trials
occurring after the proposition’s effective date].)” (People v. Beck
and Cruz (2019) 8 Cal.5th 548, 608 (Beck and Cruz).) Code of
Civil Procedure former section 223 provided in relevant part:
“In a criminal case, the court shall conduct the examination of
prospective jurors. However, the court may permit the parties,
upon a showing of good cause, to supplement the examination
by such further inquiry as it deems proper, or shall itself submit
to the prospective jurors upon such a showing, such additional
questions by the parties as it deems proper. . . . [¶]
Examination of prospective jurors shall be conducted only in aid
of the exercise of challenges for cause.” (Code Civ. Proc., former
§ 223.) “Accordingly, the trial court here properly assumed
primary responsibility for questioning prospective jurors” (Beck
and Cruz, at p. 608) and limited that inquiry to questions that
would “aid [in] the exercise of challenges for cause” (Code Civ.
Proc., former § 223).
Bankston contends that the trial court erroneously
modified certain proposed questions by substituting open-ended
questions about prospective juror’s feelings and views with
questions that elicited a yes or no answer. For instance, rather
than ask, “In general, how do you feel about individuals who
belong to gangs?”, the trial court asked whether any of the
prospective jurors had “personal feelings, strong personal
feelings or any personal feelings, for that matter” about gang
members. Bankston contends that these modifications
undermined the effectiveness of the proposed questions, which
“were designed to expose any juror-disqualifying bias by having
the [prospective] jurors describe their thoughts and opinions
about gangs and the gang problem in Los Angeles.” But
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
Bankston offers no persuasive reason to believe the questions
posed by the court were inadequate to expose prospective jurors’
gang-related bias. Indeed, many of Bankston’s own proposed
questions about gangs at the first guilt phase were structured to
elicit a yes or no answer. Moreover, as noted, at the second guilt
phase, Bankston proposed only one question about the
prospective jurors’ attitudes toward gangs and, when the court
revised this question, he did not object but instead thanked the
court. In any event, at both guilt phases, if prospective jurors
answered “yes” by raising their hands in response to a question,
the trial court then generally explored the matter further with
them. Any revisions to Bankston’s proposed questions therefore
did not, as he asserts, “prevent[] [Bankston] from learning about
each juror’s thoughts about gangs and gang members” or result
in each prospective juror “being the sole assessor of his or her
own ability to be fair and impartial.”
As noted, Bankston has forfeited any challenge to the trial
court’s method of asking prospective jurors who were not in or
in front of the jury box to listen to the questions asked and to
make a note of any different answers if they were called upon.
We observe the trial court’s unusual approach to voir dire
presents avoidable risks that prospective jurors will fail to recall
all relevant information. But our review of the voir dire at both
guilt phases indicates prospective jurors generally understood
that if they had responsive information to any previously asked
questions, they should mention it when it was their turn to be
individually questioned. That some prospective jurors may have
failed initially to give a responsive answer does not mean, as
Bankston asserts, that this method of questioning “was
insufficient to ferret out potential bias, and to produce the
information necessary for the parties to exercise challenges.”
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
Overall, our review of the record does not indicate that the voir
dire was so inadequate as to render the trial fundamentally
unfair.
Although we conclude there was no reversible error on the
basis of Bankston’s unpreserved challenge, we discourage trial
courts from engaging in this method of voir dire. Courts should
instead either repeat for each panelist those questions pertinent
to uncovering possible bias or use a jury questionnaire
delineating such questions.
2. Use of peremptory challenges against prospective
jurors
At the first guilt phase, after a panel of 12 prospective
jurors had been accepted by the parties, but before the jury was
sworn, the trial court received a note that one of the 12,
Prospective Juror F.B. in seat number five, had a conflict.
Bankston and the prosecutor stipulated to F.B.’s excusal and
substitution.
The parties then discussed the procedure for replacing
F.B. The court explained that it would fill the seat with a
prospective juror and allow the parties to exercise peremptories
against that prospective juror but would not allow them to
exercise peremptories anew against the remaining 11 seated
jurors they had already accepted. Both sides expressly agreed
with this procedure.
Bankston now contends that the trial court prejudicially
erred by preventing the parties from using their remaining
peremptory challenges against the entire panel. He relies
primarily on People v. Armendariz (1984) 37 Cal.3d 573, 577–
583, in which this court held it was error to refuse to reopen jury
selection and allow the use of peremptories against any seated
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
juror when two jurors were discharged after the swearing of the
jury but before completing the selection of alternates. Without
addressing the merits of Bankston’s contention, we conclude the
claim is forfeited by his failure to timely raise it in the trial
court.
Objections to restrictions on the use of peremptories are
subject to forfeiture if not timely raised. In Caro, for example,
after the 12-person jury was sworn, and before the selection of
alternate jurors, one of the jurors was discharged. (People v.
Caro (1988) 46 Cal.3d 1035, 1046 (Caro).) The parties agreed to
the court’s proposed procedure of selecting “three alternates
rather than the two originally planned, and to have one of those
take the place of the juror who had been excused.” (Ibid.) Both
sides were allotted three peremptory challenges, and one of the
selected alternate jurors was then seated on the jury. (Ibid.) On
appeal, the defendant claimed that “this procedure improperly
denied him the use of his 26 allotted peremptory challenges, of
which he had used only 18 when the panel was sworn.” (Ibid.)
He contended that “upon the excuse of a sworn juror prior to the
selection of the alternates, the court had a duty under” In re
Mendes (1979) 23 Cal.3d 847 and Armendariz “to reopen jury
selection and to allow defendant to exercise any of his remaining
eight peremptory challenges against any of the already seated
jurors.” (Caro, at p. 1046.) This court rejected the claim,
explaining that Mendes and Armendariz did not apply when the
defendant had “registered no objection” to the “jury selection
process.” (Id. at p. 1047; ibid. [“there [was] no indication that
defendant was in any way dissatisfied with the panel as it was
constituted”].)
Here too, Bankston stipulated to Prospective Juror F.B.’s
excusal and substitution. He did not move to exercise his
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
remaining peremptory challenges against the 11 other jury
members he had previously accepted. The claim is therefore
forfeited on appeal. (See Caro, supra, 46 Cal.3d at p. 1047; see
also People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 313–314
(Gonzales and Soliz) [“we have stated that ‘[o]bjections to the
jury selection process must be made when the selection
occurs’ ”].) We reject Bankston’s contention that any objection
would have been futile merely because the prosecutor had asked
for clarification of the procedure. 5 Although Bankston further
broadly contends that violation of “the right to a fair and
impartial jury” can be “considered for the first time on appeal,”
he fails to explain how that right was implicated here.
3. Alternate juror peremptory challenges
Bankston contends the trial court erred at the first guilt
phase when it prevented him from using his allocated
peremptory challenges to the prospective alternate jurors. We
reject the claim.
a. Factual background
Before the parties began exercising peremptory challenges
against prospective alternate jurors, the court stated: “[W]e will
5
After the trial court explained the procedure, to which
Bankston responded, “Okay,” the prosecutor asked, “Because it’s
now open again, [and] we now have the remaining peremptories
that we do, are we allowed to perempt any of the other
individuals other than No. 5,” meaning individuals other than
the prospective jurors called to replace F.B. in that seat. The
court replied, “No.” Bankston asked, “What about [Alternate
Juror No.] 16?” The court replied, “Oh, yes, we’re talking about
the first 12.” Bankston said, “Oh, the first 12, okay. All right.”
The court continued, “Just this one seat because both sides
accepted everybody else,” and Bankston again said, “Okay.”
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
select the 12 alternates who will be serving in this case.”
Bankston used four peremptory challenges. After the lunch
recess, the court informed the parties: “[T]he jury room has
advised us that they can’t send any jurors right now. So what
we’re going to do is I’m going to just continue on with the
peremptory challenges here and see what we have left of our
people. And then if it’s going to be necessary to have an
additional panel, we’ll do it. But we’ll have to wait for the jury
room to send them to us.” Bankston then exercised three more
peremptory challenges for a total of seven. The prosecutor
accepted the alternate jurors. Bankston requested a side bar.
The court said, “I don’t think that’s necessary at this point,” and
asked, “Do you have another peremptory you’d like to exercise?”
Bankston replied, “Your Honor, I accept the panel at this time.”
The court asked the seven prospective alternate jurors if they
were feeling healthy and they answered collectively in the
affirmative. The court said it would “chance it” with seven
alternates. The jury panel and the alternates were sworn, given
further instructions, and left the courtroom.
The court then held a hearing with the parties, and at one
point asked Bankston why he had earlier requested a side bar.
