# People v. Banks

> California Supreme Court · August 14, 2014 · 59 Cal. 4th 1113

URL: https://www.frixlaw.com/law-library/cases/2718100

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. KELVYN RONDELL BANKS, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 14, 2014
- **Citations:** 59 Cal. 4th 1113; 176 Cal. Rptr. 3d 185; 331 P.3d 1206; 2014 Cal. LEXIS 5468; 2014 WL 3953469
- **Precedential status:** Published
- **Opinion:** Opinion by Liu
- **Judges:** Liu
- **Cited by:** 193 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by People v. Scott, 61 Cal. 4th 363 (2015).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2718100

## Opinion text

Filed 8/14/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S080477
v. )
)
KELVYN RONDELL BANKS, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. BA109260
____________________________________)

Defendant Kelvyn Rondell Banks was convicted by a jury in 1998 of two
counts of first degree murder (Pen. Code, § 187; all further statutory references are
to the Penal Code unless otherwise indicated), one count of attempted murder
(§§ 187, subd. (a), 664), one count of forcible rape (§ 261, subd. (a)(2)), one count
of forcible oral copulation (§ 288a, subd. (c)), one count of first degree residential
robbery (§ 211), one count of first degree residential burglary (§ 459), and one
count of attempted second degree robbery (§ 211). The jury also found true the
special circumstances allegations of multiple murder, robbery murder, and
burglary murder (§§ 190.2, subd. (a)(3), (l7)(A) & (G)); the allegations that
defendant personally used a firearm in the commission of each offense (former
§ 12022.5, subd. (a)); and the allegation that the attempted murder was committed
willfully, deliberately and with premeditation (§ 664, subd. (a)). Defendant was
acquitted of a third murder count related to the killing of Michael Haney in a
separate incident.

1
The first penalty phase trial ended in a mistrial. After a penalty phase
retrial, a jury returned a verdict of death in 1999. The trial court denied the
automatic motion to modify the penalty (§ 190.4, subd. (e)), sentenced defendant
on the noncapital counts and enhancements, and imposed a sentence of death.
This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239,
subd. (b).) As explained below, the conviction on count 2 of willful, deliberate,
and premeditated attempted murder must be reduced to attempted murder. In all
other respects, we affirm the judgment.
I. FACTS

A. Guilt Phase
1. Prosecution Evidence

a) Crimes against Charles Coleman and Latasha W.

(1) Latasha W.
Latasha W. testified that during the early morning hours of July 1, 1996,
defendant raped her, shot her, and murdered Charles Coleman.
At 2:00 a.m., her friend Charles Coleman, a parapalegic confined to a
wheelchair but able to drive, was driving her in his car to his house on Halldale
Avenue in Los Angeles. Latasha W., who was 17 years old at the time, began
taking shopping bags from the car to the house. As she was returning to the car,
Latasha W. saw defendant and another man approach Coleman‘s car from an alley
around the corner of the street. Coleman appeared to know defendant and the
other man. At Coleman‘s request, defendant pulled Coleman and his wheelchair
up the three or four steps that led to the house.
Once inside the house, defendant stood directly behind Coleman and
pointed a gun at the back of his head. Defendant pulled the gun trigger twice, but
the weapon did not discharge. Defendant pulled the trigger a third time, firing a

2
single bullet into the back of Coleman‘s head. The impact caused Coleman to fall
to the floor from his wheelchair.
Defendant grabbed Latasha W.‘s arm and forced her into Coleman‘s
bedroom where he demanded the location of Coleman‘s money and drugs.
Latasha W. responded that she did not know where Coleman stored his drugs, but
that he kept his money in a hole inside his mattress. Defendant instructed Latasha
W. to kneel in the corner of the bedroom; he then threw the mattress on top of her.
From underneath the mattress, Latasha W. could hear the two men rummaging
through the bedroom.
Defendant eventually removed the mattress. He then led Latasha W. by the
arm to the laundry room, where he unbuckled his pants while holding his gun in
his right hand. Defendant then ordered Latasha W. to get on her knees and, after
placing the gun on top of the washing machine, forced her to orally copulate him.
He then ripped her shorts, forced her onto her hands and knees, and raped her.
After ordering Latasha W. to lie down on her back, defendant raped her a second
time.
Defendant then took Latasha W. into the kitchen, where the second man
was standing with a third man. Defendant kept Latasha W. in the kitchen while
the other two men rummaged through the house. Defendant and his accomplices
referred to one another as ―Blood,‖ a term Latasha W. believed had gang
significance. Although Latasha W. did not know if Coleman was a gang member
at the time of his death, she was aware that he used to be affiliated with the Black
Stone gang, a Bloods gang affiliate.
Latasha W. was led into the living room and forced to lie facedown on the
floor. Using a telephone cord, the second man tied Latasha W.‘s hands and legs.
The men then searched the house for five to seven minutes until Latasha W. heard
one of the men say they had found what they were looking for. The two

