# People v. Lewis

> California Supreme Court · August 24, 2006 · 47 Cal. Rptr. 3d 467

URL: https://www.frixlaw.com/law-library/cases/2599880

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. ALBERT LEWIS and ANTHONY CEDRIC OLIVER, Defendants and Appellants
- **Court:** California Supreme Court
- **Decided:** August 24, 2006
- **Citations:** 47 Cal. Rptr. 3d 467; 39 Cal. 4th 970; 2006 Daily Journal DAR 11291; 140 P.3d 775; 2006 Cal. Daily Op. Serv. 7847; 2006 Cal. LEXIS 9974
- **Precedential status:** Published
- **Opinion:** Opinion by Baxter
- **Judges:** Baxter
- **Cited by:** 334 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2599880

## How later opinions describe it (automated extraction)

- observing criminal defendants sometimes assert the right of self-representation for the purpose of "plant[ing] reversible error in the record

## Opinion text

Opinion
BAXTER, J.
A Los Angeles County jury convicted Albert Lewis and Anthony Cedric Oliver (defendants or Lewis and Oliver) of the first degree murders of Patrinella Luke and Eddie Mae Lee, and of the attempted murder of Peter Luke. (Pen. Code, §§ 187, subd. (a), 664.)
1
The jury sustained allegations that defendants were armed with a firearm (shotgun), personally used a firearm, and personally inflicted great bodily injury in committing the charged crimes. (§§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.7.) The jury further found true a multiple-murder special-circumstance allegation against each defendant. (§ 190.2, subd. (a)(3).) After a penalty trial, the jury returned a verdict of death against both defendants. The court denied defendants’ motions for a new trial (§ 1181) and to modify the penalty verdict (§ 190.4, subd. (e)), and sentenced them to death. The present appeal is automatic. (§ 1239, subd. (b).)
The judgment will be affirmed in its entirety.
2
I. FACTS
A.
Guilt Phase
Two gunmen, each carrying a shotgun and hooded and dressed in black, raided the Mount Olive Church of God in Christ in Los Angeles on July 21, 1989. While one assailant stood guard and shot at a bystander outside, the other one entered and shot three churchgoers, two of whom died. Defendants were jointly charged with the crimes. They were tried in a single proceeding
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before the same jury. Oliver was 27 years old at the time of the capital crime. His half brother, Lewis, was 33 years old at the time.
1.
Prosecution Case
The prosecution presented evidence that Lewis, embittered toward his estranged wife, Cynthia Mizell, mounted an escalating campaign of terror against her and her family. It culminated in the murder of her cousin, Patrinella Luke, the wounding and near-killing of Peter Luke, who was Patrinella’s husband, and the killing of Eddie Mae Lee, a friend of Mizell’s. The evidence also showed that Oliver joined in the campaign of terror and personally committed the murders.
Lewis met Mizell in 1985. At the time, Mizell lived with her parents, Iva Worthen and Edward Worthen, in a four-unit apartment house on 77th Street in Los Angeles. Other family members lived in the same building. They included Mizell’s aunt, Betty Bates.
When Mizell and Lewis met, he was living with Jeanett Hudson a short distance away on 77th Street. Lewis told Mizell that Hudson was a friend who, along with her daughter, was staying with him. In fact, Lewis was married to Hudson.
Lewis and Mizell married on June 25, 1988, in a wedding ceremony at the Mount Olive Church. Afterwards, the couple moved to a house on 117th Street. Lewis, who stayed married to Hudson without Mizell’s knowledge, soon began to abuse Mizell. In September 1988, he attacked her with a knife, drawing blood, and threatened to kill her. Mizell moved out. Lewis asked her to return to their house. She complied.
In February 1989, Lewis, wearing a black “ninja”-style suit, attacked Mizell in their kitchen. He ordered her to leave, but apparently changed his mind and said that if she did so, he would kill everyone living in her family’s apartment house. Mizell stayed.
In March 1989, Mizell moved out, but continued to see Lewis. One night during that month, Lewis met Mizell after her church choir practice. He drove her to an alley, held a knife to her throat, and threatened to kill her. He then drove her to her parents’ home. Thereafter, he called and asked her to return to their house. In June 1989, she complied out of fear for her family’s safety.
On June 22, 1989, Lewis and Mizell were living together. She complained to him about forgetting her birthday. He responded by slapping and choking
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her, and threatening to kill her. On June 25, shortly after this violent episode, Oliver moved into the couple’s house, where he stayed until July 4. While there, Oliver was able to view Lewis and Mizell’s wedding album. It contained pictures of her friends and relatives, and would have allowed him to memorize their likenesses.
Oliver told Mizell that Lewis was still married to Hudson. Mizell obtained Lewis and Hudson’s marriage certificate from authorities in Las Vegas, Nevada, and confirmed that her own marriage was unlawful by reason of Lewis’s existing marriage to Hudson. (See § 281.) Mizell ended her relationship with Lewis on July 18, 1989. She moved out of their home on that day, three days before the killings. Oliver helped her to move out.
Mizell’s departure triggered threats of retaliation from Lewis. In a phone call on the evening of July 18, he promised to kill her. At some point the same day, Lewis bought a 12-gauge Mossberg shotgun and Winchester shotgun shells. That night, at 10:00 p.m., he rented a red Mustang automobile.
3
On the night of July 18, Mizell stayed at the 77th Street apartment of her parents in a state of fear. Mizell and her mother, Iva Worthen, were in the residence early on the morning of July 19, when someone torched Worthen’s automobile, a 1984 Ford Tempo. It was parked on the street outside. Defendants knew that Mizell sometimes drove the Ford. According to prosecution witnesses, a neighbor, Barbara Johnson, had seen the arsonist and described him as a Black male driving a red Mustang.
Later in the day on July 19, 1989, Mizell enlisted the help of the police to retrieve her automobile, a maroon Datsun 200SX, from the home she had shared with Lewis. Her car was blocked by another vehicle. The police extracted Oliver from the house, drawing their guns on him at one point. He was furious with Mizell, saying, in her words, “You let the police in on me.” Mizell’s mother, Iva Worthen, was present. She described Oliver as “very, very upset and shouting and ranting and raving and . . . cursing.” Oliver left the scene in a red Mustang that Mizell did not recognize.
4
A license plate check revealed that the Mustang was registered to the Hertz Corporation. One police officer, Bret Richards, testified that he saw a pair of black leather gloves inside the Mustang.
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Also on July 19, Mizell obtained a temporary restraining order against Lewis. The order directed him to stay away from her, many of her relatives (each identified by name), and the Mount Olive Church. The order was served on Lewis on July 22, 1989, the day after the killings. It was entered into evidence by stipulation.
On July 20, 1989, someone used a firearm to vandalize a new Buick Skylark automobile belonging to Betty Bates, Mizell’s aunt. The windows of the Buick were shot out by shotgun blasts. Shell casings found at the scene came from rounds fired from Lewis’s Mossberg shotgun.
In response to these events, Mizell and several relatives decided to go to Las Vegas for their own safety. These plans were disclosed to few other people. The family left on the morning of July 21, 1989, and was in Las Vegas when the murders occurred in Los Angeles. Shortly before the family’s trip, the fire department called and told Iva Worthen that Mizell’s Datsun 200SX automobile had been destroyed by fire. Fire department investigators testified that the car fire had been deliberately set.
The murders took place on Friday evening, July 21, 1989, in the annex of the Mount Olive Church. Mizell and Lewis, and Mizell’s family, regularly attended services at the church. Oliver had no ties to the church and never went there. Mizell, who had been the church organist for some time, ordinarily performed on Friday nights between 7:30 and 9:30 p.m. in the annex. Had she and her family not fled to Las Vegas, they would have been present for the services that evening.
About 70 people were in attendance, including 30 children. Two parishioners, Melvin Earl Johnson and Ruth Johnson, waited outside the church around 8:30 p.m. for Melvin Johnson’s daughter and niece to emerge. Another parishioner, Larry Brown, also was outside. These witnesses saw two Black men wearing dark clothing and hoods, and carrying shotguns—one with a pistol grip. The pair came from a car that had circled nearby moments before with its headlights off. It was dark outside at the time.
The taller, heavier, and darker man (Oliver) approached the porch of the church, and covered his face with a hood or mask. Oliver, in his black clothing and armed with a shotgun, confronted Brown, who jumped over a ledge and bolted away in fear of his life. The smaller, lighter-skinned gunman (Lewis) was standing guard with his own shotgun. He shot twice at Brown, missing him.
Oliver entered the church while Lewis stood guard outside with his shotgun. Oliver walked calmly up and down the aisle and seemed to be
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looking for particular worshipers. He wore black gloves with all or part of the fingers removed. Though Mizell and certain family members were out of town, other relatives and friends were present. Oliver shot and killed Mizell’s cousin, 35-year-old Patrinella Luke, by inflicting a head wound at close range. Oliver also killed 76-year-old Eddie Mae Lee, Mizell’s friend, shooting her in the back as she tried to flee. Oliver shot and wounded Patrinella’s husband, Peter Luke, who suffered permanent, severe, and painful injuries as a result. Oliver then “calmly walked out like [there] was nothing to it,” according to one witness, Vivian Worthen. Vivian Worthen was Patrinella Luke’s mother and Mizell’s aunt.
Detective Richard Aldahl led the investigation. He found two Winchester 12-gauge shotgun shell casings outside the church where shots were fired at parishioner Brown. Three more 12-gauge shotgun shells were found inside the church, including one Charles Daly shell. Shortly after the crimes, Mizell and other family members identified defendants as suspects to Detective Aldahl. Aldahl and his partner, Larry D. Bird, sought a warrant to search Lewis’s home for shotguns, ammunition, and black clothing.
Meanwhile, Detective Jerry Lee Brooks performed surveillance duties. He arrested defendants on July 24, 1989, three days after the murders.
Specifically, Detective Brooks caught Lewis as he tried to leave his house with the barrel of the disassembled Mossberg shotgun. Executing the search warrant, Detective Frank Garcia found the Mossberg receiver inside Lewis’s house. During the same search, Garcia and other detectives recovered black clothing items that included a “ninja” suit and hooded sweatshirt. Other evidence found in Lewis’s house included a pair of black leather gloves with the fingers removed, a directory for the Mount Olive Church, an owner’s manual for the Mossberg shotgun, and the restraining order that Mizell had served on Lewis.
Shortly after arresting Lewis, Detective Brooks arrested Oliver. At the time, Oliver was spotted in Lewis’s yard, where he had jumped a fence and possibly tried to flee. After obtaining certain information from defendants’ neighbor, discussed below, Detective Aldahl obtained a warrant to search a Chevrolet Monte Carlo to which Oliver had the keys. Inside the trunk, police found a fully loaded Savage model shotgun, with a pistol grip, and a Winchester ammunition box containing 12-gauge shotgun shells. There were 10 unexpended Winchester shells, one unexpended Charles Daly shell, and one expended Charles Daly shell. The trunk of the car also contained a black jacket.
Gunshot residue was detected on the black “ninja” suit taken from Lewis’s house and on the black jacket taken from Oliver’s Monte Carlo. Ballistics
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tests established that the two Winchester shells found outside the church, expended in the attempt to shoot Larry Brown, were discharged by Lewis’s Mossberg shotgun. Testing also established that the three expended shells retrieved from inside the church (one a Charles Daly) were fired by the Savage shotgun that Oliver possessed. Forensic analysis further revealed several impressions of Oliver’s right palm print on the Savage shotgun.
Louise Holt, a neighbor of defendants, testified that on July 23, 1989, two days after the capital crime, Oliver took a shotgun from the trunk of his Monte Carlo, brandished it at her, and threatened to kill her and her 14-year-old daughter. He had argued with Holt’s daughter, and Holt confronted him.
Lewis’s supervisor at work, Gerald Dickinson, testified that Lewis expressed anger after the July 19, 1989, incident in which the police extracted Oliver from the Lewis home. On the day of the murders, Dickinson noticed that Lewis drove a gold Nissan Maxima, rather than his usual car. When asked why, Lewis replied that he had rented a car because he did not want to be seen in his own motor vehicle. The day after the murders, on July 22, 1989, Lewis told Dickinson that he would be accused of committing the killings, and that Iva Worthen’s automobile had been torched. Regarding the latter act, Lewis told Dickinson, “No one can say they saw me do it.” That was also the day on which Lewis was served with Mizell’s temporary restraining order. Lewis showed Dickinson the document, which ordered him to avoid contact with Mizell’s relatives. Lewis blamed them for his marital problems.
2.
Defense Case
Lewis presented no evidence. For Oliver, Lee Smith, a fingerprint expert, testified as follows. The palm prints linked to Oliver on the Savage shotgun were consistent with his having handled the weapon, but not fired it. However, the palm prints were consistent with someone loading the shotgun. The shooter’s use of gloves would explain the lack of additional palm prints on the gun. Prints would not be left in the “shooting position” by someone wearing gloves.