He replied: “Precisely what happened here, saving the
peremptories for the possible fourth panel to try to find out
maybe if we did exercise them, were we going to go with less or
not. I didn’t know that at first until when I accepted the panel
and then you made up your mind it seems to me to not call the
fourth panel, and then you decided to go with only seven when I
was under the impression that we were going to go with twelve.
That’s why I saved five peremptories. But that was just about
the size of it there.” The court said: “All right. But both sides
had accepted . . . the seven that we have. That’s why I made the
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
inquiry if everybody was feeling in good health and so forth
because I believe that we can conclude this case with the seven
alternates as long as they are acceptable to both sides. And I
think that will be adequate. Also, I haven’t any idea how long it
would take us to get another panel. If they can’t send us a panel
on a Monday at 2:00 o’clock in the afternoon, who knows if they
have a panel on Wednesday. So as long as we have twelve jurors
[who] are acceptable to both sides and we have seven alternates
here, I think that that is sufficient for the trial.” Bankston
replied, “Okay, your honor,” then turned to a different topic.
Later that afternoon, after a recess in the hearing, the
court asked, “Mr. Bankston, since you made mention of saving
five peremptory challenges, are you in truth and in fact satisfied
with the seven alternates that you accepted?” Bankston replied,
“Yes, I’m satisfied.” Two alternate jurors were subsequently
selected to serve as jurors on the first guilt phase jury.
b. Analysis
In a death penalty case, “the defendant is entitled to 20 . . .
peremptory challenges.” (Code Civ. Proc., § 231, subd. (a).) If a
trial court in its discretion decides to also have alternate jurors,
a defendant is “entitled to as many peremptory challenges to the
alternate jurors as there are alternate jurors called.” (Id. § 234;
see Pen. Code, former § 1089.)
Here, although the court informed the parties 12 alternate
jurors would serve and then swore the jury and alternates when
there were only seven alternates, Bankston had at that point
exercised seven peremptory challenges. He therefore received
what he was entitled to under Code of Civil Procedure
section 234 and Penal Code former section 1089. Indeed,
Bankston expressly states he is not asserting “he was statutorily
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
entitled to twelve peremptory challenges.” Rather, Bankston
claims that the trial court’s “sudden change” in the number of
alternates denied him “his right to peremptory challenges.” But
he received every peremptory to which he was entitled under
state law. (See Code Civ. Proc., § 234.) Moreover, at the time
the jury and the alternates were sworn, Bankston had accepted
the panel. He did not object to the decision to reduce the number
of alternates, and he subsequently expressly stated he was
satisfied with the alternate jurors chosen. Bankston therefore
fails to demonstrate that any objection to error was preserved
and, even if so, that any error was made. (See Gonzales and
Soliz, supra, 52 Cal.4th at pp. 313–314 [“ ‘[o]bjections to the jury
selection process must be made when the selection occurs’ ”].)
Indeed, even if there had been error, Bankston’s expressed
satisfaction with the selected alternates establishes that no
“ ‘objectionable juror had been forced on’ ” him, which means
that any “ ‘error cannot be held to be prejudicial.’ ” (People v.
Crowe (1973) 8 Cal.3d 815, 832; see ibid. [although the trial
court had the jury sworn after mistakenly stating the defendant
had no more peremptory challenges, the error was not
prejudicial because the defendant subsequently stated he did
not want to exercise further peremptory challenges and did not
express dissatisfaction with the jury selected].)
C. Guilt Phase Issues
1. Hearsay regarding gang membership
Bankston contends the trial court erred when it admitted
hearsay from his field identification (FI) card and Los Angeles
County General Report Evaluation and Tracking (GREAT)
printout to establish he was an active gang member at the time
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
of the capital crimes. We conclude that any state law or federal
constitutional error was harmless beyond a reasonable doubt.
a. Factual background
At the first guilt phase trial, the jury heard evidence that
in May 1991 Bankston told Deputy Patterson that he was from
“Nine Deuce Bishops” and that his name was “Ant Dog.”
Bankston’s acquaintance Torrez similarly testified that in May
1991 Bankston used the moniker “Ant Dog,” belonged to the
Nine Deuce Bishops, which was a Blood gang, and also
associated with the CV 70s. Bankston stipulated that he had a
“CK” tattoo that had two lines through the “C.”
The jury also heard evidence of writings in a photo album
recovered from Bankston’s motel room that pointed to his gang
affiliation. At the first guilt phase, Deputy MacArthur testified
that written in large block letters on the front inside cover of the
album was “UBN,” and inside each of these letters the words
“United Blood Nation” were spelled out. Also on the front inside
cover of the album were the words “Antt dogg,” and a reference
to “Ninety Sekond Street Bishop Bloods Gang of Watts” and
“E.S.B. 92nd Blood gang,” which Deputy MacArthur said
referred to “Eastside Bishops, 92nd Street,” and references to
“CV 70” or “Compton Varrio 70.” On the back inside cover of the
album appeared the words, “Mr. Ant dogg OG.” Deputy
MacArthur said OG meant “original gangster.” Many of the
writings in the album substituted a “k” for a “c.” In Deputy
MacArthur’s opinion, hardcore Blood gang members will not
usually use the letter “c” because it “stands for Crip.”
Deputy MacArthur testified that the OSS generally
collected identifying information about gang members on FI
cards. Deputy MacArthur had interviewed Bankston on
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
October 30, 1989, after his arrest for firearm possession, and
had updated some of the information on his FI card, noting a
“Stella” tattoo on Bankston’s wrist, his driver’s license number,
and his parole officer’s name. Deputy MacArthur could not
recall coming into contact with Bankston at any time other than
the 1989 arrest. Bankston’s FI card stated that his moniker was
“Ant Dog” and showed his gang affiliation as “ESB 92” and
“Bishops . . . 92.” When subsequently asked if he was “aware of
any gang that Mr. Bankston affiliates with,” Deputy MacArthur
answered, “Nine Bishop Blood or Eastside Bishops.” In his
defense case, Bankston introduced a version of his FI card that
stated his moniker and his gang affiliation as “Bishops . . . 92.”
Deputy MacArthur also testified that starting in 1987, Los
Angeles County maintained a computerized “general report
evaluation and tracking” or “GREAT” system that collected gang
member information. Bankston’s GREAT printout, as relevant,
stated his name, his Ant Dog (also spelled Ant Dogg) moniker,
and that he had a CK ear tattoo. Under “Group,” it stated:
“BISHOP (BLOODS), ACTIVE, BLOOD.”
Lieutenant Wright testified that he had information that
Bankston belonged to the Nine Deuce Bishops gang in Watts
and was also affiliated with the Compton Varrio 70s. He did not
identify the source of his information. Lieutenant Wright
opined that if the front inside cover of the album described by
Deputy MacArthur had been written by Bankston, “[w]ithout a
doubt, he’s an active Blood member.” On redirect, Wright stated
that “CK” on a tattoo “for the most part” meant “Crip killer.”
The GREAT printout and FI card were both admitted into
evidence, over defense hearsay objections, at the close of the
prosecution case.
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
At the second guilt phase, the prosecution again
introduced the testimony of Torrez, who stated that Bankston
was associated with the Nine Deuce Bishops and was a friend to
the CV 70s at the time of the charged offenses. Aguilera testified
that Bankston associated with the CV 70s. In 1994, Bankston
admitted that he was responsible for various writings on an out-
of-order sign at the North County Correctional Facility — “Antt
2 Dogg,” “CK” with two lines through the “C,” and “92nd Street
Watts Gang, east ‘side’ Bishops Blood” — that provided further
evidence of his gang membership and moniker. Deputy
Kempner also testified that Bankston told him he was Blood-
affiliated a few months before Kempner’s testimony in the 1994
trial.
Deputy MacArthur testified regarding the album contents
and their meaning in a manner similar to his first guilt phase
testimony. Deputy MacArthur’s testimony about Bankston’s
FI card and GREAT printout likewise echoed his earlier
testimony. In addition, Deputy MacArthur testified that on
October 30, 1989, when he interviewed Bankston and updated
his FI card, Bankston told him his moniker was Ant Dog and he
was from the Nine Deuce Bishop Bloods. In court during his
testimony, Deputy MacArthur personally looked at the CK
tattoo on Bankston’s ear before commenting on its meaning.
Lieutenant Wright again testified he had information that
Bankston belonged to the Nine Deuce Bishop gang and was
affiliated with the Compton 70s. On cross-examination,
Bankston described the photo album recovered from his motel
room as “defendant’s” and referred to the interpretation “of what
these writings meant to the defendant.” He asked Lieutenant
Wright: “Now, at no time do you get the impression that the
defendant is like disavowing his membership in the 9 Deuce
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
Bishop Bloods, do you?” Lieutenant Wright answered, “No, sir.”