3
accomplices exited the house, but defendant remained inside. Defendant shot
Coleman again, striking him in the head. From a distance of approximately six
feet, defendant shot at Latasha W. The bullet struck her ear as she lay facedown
on the floor in the living room. Latasha W. remained motionless until she heard
the three men drive away in Coleman‘s car. After waiting several minutes,
Latasha W. ran outside the house to seek help.
At trial, Latasha W. identified defendant as the person who shot Coleman
and sexually assaulted and shot her.

(2) Los Angeles Police Officer Martin Martinez
Los Angeles Police Officer Martin Martinez testified that around 3:00 a.m.
on the morning of July 1, 1996, Latasha W. flagged him down in his patrol car on
Slauson Avenue. Latasha W. told Officer Martinez that her friend had just been
shot and that she had been raped and shot. She described the shooter as an
African-American male who was approximately 27 years old, five feet nine inches
tall, 180 pounds, and bald. She reported that the shooter was wearing a black
jacket, a white T-shirt, and black or dark-colored shoes. The gun he was carrying
was made of stainless steel.

(3) Madeline Marini
Madeline Marini testified that on July 1, 1996, she performed a sexual
assault examination on Latasha W. at California Hospital. Marini collected oral,
vaginal, and rectal swab specimens from Latasha W. and drew a blood sample.
Latasha W. had physical injuries that were indicative of sexual assault, including
redness, abrasions, and small broken vessels in the vagina. Latasha W. described
the rape suspect as five feet nine inches tall, 170 pounds, bald, and wearing black
clothes.

4
(4) Los Angeles Police Detective Sal LaBarbera
Los Angeles Police Detective Sal LaBarbera testified that on July 1, 1996,
at about 3:30 a.m., he was notified of a homicide at 5835 South Halldale Avenue.
LaBarbera responded to the crime scene with his partner, Officer Christopher
Barling.
LaBarbera further testified that on August 7, 1996, he presented Latasha W.
with a six-pack photographic array. As he was removing the six-pack from his
binder and before he could place the photo array on the table, Latasha W. ―blurted
out that she already sees him, the person that she identified.‖ Latasha W. then
selected defendant‘s photograph and identified him as her and Coleman‘s
assailant.

(5) Deputy Medical Examiner Pedro Ortiz
Deputy Medical Examiner Pedro Ortiz testified that he conducted an
autopsy on Coleman‘s body on July 3, 1996. Coleman had been shot twice. One
bullet entered the back of his head, passed through the back of his skull, and exited
through the center of his head. Soot deposits and evidence of gunpowder on the
entrance wound suggested that this wound was made at close range. A second
bullet entered the left side of his head above the left earlobe and exited through the
right temple. This second wound was sustained from a distance of more than two
feet.

(6) Criminalist Michael Mastrocovo
Michael Mastrocovo, a criminalist employed by the Los Angeles Police
Department, testified that he was responsible for analyzing sexual assault evidence
for criminal court cases. He testified that he analyzed the items in Latasha W.‘s
rape kit and found sperm on all three vaginal slides, the vaginal aspirate, and the
rectal swab and slide. Sperm was also detected in a stain on the crotch area of
Latasha W.‘s underwear. On April 30, 1997, Mastrocovo sent the vaginal swab

5
samples from Latasha W.‘s rape kit, along with blood samples drawn from
Latasha W. and defendant, to Cellmark Diagnostics (Cellmark) for DNA analysis.

(7) Dr. Robin Cotton
Dr. Robin Cotton, the director of Cellmark, testified that Cellmark
conducted a DNA analysis of the vaginal swabs and blood samples submitted by
Mastrocovo. The DNA from the sperm fraction of the swabs was compared to the
DNA from defendant‘s blood sample; the DNA matched at all nine loci tested,
meaning that defendant could not be excluded as the donor of the sperm sample.
Latasha W. could not be excluded as a match with the DNA in the nonsperm
fraction, which is consistent with the swab having been taken from her. Dr.
Cotton testified that the combination of allele types common in the sperm sample
and defendant‘s blood sample would occur in about one in 17 million people in the
African-American population.