Maggie Crenshaw, a neighbor of defendants, in July 1989, testified that she saw Oliver’s Monte Carlo arrive to the area by tow truck. She never saw Oliver drive it. However, she did see him work on the car. Crenshaw also had heard on the television news that a reward, possibly of $5,000, could be obtained for information about the murders.
Patricia James, Oliver’s older half sister, testified, among other things, that Oliver’s hair at trial was similar, but somewhat shorter, than when the crimes
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occurred, and that he had facial hair in July 1989. James had heard a televised report of a reward for information about the murders.
Detective Aldahl testified that Melvin Johnson had reviewed a “six-pack” photographic lineup that included Oliver’s photograph, but could not identify him. Johnson also could not eliminate Oliver as the gunman who entered the church. According to Aldahl, a small pair of pants, waist size 31 inches, was found in the trunk of Oliver’s Monte Carlo. At the time of his arrest, Oliver weighed 207 pounds, and was five feet 11 inches tall. No reward was offered in the case, and no one ever asked Aldahl about a reward.
The parishioner accosted on the church porch, Larry Brown, testified that the man in the alley (Lewis) could have been Hispanic or Black, and that the armed man entering the church seemed smaller than Oliver, who weighed about 207 pounds at the time of the murders and 277 pounds during pretrial proceedings. Brown knew Lewis but did not recognize him as the gunman in the alley who shot at him. At the time, however, Brown was fleeing from the shotgun-wielding Oliver and did not register many details about Lewis. Moreover, Brown accurately described the assailants’ relative height, weight, and complexion. Brown had also heard rumors of a reward for information about the murders.
B.
Penalty Phase
1.
Prosecution Case
a.
Oliver’s Other Violent Crimes
In early October 1986, Oliver committed a strong-arm robbery, taking $120 from Melvin Lee. Later that month, Oliver burglarized Lee’s house by kicking open the front door, choking Lee, and taking his sister’s television. On another occasion at the same place, Oliver assaulted one James Green, who moved out of Lee’s residence after Oliver’s attack.
b.
Oliver’s Prior Felony Convictions
The parties stipulated to the admission of Oliver’s prior felony convictions for the robberies of Melvin Lee in October 1986, the grand theft of an automobile in August 1984, and an armed robbery committed in December 1981. Oliver was sentenced to prison for these crimes.
c.
Oliver’s Misconduct in Prison
In November 1984, while incarcerated in the California Institution for Men, Chino, Oliver was confined in a unit reserved for inmates with
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disciplinary problems or in protective custody. He threw a carton of milk and coffee at Richard Valiente, the correctional officer serving a meal. Immediately beforehand, when the officer displayed a paper plate, Oliver had said, “I ought to throw this food at you.” The coffee was hot, and it would have hit the officer had he not dodged it. Afterwards, Oliver said, “If I had any more food, I would throw that on you, too.”
Sergeant Royal Towns testified that staff found a plastic shank, or knife, in Oliver’s possession at San Quentin Prison in March 1985. It was located in a shampoo bottle in the rear of Oliver’s cell. At the time, he was single-celled in a secure unit for high-profile inmates, such as gang members. The weapon was almost two inches wide, and sharpened to a point. Towns testified that inmates favored plastic weapons because they do not activate prison metal detectors.
d.
Oliver’s Misconduct in Jail
In January 1990, Oliver saw another Los Angeles County jail inmate, Joseph Odem, rifling through his belongings and attacked him. Oliver told deputies that he “beat the shit out of’ Odem. Oliver did, however, summon help for Odem.
In February 1991, Oliver flung a typewriter at another inmate in the Los Angeles County jail law library. Oliver then grabbed the sharp-edged typewriter cover, which had detached from the typewriter, and chased the other inmate with it. The pair scuffled. Oliver punched the inmate in the head. Oliver also lunged at him with the metal cover while being restrained by deputies. Oliver ignored deputies’ orders to stop fighting. Sheriff’s Deputy Pete Cacheiro testified that at the time of the incident, both Oliver and his victim were housed in a special unit reserved for inmates with prior violent histories in jail.
In April 1991, four Los Angeles County sheriff’s deputies escorted Oliver to the attorney visiting room at the county jail. The number of escorts was extraordinary, and was required because of Oliver’s history of violence. Oliver threatened, cursed, and resisted deputies the entire time. Oliver kicked one of the deputies in the knee.
e.
Lewis’s Domestic Violence
Jeanett Hudson was already married to Lewis when he “married” Mizell. Hudson testified that, during their relationship, Lewis grew increasingly violent. He pushed and punched her. He threatened her life at knifepoint on
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one occasion, and caused her to lose consciousness another time. Once, after she fled from him, he apparently feigned suicide to induce her return.
In November 1981, following a severe beating, Hudson moved out. She went to her parents’ house, taking her young daughter with her. In the following days, numerous phone calls from Lewis or both defendants contained threats to kill Hudson and her family. For example, Oliver announced that “all of [them] . . . were going to die.” In the same period, Hudson’s parents’ house was shot at, as was Hudson’s car. The shooting of the house was particularly terrifying, Hudson testified. There were six adults and two preteen children in the house. As the shots penetrated the house, the children were placed in the bathtub and the adults lay on the floor and slept there that night. More phone calls followed, containing laughter. Thereafter, the house was shot up again. Hudson described “gunfire [coming] from everywhere.” She testified that the “[h]ouse was full of smoke. You could hear the kids crying, everybody laying on the floor.” The family quickly fled Los Angeles. On December 11, 1981, another house belonging to Hudson’s parents was destroyed by the second of two deliberately set fires. Lewis later admitted to Hudson that he had done the shootings of the house and car. Hudson’s sister, Nadine Burchett, testified that, around the same time, she received telephone calls at work from both Lewis and Oliver saying they were going to find Hudson and her family and kill them.
Despite all of this, Hudson married Lewis in March 1982. She was still married to him when she testified.
On July 21, 1989, the night of the murders, Lewis and Oliver arrived at Hudson’s home. They were dressed in black clothing, some of which they removed. They showed Hudson two shotguns in the trunk of an apparent rental car. Lewis wanted to store the guns in Hudson’s house. She refused, but allowed him to place them in the trunk of her car. Defendants left in a hurry, saying they needed to return the car to the rental agency. Later, the police questioned Hudson. She furnished a false alibi for Lewis, saying they were watching television when the murders occurred. She did so because she feared Lewis more than the police. When Hudson declined to provide a false alibi for the capital crimes at trial, Lewis threatened to kill her.
f.
Victim Impact Evidence
Relatives and friends testified briefly about the victims’ loving and caring natures, and the grief and loss their deaths had caused.
Ouida Faye Mitchell was the daughter of Eddie Mae Lee. Mitchell praised Lee as a mother, and said she was an important presence in her grandchildren’s lives. Lee was dedicated to the church. The congregation recruited five
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volunteers to do her charity work after her death. Lee spoke to skid row residents about her faith, and delivered blankets and food. She also visited convalescent homes, and cared for sick people in their own homes.
Dora Ballard was a close friend of the victims. She testified that the impact of their deaths was immeasurable. She confirmed Lee’s prodigious work in the community, and described Patrinella Luke as a gifted and talented singer with the potential for a “wonderful future.”
Patrinella Luke’s mother, Vivian Worthen, and son, Peter Luke, Jr., saw the shootings inside the church. Worthen testified that everyone loved Patrinella Luke, who had a beautiful voice and was a good homemaker. Peter Luke, Jr., loved his mother very much and had experienced difficulty in school since her death. He could not stop thinking about her and the murders. Four years later, he continued to dream about her and cry over her death.
Peter Luke (Peter Luke, Sr.) was the husband of murder victim Patrinella Luke, and a shooting victim. He described Patrinella as “a beautiful person, very vibrant.” He testified that her death had been hard on their son, Peter Luke, Jr. The shooting also had deprived the son of a father who could engage in activities with him. Peter Luke, Sr., asked jurors to “do the right thing.”
Nobody testified for more than five minutes. The prosecutor played a short videotape of Eddie Mae Lee and Patrinella Luke in church.
2.
Defense Case
Lewis’s sister, Patricia James, testified that their father was diagnosed as a paranoid schizophrenic when Lewis was very young, and was continually hospitalized in the 1950’s and 1960’s. Lewis’s father seemed to be supematurally strong. He heard voices and behaved violently when not hospitalized or medicated. He would sometimes hit Lewis. Nevertheless, when Lewis was older, he tried to help his father with his mental illness. The father lived in Lewis’s house for a year and a half, where Lewis cared for him.
James further testified that the family consisted of 10 children by five different fathers. Both the youngest sibling and Oliver’s father had been in prison. The sibling was still incarcerated and used a wheelchair. Oliver’s father was a “true to life swindler.” In the 1960’s, their mother suffered a stroke. After the mother’s stroke, the children stayed with relatives. Their mother died of breast cancer. One of the mother’s husbands was an abusive alcoholic. Lewis accidentally shot Oliver when Oliver was about age nine. Oliver was treated at a mental hospital as a boy.
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Dr. Alvin E. Davis, a psychiatrist, examined Lewis on four occasions for a total of six hours in preparation for trial. He diagnosed him as having severe paranoid personality disorder and recurrent episodes of depression. Dr. Davis explained to the jury that Lewis’s behavior throughout his life, including his treatment of his wives, was not surprising in light of his paranoia. Dr. Davis also testified that, while Lewis might think he was malingering or feigning mental disorders at various points in the trial, he was only fooling himself, as his disorders were real. Like Patricia James, Lewis’s sister, Dr. Davis testified that Lewis’s father had been diagnosed as a paranoid schizophrenic decades before, and that Lewis’s father would beat him for no reason.
Defendants’ first cousin, Brenda Roxie Wilson, and their second cousin, Lana Luvercie Moore Bastien, each asked the jury to spare defendants’ lives. This testimony was the sole mitigation Oliver offered.
The parties stipulated that Oliver was stabbed by another inmate in jail midway through the trial. The jury learned that Oliver sustained more than 40 stab wounds, and that he suffered various ailments as a result (stroke, pneumonia, punctured lung, mild brain damage causing some speech impairment, partial paralysis of lower left leg, and residual lung infection).
H. PRETRIAL ISSUES
A.
Failure to Challenge Search Warrant; Ineffective Assistance (Lewis)
Lewis contends he received constitutionally deficient representation because counsel did not move before trial to exclude evidence retrieved from his home, to wit, the Mossberg shotgun and owner’s manual, and articles of black clothing that tested positive for gunshot residue. Counsel should have tried to quash the search warrant, Lewis claims, because the affidavit supporting it contained false statements. Specifically, he asserts the warrant affidavit falsely attributed to Mizell a statement that Lewis “possesse[d] a long rifle or shotgun.” Lewis relies on police interview statements and on preliminary hearing testimony indicating that Mizell never saw or knew about any shotguns in Lewis’s possession.
Ineffective assistance of counsel under the Sixth Amendment requires deficient performance under an objective standard of professional reasonableness. It also entails prejudice under a test of reasonable probability of an adverse effect on the outcome.
(Strickland v. Washington
(1984) 466 U.S. 668, 687-688, 694 [ 80 L.Ed.2d 674 , 104 S.Ct. 2052 ].)
In addition, “a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of
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the issuance of a search warrant. . . . [T]he lower court must conduct an evidentiary hearing [only if] a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth, and (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause. . . . Innocent or negligent misrepresentations will not defeat a warrant. [Citation.] ‘Moreover, “there is a presumption of validity with respect to the affidavit. . . .” ’ ”
(People v. Panah
(2005) 35 Cal.4th 395, 456 [ 25 Cal.Rptr.3d 672 , 107 P.3d 790 ], citing
Franks v. Delaware
(1978) 438 U.S. 154 [ 57 L.Ed.2d 667 , 98 S.Ct. 2674 ]; accord,
People
v.
Bradford
(1997) 15 Cal.4th 1229, 1297 [ 65 Cal.Rptr.2d 145 , 939 P.2d 259 ]; see
People v. Luttenberger
(1990) 50 Cal.3d 1, 9-10 [ 265 Cal.Rptr. 690 , 784 P.2d 633 ].)
As pertinent here, the police executed a search warrant of Lewis’s home. The warrant authorized the seizure of, among other things, any 12-gauge shotguns, shotgun ammunition, and black clothing. The police found such clothing, which came into evidence. At the time of Lewis’s arrest, he was carrying the barrel of the Mossberg shotgun. The rest of the gun was recovered on Lewis’s bed during service of the search warrant. In the challenged affidavit, Detective Bird stated that two people had been murdered by shotgun blasts. The affidavit also described accounts of the clothing the assailants wore, and explained that Mizell, the intended murder victim, told police that Lewis “possesses a long rifle or shotgun, along with a black Ninja suit complete with hood.”