Bankston also asked if Lieutenant Wright had received “the
impression that the author of [the album writing] . . . was trying
to hide his street gang commitment,” and Lieutenant Wright
replied, “By no means.”
The GREAT printout and FI card were both again
admitted into evidence at the close of the prosecution case.
Although Bankston objected to admission of the FI card, stating
that it contained “so much biographical information” about him,
he did not object to the GREAT printout.
b. Analysis
Bankston contends the trial court erred in allowing the
prosecutor to rely on hearsay from the FI card and GREAT
printout to establish he was an active gang member at the time
of the capital crimes and to demonstrate his motive, intent, and
identity. Specifically, he contends it was error both to permit
the prosecution’s gang experts to testify about his gang
affiliation based on information contained in the documents and
to allow the documents to be admitted into evidence. He
contends that admission of the evidence violated both state
evidence law under People v. Sanchez (2016) 63 Cal.4th 665
(Sanchez) and his federal constitutional right of confrontation
under Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
As a preliminary matter, the People assert that Bankston
has forfeited his challenge by failing to object during his 1994
trial. But we have held that a defendant does not forfeit a claim
based on Sanchez by failing to object at a trial that took place
before Sanchez was decided, as did the trial in this case. (People
v. Perez (2020) 9 Cal.5th 1, 4 (Perez).) The same is true of a
confrontation claim based on Crawford. (People v. Rangel (2016)
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
62 Cal.4th 1192, 1215 (Rangel); see ibid. [“in a case tried before
Crawford [was decided], a defendant does not forfeit a Crawford
challenge by failing to raise a confrontation clause objection at
trial”].) We therefore turn to the merits.
In Sanchez, this court disapproved prior law “to the extent
it suggested an expert may properly testify regarding case-
specific out-of-court-statements without satisfying hearsay
rules” because the statements are not being admitted for their
truth. (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) We
explained: “If an expert testifies to case-specific out-of-court
statements to explain the bases for his opinion, those
statements are necessarily considered by the jury for their
truth, thus rendering them hearsay.” (Id. at p. 684; see Smith
v. Arizona (2024) 602 U.S. 779, 783 [affirming Sanchez’s
approach, stating, “When an expert conveys an absent analyst’s
statements in support of his opinion, and the statements provide
that support only if true, then the statements come into evidence
for their truth”]; id. at p. 789, fn. 2 [noting Sanchez “reject[ed]
the ‘not for the truth’ rationale for admitting an expert’s basis
testimony”].)
“ ‘Case-specific facts are those relating to the particular
events and participants alleged to have been involved in the case
being tried.’ [Citation.] ‘Generally, parties try to establish the
facts on which their theory of the case depends by calling
witnesses with personal knowledge of those case-specific facts.
An expert may then testify about more generalized information[,
even if derived from hearsay,] to help jurors understand the
significance of those case-specific facts. . . . The expert is
generally not permitted, however, to supply case-specific facts
about which he has no personal knowledge.’ ” (People v.
Valencia (2021) 11 Cal.5th 818, 831.) To be admissible, such
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
evidence either must come within an exception to the hearsay
rule or must be supported by competent evidence in the record.
(Sanchez, supra, 63 Cal.4th at p. 686.)
Under Crawford, the admission of hearsay may also
violate the confrontation clause of the Sixth Amendment if the
hearsay qualifies as “testimonial” and if the hearsay declarant
has not been made available for cross-examination at trial or in
a prior proceeding. (Crawford, supra, 541 U.S. at pp. 51, 53–
54.) “The high court has yet to state definitively just what facts
conclusively demonstrate that particular hearsay qualifies as
testimonial. [Citation.] However, it has never held a hearsay
statement to be testimonial unless it was sufficiently formal and
made by or to a government agent during the course of a
criminal investigation, for the primary purpose of preserving
evidence for trial.” (People v. Ramirez (2022) 13 Cal.5th 997,
1147, citing Sanchez, supra, 63 Cal.4th at pp. 687–689.)
Here, at both guilt phases the juries heard Deputy
MacArthur’s testimony about Bankston’s FI card. Deputy
MacArthur testified that the card documented Bankston’s
moniker, “Ant Dog,” and his gang affiliation. The card itself had
a date from 1984, which was then crossed out and replaced with
a 1989 date, and reflected Bankston’s moniker “Ant Dog” and
his affiliation with the gang “ESB 92” or “Bishops . . . 92.”
Deputy MacArthur did not claim in either guilt trial that the FI
card contained information about Bankston’s gang affiliation at
the time of the offenses in 1991. In the first guilt trial, however,
he testified that he was “aware of” Bankston’s affiliation with
the “Nine Bishop Blood or Eastside Bishops.” The juries
likewise heard Deputy MacArthur testify about Bankston’s
GREAT printout; he stated that it showed that Bankston’s
moniker was Ant Dog and that his gang affiliation was Bishop
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
Bloods. The printout itself also noted Bankston’s CK tattoo and
referred to him as an “active” Bishop Bloods gang member.
The juries also heard from Lieutenant Wright, who
testified that he had information that Bankston belonged to the
Nine Deuce Bishops gang and was also affiliated with the
CV 70s, but could not recall where he got this information. The
FI card and GREAT printout both were admitted into evidence
at the close of the prosecution case.
At the outset, Bankston challenges the officers’ testimony
concerning his gang affiliation under Sanchez. Their testimony
did contain case-specific facts. (See Sanchez, supra, 63 Cal.4th
at p. 676 [“Case-specific facts are those relating to the particular
events and participants alleged to have been involved in the case
being tried”].) But “that does not necessarily make the
admission of the testimony error under Sanchez. Its admission
was improper only if the expert’s testimony about the case-
specific facts was not otherwise supported by competent
evidence in the record.” (People v. Navarro (2021) 12 Cal.5th
285, 310.) Here, the record contains ample evidence supporting
the challenged testimony. In the first trial, evidence of
Bankston’s own statements to Deputy Patterson, testimony
from Torrez, and writing in an album the jury could reasonably
infer belonged to Bankston, all conveyed evidence of his gang
membership at the time of the offenses. In the second trial,
testimony from Torrez and Aguilera and the album writing
again provided evidence of Bankston’s gang membership at the
time of the offenses, along with Bankston’s statements to
Deputy Kempner acknowledging his gang affiliation again in
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
1994.6 Evidence of Bankston’s CK (“Crip Killer”) tattoo was
established through stipulation and Deputy MacArthur’s
personal observation. In other words, “[t]here was abundant
competent evidence admitted at trial to demonstrate” that
Bankston was an active gang member at the time of the offenses.
(Navarro, at p. 310.) From this we can conclude that the jury
had “independent competent proof” (Sanchez, supra, 63 Cal.4th
at p. 684) of Bankston’s gang membership, such that there was
no state law error in Lieutenant Wright’s or Deputy
MacArthur’s testimony under Sanchez. This evidence was
separate from the statements on the FI card and GREAT
printout.
The core of Bankston’s argument on appeal is that the
information contained in the FI card and GREAT printout was
inadmissible testimonial hearsay. Aside from Deputy
MacArthur’s testimony that he updated the FI card in 1989, the
evidence in the record does not clearly indicate the sources of
the information contained in the FI card and the GREAT
printout, and thus sheds little light on whether the contents of
those documents were testimonial. (See Sanchez, supra, 63
Cal.4th at p. 697 [“Because the parties did not focus on this
issue, the point was not properly clarified, leaving the
circumstances surrounding the preparation of the FI card
unclear”].) Nonetheless, even if we were to assume that Deputy
MacArthur’s testimony as to case-specific facts from Bankston’s
FI card and GREAT printout was erroneously admitted in
6
Although some of the testimony conveyed Bankston’s out-
of-court statements to the jury, such statements were
admissible against Bankston as a party admission exception to
the hearsay rule. (Evid. Code, § 1220; People v. Mendoza, supra,
24 Cal.4th at p. 185.)
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
violation of state hearsay law, and to further assume it
constituted testimonial hearsay admitted in violation of
Crawford, it would be harmless beyond a reasonable doubt.
Bankston contends information from and testimony about
the FI card and GREAT printout was “the primary evidence
used by the prosecutor to argue that [Bankston] was an active
street gang member when the charged offenses were
committed.” The record indicates otherwise. As noted, Deputy
MacArthur’s testimony about the documents did not refer to
Bankston’s gang membership status at the time of the offenses
in 1991; only the GREAT printout later received into evidence
referred to Bankston’s status as “active.” In the first trial, there
was evidence that upon his arrest in May 1991, Bankston
acknowledged his gang membership to Deputy Patterson.