(8) Stipulation
The parties stipulated that a tattoo on defendant‘s left arm reads ―HPB,‖
which stands for Harvard Park Bloods or Harvard Park Brims. The Harvard Park
Brims are a Bloods gang affiliate operating in an area of Los Angeles roughly
bounded by Slauson Avenue, Vermont Avenue, Gage Avenue, and Western
Avenue. The word ―Blood‖ is a term commonly used between members of
Bloods gangs.

b) Crimes Against Charles Foster

(1) Sandra Johnson and Yvonne McGill
Sandra Johnson and Yvonne McGill testified that on July 26, 1996, around
12:30 a.m., Johnson drove McGill and Charles Foster to the Home Savings Bank
located on Vermont Avenue in Los Angeles. Johnson and McGill waited in the
car while Foster went to the automated teller machine (ATM). McGill was

6
watching Foster, who was fumbling around with some items, possibly looking for
his ATM card.
From her side view mirror, Johnson saw a hooded man wearing a red
bandana over his face approach the passenger side of the car. Because the man‘s
eyes were not concealed, Johnson could tell he was African-American and had
brown eyes. McGill turned to look out the passenger side window and saw the
man standing with a handgun pointed directly at her. She looked into his eyes and
started screaming. Johnson started her car and drove away while the masked man
looked at Foster standing about 12 feet away by the ATM. After driving a short
distance, they heard two gunshots.
Johnson and McGill stopped a nearby police vehicle and reported that
someone had shot their friend at the ATM. The police car responded to the bank
followed by Johnson and McGill. When they arrived, Foster was dead, lying face-
down in front of the ATM.
On August 27, 1996, McGill was shown a photographic six-pack and
selected a photograph of defendant as having ―eyes [that] look like the guy with
the gun.‖ McGill testified at trial that defendant appeared to be the person whose
eyes matched those of the man who killed Foster.

(2) Detective Frank Weber
Detective Frank Weber testified that he responded to a crime scene at the
Home Savings Bank on July 26, 1996 with his partner, Detective Paul Wright.
Detective Weber recovered two firearm casings within five to 10 feet of Foster‘s
body. A Sizzler discount card was in the receipt slot of the ATM, which had
sustained damage from a bullet strike. Two expended bullets were recovered: one
inside the ATM and the other in an alley west of Vermont Avenue. An empty
deposit envelope was clenched in Foster‘s right hand beneath his body.

7
Detective Weber further testified that on July 29, 1996, he took statements
from both Johnson and McGill. Johnson described the person who approached her
car as an African-American male approximately five feet eight inches tall. He was
wearing a red hoodie with a red scarf. McGill stated that the gunman had a red
sweater wrapped around his head and was wearing a large black jacket. He was
African-American and approximately five feet nine inches tall.

(3) Dr. Eugene Carpenter, Jr.
Dr. Eugene Carpenter, Jr., a medical examiner working for the Department
of Coroner of Los Angeles County, testified that he performed an autopsy on
Foster‘s body. Dr. Carpenter concluded that Foster had sustained two fatal
gunshot wounds. The first bullet entered his right hand and exited the base of his
right thumb; it then created a second entrance wound at his throat and exited near
his neck on his left shoulder. The second bullet struck the back of Foster‘s head
and exited through his forehead.

(4) Patricia Manzanares
Patricia Manzanares testified that she lived in a ground floor apartment
adjacent to the Home Savings Bank parking lot. On the night of the Foster
shooting, Manzanares saw two men pass by her window. One man stayed in front
of the window in an alley while the other man, whom Manzanares later identified
as defendant, walked toward the bank. Defendant was wearing a mask.
Defendant approached Foster, who was using the ATM, and shot him. Defendant
then returned to the alley near Manzanares‘s apartment window and removed his
mask. Manzanares was able to see his face. Defendant laughingly told the other
man who had stayed by the window, ―Oh shit‖ and ―Goddamn.‖ The men left the
area in a large green Cadillac with a white top.

8
Manzanares called the police. She described the shooter as an African-
American male, 25 to 26 years old, about five feet six or seven inches tall, and
about 190 pounds. He had a short ―Afro‖ haircut, a chubby face, and some
whiskers around his upper lip and chin. He was wearing a black-and-white
checkered shirt, a heavy black jacket, black baggy jeans, and a red mask that
extended below his collar.
On August 7, 1996, Manzanares was shown a single photographic six-pack
and selected defendant‘s photograph as depicting the man who shot Foster. She
identified defendant‘s photograph from the same six-pack again on August 21,
1996, and again before the grand jury on August 27, 1996. On February 18, 1997,
Manzanares identified defendant as the gunman in a live lineup. Manzanares
testified at trial that defendant was the person she saw shoot Foster.