In arguing that the affidavit contained false statements, Lewis observes that Mizell did not mention Lewis’s possession of any kind of gun to police in a statement she gave shortly after the murders. He also observes that she testified at the preliminary hearing that he did not have a shotgun in the house. However, Lewis has not shown that Detective Bird lied about what Mizell said concerning long guns in Lewis’s possession. Nor has Lewis shown that the detective knew Mizell was lying or mistaken, even assuming her statement to him was untrue. Under
Franks
v.
Delaware, supra,
438 U.S. 154 , and its progeny, the showing is insufficient.
(People v. Panah, supra,
35 Cal.4th 395, 456 .)
Lewis further fails to establish that any deficient performance was prejudicial or that the result would have changed had counsel acted differently. The alleged falsehood was neither “necessary”
(Franks v. Delaware, supra,
438 U.S. 154, 156 ) nor “material”
(People v. Bradford, supra,
15 Cal.4th 1229, 1297 ) to the probable cause finding. The affidavit amply justified the search of Lewis’s house. In addition to Lewis’s history of violence against Mizell and her family, including her aunt, Betty Bates, the affidavit alleged that (1) a small gray or silver car similar to Lewis’s car was seen at both the
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Bates Buick shooting and the church, (2) expended Winchester 12-gauge shotgun shells were found at both the Bates shooting and the church, and (3) Lewis owned a black, hooded “ninja” suit. We find no ineffective assistance.
B.
Motion to Dismiss the Information (Lewis, Oliver)
Defendants contend the information should have been dismissed based on their motion for insufficient evidence to commit them to superior court for trial. (§ 995.) They challenge the trial court’s ruling under state law, and claim it had the additional legal consequence of denying them due process under both the Fourteenth Amendment and parallel provisions of the state Constitution.
5
The information was filed on December 21, 1989, and amended on February 21, 1990. On August 21, 1990, Lewis moved to set aside the information for insufficient evidence—a motion that Oliver joined. At a hearing on August 24, 1990, Lewis admitted that' the motion lacked an adequate recitation of the relevant facts, and asked informally for a delay in adjudicating it. The trial court decided to proceed. It denied the motion, but offered to reconsider its ruling if defendants presented new reasons to do so. Defendants failed to renew the motion.
Irregularities in pretrial commitment proceedings that are not jurisdictional in the fundamental sense require reversal on appeal only where the defendant shows he was deprived of due process or suffered prejudice as a result.
(People v. Millwee
(1998) 18 Cal.4th 96, 121 [ 74 Cal.Rptr.2d 418 , 954 P.2d 990 ], citing
People v. Pompa-Ortiz
(1980) 27 Cal.3d 519, 529 [ 165 Cal.Rptr. 851 , 612 P.2d 941 ].) Errors in the denial of a section 995 motion
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claiming insufficiency of the evidence are not jurisdictional in the fundamental sense. (See, e.g.,
People v. Mattson
(1990) 50 Cal.3d 826, 870 [ 268 Cal.Rptr. 802 , 789 P.2d 983 ].) Thus, even assuming defendants have not forfeited their claim by abandoning their pretrial efforts to dismiss the case, they have not shown any prejudice warranting relief. As we shall discuss, the evidence was sufficient to support the guilt verdict.
C. Pitchess
Discovery Motion (Lewis)
Lewis argues that the trial court wrongly denied his motion to discover information in police personnel files under
Pitchess v. Superior Court
(1974) 11 Cal.3d 531 [ 113 Cal.Rptr. 897 , 522 P.2d 305 ]
(Pitchess).
He insists the error had the additional legal consequence of violating his right to due process under the Fifth Amendment, and that it violated his right to compulsory process under the Sixth Amendment.
Because “[a] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct”
( Partida, supra,
37 Cal.4th 428, 435 ), the compulsory process claim is forfeited.
(Ibid.)
We also find no state law error.
Representing himself, Lewis filed two motions to discover information in the personnel files of several investigators, including Detectives Richard Aldahl and Jerry Lee Brooks. Both times, Lewis alleged that the detectives were involved in a conspiracy with Mizell to steal $10,000 and to murder him. He claimed they attempted to murder him by using excessive force during his arrest that would provoke him into defending himself, and that would allow them to apply lethal force in return. He also alleged that the officers were violent men generally, and that they were conspiring to frame him for murders he did not commit.
In Lewis’s first
Pitchess
motion, filed on April 18, 1991, he attached what appears to be a photograph of himself when he was booked for the murders. (He claims it shows he was beaten—a circumstance we do not discern from copies of the photograph in the record.) Also attached to Lewis’s motion were photocopies of newspaper articles reporting allegations or episodes of police misconduct in unrelated cases. The trial court held a hearing on the motion on May 31, 1991. The court denied the motion because Lewis failed to include a police report, as statutorily required. (See Evid. Code, § 1046.)
On June 4, 1991, Lewis filed a second
Pitchess
motion. This time he included the required police report among the attachments, and excluded the booking photograph. The hearing on the second motion occurred on July 19, 1991. The trial court indicated that it had carefully reviewed the moving
*992
papers. Ultimately, it found no prima facie evidence of a police conspiracy, and no basis for an in camera review of the requested personnel records. The court viewed the discovery request as a “fishing expedition,” and said it was “miserably” supported.
We review the trial court’s ruling for an abuse of discretion.
( Pitchess, supra,
11 Cal.3d 531, 535 .) None appears. Lewis did not show that a police conspiracy to murder or frame him “could or might have occurred.”
(Warrick v. Superior Court
(2005) 35 Cal.4th 1011, 1016 [ 29 Cal.Rptr.3d 2 , 112 P.3d 2 ]; see
id.
at p. 1026.) Lewis’s moving papers alleged one or more grandiose conspiracies to frame and murder him. The trial court did not abuse its discretion in concluding that Lewis did not meet the standard for permitting discovery of information from police personnel files.
D.
Judicial Bias Claim (Lewis)
Lewis claims he was denied due process and an impartial judge under the Fifth and Fourteenth Amendments. (See
Tumey v. Ohio
(1927) 273 U.S. 510 [ 71 L.Ed. 749 , 47 S.Ct. 437 ].) We disagree.
By way of background, Lewis filed three disqualification motions in propria persona during the long interval between the filing of the information in December 1989 and the start of jury selection in January 1993. On August 15, 1991, Lewis filed a disqualification motion invoking Code of Civil Procedure section 170.1. On January 6, 1992, Lewis filed a disqualification motion invoking Code of Civil Procedure section 170.6. On December 9, 1992, Lewis orally presented another disqualification motion invoking Code of Civil Procedure section 170.1. At bottom, he claimed the trial court (Judge Jacqueline A. Connor) systematically favored the prosecution due to a bias against parties appearing in propria persona. He also complained about the denial of his
Pitchess
motions.
All three disqualification motions were denied. Proceedings were suspended after the first motion. A judge appointed by the Judicial Council (Orange County Superior Court Judge James L. Smith) found no bias on the part of the trial court. The superior court denied the second motion as untimely, and denied the third motion as lacking a sufficient factual basis. Defendant petitioned for a writ of mandate after the second motion. The Court of Appeal denied that petition as untimely. He also sought a writ of mandate after the third motion. The Court of Appeal denied that petition “for absence of facts and record showing entitlement to extraordinary relief.”
Lewis now asserts, for the first time, that the trial court showed bias in (1) making evidentiary rulings unfavorable to the defense, such as excluding
*993
a plastic bag containing a cocaine-like powder found at the crime scene, (2) mishandling
Marsden
issues (see
People v. Marsden
(1970) 2 Cal.3d 118 [ 84 Cal.Rptr. 156 , 465 P.2d 44 ]
(Marsden)),
(3) making negative comments about Lewis’s efforts to delay the trial and feign mental illness, and (4) mishandling Lewis’s mental competence to stand trial. All such matters touch on substantive claims addressed later in this discussion. Meanwhile, in resolving the claim of judicial bias, we summarize the relevant facts as follows.
Following pretrial hearings in April and October 1992, the trial court rejected defense efforts to admit a plastic bag containing a cocaine-like substance found in the Mount Olive Church after the capital crime. Initially, the court posited that if defendants’ fingerprints were not found on the bag, and the bag was found to contain cocaine, the bag could come into evidence to advance a theory, otherwise poorly supported, that someone else committed the murders and left cocaine at the crime scene. The defense checked the bag for fingerprints, but never sought to have the contents tested. The court ruled the evidence was irrelevant and therefore inadmissible.
On February 2, 1993, near the close of the prosecution’s guilt case-in-chief, Lewis presented a
Marsden
motion. By then, Richard Leonard had represented Lewis either as counsel or advisory counsel for over two years. During that time, and as discussed later, Lewis vacillated between professional representation and self-representation. Hence, much like a brawl that defendants had caused in the courtroom the previous day, on February 1, the trial court apparently viewed the
Marsden
motion as another effort to delay the jury verdict.
6
The trial court emphasized that, aside from the courtroom brawl, Lewis had largely cooperated with, and behaved well toward, counsel. In denying the motion, the court relied, in part, on Lewis’s apparent attempt to generate conflict and distrust by physically attacking counsel late in the case. Near the end of the
Marsden
hearing, Lewis declined to speak further and refused to remain in the courtroom.
On February 10, 1993, the day before the guilt verdict, the court noted outside the jury’s presence that Lewis had “made an ineffectual attempt to injure himself,” and that Lewis seemed to be trying to delay the proceedings
*994
with disruptive behavior. On February 22, 1993, the trial court faced the issue of Lewis’s mental competence between the guilt and penalty phases. The court commented on the “creative array [of] talents he has for delay.”
Finally, Lewis’s counsel, the trial court, and the prosecutor all believed that Lewis was competent to stand trial. Each indicated at times that various outbursts, including Lewis and Oliver’s assault on counsel, were feigned attempts to persuade the court and the jury of mental illness that did not exist. For instance, the court commented that Lewis “behaved inappropriately, [but] there was no indication of any mental impairment observed by my deputies or anybody here in this courtroom, including myself.”
When the foregoing events occurred, Lewis did not call the trial court’s attention to the comments and rulings he now cites as evidence of judicial bias. In general, if the trial court refuses or fails to disqualify itself, the complaining party must seek disqualification at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification. In doing so, the party must bring to the trial court’s attention “all of the facts” later cited on appeal in support of the judicial bias claim.
(People v. Guerra
(2006) 37 Cal.4th 1067, 1111 [ 40 Cal.Rptr.3d 118 , 129 P.3d 321 ].) By failing to do so when the relevant events occurred, Lewis has forfeited the right to complain about them on appeal.
(Ibid.)
For similar reasons, he has lost any additional claims that the trial court’s alleged bias affected subsequent rulings. (Ibid.; cf.
People v. Harris
(2005) 37 Cal.4th 310, 346 [ 33 Cal.Rptr.3d 509 , 118 P.3d 545 ] [declining to decide similar forfeiture issue when the substantive claim “lacks merit”];
People v. Brown
(1993) 6 Cal.4th 322 , 334—335 [ 24 Cal.Rptr.2d 710 , 862 P.2d 710 ] [suggesting defendant may claim on appeal that judgment is constitutionally invalid due to judicial bias].)
In any event, we see no violation of Lewis’s right to be tried before an impartial judge. As we later explain, the court correctly applied the law in excluding evidence of the “baggie” containing “cocaine.” It made this ruling only after giving the defense ample opportunity to show relevance. Regarding the
Marsden
motion, the court reasonably found no actual breakdown in the attorney-client relationship. Again, it gave Lewis a fair chance to show the opposite was true. Finally, the comments suggesting Lewis was feigning mental incompetence, and had used outbursts and other tactics to manipulate and delay the proceedings, did not suggest that the court had prejudged competence or could not be fair. Such observations were supported by the record, including expert testimony introduced at a hearing on Lewis’s competence. The bias claim fails on the merits.
*995
E.
Motion for Eyewitness Identification Expert (Lewis)
Lewis challenges the pretrial denial of funds to retain an expert witness on eyewitness identification. He insists the ruling violated state law, and that it had the additional legal consequence of violating his right to due process and to present a defense under the Sixth and Fourteenth Amendments, and under parallel provisions of the state Constitution. As explained further below, a claim of ineffective assistance of counsel also is raised. We see no basis for relief.
On October 19, 1991, Lewis moved in propria persona under section 987.9 for funds to retain Dr. Elizabeth Loftus as an expert on eyewitness identification (I.D.). Lewis wanted Dr. Loftus to examine several potential eyewitnesses. At a hearing on October 28, 1991, Los Angeles County Superior Court Judge Gary Klausner, who was not the trial judge, denied the request. Judge Klausner doubted that Dr. Loftus was available for appointment or that the proposed testimony would be admitted at trial. He realized, however, that those issues were not before him, and that only funding for. an identification expert was raised. Judge Klausner ruled that if “the trial court decides I.D. testimony would be admissible and says that it is appropriate to [appoint] an I.D. expert,” then he “would go ahead and appoint him.” Hence, Judge Kausner denied the motion without prejudice. It appears that neither Lewis, while acting in propria persona, nor appointed counsel, when later reinstated, sought a ruling from the trial judge on the admissibility of the proposed testimony.