Torrez also testified that in May 1991 Bankston belonged to the
Nine Deuce Bishops and associated with the CV 70s. And
writing in an album apparently belonging to Bankston, and
found in his motel room shortly after his arrest, contained
numerous references to his gang membership. Indeed, after the
prosecution rested in the first guilt trial, Bankston told the jury
that the prosecutor “has successfully proven that I am a member
of a Blood gang.” In the second trial, Torrez and Aguilera both
testified that Bankston was either a gang member or associated
with a gang at the time of the offenses and the prosecution again
presented testimony about the album. Cross-examining
Lieutenant Wright, Bankston prompted him to agree that the
writing in the album showed that Bankston had no intention of
disavowing his gang membership. The same year as the trial,
Bankston told Deputy Kempner that he was Blood-affiliated and
wrote expressions of his gang affiliation on an out-of-order sign.
Ultimately, at both guilt phase trials the evidence of Bankston’s
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
gang affiliation throughout the relevant time period was
overwhelming. No reversible error occurred.
2. Prison gang evidence
Bankston contends the prosecution’s gang experts were
not qualified to testify about prison gangs. He further contends
that the trial court erroneously admitted evidence that he had
been a prison gang member. We reject the claim.
a. Factual background
As noted, on the front inside cover of Bankston’s photo
album “UBN” was written in large block letters. Inside each of
these letters the words “United Blood Nation” were spelled out.
At the first guilt phase, Lieutenant Wright testified that the
United Blood Nation or UBN was a prison gang comprised of “all
Blood sets that are within the institution.” On recross-
examination, Bankston asked Lieutenant Wright if he was
“familiar with prison organizations or gangs.” Lieutenant
Wright replied, “I have some familiarity, yes.” Bankston then
asked Lieutenant Wright about a different topic.
When Deputy MacArthur was asked about the writing on
the front inside cover of Bankston’s album, he noted that the
letters “UBN” were “predominant.” The prosecutor asked what
UBN stood for, and Deputy MacArthur replied, “United Blood
Nation, which is a prison gang.” The prosecutor asked if Deputy
MacArthur was “familiar with the four primary” California
prison gangs, and Deputy MacArthur identified the Black
Guerilla Family, the Mexican Mafia, the Aryan Brotherhood,
and the United Blood Nation. Bankston objected on relevancy
grounds.
During the ensuing recess, the trial court excluded as
irrelevant further testimony about prison gangs other than the
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
United Blood Nation. Bankston asserted that a “stipulation can
be agreed upon by myself and [the prosecutor] that [Deputy
MacArthur] is an expert in gangs and that would include prison
gangs.” The court suggested the parties discuss a stipulation
over the noon recess. Bankston subsequently stated: “The
United Blood Nation . . . is a prison based organization. So, if
it’s prison based, nowhere in Mr. MacArthur’s testimony of his
expertise did he give that he worked inside prisons. It’s the
county jail. . . . there is a distinction between prison and county
jail to a certain extent.” The court noted Bankston would have
an opportunity to cross-examine Deputy MacArthur and that if
he “want[ed] to frame a stipulation, then it can be offered to the
prosecution.”
When the hearing resumed after the recess, the prosecutor
read Bankston’s proposed stipulation to the court: “The
evidence now before the court regarding the defendant’s
association and/or membership in the U.B.N., i.e., United Blood
Nations be deemed true thereof. Any writings . . . the
prosecution is in possession of is also deemed to be an accurate
statement of the defendant in pro per. It is also proposed that
Deputy Alexander MacArthur, having testified in these
proceedings . . . be deemed to have . . . given an accurate account
in his expert capacity on prison gangs, specifically” about the
photo album. The prosecutor declined to accept the stipulation
because, as Bankston clarified, it would not allow the prosecutor
to “bring out whatever he felt was necessary in these writings.”
The court repeated that there was no reason to have Deputy
MacArthur, “who does qualify as an expert,” testify regarding
prison gangs other than the UBN, and stated that the
prosecutor “should not be precluded” from exploring the album
writings.
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
On cross-examination, Bankston asked Deputy
MacArthur if he was “well-versed with prison organizations.”
Deputy MacArthur replied, “No, I’m not.” Bankston also asked
Deputy MacArthur if there were any “officers that you work
with . . . [who] might be well-versed in prison gangs,” and
Deputy MacArthur replied: “There are. There’s a prison gang
unit [i]n our department.”
At the second guilt phase, the prosecutor asked Deputy
MacArthur if he saw the letters “UBN” in the album’s “Poison of
thee Blood Streme” poem, and if that “st[ood] for United Blood
Nation.” He replied: “Yes. UBN is a prison gang.” When the
prosecutor then asked whether there were at least “four other
major prison gangs,” Bankston successfully objected on
relevancy grounds. In Deputy MacArthur’s opinion, the album’s
author was a member of two gangs. He said, “The street gang
would be 92nd Street, Eastside Bishops and while in prison [it]
would be U.B.N. or United Blood Nation.”
On cross-examination, Lieutenant Wright testified that
UBN was “the consolidation of Pirus and Blood members in the
prison system.” In response to Bankston’s inquiry, Lieutenant
Wright explained the connection between the Blood and Pirus
gangs, that the names were synonymous, and the historical
reason for the different names. Both were rivals of the Crips.
Bankston asked Lieutenant Wright, “You stated that you
are familiar with prison-based organizations, correct?”
Lieutenant Wright replied, “Somewhat, yeah.” Bankston asked,
“Particularly the U.B.N., the United Blood Nation?” Lieutenant
Wright said, “Yes,” and in response to Bankston’s further
inquiry, said the UBN was a “compilation of Pirus and/or Blood
members that are within the institution that are united and
under one umbrella.” On redirect, Lieutenant Wright opined
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
that Bankston’s writings showed “an association with [the]
CV 70s,” “Nine Deuce Bishop and the Blood Piru[s] set as a
whole.” The prosecutor asked, “[W]hat about [the] U.B.N.?”
Lieutenant Wright replied, “Yes, that’s part of the Blood set, the
United Blood Nation.”
b. Analysis
Bankston contends that the prosecution gang experts were
not qualified to testify about prison gangs. (Evid. Code, § 720.)
He also argues evidence that Bankston had been a prison gang
member was irrelevant and unduly prejudicial. (Id. §§ 350,
352.)
Although Bankston now contends that the gang experts
were not qualified to testify regarding prison gangs, he never
objected below to the qualifications of Deputy MacArthur or
Lieutenant Wright to define “UBN” and “United Blood Nation.”
Nor did Bankston dispute that “UBN” stood for United Blood
Nation or that the United Blood Nation was a prison gang.
Indeed, at the first guilt phase, when asked what UBN stood for,
Deputy MacArthur replied without objection, “United Blood
Nation, which is a prison gang.” During the next recess
Bankston suggested that the parties could stipulate that Deputy
MacArthur “is an expert in gangs and that would include prison
gangs.” Although Bankston noted that UBN was a prison gang,
and Deputy MacArthur had not testified he had worked inside
a prison, he did not assert that Deputy MacArthur thereby
lacked the expertise to testify that UBN was a prison gang. At
the second guilt phase, Bankston asked Lieutenant Wright to
describe the UBN. Any objection to the experts’ qualifications
on this topic was thus forfeited.
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
Bankston further contends that evidence of his
membership in a prison gang was irrelevant and unduly
prejudicial under Evidence Code sections 350 and 352. This
claim is also forfeited. In any event, the evidence of prison gangs
at trial was quite limited. Deputy MacArthur and Lieutenant
Wright defined what the terms “UBN” or “United Blood Nation”
in Bankston’s photo album meant, explained that the United
Blood Nation was a prison gang, and offered their opinions that
Bankston was either a member of or associated with the UBN.
They did not describe the activities of the United Blood Nation.
Deputy MacArthur did mention the names of three other prison
gangs in the first guilt phase, but that reference was brief and
not elaborated on, and the trial court precluded further
testimony on other prison gangs.
This limited testimony on the UBN was relevant and not
unduly prejudicial. The prosecutor’s theory was that Bankston’s
Blood gang affiliation and association with the CV 70s
motivated him to murder Benson and Sanchez because he
perceived them to be rival gang members. Deputy MacArthur’s
and Lieutenant Wright’s brief explanation of the terms “UBN”
and “United Blood Nation” in Bankston’s album, and their view
of Bankston’s relationship to the United Blood Nation, were
relevant to further establish his Blood gang affiliation. Given
the relevance, brevity, and narrow scope of this prison gang
evidence, there was no error.
3. Rap sheet evidence
Bankston contends that the trial court erred by admitting
evidence contained on the California Law Enforcement
Telecommunication System (CLETS) concerning Bankston’s
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
past arrests and convictions, also referred to as his “rap sheet.”