(5) Los Angeles Police Officer Marcelo Raffi
Los Angeles Police Officer Marcelo Raffi testified that on July 31, 1996,
around 12:30 a.m., he and his partner were patrolling the area of Harvard Park
near Vermont Avenue in a marked patrol car. Defendant was among a group of
people walking southbound on Vermont Avenue. Defendant began running when
he saw the police and was detained after a brief pursuit. Before he was stopped,
Officer Raffi saw defendant drop an object on a pile of wood. Officer Raffi
recovered a loaded bluesteel nine-millimeter semiautomatic handgun from the
place defendant had dropped the object.
Officer Raffi arrested defendant. The report of defendant‘s arrest indicated
that defendant was five feet 10 inches tall and weighed 225 pounds. His booking
photograph depicted him wearing a black or blue denim jacket that fell somewhere
between his thighs and knees.

9
(6) Detectives Paul Wright and Frank Weber
Detectives Paul Wright and Frank Weber testified that on August 21, 1996,
they executed a search warrant at defendant‘s residence at 1446 West 58th Place
in Los Angeles, located about 50 yards from Coleman‘s house and about one-half
mile from the bank where Foster was murdered. They recovered an extra-large
black jacket on the floor inside a bedroom closet. Officer Raffi identified the
jacket as the same one defendant had been wearing on July 31, 1996, and
Manzanares identified the jacket as the one worn by the man who shot Charles
Foster. The police also recovered four red T-shirts and a pair of black jeans, two
ammunition boxes containing live nine-millimeter bullets, and an empty
ammunition box.

(7) Stipulations
The parties entered several stipulations regarding the ballistics evidence.
The nine-millimeter handgun Officer Raffi recovered was operable. The handgun
fired both of the Speer cartridge casings and both of the bullets recovered from the
Foster and Haney crime scenes. The handgun contained nine-millimeter rounds
manufactured by CCI, Norenco, Federal, and Speer. The Speer cartridge casing in
the handgun and the Speer cartridge casings from the Foster crime scene bore the
same head stamp and shared the same caliber, brand, type, and material
composition. One box of ammunition recovered from defendant‘s residence was
for Speer nine-millimeter ammunition; the Speer materials from the handgun and
the Foster crime scene were commonly packaged in that type of box. The empty
ammunition box recovered from defendant‘s residence was for CCI ammunition,
and the CCI cartridges found in the handgun were of the type commonly packaged
in that type of box.

10
2. Defense Evidence
Defendant did not testify on his own behalf. However, he presented
testimony from Los Angeles Police Officer Donna Shoates and Detective Sal
LaBarbera.
Officer Shoates and her partner transported Latasha W. to California
Hospital for the sexual assault examination on July 1, 1996. Officer Shoates
testified that Latasha W. described the man who had attacked her as an African-
American male who was bald, five feet nine inches tall, and about 175 pounds; he
was wearing a large black jacket, a white T-shirt, and black pants. Latasha W.
told Officer Shoates that the man who attacked her did not ejaculate and that
Coleman was a gang member and known drug dealer.
Detective LaBarbera testified that on July 12, 1996, he showed Latasha W.
a binder with over 100 photographs of Six Deuce Brims and Harvard Park Bloods
gang members. Defendant‘s photograph was not included in that binder. Latasha
W. identified the photograph in position number 11, stating that the person
depicted in that photograph ―looked like‖ the person who attacked and shot her.
On a copy of the page, Latasha W. circled the photograph in position number 11,
initialed and dated it, and wrote ―looks like him.‖ The man Latasha W. identified
was in custody at the time of the incident.
Detective LaBarbera acknowledged that his report indicated defendant
weighed 210 pounds, whereas Officer Raffi‘s report indicated defendant weighed
225 pounds. On cross-examination, Detective LaBarbera testified that despite
writing in his report that the gunman was ―clean shaven, possible stubble,‖
Latasha W. actually described the gunman who raped her as having a mustache
and a small goatee.
The defense also cross-examined various witnesses called by the
prosecution, including Dr. Robin Cotton, Yvonne McGill, and Patricia