Anticipating the Attorney General’s forfeiture claim, Lewis suggests it does not matter whether he followed Judge Kausner’s advice and sought an advance ruling from the trial judge on the admissibility of the proposed testimony. Rather, in Lewis’s view, Judge Kausner’s ruling was erroneous because it forced Lewis to litigate admissibility before being able to retain and consult with the expert, and without being able to formulate an offer of proof. Lewis also claims compliance with the funds ruling would have required him to disclose confidential information to the trial court. Finally, Lewis faults counsel for not offering exculpatory expert identification testimony at trial in any event.
No prejudicial error or ineffective assistance occurred. Expert testimony on the psychological factors affecting eyewitness identification is often unnecessary. For this reason, the trial court’s discretion regulating its use is rarely disturbed.
(People v. McDonald
(1984) 37 Cal.3d 351, 377 [ 208 Cal.Rptr. 236 , 690 P.2d 709 ].) Consistent with these principles, Lewis has not shown that such testimony would have made a difference here. No witness identified the masked perpetrators. The prosecution relied on circumstantial
*996
evidence showing defendants’ motive, intent, and opportunity to commit the crime, and their consciousness of guilt afterwards. Oliver called Larry Brown. Oliver stressed that neither Brown nor Melvin or Ruth Johnson was able to identify defendants. The record does not show what additional exculpatory inferences could have been drawn if an expert had testified. We reject the claim.
F.
Bag Containing Suspicious White Powder (Lewis, Oliver)
Defendants contend the trial court erred in excluding, as irrelevant, evidence that a plastic bag containing white powder resembling cocaine was found in the Mount Olive Church after the capital crime. (See Evid. Code, § 350.) Lewis further argues that counsel rendered ineffective assistance in failing to have the substance chemically tested. Citing the Fifth, Sixth, Eighth, and Fourteenth Amendments, and parallel provisions of the state Constitution, defendants assert the additional legal consequence that they were denied their constitutional right to present a defense. They also invoke their Sixth Amendment right to confront and cross-examine witnesses. (See
Davis
v.
Alaska
(1974) 415 U.S. 308, 318 [ 39 L.Ed.2d 347 , 94 S.Ct. 1105 ].)
The confrontation claim is forfeited.
( Partida, supra,
37 Cal.4th 428, 435 .) We find no state law error, and no ineffective assistance of counsel.
In a police property report dated July 25, 1989, Detective Aldahl stated that, while inspecting the Mount Olive Church after the killings, he found a “[c]lear plastic zip-lock baggie containing a white powdery substance resembling cocaine[—]17.0 grams.” At a hearing on April 20, 1992, the question arose of admitting the plastic bag and its contents into evidence. The prosecutor stated that the white powder had not been tested by anyone, that nothing connected it to the murder victims, and that its introduction would distract the jury by portraying the victims and prosecution witnesses in a false light. Defendants argued that if testing proved the bag contained cocaine but did not bear their fingerprints, then some third person must have shot the victims and either thrown or dropped the bag, possibly during a “drug deal gone bad.” The trial court questioned relevance. The court said, however, that if defendants intended to rely on an abortive-drug-deal theory for the murders, it would admit the bag of powder. The defense promised to test the powder.
On October 14, 1992, the prosecution moved in writing to exclude, as irrelevant, the “baggie” evidence described in the police report. According to the motion, the item was found on the opposite side of the church from the victims, and at least 16 feet away from the shooter.
A hearing on the motion was held two days later, on October 16, 1992, while Lewis was representing himself. Oliver’s counsel indicated that two
*997
unnamed inmates could confirm, for reasons counsel did not describe, that the church was used for selling drugs. It became clear that defendants had not tested the substance for cocaine. They argued that, even so, the evidence would have shown the shooting was in retaliation for the sale of “bunk” cocaine. The trial court granted the motion, excluding the evidence as irrelevant.
The trial court properly could have denied outright the motion to admit the baggie evidence. (See
People v. Pride
(1992) 3 Cal.4th 195, 237-238 [ 10 Cal.Rptr.2d 636 , 833 P.2d 643 ] [third party must be linked to “ ‘actual perpetration’ ” of charged crime (applying
People
v.
Hall
(1986) 41 Cal.3d 826 [ 226 Cal.Rptr. 112 , 718 P.2d 99 ]), italics omitted]; see
Holmes
v.
South Carolina
(2006) 547 U.S. 319 ,_, fn. * [ 164 L.Ed.2d 503 , 126 S.Ct. 1727, 1733 ].) Whether the substance was cocaine or an innocuous white powder resembling it, the mere presence of a saleable quantity of suspicious powder in the church does not tend to prove that someone other than defendants committed murder as part of a drug deal, or that the police overlooked such evidence. Even assuming the presence of the substance suggested drug dealing or gang activity inside the church, the suspicious powder does not raise a reasonable doubt as to defendants’ guilt of the crimes they committed. No error or incompetence occurred.
G.
Severance Motions (Lewis, Oliver)
Defendants assert the court erred in denying their oral motions to sever their cases for trial. Both claim violations of their right to due process and to an impartial jury under the Fifth, Sixth, and Fourteenth Amendments, and under parallel provisions of the state Constitution. Oliver also invokes his right to an individualized penalty determination under the Eighth Amendment.
Except for due process, the constitutional claims are forfeited.
( Partida, supra,
37 Cal.4th 428, 435 .) We find no error under state law.
1.
Oliver
On April 28, 1992, Oliver moved to sever his trial from Lewis’s because Lewis had flashed a thumbs-down sign to him, and because Oliver thought Lewis might turn “State’s evidence.” The trial court denied the motion. On appeal, Oliver invokes different grounds in arguing that the severance motion should have been granted, citing events that happened after the severance motion. They concern the admission of evidence that Lewis alone committed certain uncharged crimes, the risk that jurors would find defendants—who are half brothers—guilty by association, Lewis’s outbursts in court after the “thumbs-down” incident, and the lack of separate penalty trials.
*998
2.
Lewis
On November 18, 1992, Lewis, appearing in propria persona, moved to sever his trial from Oliver’s immediately after Oliver was ejected from court for unruly behavior. Lewis complained that “this is highly prejudicial on the part of [his] defense.” The trial court denied the motion. Like Oliver, Lewis now invokes different grounds, based on later events, in arguing that the severance motion should have been granted. Such events are that Oliver joined the courtroom brawl that later happened in front of the jury, and that Lewis ultimately decided not to testify against Oliver.
3.
Discussion
We question defendants’ apparent assumption that they could mandate severance through their own misconduct. In any event, denial of a severance motion is generally reviewed for an abuse of discretion.
(People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 41 [ 17 Cal.Rptr.3d 710 , 96 P.3d 30 ].) The reviewing court assesses the ruling based on the record before the trial court at the time.
(People
v.
Arias
(1996) 13 Cal.4th 92, 127 [ 51 Cal.Rptr.2d 770 , 913 P.2d 980 ];
People v. Price
(1991) 1 Cal.4th 324, 388 [ 3 Cal.Rptr.2d 106 , 821 P.2d 610 ].) Of course, even a ruling that was correct when made cannot stand if joinder caused such “ ‘gross unfairness’ ” as to violate defendants’ due process rights.
(People v. Arias, supra,
at p. 127.)
Defendants fail to advance sufficient grounds to disturb the ruling below. This was, after all, the classic situation in favor of a joint trial, given that defendants were charged with common crimes involving common events and victims. (E.g.,
People v. Coffman and Marlow, supra,
34 Cal.4th 1, 40 ;
People v. Pinholster
(1992) 1 Cal.4th 865, 932 [ 4 Cal.Rptr.2d 765 , 824 P.2d 571 ].) Given the “legislative preference for joinder, separate trials are usually ordered only ‘ “in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” ’ ”
(People
v.
Box
(2000) 23 Cal.4th 1153, 1195 [ 99 Cal.Rptr.2d 69 , 5 P.3d 130 ].) None of these factors exists here. Both defendants denied committing the crimes, faced essentially the same charges and allegations, bore equal criminal responsibility, and relied on a defense of mistaken identity. There was no indication either defendant would have given exonerating testimony at a separate trial. No abuse of discretion or gross unfairness appears.
H. Trombetta
Motion (Lewis, Oliver)
Defendants contend the trial court erred by concluding that their due process rights under
California
v.
Trombetta
(1984) 467 U.S. 479 [81 L.Ed.2d
*999
413, 104 S.Ct. 2528 ] (Trombetta) were not violated when the police discarded two shotgun shells recovered from the shooting of an automobile belonging to Betty Bates, Mizell’s aunt. In particular, defendants insist both that a
Trombetta
violation occurred and that they were not allowed to make an adequate record on the issue. Lewis invokes, as an additional legal consequence, a violation of due process under the state Constitution.
Bates’s Buick Skylark was vandalized by shotgun blasts the day before the murders. Los Angeles Police Department Detective Kempton Lockwood, a prosecution firearms expert, testified at trial that he test-fired Lewis’s Mossberg weapon. He compared the test-fired casings to the two spent Winchester shells found near Bates’s damaged automobile. He determined that the Bates shells came from the Mossberg and from “no other weapon.”
On March 6, 1992, well before the trial began, the prosecutor mentioned in court for the record that the two shells recovered from the scene of the Bates Buick shooting had been discarded after they were photographed and after experts for both defendants examined the evidence.
At a pretrial hearing on April 14, 1992, Lewis claimed a
Trombetta
violation had occurred. He asserted that his expert, James Warner, examined the five shells found at the church, but that he did not examine the Bates shells. Lewis claimed
Trombetta
was violated insofar as the shells had been discarded. The prosecutor responded that, before being discarded, the shells had been made available to Warner and he had examined them. However, they were maintained under a different case number, which might explain Lewis’s confusion over his expert’s access to them. The court deferred a ruling until it could hear more facts.
The trial court revisited the
Trombetta
issue at another pretrial hearing on April 20, 1992. The court received no response when it asked Oliver whether he joined Lewis’s
Trombetta
motion. Lewis then withdrew the motion. He noted for the record that his expert had received access to the Bates shells.
On January 4, 1993, at another hearing that took place two days before trial began, the prosecutor described the evidence logs, which supported her ongoing view that the Bates shells were in the firearms laboratory and had been made available some time before to Warner and Mr. Morton, Oliver’s expert, both of whom had visited the laboratory to examine them. Lewis then renewed his
Trombetta
motion. The trial court summarily denied it.
Contrary to what defendants now argue, they were not prevented from making a record before their
Trombetta
claim was denied. Lewis expressly relinquished his right to do so despite the court’s offer to entertain any
*1000
additional facts defendants might present. When asked to explain this stance, Lewis conceded that his expert had a chance to examine the Bates shells and to assess their relevance before they were discarded. Oliver stood mute when asked his views. Defendants suggest no way in which they could have added to the record. In sum, the trial court adequately protected defendants’ fair hearing rights.
Defendants also claim the trial court erred in failing to suppress Lockwood’s testimony about the Bates shells as a remedy for what they perceived to be a
Trombetta
violation. The due process rights conferred by
Trombetta
apply only when the “evidence . . . possesses] an exculpatory value that was apparent [to the authorities] before the evidence was destroyed.”
( Trombetta, supra,
467 U.S. 479, 489 .) The prosecution’s expert determined conclusively that the shells used to damage Bates’s Buick came from Lewis’s Mossberg shotgun—a conclusion that linked him both to the vandalism of Bates’s automobile and to the murders. This information negates any inference that the shells possessed exculpatory value manifest to the authorities when discarded before trial. Accordingly, no
Trombetta
violation appears.
I.
Uncharged Criminal Acts (Lewis, Oliver)
Defendants argue here, as below, that evidence of uncharged conduct was improperly admitted to show their violent character or disposition. (Evid. Code, § 1101, subd. (a).) This evidence was not relevant, defendants claim, for any valid nondispositional purpose.
(Id.,
subd. (b).) Oliver also alleges violations of his right to due process under the Fifth Amendment and to a reliable penalty determination under the Eighth Amendment. He also invokes generally the Sixth Amendment and the state Constitution. Lewis claims a violation of his right to due process under the Fifth Amendment and his right to be free of cruel and unusual punishment under the Eighth Amendment.
Except for due process, the constitutional claims are forfeited.
( Partida, supra,
37 Cal.4th 428, 435 .) No error occurred under state law.
On April 9, 1992, the prosecution moved, in writing, to admit five uncharged incidents in which Lewis abused Mizell and threatened to kill her and her family. Such evidence showed that Lewis (1) threatened to kill Mizell with a knife and nicked her with it in September 1988, (2) threatened to kill her and choked her in February 1989, (3) threatened to kill her and held a knife to her throat in an alley in March 1989, (4) assaulted and threatened to kill her in June 1989, and (5) threatened to kill her on July 18, 1989, after she moved out. Other uncharged acts the prosecution moved to introduce included the arsons of Iva Worthen’s Ford Tempo and Mizell’s Datsun 200SX on July 19 and 21, 1989; the confrontation involving Mizell, Oliver, and the
*1001
police on July 19, 1989; the shooting of Betty Bates’s Buick Skylark on July 20, 1989; and Oliver’s act of threatening Louise Holt with his Savage shotgun on July 23, 1989. Defendants opposed this evidence at pretrial hearings on April 14 and 20, 1992.