We conclude any error was harmless beyond a reasonable doubt.
a. Factual background
(1) First guilt phase
On cross-examination of Linda Jones, Bankston elicited
testimony that Benson’s wife D.J. had become pregnant by a
man named Nate, apparently while Benson was in prison. On
cross-examination of both Linda and Benjamin Jones, Bankston
elicited testimony that on the day of Benson’s murder, Benson
had been involved in a physical and verbal altercation with D.J.
at home. The police were called, removed Benson from the
home, and took him to a different location. Benson nonetheless
returned home. At that point Linda and Benjamin picked him
up because he and D.J. were arguing. Benson was upset his
siblings were picking him up, but Linda told Benson she did not
want him to go back to prison. On cross-examination of
Lieutenant Wright, Bankston elicited testimony Benjamin and
Benson Jones had been “proud” members of the Atlantic Drive
Crips in the late 1970s and early 1980s.
The prosecutor contended that by asking questions about
and eliciting testimony regarding Benson’s violent traits or
character, Bankston had opened the door to evidence of his own
violence, which the prosecution sought to introduce through his
rap sheet. (Evid. Code, § 1103, subd. (b).) The rap sheet was
not identified as an exhibit, nor did the prosecutor seek to lay a
foundation for admission of its contents under a hearsay
exception. After an evidentiary hearing, the court granted the
motion, but in response to Bankston’s request ordered that all
references to individual prisons in which Bankston had been
incarcerated be changed to the “Department of Corrections.”
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
The court also found that under Evidence Code section 352, “the
probative value outweighs the prejudice.” (Evid. Code, § 352
[“The court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its
admission will . . . necessitate undue consumption of time or . . .
create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury”].)
Before the jury, and over Bankston’s objection, Los
Angeles County Sergeant Doral Riggs testified regarding
Bankston’s detentions and convictions as listed on the rap sheet.
He described entries from 1980 to 1990 that included, in roughly
chronological order, detentions for carrying a firearm and for
robbery; convictions for carrying a loaded firearm and for
assault with a firearm; detentions as a prisoner for weapons
possession, assaults, and a “a tear gas” offense; and detentions
for being a felon in possession of a firearm. Based on the rap
sheet, Sergeant Riggs was of the view that Bankston had a
“tendency towards violence.”
On cross-examination, Bankston questioned Sergeant
Riggs about and introduced into evidence an abstract of
judgment for what Sergeant Riggs had referred to as a detention
for a “tear gas” offense. After reviewing the abstract of
judgment, Sergeant Riggs said Bankston had been sentenced to
two years for attempted possession “of an explosive.” The
abstract also stated that Bankston’s sentence would be
consecutive to an incomplete sentence in a different case.
Earlier in the trial, Bankston had asked Deputy
MacArthur on cross-examination the “nature of [his] interview”
of Bankston in 1989. Deputy MacArthur replied that Bankston
had been arrested for firearm possession. Bankston had also
introduced into evidence his Penal Code section 969b prison
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
packet that contained abstracts of judgment for his 1985
conviction for assault with a deadly weapon with great bodily
injury, for which he was sentenced to three years; and his 1987
conviction for attempted possession of an explosive, for which he
was sentenced to two years. He described this exhibit in front
of the jury as “a chronological history of my prison dates.”
At the end of the first guilt phase, the trial court instructed
the jury: “Evidence has been introduced by both sides that the
defendant and/or a victim may have a propensity for violence.
Such evidence was received and may be considered by you not
for the purpose of establishing the person has a propensity to
commit crimes, but only for the limited purpose of establishing
the person’s character or propensity for violence, if such be the
case.” The court also instructed the jury: “Evidence was
received of the violent character of the defendant. The purpose
of such evidence is to show that it is probable that a person of
such character acted in conformity with that character trait
during the events occurring in this case. Any conflict in evidence
of the defendant’s character and the weight to be given to such
evidence is for you to determine.”
(2) Second guilt phase
Deputy MacArthur testified that certain Los Angeles
County law enforcement agencies maintained information about
gang members in a computerized GREAT system and on FI
cards that documented officer contacts with gang members on
the street or after an arrest. He testified that the FI card and
the GREAT printout on Bankston showed that his nickname
was Ant Dog and he was affiliated with the 92nd or Nine Deuce
Bishops. Deputy MacArthur testified that the FI card on
Bankston was created in 1984 and updated in 1989.
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
On cross-examination, Deputy MacArthur testified that
gang members were purged from the system after five years if
there were no contacts with them. He acknowledged that the FI
card showed no contact with Bankston between 1984 and 1989
and that the GREAT printout contacts were limited to 1984,
1989, and 1991 arrests. Bankston confirmed that the printout
showed no arrests between 1984 and 1989 or between 1989 and
1991. He then asked Deputy MacArthur why the GREAT
system still listed him as an active gang member when there
had been no contacts with him between 1984 and 1989, and
posed a number of questions to clarify the process for purging
gang members from the system.
On redirect, the prosecutor sought to admit evidence from
Bankston’s rap sheet to demonstrate that Bankston had been
arrested at times other than in 1984, 1989, and 1991. Bankston
objected and argued that he had been challenging the accuracy
of the GREAT printout, noting that if it was not accurate then
perhaps his active gang membership was inaccurate. “I didn’t
say I didn’t have arrests.” In response, the court stated, “[A]s
far as the accuracy of the document, . . . the People have a right
to have the members of the jury draw an inference which you’re
seeking, which is that criminal activities of yours are not all
documented on the GREAT computer system.” The court
allowed the prosecutor to question Deputy MacArthur about
Bankston’s arrests as reflected on the rap sheet.
Deputy MacArthur then testified about Bankston’s
arrests between 1984 and 1989. He testified that Bankston was
arrested in 1984 for carrying a loaded firearm in a public place
and convicted of a misdemeanor; that between 1985 and 1988
Bankston was arrested for offenses at various correctional
facilities, noting incidents at Chino, Soledad, Folsom,
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
Tehachapi, and at an unnamed institution; and that in 1989 he
arrested Bankston for being a felon in possession of a firearm.
Deputy MacArthur also stated that an individual’s arrests while
he or she was in custody would not be in the GREAT system. On
cross-examination of Deputy MacArthur, Bankston explored at
length the details of his rap sheet. The rap sheet was marked
for identification but not admitted into evidence.
b. Analysis
Bankston contends the trial court erred in admitting
testimony regarding his rap sheet under Evidence Code
section 1103 and state hearsay law at the first guilt phase, as
rebuttal at the second guilt phase, and in violation of his Sixth
Amendment confrontation clause rights at both guilt phases.
Bankston’s hearsay and confrontation clause claims are
preserved on appeal even though he did not raise them at trial.
(See Perez, supra, 9 Cal.5th at p. 4; Rangel, supra, 62 Cal.4th at
p. 1215.) We consider each guilt phase in turn.
(1) First guilt phase
Evidence Code section 1101, subdivision (a), generally
provides that “evidence of a person’s character or a trait of his
or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her
conduct) is inadmissible when offered to prove his or her conduct
on a specified occasion.” At the first guilt phase, the trial court
admitted testimony regarding information on the rap sheet
under Evidence Code section 1103, subdivision (b). This section
provides an exception to the general rule against propensity
evidence in Evidence Code section 1101, subdivision (a), for
“evidence of the defendant’s character for violence or trait of
character for violence (in the form of an opinion, evidence of
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PEOPLE v. BANKSTON
Opinion of the Court by Kruger, J.
reputation, or evidence of specific instances of conduct) . . . if the
evidence is offered by the prosecution to prove conduct of the
defendant in conformity with the character or trait of character
and is offered after evidence that the victim had a character for
violence or a trait of character tending to show violence has been
adduced by the defendant under” Evidence Code section 1103,
subdivision (a)(1). (Evid. Code, § 1103, subd. (b); see People v.
Gutierrez (2009) 45 Cal.4th 789, 827–828.)
Bankston contends that because he “had not put into issue
any victim’s character for violence, testimony about his own
purported character for violence was inadmissible,” “irrelevant
and highly inflammatory.” But on cross-examination of both
Linda and Benjamin Jones, Bankston elicited testimony that on
the day of his murder, Benson Jones had been involved in a
physical and verbal altercation with his wife at home, the police
were called and removed Benson from the home, and when
Benson nonetheless later returned home, Linda and Benjamin
had picked him up against his wishes because he and D.J. were
arguing and Linda did not want Benson to return to prison.
Although Linda and Benjamin did not expressly testify that
Benson had engaged in physical violence against D.J., the jury
could fairly draw this inference from their testimony.