The trial court agreed with the prosecution that the evidence permitted reasonable inferences about defendants’ motive, identity, and opportunity to commit the charged crimes. The court stressed the close timing and similar nature of the acts, the relationship between the victims and defendants, defendants’ familiarity with the victims’ property, and defendants’ access to the murder weapon. The court found no substantial risk of prejudice under Evidence Code section 352. The court later instructed the jury that Lewis’s “threats” against Mizell could not be used against Oliver. The court also instructed jurors on the limited purpose for which other-crimes evidence can be used.
The court’s ruling is consistent with the law.
(People
v.
Gray
(2005) 37 Cal.4th 168, 202 [ 33 Cal.Rptr.3d 451 , 118 P.3d 496 ];
People v. Catlin
(2001) 26 Cal.4th 81, 145-146 [ 109 Cal.Rptr.2d 31 , 26 P.3d 357 ].) It is entitled to deference on appeal.
(People
v.
Jablonski
(2006) 37 Cal.4th 774, 821, 824 [ 38 Cal.Rptr.3d 98 , 126 P.3d 938 ].) No abuse of discretion occurred. The uncharged acts showed an escalating campaign to retaliate against Mizell and her family for the marital breakup. This motive also suggested that defendants were the perpetrators, and that they intended and premeditated the victims’ deaths. The incident with Louise Holt, which occurred a few days later, showed defendants had the means to commit the murders.
J. Faretta
Claim (Oliver)
Oliver claims that two withdrawals from his constitutional right to represent himself
(Faretta
v.
California
(1975) 422 U.S. 806 [ 45 L.Ed.2d 562 , 95 S.Ct. 2525 ]
(Faretta))
before trial began in January 1993 were ineffective, because they were the product of the trial court’s improper attempt to discourage self-representation. Oliver complains that the court’s actions generally violated his rights under the Sixth and Fourteenth Amendments, and under parallel provisions of the state Constitution. He claims as an additional legal consequence that a related hearing held on September 9, 1991, violated due process under the Fifth Amendment, because he did not receive an adequate opportunity to be heard. The record does not support the claims.
Criminal defendants have the right both to be represented by counsel at all critical stages of the prosecution and the right, based on the Sixth Amendment as interpreted in
Faretta, supra,
422 U.S. 806 , to represent themselves.
(People
v.
Marshall
(1997) 15 Cal.4th 1, 20 [ 61 Cal.Rptr.2d 84 ,
*1002
931 P.2d 262 ].) However, this right of self-representation is not a license to abuse the dignity of the courtroom or disrupt the proceedings.
(Ibid.) Faretta
motions must be both timely and unequivocal. Otherwise, defendants could plant reversible error in the record.
(Marshall,
at pp. 21, 22; accord,
People
v.
Valdez
(2004) 32 Cal.4th 73, 98-99 [ 8 Cal.Rptr.3d 271 , 82 P.3d 296 ].) Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation, or where such actions are the product of whim or frustration.
(Marshall, supra,
at pp. 21, 22 .) Of course, a defendant may withdraw his
Faretta
motion before a ruling is made. (See, e.g.,
People
v.
Snow
(2003) 30 Cal.4th 43, 68-70 [ 132 Cal.Rptr.2d 271 , 65 P.3d 749 ].)
Oliver made unsuccessful motions to act as cocounsel and for library privileges on March 1 and 19, 1990, and on June 21, 1990. He also made an initial
Faretta
motion on June 29, 1990, which he withdrew on July 11, 1990, and a second
Faretta
motion on October 12, 1990, accompanied by a refusal to accept appointed counsel as advisory counsel. He reaffirmed his desire to represent himself, coupled with the appointment of new advisory counsel, on October 24 and 30, 1990, and the court allowed him to do so. He relinquished his self-representation for the second time on March 8, 1991.
Oliver made and withdrew two more
Faretta
motions. They form the basis of his claims on appeal. One of these motions was litigated during hearings held on August 23, 1991, and September 9, 1991, and withdrawn on the latter date. The second motion arose much closer to trial, and was addressed on November 18 and 19, 1992. The trial court cautioned that it viewed the latter motion as untimely, but was willing to continue it to the next day and entertain it further. On that next day, Oliver equivocated, refusing to give the court a clear answer on whether he still wished to proceed in propria persona. The court ruled that he had withdrawn his motion.
Oliver maintains that his actual or constructive withdrawals of the two
Faretta
motions at issue were ineffective because they were the product of the trial court’s improper attempt to discourage him from representing himself. Specifically, Oliver complains that the court improperly delayed acting on the August 23, 1991 motion, inducing him to withdraw it on September 9, 1991, and that it erroneously denied his November 18, 1992 request as untimely.
The trial court did not improperly delay acting on Oliver’s August 23, 1991 motion, or induce him to withdraw it on September 9, 1991. During these two hearings, the court had a serious discussion with Oliver and his counsel, Charles E. Lloyd, who stepped forward to represent him, about the security risks that self-representation would present. Oliver admitted that he had
*1003
“abused the pro. per. perks” before. He became frustrated, however, over the tenor of the discussion, and over the possibility that valid security concerns might interfere with his unfettered right of self-representation. The court made no ruling on August 23, 1991, and continued the matter until September 9, 1991, so that it could review Oliver’s jail records and consider additional evidence related to security. When Oliver withdrew his
Faretta
motion at the latter hearing, and accepted representation by Lloyd and his associate, William E. Turner, Oliver’s actions were not the result of any error by the court, but of his own frustration over legitimate security concerns.
A similar conclusion applies to Oliver’s claim regarding the
Faretta
proceedings held in November 1992. The only reference to the timeliness of this motion occurred when the trial court asked on November 18 that Oliver join Lewis in waiving time to start the trial, which was imminent. Oliver refused and asked to appear in propria persona. As noted, the court said the motion was untimely, but postponed its ruling until the next day. Oliver became hostile and said he would refuse to return to court the next day. On November 19, when Oliver nonetheless appeared, he and the court debated whether he wanted to pursue or withdraw his request for self-representation. The court found a withdrawal. In the process, Oliver agreed with Lewis to delay the start of the trial until January 1993. Nothing more was said about whether Oliver’s request for self-representation was timely. Oliver’s acceptance of the court’s conclusion that the
Faretta
motion was withdrawn was not the product of any ruling—erroneous or otherwise—on the timeliness of the motion.
K. Marsden
Claim (Oliver)
Oliver challenges the denial of his pretrial motion to replace counsel under
Marsden, supra,
2 Cal.3d 118 . He claims a Sixth Amendment violation as an additional legal consequence of the court’s ruling. No error occurred.
Replacing counsel lies within the court’s discretion. “The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.”
(People
v.
Smith
(2003) 30 Cal.4th 581, 604 [ 134 Cal.Rptr.2d 1 , 68 P.3d 302 ].)
In September 1991, after Oliver withdrew one of his many
Faretta
motions, the trial court appointed Charles Lloyd and William Turner to represent him. A short time later, in October 1991, the court learned that Oliver might wish to replace counsel under
Marsden .
Oliver had apparently sent the court a letter requesting a
Marsden
hearing, but then indicated that his motion was premature and withdrew it for the time being. The same issue
*1004
was broached in June 1992, but Oliver denied wanting to file a
Marsden
motion. Eventually, on December 9, 1992, Oliver moved to replace counsel. This motion occurred between his last
Faretta
motion, which he made on November 19, 1992, and the start of trial, which occurred on January 6, 1993. Oliver and Turner attended the
Marsden
hearing.
In that hearing, Oliver complained of counsel’s inattentiveness, lack of loyalty, and inadequacy of trial preparation. Specifically regarding the first point, Oliver asserted that counsel did not visit him in jail. Turner replied that he visited Oliver at least weekly in jail, but that in the last two weeks “they didn’t have the personnel to bring him down because Mr. Oliver has to be escorted by 10 other subjects.” Oliver acknowledged that Turner was correct about the frequency of his visits to him in jail, but that he still wanted him relieved because he was not “preparing my case properly.” The court asked Oliver for examples as to what Turner had not done in preparing for the guilt trial. Oliver said only that Turner had promised to withdraw. Also, the court asked Turner about Lloyd’s preparation for the penalty trial. Turner reported that Lloyd had tried to contact witnesses, and that Oliver was not cooperating in the matter. Regarding loyalty, Oliver questioned counsel’s loyalty to him based on their failure to honor an alleged promise to withdraw from representing him. The trial court denied the motion as to Turner, and deferred it as to Lloyd. On December 16, 1992, Oliver withdrew his
Marsden
motion as to Lloyd without explanation.
On appeal, Oliver contends that the trial court denied him an adequate opportunity to make a showing that he was entitled to replace counsel under
Marsden .
He primarily faults the court for not asking Turner either to defend his own trial preparation or to address the state of their relationship.
The record does not support the foregoing claim. Oliver had a full and fair opportunity to voice his objections about counsel’s performance. Oliver offered no specific information to which either Turner or the trial court could meaningfully respond. Indeed, given the timing and nature of the motion, it appears to have been made primarily to delay the trial. In any event, since Oliver declined to elaborate on his complaints about counsel, the court had no duty to inquire still further. (See, e.g.,
People
v.
Lucky
(1988) 45 Cal.3d 259, 280-283 [ 247 Cal.Rptr. 1 , 753 P.2d 1052 ] [no
Marsden
violation where, among other things, defendant declined to criticize counsel].)
Oliver also asserts that the trial court violated his
Marsden
rights when it refused to let him subpoena records of the frequency of visits by Lloyd. He claims a related violation of his due process rights under the Fourteenth Amendment. However, the court agreed to accept Oliver’s version of events without seeing the records. Thus, Oliver was not deprived of any information needed to support his
Marsden
claim.
*1005
L. Faretta
Claim (Lewis)
Lewis claims the trial court erred by allowing him to relinquish his Sixth Amendment right to represent himself (see
Faretta, supra,
422 U.S. 806 ) without ascertaining that he was mentally sound at the time. We disagree.
Counsel was appointed early in the case. Lewis also had library privileges to help with his defense. Nevertheless, and possibly in an attempt to delay the proceedings, Lewis brought numerous motions regarding his representation, vacillating about whether he wanted to represent himself or be represented by counsel. Lewis first moved to represent himself with Richard Leonard as cocounsel. On October 24, 1990, the trial court denied the motion. On October 30, 1990, Lewis moved to represent himself under
Faretta .
At a hearing on November 2, 1990, the court appointed a psychiatrist, Dr. Michael Cobum, who found that Lewis could knowingly and intelligently waive his right to appointed counsel. After the court warned Lewis about the risks of self-representation, he sought and received more time to decide the issue. On December 14, 1990, his
Faretta
motion was granted, and his counsel was placed on advisory status.
At hearings on April 14 and 20, 1992, the trial court and Lewis discussed whether he wanted to continue representing himself. Lewis sought to forgo self-representation if he could retain his library privileges. The court apparently agreed and reappointed Richard Leonard as counsel.
On May 19, 1992, Lewis asked to represent himself again. On June 5, 1992, the trial court warned that Lewis would not be allowed to “go back unpro. per.,” but granted his second
Faretta
motion. Two days before trial, on January 4, 1993, Lewis asked to relinquish his in propria persona status a second time. After warning Lewis that he “can’t change [his] mind,” the court granted the request. It reappointed Richard Leonard as lead counsel, and appointed his brother James Leonard as cocounsel.
Meanwhile, at an evidentiary hearing on December 9, 1992, the trial court learned that Lewis had accused his alibi witness and first wife, Jeanett Hudson, of involvement in the murder of one Frankie Hudson in 1975 or 1977. On January 19, 1993, the prosecutor moved to have Lewis’s telephone privileges revoked, explaining that Lewis had been calling Jeanett Hudson and threatening her. The prosecutor stated, “These threats entailed his intent to have her and her daughter killed, as well as threats to find a way to get her fired.” On January 20, 1993, after counsel was reappointed, Lewis declined to
*1006
appear in court because other inmates had made upsetting comments about his mother’s death, which had occurred about a year beforehand.
7
Citing
Brown v. Wainwright
(1982) 665 F.2d 607, 612 , Lewis argues that a defendant may not forgo self-representation absent a “dialogue” with the court, at least where “special circumstances” are present. Such conditions supposedly existed here in the form of what he characterizes as his aberrant behavior before and after the January 4, 1993 hearing. He claims the court erred in not questioning him or ordering a new psychiatric examination to determine whether the renewed request for counsel resulted from a mental defect.
The record suggests that Lewis acted “intentionally and voluntarily”
(People v. Dunkle
(2005) 36 Cal.4th 861, 909 [ 32 Cal.Rptr.3d 23 , 116 P.3d 494 ]) when he requested counsel on January 4, 1993, and was not incompetent or suffering from any mental defect. (See ibid., citing
Brown v. Wainwright, supra,
665 F.2d 607 , for general rule that
Faretta
may be waived through silence or equivocation.) After all, Lewis had taken a similar step once before and was familiar with the differences involved in self-representation as opposed to representation by counsel. In addition, the trial court alerted Lewis to the consequences of abandoning his role as his own counsel so near the start of trial. A short time later, as we shall discuss, the trial court declined to declare a doubt as to Lewis’s competence to stand trial. (See
Dunkle, supra,
at pp. 909-910 [defendant found competent around time of request for counsel].) There was no substantial evidence that Lewis was mentally incapable of surrendering his
Faretta
rights. The asserted error did not occur.
IH. JURY SELECTION ISSUES
A.
Excusal for Cause (Lewis, Oliver)
Defendants claim the trial court erred in granting the prosecution’s motion to excuse a prospective juror, A.L., based on his views on capital punishment. The error allegedly violated defendants’ right to an impartial sentencing jury under the Sixth and Fourteenth Amendments. We reject the claim.
A prospective juror may be excused if his views would “ ‘prevent or substantially impair’ ” the performance of his duties as a juror in accordance with his instructions and oath.
(Wainwright v. Witt
(1985) 469 U.S. 412, 424 [ 83 L.Ed.2d 841 , 105 S.Ct. 844 ].) Because this determination involves an
*1007
assessment of the juror’s demeanor and credibility, it is one “peculiarly within a trial judge’s province.”
(Id.
at p. 428, fn. omitted.) “When applying these rules, the trial court’s assessment of a prospective juror’s state of mind will generally be binding on the reviewing court if the juror’s responses are equivocal or conflicting.”
(People v. Hayes
(2001) 21 Cal.4th 1211, 1285 [ 91 Cal.Rptr.2d 211 , 989 P.2d 645 ].) In other words, the reviewing court generally must defer to the judge who sees and hears the prospective juror, and who has the “definite impression” that he is biased, despite a failure to express clear views.
(Wainwright v. Witt, supra,
at pp. 425-426.)
A.L. admitted several past negative encounters with law enforcement, including a misdemeanor conviction and a gang fight in which he was hit with a police nightstick. A.L. indicated that intentional killers should “never” get death. However, in apparent self-contradiction, he also said the verdict might “depend[]” upon how the victims were killed. A.L. could see himself voting for life imprisonment even where the murder was “brutal” and aggravation outweighed mitigation.
The prospective juror’s views seemed to harden when the prosecutor asked how he would assess culpability and punishment where, as here, a shooter and nonshooter were both accused of the same crime. A.L. indicated that he would not convict anyone of an intentional killing, or impose death, unless he were the actual killer. A.L. said he would adhere to these views notwithstanding the evidence or instructions. At first, the trial court denied the motion to excuse A.L. for cause. Ultimately, however, the court granted the request.
The prospective juror’s answers were equivocal and conflicting. Those answers, in combination with the trial court’s firsthand observations, could give rise to a definite impression that AJL.’s views on the death penalty would substantially impair the performance of his duties. We therefore defer to the court’s ruling.
8
*1008
B. Batson-Wheeler
Claims (Lewis, Oliver)
Defendants contend that by failing to grant their motions challenging the prosecution’s excusal of seven Black male prospective jurors, made over defense objection, the trial court violated the federal constitutional guaranty of equal protection of the laws
(Batson
v.
Kentucky
(1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ]
(Batson)),
and the state constitutional right to a jury drawn from a representative cross-section of the community.
(People v. Wheeler
(1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ]
(Wheeler).)
9
A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds”—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution.
( Wheeler, supra,
22 Cal.3d 258, 276-277 ; see
People
v.
Griffin
(2004) 33 Cal.4th 536, 553 [ 15 Cal.Rptr.3d 743 , 93 P.3d 344 ].) Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment.
( Batson, supra,
476 U.S. 79, 88 ; see
People
v.
Cornwell
(2005) 37 Cal.4th 50, 66 [ 33 Cal.Rptr.3d 1 , 117 P.3d 622 ];
People v. Cleveland
(2004) 32 Cal.4th 704 ,
Til
[ 11 Cal.Rptr.3d 236 , 86 P.3d 302 ].)
The United States Supreme Court has recently reaffirmed that
Batson
states the procedure and standard trial courts should use when handling motions challenging peremptory strikes. “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the
*1009
strike has proved purposeful racial discrimination.’ [Citation.]”
(Johnson
v.
California
(2005) 545 U.S. 162, 168 [ 162 L.Ed.2d 129 , 125 S.Ct. 2410, 2416 ], fn. omitted.)
We review the trial court’s ruling on purposeful racial discrimination for substantial evidence.
(People v. McDermott
(2002) 28 Cal.4th 946, 971 [ 123 Cal.Rptr.2d 654 , 51 P.3d 874 ].) It is presumed that the prosecutor uses peremptory challenges in a constitutional manner. We defer to the court’s ability to distinguish “bona fide reasons from sham excuses.”
(People v. Burgener
(2003) 29 Cal.4th 833, 864 [ 129 Cal.Rptr.2d 747 , 62 P.3d 1 ].) As long as the court makes “a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.”
(Ibid.)
We now turn to defendants’ contentions regarding the seven prospective jurors. Defendants assert the prospective jurors were subjected to peremptory challenge in violation of
Batson
and
Wheeler .
The trial court disagreed. We will sustain its rulings.
1.
Defense Motions
There were four
Batson-Wheeler
motions. The first expressly covered three Black males against whom the prosecutor had exercised peremptory challenges: L.W., L.T., and C.W. (See
People v. Avila
(2006) 38 Cal.4th 491, 549, 552 [ 43 Cal.Rptr.3d 1 , 133 P.3d 1076 ] [scope of motion affects scope of inquiry into reasons for excusal].) The trial court stated that it saw nothing amounting to a prima facie case of improper group bias, but directed the prosecutor to explain her reasons for the challenges. After hearing these explanations, the court denied the motion without elaboration.
In their second
Batson-Wheeler
motion, defendants expressly challenged the excusáis of L.B. and K.B. The trial court found a prima facie case of improper group bias, but denied relief after hearing the prosecutor’s reasons. It accepted without elaboration the prosecutor’s reasons regarding L.B. With regard to K.B., the court commented that he showed an anti-capital-punishment bias throughout the process.
In their third
Batson-Wheeler
motion, defendants expressly challenged the excusal of V.H. The trial court first granted the motion, but changed its mind and denied it the next day. The court did so following an extensive hearing in which the prosecutor insisted that she had no reason or desire to discriminate, and argued that “[no] prosecutor would allow a man like [V.H.] to sit on this jury.” The court observed that “all 6 of the People’s peremptories have been of male Blacks.” The court nonetheless concluded, “I don’t see anything that
*1010
appears to be inherently racial” in the prosecutor’s reasons for excusing prospective jurors, and that the prosecutor had excused V.H. for a “race neutral” reason.
In their fourth
Batson-Wheeler
motion, defendants expressly challenged the excusal of N.S. The trial court denied this motion too, with little discussion, stating, “I accept the prosecution’s explanation and reason as valid.”
The parties agreed that several Blacks served on the jury. The prosecutor also asserted, in response to the
Batson-Wheeler
motion concerning V.H., that the defense had peremptorily challenged three Black prospective jurors and sought stipulations to the excusal of another three. The foreperson of the jury at the guilt phase was a Black man, and the foreperson of the jury at the penalty phase was a Black woman.
2.
Prosecutor’s Reasons
We assume solely for purposes of argument that, for each prospective juror, we must proceed to the third step of the
Batson-Wheeler
inquiry, i.e., whether substantial evidence supported the trial court’s finding that the prosecution had articulated a permissible, race-neutral reason for the excusal. (See
People v. Ward
(2005) 36 Cal.4th 186, 200-201 [ 30 Cal.Rptr.3d 464 , 114 P.3d 717 ].) In each case, it is plain that there was.
As noted, the first
Batson-Wheeler
motion expressly challenged the excusáis of L.W., C.W., and L.T. Prospective Juror L.W. testified that a half brother had been in and out of jail in Oklahoma since age 15 and was currently in state prison there. L.W. asserted he was once stopped by police on false pretenses. The police cited him for running a red light but he denied having done so. In his view, the police stopped him to see if he might have been driving a stolen car, and the citation was pretextual. He denied that this experience would cause him to tend to disbelieve police testimony.
The prosecutor stated that the juror questionnaire and voir dire of L.W. warranted a peremptory challenge. For example, he “had the brother in the Oklahoma prison. He indicated that his brother was in and out of jail . . . .” Also, L.W. had “a difficult time with the questionnaire” in terms of understanding some of the legal concepts. And he “gave me a bad feeling . . . right from the start, especially when he indicated he was . . . stopped for running a red light, [and] felt that the police simply used an excuse to stop him because they actually thought he was driving a hot car. And it was definitely my feeling that he thought he was being discriminated against because he was Black. [|] I did not believe him when he said that he would not hold that against us. Everything about his demeanor . . . was very negative. I didn’t feel like there was any hope the People had of getting a fair trial” from him.
*1011
On this record, it is apparent that the prosecutor had reason for her expressed skepticism that L.W. would be fair to the People. On this basis, she was entitled to excuse him.
C.W. seemed to have trouble hearing two of the trial court’s initial questions. Also, voir dire began with C.W.’s admission that he would rather not have been called to the stand. He later explained that he might have to help his disabled daughter-in-law, and that the possibility of having to do so might distract him during trial. In a conflicting response, however, he insisted he could give full attention to the case if on the jury.
C.W. and members of his family had been crime victims, and he felt that the police response to crime reports in general is slow when the victims are poorer. Many years before, he had spent a couple of hours in jail after being arrested for drinking in a night spot after legal hours. The charges were dismissed. One son was once charged with burglary but not convicted (C.W. believed his son was innocent), another son had died of a drug overdose, and his daughter was charged with shoplifting and was convicted. The police had beaten one of his sons in a county facility. None of these incidents, he testified, would affect his ability to be fair in a trial of defendants, including his ability to impose the death penalty if warranted. Finally, C.W. was familiar with the Mount Olive Church or at least the surrounding area, though he was not aware of the murders that had occurred there.
The prosecutor explained that given C.W.’s testimony, he would be unduly reluctant to convict the defendants. “[H]e indicated that he feels the police serve the rich . . . better than the poor .... He himself, his son and his daughter have all been busted. ... He himself, his son was beaten in custody by police officers, [ft] He is familiar with the area of the Mount Olive Church. He has a concern about having to go and take care of his son’s wife, who is apparently paralyzed. He also indicated that he visited his son in L.A. County Jail, his son’s case was thrown out. He felt that his son was innocent, [ft] This would definitely give somebody a feeling that somebody who is in court might well be innocent as well as in occasions where defendants are poor, it would definitely bias them in their favor given his feeling about law enforcement[,] given the fact he and his son were beaten by the police.”
10
Despite C.W.’s contrary assurances, the prosecutor had reason for her expressed skepticism that he would be fair to the People. On this basis, she was entitled to excuse him.
L.T. circled an answer on his juror questionnaire that justice was not served in the Rodney King beating case in which police officers were acquitted and
*1012
declined to explain why. On voir dire, L.T. stated that he felt that police officers could be both good and bad. A friend of his was once wrongfully accused of starting a fire that was large enough to be seen from a freeway. L.T. commented on then-recent events involving Rodney King and Reginald Denny, who was beaten by one or more rioters following the police beating of King. He stated that justice had not been served because the King incident had been treated differently from the Denny incident. He felt that the respective incidents showed that the law applied differently to Blacks than to Whites, now and then.
The prosecutor explained that she challenged L.T. because “he has a very large chip on his shoulder as was evidenced by the fact he felt the King verdict was unjust. ... [1] He feels that the death penalty is imposed more often on Blacks than on Whites. He feels that he got bad treatment from the police. And he was probably the most strident [prospective] juror we heard from yet with respect to the King case and the racial issues involved.” Here again, the prosecutor had reason for her expressed skepticism that a prospective juror would be fair to the People. On this basis, she was entitled to excuse him.
11
As noted, defendants’ second
Batson-Wheeler
motion expressly challenged the excusáis of L.B. and K.B.
L.B. began voir dire by explaining that his brother was in confinement for a pending robbery charge, even though the prosecution did not have enough evidence to convict him. He testified that the police told their mother that his brother should turn himself in or they would shoot him. His own experiences with police officers had been mixed: “you have some good ones, you [have] some bad ones.” In general, he expressed a willingness to be fair in the case against defendants.