It is unclear, however, whether this single inference
supported introduction of much of Bankston’s criminal history,
including convictions for carrying a firearm, assault with a
firearm, and attempted possession of an explosive. We have
warned: “ ‘Evidence that involves crimes other than those for
which a defendant is being tried is admitted only with caution,
as there is the serious danger that the jury will conclude that
defendant has a criminal disposition and thus probably
committed the presently charged offense.’ ” (People v. Calderon
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Opinion of the Court by Kruger, J.
(1994) 9 Cal.4th 69, 75 (Calderon).) It is even less clear that
testimony regarding Bankston’s mere detentions, as opposed to
convictions, was probative of his violent character.
Even assuming the trial court acted within its discretion
in finding evidence of Bankston’s violent character admissible
under Evidence Code section 1103, Bankston contends that the
means by which the prosecutor sought to prove Bankston’s
violent character — expert testimony conveying his rap sheet
information — violated state hearsay evidence law and his
rights under the confrontation clause. (See Sanchez, supra,
63 Cal.4th at pp. 684–685.)
As to state hearsay law, the details of Bankston’s criminal
history were case-specific facts subject to the usual rules
governing admission of hearsay. (See Sanchez, supra, 63
Cal.4th at p. 676 [“Case-specific facts are those relating to the
particular events and participants alleged to have been involved
in the case being tried”].) We have previously upheld the
admission of “uncertified computer printouts reporting criminal
history information” or rap sheets under the official records
exception to the hearsay rule. (People v. Martinez (2000)
22 Cal.4th 106, 111–112; id. at pp. 119–134; Evid. Code, § 1280.)
But here, unlike in Martinez, the prosecutor did not seek to
admit the rap sheet into evidence under Evidence Code
section 1280 or any other section, nor did the trial court rule on
its admissibility. (Martinez, at p. 113.) We have previously
declined to uphold the admission of hearsay in an autopsy report
“against a criminal defendant based on an exception that was
never presented to the trial court, for which no effort was made
to lay the necessary foundation, and on which the court never
ruled.” (People v. Turner (2020) 10 Cal.5th 786, 823.)
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As to whether these case-specific facts were testimonial for
confrontation clause purposes, this court has not addressed
whether evidence from a rap sheet is testimonial. (Compare
People v. Garcia (2020) 46 Cal.App.5th 123, 171 [records of prior
criminal convictions “used to prove facts other than the fact of
conviction itself are testimonial”] with People v. Moreno (2011)
192 Cal.App.4th 692, 709 [Penal Code section 969b packet
documents are not testimonial because they “ ‘are prepared to
document acts and events relating to convictions and
imprisonments’ ” and not to provide trial evidence or determine
whether charges will be brought]; see id. at pp. 710–711; People
v. Morris (2008) 166 Cal.App.4th 363, 367−373 [rap sheets are
not testimonial hearsay]; People v. Taulton (2005) 129
Cal.App.4th 1218, 1224–1225 [same].) Nor need we do so here.
We conclude that even assuming the case-specific facts from the
rap sheet were erroneously admitted in violation of state
hearsay law and constituted testimonial hearsay in violation of
the confrontation clause, the error was harmless beyond a
reasonable doubt.
The rap sheet itself was not admitted into evidence for the
jury’s perusal. Moreover, at the time of Sergeants Riggs’s
testimony, Bankston himself had already introduced into
evidence his Penal Code section 969b prison packet that
contained abstracts of judgment for his 1985 conviction for
assault with a deadly weapon with great bodily injury and his
1987 conviction for attempted possession of an explosive. These
were his most serious prior convictions. He described this
exhibit in front of the jury as “a chronological history of my
prison dates.” Evidence that Bankston had also been arrested
or detained on certain occasions would necessarily carry less
weight than evidence of his convictions. Moreover, Bankston
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Opinion of the Court by Kruger, J.
had previously elicited testimony that in 1989 he had been
“arrested for possession of a firearm.” Finally, the jury failed to
reach a verdict on the Sanchez murder, the Johnson attempted
murder, and the assault with a firearm on Linda Jones,
indicating that it thoughtfully evaluated the evidence. (See
People v. Romero and Self (2015) 62 Cal.4th 1, 28 (Romero and
Self) [even assuming details of the attack on one victim were
improperly admitted, the error was harmless in part because the
jury acquitted the defendant of different “robbery and
kidnapping charges, showing it carefully evaluated the
evidence”].)
(2) Second guilt phase
Bankston contends that the trial court erred in admitting
evidence from his rap sheet at the second guilt phase as rebuttal
to his cross-examination of Deputy MacArthur, which had
drawn attention to gaps in the records of arrests contained in
the GREAT system.
Under state law, “ ‘[r]ebuttal evidence is relevant and thus
admissible if it “tend[s] to disprove a fact of consequence on
which the defendant has introduced evidence.” [Citation.] The
trial court is vested with broad discretion in determining the
admissibility of evidence in rebuttal.’ ” (Beck and Cruz, supra,
8 Cal.5th at p. 655.) Bankston contends the trial court erred in
concluding the rap sheet evidence tended to disprove any fact he
had introduced in evidence through his cross-examination of
Deputy MacArthur. He argues his purpose in cross-
examination was simply to demonstrate that the GREAT
system was “incomplete and unreliable,” and therefore the jury
should discount the expert’s opinion about Bankston’s gang
affiliation to the extent it was based on information in that
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system. But contrary to his argument, the evidence elicited on
cross-examination was reasonably susceptible not only to the
inference that the GREAT system was generally incomplete and
unreliable, but also to the inference that Bankston had no
arrests other than those in 1984, 1989, and 1991. The trial court
acted within its discretion in concluding this latter inference
involved facts of consequence and in allowing the prosecutor to
present evidence to demonstrate that the inference was not
correct.
Bankston further contends the “trial court erred by
permitting the prosecutor to present bad-character evidence
that went well beyond that necessary to rebut any inference
about the number of times [Bankston] had been arrested.” He
contends that the trial court should have “excluded [Deputy]
MacArthur’s testimony about the charges on which [Bankston]
was arrested; the fact of [Bankston’s] prior conviction; the
charges on which [Bankston] was convicted; the fact of
[Bankston’s] prior prison term; and the name of institutions in
which [Bankston] served his time.”
At trial, Bankston did eventually object to the scope of
Deputy MacArthur’s testimony at trial, though the objection
was somewhat belated. The issue would not have come as a
surprise: Bankston’s rap sheet information had been introduced
at the first guilt phase; the prosecutor noted the day before
Deputy MacArthur’s redirect testimony at the second guilt
phase that she would seek admission of the arrest information
on the rap sheet; and a hearing had been held regarding the
admissibility of the arrests on the rap sheet on the day of Deputy
MacArthur’s testimony. But it was not until after Deputy
MacArthur had mentioned the date and crime for the third
arrest on the rap sheet, and after he had noted Bankston had
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previously suffered a misdemeanor conviction, that Bankston
unsuccessfully objected: “Can we have the witness just read the
arrests, not where and what for?”
Assuming Bankston’s objection suffices to preserve the
claim, we consider the scope of Deputy MacArthur’s testimony
about Bankston’s rap sheet to be questionable. To be sure,
Deputy MacArthur’s testimony was not extensive: He
mentioned a misdemeanor conviction and while he did not
mention a prior prison term, he did testify that at the time of
five of the arrests Bankston had been incarcerated in a
correctional facility. This was relevant to Deputy MacArthur’s
testimony that arrests while a person was in custody would not
be in the GREAT system, and so arguably constituted proper
rebuttal. But again, “ ‘[e]vidence that involves crimes other
than those for which a defendant is being tried is admitted only
with caution, as there is the serious danger that the jury will
conclude that defendant has a criminal disposition and thus
probably committed the presently charged offense.’ ” (Calderon,
supra, 9 Cal.4th at p. 75.)
Even assuming Deputy MacArthur’s testimony otherwise
qualified as permissible rebuttal, Bankston argues that
evidence from the rap sheet was testimonial hearsay admitted
in violation of his confrontation right. If the rap sheet was
testimonial hearsay, it is no answer that Bankston may have
“ ‘open[ed] the door’ ” to the subject of his arrests by eliciting
information from other sources. (Hemphill v. New York (2022)
595 U.S. 140, 152; see id. at p. 154 [ruling that the confrontation
clause “admits no exception for cases in which the trial judge
believes unconfronted testimonial hearsay might be reasonably
necessary to correct a misleading impression” left by the
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presentation of other evidence].) But once again, we need not
decide the issue in this case.