The prosecutor said that L.B.’s answers about his brother and the police showed a hostility to the state that warranted a peremptory challenge. “I could not imagine him possibly being fair in any way in which a defendant who was Black was being tried for a crime.” She also said, “It’s obvious that
*1013
he feels unhappy about the situation his brother finds himself in.” Despite L.B.’s assurances, the prosecutor had reason for her expressed skepticism that the prospective juror could be fair to the People. She was entitled to excuse him.
In his questionnaire, K.B. said that he would find it difficult to serve on a jury in a capital case and could not be objective. Elsewhere on his questionnaire, he suggested that he would always reject the death penalty and vote for life imprisonment without possibility of parole. He “agree[d] somewhat” that anyone who intentionally kills another should never get the death penalty. He would prefer not to serve on the jury out of “sympathy.”
On voir dire, K.B. testified that although he had expressed reservations about the death penalty on his questionnaire, he was more comfortable with it now, evidently from having observed the voir dire proceedings. He, too, expressed a willingness to be fair in the case against defendants. But the record reflects a rote quality to his answers about his open-mindedness, and the prosecutor began her questioning of him by commenting that, “I feel like sometimes we get to the point where we start programming your responses and people start to try to conform to what everybody else says ... .” She then asked him if he was disavowing a prior statement that his religious scruples would make it difficult to sit in judgment of another in a capital case. K.B. replied that he did not realize then that the trial court would tell the jury what to do regarding the penalty phase, and the prosecutor explained that his first instinct was correct: the court would not tell the jury what sentence to impose. K.B. gave a vague response, and the prosecutor pressed, “how does that make it easier?” K.B. replied: “I’m just more at ease after listening to everything and after she [the court] said everything, explained everything to us and just listening to her.”
The prosecutor then asked K.B. about two other questionnaire responses: his feelings about the death penalty would interfere with his objectivity at the guilt phase, and he could never see himself voting for death. K.B. essentially disavowed those responses.
The prosecutor stated with regard to K.B., “I just don’t believe a word this man said. His questionnaire is so completely down the fine anti-death penalty and every single answer is consistent, anti-death, anti-death, T can’t be fair,’ anti-death. Then he when questioned says no, everything is fine, everything has changed.”
On this record, it is apparent that the prosecutor had reason for her expressed skepticism that K.B. would be fair to the People. His juror questionnaire showed considerable antipathy toward the death penalty and
*1014
suggested that he would automatically vote for life imprisonment without possibility of parole. His answers on voir dire did not persuasively convey a different impression. On this basis, the prosecutor was entitled to excuse him.
As noted, defendants’ third
Batson-Wheeler
motion expressly challenged the excusal of V.H.
V.H. had recently served on a jury that acquitted someone else of rape. The jury did not believe the victim. V.H.’s son had had trouble with the law at least since age 15 and was currently incarcerated. Despite this, neither was bitter toward the state, and V.H. had encouraged his son to do his time without complaining. He generally professed an ability to be fair in the case against defendants.
The prosecution explained that she found V.H. “very acceptable” until she learned he had voted to acquit someone on a rape charge. “Unfortunately, it is my feeling that once a juror has had the experience of acquitting a defendant, it does create a certain mind set and the readiness to acquit. It certainly shows that he was able to reject the prosecutor’s argument, reject the People’s proof and reject the word of a woman. [1] In this trial, we will have women testifying to the history of abuse by one of the defendants. Their believability and credibility will become crucial with this case.” The prosecutor noted that the defense had properly exercised a peremptory challenge against a prospective juror for having rendered a verdict of death in another case, and “[tjhat’s what a peremptory challenge is all about.”
In light of V.H.’s vote to acquit another criminal defendant of rape, rejecting the testimony of a female victim of violence, the prosecutor had reason to be skeptical about V.H.’s willingness to be fair in this case, in which the testimony of female victims of violence would be crucial. On this basis, she was entitled to excuse him.
As noted, defendants’ fourth
Batson-Wheeler
motion challenged the ex-cusal of N.S. This individual had a brother in the custody of what is now called the California Department of Corrections and Rehabilitation. His brother would not reveal the nature of the offense, and N.S. did not know what it was. He believed his brother was fairly incarcerated, and that circumstance would not affect N.S.’s ability to be fair in the case against defendants.
N.S. testified that because a prisoner dies in prison whether sentenced to death or to life imprisonment without possibility of parole, he viewed the two penalties as equal. He added that for a Black person a life sentence to prison would be “like death,” according to what his brother had told him. He
*1015
thought that because Robert Alton Harris (see
People v. Harris
(1981) 28 Cal.3d 935 [ 171 Cal.Rptr. 679 , 623 P.2d 240 ]) was White, his case had gotten better treatment from the courts than a condemned Black man who had been executed “for killing a San Francisco cop. I don’t feel he was guilty. They had to drag him away screaming. No one looked into his case after he was convicted. If they did, they probably would have found him innocent.” N.S. assured the trial court that despite these views he could be fair to both sides in the trial against defendants.
The prosecutor explained that she believed N.S. “felt the death penalty and life without would be torture .... This is a juror whose beliefs concerning the death penalty are at the very least bizarre, but most likely not fair, I believe, to the People.” She also explained that his comments contrasting Robert Alton Harris and the Black condemned prisoner reflected that he “did not feel that Blacks receive justice in the justice system. He does have an agenda. He does not like the death penalty, that reason alone.” Earlier, in presenting a challenge for cause against N.S., the prosecutor said, “the truth of the matter is he could not be fair based on his feelings, his racial bias in terms of what he thinks a Black man goes through in prison, and what he thinks might happen if [giving] the death sentence in terms of the possibility of finding later on he was innocent.” “[H]e has a clear racial bias in favor of any Black defendant that would prevent him from fairly convicting or sentencing someone to death.”
The prosecutor had reason to be skeptical about the willingness of N.S. to convict defendants and vote for a verdict of death in this case. On this basis, she was entitled to excuse the prospective juror.
Defendants further contend that the prosecution’s reasons could hardly be race neutral insofar as the prosecutor commented on the racial attitudes of three prospective jurors: L.W., L.B., and N.S. In particular, defendants insist that it is unconstitutional to exercise peremptory challenges against prospective jurors because they harbor views gleaned from their individual experiences as Black persons or carry attitudes representing viewpoints that predominate or are held more widely in their community than in society at large. Lewis admits that “[t]he prosecutor without a doubt identified factors relating to each of the excluded [prospective] jurors that made them less desirable from her perspective,” and that her conduct “does not appear to be a vendetta against black skin per se.” But he argues that when “a prosecutor strikes a minority [prospective] juror because [he or she] has in fact had an experience or expresses an opinion reflective of the minority perspective, the prosecutor cannot constitutionally seize upon that experience or opinion as an ‘individualized’ reason for striking [him or her] .... even if [his or her] attitude or experience might be . . . suggestive of a less conviction-prone attitude than [that of] other jurors from different backgrounds.”
*1016
Under
Batson, supra,
476 U.S. 79 , and
Wheeler, supra,
22 Cal.3d 258 , a party cannot
assume
in exercising its peremptories that because a prospective juror belongs to a cognizable minority group, that person holds biased views common to that group, and therefore is undesirable as a juror.
(Batson, supra,
at pp. 86, 91, 96, 97, 99 .) But the prosecutor may excuse prospective jurors, including members of cognizable groups, based on personal, individual biases those individuals
actually express. ( Wheeler, supra,
at p. 277 & fn. 18.) That is so even if the biased view or attitude may be more widely held inside the cognizable group than outside of it.
Batson
and
Wheeler
are intended to limit reliance on stereotypes about certain groups in exercising peremptory challenges. Defendants invoke
Batson
and
Wheeler
to preclude the excusal of a member of a cognizable group who expresses personal biases—and thus to foreclose individualized treatment of that prospective juror—if the biases expressed are presumably common to that group. Such an approach stands the law on its head, and promotes the very group stereotyping that
Batson
and
Wheeler
forbid. A party does not offend
Batson
or
Wheeler
when it excuses prospective jurors who have shown orally or in writing, or through their conduct in court, that they personally harbor biased views.
3.
Comparative Analysis
Defendants further seek to show the pretextual nature of the prosecutor’s excusáis of the Black prospective jurors by comparing their questionnaires and voir dire responses with those of prospective jurors, both Black and non-Black, whom the prosecutor did not challenge.
12
Defendants present an array of comparisons among the two groups in an effort to show that they were similarly situated. Oliver emphasizes, though not to the exclusion of other factors, prospective jurors’ attitudes toward then recent events involving the Rodney King beating case.
The King beating case lies in the background of the proceedings. On May 4, 1992, the trial court granted Oliver’s mistrial motion following the verdicts of acquittal of police officers in that case, which involved the beating of Rodney King, a Black man, and the subsequent “civil unrest in Los Angeles since April 29, 1992,” which included a well-publicized assault on Reginald
*1017
Denny, a White man, by rioters. On May 7, the court granted Lewis’s mistrial motion on the same grounds, and dismissed the original jury venire as to both defendants. Because the King beating case had so recently ended when the new venire was summoned, some prospective jurors mentioned the case in answer to the questions, “What serious criminal case have you followed in the media within the last five years?” and “Do you feel justice was served[?]”
Defendants did not engage in a comparative prospective juror analysis in the trial court. In earlier cases, we have declined to engage in comparative juror analysis for the first time on appeal, stating that such an analysis was unreliable in evaluating the prosecutor’s justifications for excusing minority prospective jurors.
(People v. Box, supra, 23
Cal.4th 1153, 1190;
People v. Ervin
(2000) 22 Cal.4th 48, 76 [ 91 Cal.Rptr.2d 623 , 990 P.2d 506 ];
People
v.
Johnson
(1989) 47 Cal.3d 1194, 1220-1221 [ 255 Cal.Rptr. 569 , 767 P.2d 1047 ].) Since then, of course, the United States Supreme Court has issued its decision in
Miller-El v. Dretke
(2005) 545 U.S. 231 [ 162 L.Ed.2d 196 , 125 S.Ct. 2317 ]
(Miller-El),
which conducts a comparative juror analysis, albeit not on direct appeal.
In
Miller-El,
the United States Supreme Court held that, in the context of a challenge of a Black prospective juror, the defendant had established purposeful discrimination under
Batson, supra,
476 U.S. 79 , and was entitled to relief on that ground in federal habeas corpus proceedings ( 28 U.S.C. § 2254 ).
(Miller-El, supra,
545 U.S. at p. 235 [ 125 S.Ct. at p. 2322 ].) In so holding, the high court observed: “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at
Batson's
third step.”
(Id.
at p. 241 [125 S.Ct. at p. 2325].)
Assuming, without deciding, that comparative juror analysis must be undertaken for the first time on appeal in the present case, we conclude that defendants’ proffered analysis fails to demonstrate purposeful discrimination.
Defendants urge, in essence, that one of the prosecutor’s stated reasons for excusing L.T., who said justice had not been served because the Rodney King incident had been treated differently from the Reginald Denny incident, showed evidence of pretext because the reason applied equally to prospective jurors M.C. (a White man), A.R. (a White woman), M.R. (a Hispanic man), and M.J. (a Black woman), whom the prosecutor did not challenge. They also assert that the prosecutor asked no questions of M.C., A.R., or M.R. about the King beating case. (See
Miller-El, supra,
545 U.S. at p. 245 [ 125 S.Ct. at p. 2328 ];
id.
at p. 250, fn. 8 [125 S.Ct. at p. 2330, fn. 8] [failure to engage in meaningful voir dire on a subject a party claims is important suggests the stated concern is pretextual].)
*1018
As will appear, however, none of the foregoing prospective jurors was similarly situated to L.T.
13
M.C., A.R., M.R., and MJ. mentioned the Rodney King beating trial verdicts on their questionnaires. Unlike L.T., who condemned the trial outcome as the unjust product of a race-based double standard, who circled “no” on the question asking whether justice was served and declined to explain why, and whom the prosecutor accordingly evaluated as “strident. . . with respect to the King case,” M.C. and A.R. believed that the trial’s outcome was a fair result and gave written answers that obviated the need for followup questions on oral voir dire. (See
People v. Huggins
(2006) 38 Cal.4th 175, 235 [ 41 Cal.Rptr.3d 593 , 131 P.3d 995 ] [failure to ask questions of prospective jurors did not show any impropriety].)
14
Specifically, M.C. wrote that although he was surprised at the verdict, the jury in the Rodney King case “did its job” in acquitting the accused police officers. He circled “yes” in answer to a question whether justice had been served. A.R. criticized media sources that, in her view, manipulated her emotions in an effort to make the verdict in the King case look “not just.” By inference, she felt that it was just. Also, A.R. stated on her questionnaire that her opinions were provisional, i.e., based on incomplete information and
*1019
subject to change. A.R. declined to circle either answer to the was-justice-served question and explained, “I really cannot make a judgment^] I was not in the court listening to the evidence, even though the media exposed some facts.” Their answers were markedly unlike those of L.T.
Also, the questionnaires and voir dire of M.C. and A.R. showed pro-prosecution views that L.T. did not share or shared only in certain respects. In general, during his brief voir dire as an alternate prospective juror, M.C. showed willingness to support the prosecution’s position if the evidence warranted it, to be open-minded and fair, and to follow the law. He understood and accepted the concept of accomplice liability, and agreed that a nonshooter could receive the death penalty.
15
A.R. showed a willingness to follow the law and be open-minded and fair to both parties, including the People. She said, for example, “I feel very comfortable with weighing the mitigating and aggravating circumstances involved in the penalty phase.” She had no problem with accomplice liability, even if it led to imposing the death penalty on a nonshooter. She had a friend in a district attorney’s office.
M.R. circled an answer that justice was not served in the King beating case, but, like A.R., made clear that this was a tentative conclusion based on imperfect information. He wrote that his view of the outcome was based on media accounts and that “[pjerhaps if I knew all the facts or most of the fact[s] I could give a more intelligent answer.” M.R. also indicated familiarity with the Reginald Denny beating case but did not opine that justice was not served in that case. M.R.’s responses were thus unlike those of L.T. in significant respects.
Also, the questionnaire and voir dire of M.R. showed pro-prosecution views that L.T. did not share or shared only in certain respects. M.R. showed a willingness to support the prosecution’s position if the evidence warranted it, and generally to be fair, open-minded, and follow the law. He understood and accepted the concept of accomplice liability, and agreed a nonshooter could receive the death penalty. Expressing views that strongly contrasted with those of L.T., M.R. wrote on his juror questionnaire, “I feel very confident & comfortable with our Law Enforcement,” and opined, “I feel
*1020
very strongly about our judicial system. Without it we would be [in a] mess.” With regard to the death penalty, he wrote that “the punishment should fit the crime.”
As for M.J., because she was Black, even if one of the prosecutor’s stated justifications for striking L.T. applied to her, that is not evidence tending to prove purposeful discrimination. (See
Miller-El, supra,
545 U.S. at p. 239 [ 125 S.Ct. at p. 2325 ].) Moreover, although MJ. opined that the police officers in the Rodney King beating case were guilty and that justice was not served, she generally held pro-prosecution, pro-death-penalty attitudes. She wrote on her questionnaire, “I believe in the death penalty because I feel if you take a life that your life should be taken also.” She added in response to another question on the death penalty, “I just believe that a person will reap what they sow.” She would want anyone who murdered one of her family members to receive the death penalty. She appeared to be open-minded, fair, and willing to follow the law. Viewed as a whole, her attitudes were markedly different from those of L.T., who believed that the justice system was unjust.
In sum, a side-by-side comparison of the prospective jurors in question reveals that they were not “similarly situated.”
(Miller-El, supra,
545 U.S. at p. 247 [ 125 S.Ct. at p. 2329 ].)
Defendants further urge in essence that one of the prosecutor’s proffered reasons for striking L.W., C.W., L.B., V.H., and N.S., i.e., that they had family members or loved ones with criminal histories, applied equally to Prospective Jurors A.C. (who was Black and also Hispanic), M.C., V.R. (who was Hispanic), T.F. (who was White), and MJ. But, as will appear, the prospective jurors were not similarly situated.
As stated, A.C. and M.J. were Black, so defendants’ attempted comparison is inapposite from the beginning. Even if one of the prosecutor’s stated justifications for striking L.W., C.W., L.B., V.H., and N.S. applied to A.C. or M.J., that is not evidence tending to prove purposeful discrimination. (See
Miller-El, supra,
545 U.S. at p. 239 [ 125 S.Ct. at p. 2325 ].)
In any event, a side-by-side comparison of the prospective jurors in question reveals that they were not “similarly situated”
(Miller-El, supra,
545 U.S. at p. 247 [ 125 S.Ct. at p. 2329 ]). A.C. was different in notable respects from the aforementioned prospective jurors whom the prosecutor peremptorily challenged. To be sure, A.C. stated that her brother had a criminal and gang-involvement history, had been in prison for manslaughter, and later was killed in a drive-by shooting, and yet the prosecutor did not peremptorily challenge her.
A.C. stated, however, that her brother had been treated fairly by the law and that she had “no complaint,” which would give the prosecutor less reason
*1021
to be concerned about a relative’s criminal history, and although V.H. and N.S. voiced similar sentiments, L.W., C.W. and L.B. did not. Also, A.C.’s brother had committed the crime 25 to 35 years before she filled out the questionnaire, had been released from prison decades ago, and had died in the drive-by shooting 25 to 30 years before she filled out the questionnaire. Thus, unlike the family members of L.W., L.B., V.H., N.S., and possibly C.W., the criminal history of A.C.’s brother was remote in time. A.C. distanced herself from her brother. She was not close to him, and events involving him were “over with” and “done.”
More generally, and of paramount importance from the prosecutor’s point of view, A.C. consistently appeared willing to impose the death penalty in a proper case, unlike L.W., C.W., L.B., V.H., and N.S. (hereafter L.W. et al.), and yet to be fair and follow the law. She wrote, “If the person is guilty they should [accept] the punishment the law gives.” Her uncle was a sheriff in Louisiana. She had never had any unpleasant experiences with law enforcement officers. She said she would be able to impose the death penalty on a nonshooter in a capital crime under a theory of accomplice liability.
As noted, M.C. was a prospective alternate juror. His brother was serving a 10-year sentence in Michigan for selling cocaine. M.C. offered only mild criticism of his brother’s sentence, stating that it “[s]eems . . . long . . . .” On voir dire, he said his brother, a habitual offender, was treated fairly. Despite the one superficial commonality in the situations of M.C. and those of L.W. et al., those prospective jurors were not similarly situated because, as stated above, M.C. showed pro-prosecution views that differed from those of the other prospective jurors in question, and he was a prospective alternate juror.
As for V.R.’s purported similar situation to L.W. et al., the record shows that she also was not similarly situated to those other prospective jurors. To begin with, she was a prospective alternate juror.
To be sure, two of V.R.’s six brothers had convictions for driving under the influence, a relatively minor offense. Nonetheless, V.R. had vigorous pro-prosecution views. She stated her brothers were treated fairly; in fact, she insisted that they were guilty even though she predicted they would deny it. She showed a willingness to follow the law and be open-minded and fair to both parties, including the People, writing on her questionnaire, “I don’t believe in an eye for an eye but if evidence shows premeditated guilt I do believe in [the] death penalty.” “When a person plans another's] death they should think what is going to happen to them.” “I think people should think twice before taking another[’s] life. The higher power did not make them judge & jury.” She held these views even though her church opposed capital punishment—a view she flatly rejected. She accepted the concept of accomplice liability. In sum, V.R.’s pro-prosecution views set her apart from L.W.
*1022
et al. It is not surprising that the prosecutor did not challenge V.R. She was not similarly situated to the prospective jurors in question whom the prosecutor did challenge.
T.F. was another prospective alternate juror, which set her apart from L.W. et al. Defendants note that T.F.’s former boyfriend had been convicted of driving under the influence two years beforehand and that she had visited him in custody. Defendants complain that the prosecutor asked no questions of T.F. about the conviction.
However, T.F. showed a pro-prosecution attitude that obviated any need to do so. Both in her questionnaire and on voir dire, T.F. emphatically renounced her former boyfriend. She wrote, “I feel that he was a potential danger, not only to himself, but to the public while driving drunk and he deserved what he got.” She said the same on voir dire. On her questionnaire, she wrote, “when a crime has been committed that is so serious, such as taking someone else’s life, a punishment must be reached that would stop that person from again committing that crime and also serve justice for the families and victims left behind.” With regard to the death penalty, she wrote, “I am a firm believer in what comes around must go around.” She expressed a general willingness to follow the law and to be fair and open-minded toward both parties, including the People. She believed in the concept of accomplice liability sufficiently to volunteer in writing, “If the person who aids knowingly is doing so and consents to helping—[he or she is] therefore causing a crime,” and she could impose the death penalty on a nonshooter who was an accomplice.
Again, it is not surprising that the prosecutor did not challenge T.F. She was not similarly situated to L.W. et al. The same may be said of M.J., who, as described, held pro-prosecution views, an attitude that set her apart in significant respects from L.W. et al.
Lewis urges that a prospective juror whom the prosecutor did not challenge, T.M., a Black woman, was similarly situated in numerous respects to K.B., whom she did. For example, both had friends in law enforcement, both knew people who had died by violence, and both were employed by well-established businesses. Moreover, T.M., like L.W. et al., had a relative with a criminal history.
As is the case with M.J. and A.C., because T.M. was Black, even if one or more of the prosecutor’s stated justifications for striking the other prospective jurors in question applied to her, that is not evidence tending to prove purposeful discrimination. (See
Miller-El, supra,
545 U.S. at p. 239 [ 125 S.Ct. at p. 2325 ].) In any event, in important respects the other prospective jurors
*1023
in question were not similarly situated to her. Although T.M.’s brother had been in custody for a drug offense, she did not think he had been treated unfairly, and unlike the other prospective jurors in question, she had pro-prosecution views. She wrote, “Depending upon the nature of the crime I would be inclined to support the death penalty. ... I would support the death penalty for a mass murderer for sure.” She had a friend in the Los Angeles County District Attorney’s Office. She understood and accepted the concept of accomplice liability. Her views caused the defense to peremptorily challenge her. Thus, the prosecutor could conclude that T.M. was acceptable and not feel the same way about the other prospective jurors.
16
Defendants further urge that S.P. (who was perceived as possibly Hispanic), like V.H., had served on a jury that tried a criminal case, and yet the prosecutor did not peremptorily challenge her or attempt to learn whether her jury voted to acquit the defendant, which was a stated reason for peremptorily challenging V.H. But the two prospective jurors were not similarly situated. The charges in the case in which S.P. participated consisted of trespassing and assault. She expressed a willingness to be fair and open-minded toward both parties, including the People, and was willing to follow the law, except that she would hold the prosecution to a higher standard of proof than beyond a reasonable doubt in a capital case.
17
Although the prosecutor stated she found V.H. acceptable until she learned he voted to acquit another defendant of rape, and did not inquire about the verdict S.P.’s jury returned, nevertheless the two were not similarly situated. As the prosecutor emphasized, V.H.’s case involved rejecting the allegations of a woman who had been the subject of a violent and felonious assault against her, whereas the case S.P. heard does not appear on this record to have been similarly serious. As described, the prosecutor stated of V.H. that his vote to acquit someone charged with rape “shows that he was able to reject the prosecutor’s argument, reject the People’s proof and reject the word of a woman. [<j[] In this trial, we will have women testifying to the history of abuse by one of the defendants. Their believability and credibility will become crucial with this case.” The prosecutor’s concern with prospective jurors who had served on rape trials extended to others. On learning that MJ. had served on a jury trying a rape case, that the jurors disagreed on the verdict, and that the disagreement centered on the alleged victim’s credibility as a witness, the prosecutor wanted to know which way MJ. had voted.
*1024
Defense counsel objected and the trial court sustained the objection. Nevertheless, the prosecutor asked numerous questions of MJ. concerning the rape case jury on which she had previously served. On this record, S.P. does not appear similarly situated to V.H.
We emphasize that, unlike the Black prospective jurors whom the prosecutor peremptorily challenged, the unchallenged prospective jurors showed by their questionnaires and voir dire answers that they were comfortable serving on the jury, were open-minded and dedicated to following the law, including possibly imposing the death penalty if the evidence warranted it, gave written answers consistent with their oral voir dire, and did not appear to have difficulty understanding questions. In conclusion, a side-by-side comparison of the Black prospective jurors in question whom the prosecutor peremptorily challenged and those, Black and non-Black, whom she did not reveals that they were not “similarly situated.”
(Miller-El, supra,
545 U.S. at p. 247 [ 125 S.Ct. at p. 2329 ].) Defendants are not entitled to relief on the basis of a comparative prospective juror analysis for the first time on appeal, assuming for purposes of discussion that such an analysis is required.
18
IV. GUILT PHASE ISSUES
A.
Evidentiary Rulings (Lewis, Oliver)
Defendants claim numerous evidentiary rulings violated state law. Invoking the Fifth, Sixth, Eighth, and Fourteenth Amendments, and parallel provisions of the state Constitution, defendants assert related violations of their rights to due process, to a reliable death sentence, and to confront and cross-examine witnesses.
Except for due process, the constitutional claims are forfeited.
( Partida, supra,
37 Cal.4th 428, 435 .) No reversible error occurred under state law.
Over defense objection (noted in parentheses that follow), the trial court admitted evidence during the guilt phase, that (1) Oliver was unemployed between June 25 and July 4, 1989 (relevance); (2) Mizell might have shown Oliver an album of family photographs (asked and answered); (3) Iva
*1025
Worthen, Mizell’s mother, learned from a witness to the arson of her car t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2599880. Public record. Not legal advice.