Assuming the case-specific facts from the rap sheet were
erroneously admitted in violation of state evidentiary law and
constituted testimonial hearsay in violation of the confrontation
clause, we conclude the error was harmless beyond a reasonable
doubt. As noted, the rap sheet itself was not admitted into
evidence. Moreover, on cross-examination of Deputy
MacArthur, without any effective compulsion to do so, Bankston
explored at length the details of his rap sheet and elicited
negative information beyond that testified to on direct. Thus,
Bankston elicited testimony that he had served three years in
prison for his “March 12, 1985 arrest.” Deputy MacArthur again
noted Bankston had suffered a misdemeanor conviction and also
noted the sentence imposed. Bankston also appeared to try to
identify an arrest that Deputy MacArthur had not mentioned.
At Bankston’s request, Deputy MacArthur carefully identified
those arrests that had occurred while Bankston was in custody
and the overall time periods Bankston had been incarcerated.
He further testified that Bankston had been paroled on
March 12, 1991.
In addition, the limited information Deputy MacArthur
offered about Bankston’s criminal history paled in comparison
to the evidence of Bankston’s responsibility for the shootings.
Bankston described committing the murder to Torrez, with
details similar to those provided by eyewitnesses to the crime.
Melendez, who was with Sanchez when he was killed, identified
Bankston at trial as the shooter. Franco, who also witnessed
the shooting, identified Bankston’s car as the car from which the
shooting occurred. And ballistics testimony indicated that a
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bullet recovered at Sanchez’s autopsy was consistent with being
fired from Bankston’s AK-47-type rifle.
Benjamin and Linda Jones also identified Bankston as the
person who had shot Benjamin and Benson, and Linda
identified him as the person who then shot at her. Bankston
was also connected to the assault with a firearm by ballistics
evidence. The jury acquitted Bankston of Johnson’s attempted
murder, showing that it was capable of carefully evaluating the
evidence despite the admission of evidence regarding his
criminal history. (Romero and Self, supra, 62 Cal.4th at p. 28.)
We thus conclude beyond a reasonable doubt that the jury would
not have reached a different verdict had it not heard the
challenged rebuttal evidence.
4. Severance of the assault charge
Bankston contends that the trial court prejudicially erred
at the second guilt phase by failing to sever count 4, the charge
of assault with a firearm on Linda Jones, from the Sanchez
murder and Johnson attempted murder charges. We conclude
that the trial court acted within its discretion in denying
severance.
a. Factual background
In the first trial, Benjamin testified that Bankston and
two other men approached Benson and one of the men asked,
“What’s up Blood?” When Benson, a Crip gang member, turned
around and approached Bankston, Bankston pulled out a .38-
caliber gun and shot him. Bankston then turned and shot
Benjamin. Benjamin could see his sister Linda screaming
hysterically. Bankston returned to Benson, shot him in the neck
at close range, and fled. Linda testified that she heard shots and
saw Benjamin and Benson fall, and saw Bankston shoot Benson
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again, shoot in her direction, and flee. Benjamin and Linda
identified Bankston from a photo lineup a few days after the
murder and later in court during his trial testimony.
Torrez testified about the Sanchez murder in the first
trial. He said that Bankston told him he had killed a CCG gang
member. Bankston did not give the name of the man he had
killed but said the victim had been with “Florentino.” Bankston
told Torrez that he shot the victim once and shot him again after
he fell down and was yelling; Bankston said he did not want to
“waste all his bullets” by shooting Florentino and just smiled at
him and drove away.
Florentino Melendez testified that he had been walking
with Sanchez when they heard shots and ran. After the shots,
Melendez made eye contact with the shooter, who was in his car.
Melendez described the shooter as a Black male about 25 years
old with a shaved head, and who wore prescription glasses and
had a somewhat stocky build. Ballistics evidence indicated that
a bullet from the Sanchez shooting was fired from an AK-47-
type rifle, the same type of gun Bankston had when he was
arrested.
As noted, at the first guilt phase, Bankston was convicted
of the first degree murder of Benson Jones, the willful,
deliberate, and premeditated attempted murder of Benjamin
Jones, and possession of a firearm by a felon. (Counts 2, 3, and
5.) The jury failed to reach a verdict and the trial court declared
a mistrial on charges that Bankston had committed the Sanchez
murder (count 1), assault with a firearm on Linda Jones
(count 4), and the Johnson attempted murder (count 6). The
jury made no finding on the multiple-murder special-
circumstance allegation. (Pen. Code, § 190.2, subd. (a)(3).)
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On the first day of jury selection in the second guilt phase,
the court and parties discussed the fact that Bankston was
charged with a multiple-murder special-circumstance allegation
under Penal Code section 190.2, subdivision (a)(3), which
applies when “[t]he defendant, in this proceeding, has been
convicted of more than one offense of murder in the first or
second degree.” (Pen. Code, § 190.2, subd. (a)(3).) The jury at
the second guilt phase, however, would be deciding only if
Bankston was guilty of one murder, involving victim Sanchez.
Bankston made three arguments regarding the multiple-
murder special circumstance: (1) that the prior multiple-murder
allegation no longer applied because only one murder charge
remained to be resolved “in this proceeding” (Pen. Code, § 190.2,
subd. (a)(3)); (2) that he could not be tried on a new prior-murder
special-circumstance allegation under Penal Code section 190.2,
subdivision (a)(2) unless he was granted a preliminary hearing
on that allegation; and (3) that, in any event, he was entitled to
bifurcate the prior murder conviction and to have a separate
trial to determine the validity of that conviction.
The trial court rejected Bankston’s arguments regarding
the applicability of the multiple-murder special-circumstance
allegation, stating that Bankston continued to be charged with
the allegation, and that the remaining counts to be tried in the
second guilt phase were part of the same proceeding as the first
guilt phase. The court nonetheless agreed with Bankston that
the multiple-murder special-circumstance allegation should be
bifurcated to avoid prejudicing the jury with evidence of
Bankston’s murder conviction; the court stated that unless the
second guilt phase jury convicted him of Sanchez’s murder, it
would not learn that Bankston had been convicted of Benson’s
murder (or Benjamin’s attempted murder) or reach the issue of
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the multiple-murder special-circumstance allegation. The
retrial would thus potentially have as many as three parts: one
for guilt and one for any special circumstance proceeding,
followed by a penalty phase if necessary.
Bankston then orally moved to “sever” count 4, the charge
of assault with a firearm on Linda Jones, from the charges
involving the Sanchez murder and the Johnson attempted
murder. Bankston suggested the court have the jury hear
evidence on the assault charge in “the second part of the trial
since we’re going to take testimony on it anyways.” The court
responded that the “motion to sever count 4 out” would result in
a “four-part hearing.” The prosecutor stated that “it appears the
defendant is making a motion for bifurcation.” The court asked,
“[T]ell me if I’m wrong, Mr. Bankston — you want me to
bifurcate that [count 4 involving Linda Jones] out from counts 1
and 6.” Bankston replied, “Exactly.”
When the parties and the court discussed the issue further
the following day, the court stated that the issue was not
“sever[ance],” but what limitations should be placed on Linda
Jones’s testimony about the shooting. The court stated that
neither Linda nor Benjamin could testify that Bankston had
been convicted of Benson’s murder and Benjamin’s attempted
murder. Bankston argued he did not “want the jury knowing I
shot Benson Jones.” The court replied, “Unfortunately, [Linda]
can testify to that.” Bankston asserted that such testimony was
irrelevant to the assault charge and the “prejudicial effect” of
“what happened, other than to Linda Jones . . . clearly
outweighs any probative value that that might have.” The court
stated that the witnesses’ observations were relevant, found the
“probative value outweighs the prejudice,” and noted the
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PEOPLE v. BANKSTON
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prosecutor had the burden of proving Bankston guilty beyond a
reasonable doubt of the remaining counts.
To avoid prejudice from this testimony, Bankston again
suggested, “Maybe we can sever this count.” The court agreed
it had discretion to sever the count and asked Bankston if he
wanted the court “to impanel another jury on count 4.”
Bankston replied that he was asking for the same jury to hear
the assault evidence in the second phase of trial, when the
prosecution presented the prior murder conviction, and cited the
court’s discretion to sever the counts under Penal Code
section 954. The court ruled: “[T]here isn’t going to be any
bifurcation, there’s not going to be any severance, and counts 1,
4, and 6 will go to trial.”
Before Benjamin’s testimony at the second guilt phase, the
court instructed the jury that Benjamin’s testimony concerned
“the allegation as to the assault with a deadly weapon 7 as to
Linda Jones. He will be testifying as to his observations on the
evening in question. His testimony is limited to the issue of
motive and identity as to the perpetrator. Credibility, of course,
is always in issue. You are to not consider anything he . . .
testif[ies] to with regard to a shooting involving himself or his
brother.” The court added, “Benson Jones and this gentleman,
the witness’ counts are not before you at this time.” In the
second guilt trial, Benjamin and Linda testified about the
shootings as they had during the first guilt phase.
7
The actual charge was assault with a firearm, which is
proscribed by Penal Code former section 245, subdivision (a)(2),
not assault with a deadly weapon “other than a firearm,” which
is proscribed by Penal Code former section 245,
subdivision (a)(1). The court and Bankston, however, frequently
referred to the charge as assault with a deadly weapon or ADW.
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At the end of the second guilt phase the trial court
instructed the jury: “Any testimony regarding the shootings of
Benjamin Jones and Benson Jones [is] to be considered only as
[it] may apply to identification, motive, or intent as to the charge
of assault with a deadly weapon.”
b. Analysis
Bankston argues that the trial court erred in denying
severance of the count charging assault with a firearm on Linda
Jones. We reject the claim.8
Two or more different offenses may be consolidated in one
trial when they are “connected together in their commission,”
are “different statements of the same offense,” or are “of the
same class of crimes or offenses.” (Pen. Code, § 954.) “Even
where the statutory requirements for joinder are satisfied,
however, ‘a trial court has discretion to order that properly
joined charges be tried separately.’ [Citations.] ‘[A] defendant
must make a clear showing of prejudice to establish that the
trial court abused its discretion in denying the defendant’s
severance motion.’ ” (People v. Scott (2015) 61 Cal.4th 363, 395.)
“ ‘In determining whether a trial court’s refusal to sever charges
amounts to an abuse of discretion, we consider four factors: (1)
whether evidence of the crimes to be jointly tried is cross-
admissible; (2) whether some charges are unusually likely to
inflame the jury against the defendant; (3) whether a weak case
8
There was confusion during the hearings about whether
Bankston was requesting bifurcation or severance. “[S]everance
requires selection of separate juries,” while a “bifurcated trial is
held before the same jury.” (People v. Hernandez (2004) 33
Cal.4th 1040, 1050.) But it appears the trial court understood
Bankston’s motion to include a request for severance and we
address the claim on appeal Bankston has made in that regard.
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has been joined with a stronger case so that the spillover effect
of aggregate evidence might alter the outcome of some or all of
the charges; and (4) whether any charge carries the death
penalty or the joinder of charges converts the matter into a
capital case.’ ” (People v. Westerfield (2019) 6 Cal.5th 632, 689.)
“ ‘An appellate court evaluates such claims in light of the
showings made and the facts known by the trial court at the
time of the court’s ruling.’ ” (Ibid.)
Bankston concedes that the Linda Jones assault with a
firearm count was properly joined with the Sanchez murder and
the Johnson attempted murder counts because they were all of
“the same class of offenses” under Penal Code section 954. He
contends, however, that the trial court abused its discretion in
denying severance of the assault count from the murder count.
Where, as here, “two crimes of the same class are joined, cross-
admissibility is not required. ([Pen. Code,] § 954.1.)” (People v.
Thomas (2011) 52 Cal.4th 336, 350.) We therefore consider the
remaining three factors to evaluate Bankston’s allegations.
In determining whether charges are inflammatory and
whether a weak case has been joined with a stronger one, we
have observed that “ ‘[t]he danger to be avoided is “that strong
evidence of a lesser but inflammatory crime might be used to
bolster a weak prosecution case” on another crime.’ ” (People v.
Westerfield, supra, 6 Cal.5th at p. 690.) Here, Bankston argues
that evidence of his assault with a firearm — including
testimony regarding the shooting of Benson and Benjamin that
was admitted for motive, intent, and identity — was
inflammatory evidence that bolstered the weaker evidence of
murder regarding Sanchez. At the time of the court’s ruling, the
court was aware there had been evidence at the first guilt phase
that Bankston admitted killing a CCG member to Torrez, saying
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that he shot the man a second time after he had fallen, did not
want to waste his bullets on the man’s companion “Florentino,”
and smiled at Florentino before driving away. Testimony that
Bankston shot Linda’s brothers, and then shot at her as she
watched screaming, showed a similarly callous crime and was
“no more inflammatory” than the Sanchez murder charge.
(Westerfield, at p. 690.)
Citing Williams v. Superior Court (1984) 36 Cal.3d 441,
451–452, Bankston asserts that the trial court considered only
judicial economy in denying severance and “failed to weigh the
prejudicial effect of joinder against the benefits of that
procedure in light of the aberrant circumstances in this case.”
But in ruling that the prosecutor could present evidence of the
circumstances surrounding the assault on Linda with a firearm,
the court found that Linda’s and Benjamin’s observations were
relevant, and that the “probative value outweighs the
prejudice.” Moreover, the court expressly stated that judicial
economy in trying the counts before the same jury was but one
of the bases for its ruling. To the extent the court noted the
“ero[sion]” of Williams, this passing remark does not suggest it
applied an erroneous severance standard.
Although the first guilt phase jury failed to reach a verdict
on the Sanchez murder, the evidence supporting that charge
was not, as Bankston asserts, weak. Torrez’s testimony about
Bankston’s telling of the killing largely matched the events
Melendez described, and ballistics evidence further connected
Bankston to the crime. This was evidence of similar strength as
that supporting the Jones assault with a firearm charge — the
Sanchez murder rested on an admission and eyewitness
testimony, the Jones assault on eyewitness testimony, with
ballistics evidence supporting both charges. This “defeats the
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notion that strong evidence of one inflammatory crime was
improperly used to bolster any weak evidence supporting the
other crime.” (People v. Westerfield, supra, 6 Cal.5th at p. 690;
see also People v. Scott, supra, 61 Cal.4th at p. 396 [“the
potential for a spillover effect was minimal” from nonmurder to
murder charge, where evidence of the murder “was also
substantial”].) And the assault with a firearm count was not a
capital offense, nor did its joinder to the Sanchez murder count
convert the matter into a capital case. Bankston has not shown
prejudice to establish that the trial court abused its discretion
by denying his severance motion.
Bankston further contends joinder of the assault and
murder charges, in hindsight, resulted in gross unfairness
amounting to deprivation of a fair trial or a denial of due process
at the second guilt phase. (See Romero and Self, supra,
62 Cal.4th at p. 30.) The Attorney General argues that
Bankston has forfeited this aspect of his claim. Even assuming
it is preserved, however, we conclude it is not “reasonably
probable that the jury was influenced by the joinder in its
verdict of guilt.” (People v. Simon (2016) 1 Cal.5th 98, 130.) The
evidence that Bankston shot Linda’s two brothers just before he
shot at Linda was indeed serious and significant. Notably,
however, the Benson and Sanchez murders had been tried
together in the first guilt phase, and yet the jury failed to reach
a verdict on the Sanchez murder, the Johnson attempted
murder, and the assault with a firearm on Linda Jones. In the
second guilt phase, despite evidence of the Jones shootings, the
jury acquitted Bankston of the attempted murder of Johnson.
“Where the jury returns a guilty verdict of a lesser crime, or, as
here, fails to convict at all on some charges, we are confident the
jury was capable of, and did, differentiate among defendant’s
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crimes.” (People v. Jones (2013) 57 Cal.4th 899, 927.) What is
more, at the end of the second guilt phase, the court instructed
the jury that “[a]ny testimony regarding the shootings of
Benjamin Jones and Benson Jones [is] to be considered only as
[it] may apply to identification, motive, or intent as to the charge
of assault with a deadly weapon.” We presume that the jury
understood and followed these instructions. (Simon, at p. 130.)
5. Evidence Code section 352.2 challenge
Bankston raises a challenge invoking Evidence Code
section 352.2 (section 352.2) governing the admissibility of
creative expression. Contending that section 352.2 applies
retroactively to nonfinal cases on appeal like his, in which the
trial preceded the statute’s effective date, Bankston argues that
the trial court abused its discretion under this statute when it
admitted several poems from a photo album during his 1994
trials. (See post, pp. 89–90, fns. 10–12.)
We have held that Evidence Code section 352.2 is not
retroactive. (People v. Aguirre (2025) 18 Cal.5th 629, 683.)
Bankston offers no persuasive reason to revisit this conclusion.
D. Racial Justice Act Challenges
In 2020, while this appeal was pending, the Legislature
enacted the California Racial Justice Act, which provides a
statutory basis for challenging racial, ethnic, and national origin
discrimination in the administration of criminal justice. (Pen.
Code, § 745; RJA or Act.) Bankston raises several claims based
on provisions of the RJA forbidding the use of “language that, to
an objective observer, . . . implicitly appeals to racial bias.”
(Pen. Code, § 745, subds. (a)(2), (h)(4).)
Although the RJA was enacted decades after Bankston
was tried, subsequent statutory amendments make clear that
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