11
Manzanares. Dr. Cotton testified on cross-examination that the Cellmark database
used to compute the probability of a specific set of genes occurring in a member of
the African-American population contained a sample of 100 African-Americans
living across the United States; that the database did not account for inter-racial or
mixed race ethnic groups; that the database included only samples from
Caucasians, African-Americans, and Hispanics (not Asians or Native Americans);
and that the true frequency of the combination of genes occurring in a given
population could be 10 times greater or 10 times less than the estimated frequency.
Dr. Cotton further testified that the Cellmark analysts who performed the DNA
testing prepared two reports, one on June 2,1997, and one on June 30, 1997. In
preparing the first report, Cellmark tested five loci and found that the DNA from
the sperm sample and the DNA from defendant‘s blood sample was identical at
each locus tested. The probability that a member of the African-American
population would have the same combination of alleles found in both the sperm
sample and blood sample at each of the five loci would be one in 8,000. In
preparing the second report, Cellmark tested an additional four loci and again
found a perfect match between the sperm sample and defendant‘s blood sample.
The probability that a member of the African-American population would have the
same combination of alleles found at each of the nine loci tested would be one in
17 million.
Yvonne McGill acknowledged on cross-examination that ―most of
[defendant‘s] face was covered‖ when she saw him; that she had stated during her
grand jury testimony that she had only gotten a ―glimpse‖ of the gunman; and that
she had told Officer Weber that the gunman had a dark complexion, whereas she
would describe defendant as ―[l]ight skinned.‖
Patricia Manzanares acknowledged on cross-examination that the jacket
worn by the gunman is common among African-American men in her

12
neighborhood. She also acknowledged that she had previously described the
gunman as five feet seven inches tall and wearing a black-and-white checkered
shirt and a heavy black-and-white jacket.

B. First Penalty Phase
During the first penalty phase trial, the prosecution presented the testimony
of Eddie Candelaria, Armando Quintana, Lashan Thomas, Sandra Hess, Thomas
Butler, Richard Bee, Joseph Elloie, Henry Nandino, Bridget R., Sandra Vinning,
Chandra Vinning, and Roberto Perovich. The defense presented the testimony of
Linda Allen, Barbara Sparks Mitchell, Brian Keith Mitchell, Carole Sparks, Louis
Weisberg, Ira Mansoori, Michael E. Gold, and Nancy Kaser-Boyd.
After a period of deliberation, the court concluded that the jury was unable
to reach a unanimous verdict and declared a mistrial. The jury‘s vote at the time
of the declaration of a mistrial was 11 to one in favor of a death sentence.

C. Penalty Phase Retrial

1. Prosecution Evidence

a) Prior Violent Criminal Activity

(1) Lashan Thomas and Luz Hernandez
Lashan Thomas testified that on January 23, 1988, at 8:00 p.m., she and
defendant were walking down the street behind Luz Hernandez. Defendant,
holding a pipe in his hand, said, ― ‗Watch me rob her.‘ ‖ Defendant approached
Hernandez and demanded her money and her purse. When Hernandez refused,
defendant struck her across the back of the head with the pipe. She fell to the
ground, and defendant took about $20 from her. Thomas and defendant fled but
were later apprehended.
Hernandez and her husband were unavailable at the time of the penalty
phase trial, but their testimony from the juvenile proceeding held on February 24,

13
1988 was read to the jury. Hernandez testified that the blow to her head resulted
in a hematoma that was swollen for five days. She was three months pregnant
when she was struck and miscarried about five days later. Hernandez‘s husband
testified that he saw defendant and Thomas running from Hernandez after she
screamed.

(2) Sandra Hess
Defendant was a student in Sandra Hess‘s literacy class at the Barry J.
Niedorf Juvenile Hall. Hess testified that on March 31, 1988, defendant
approached her desk without permission and challenged her refusal to give him a
―good gram,‖ an acknowledgment of a student‘s good behavior. While Hess was
in the process of removing defendant from the classroom for refusing to return to
his seat, defendant put Hess in a ―choke hold,‖ rendering her unable to breathe or
talk. As defendant moved Hess across the room in the choke hold, he yelled at
another student, ― ‗Come on. You said you‘d help me. We‘ll get her.‘ ‖ When
the other student instead reached for the emergency telephone, defendant stated,
― ‗Don‘t pick up the phone. Don‘t do that.‘ ‖ As soon as the other student picked
up the phone, defendant sat on the chair beside Hess‘s desk and smiled. As a
result of the assault, Hess sustained a bruised larynx; her throat was sore for six
weeks, and she had to speak in a whisper for a week.

(3) Richard Bee
On August 5, 1989, defendant was in the custody of the California Youth
Authority (CYA) at Humboldt Hall. Sergeant Richard Bee testified defendant
refused to be quiet and go to sleep, so he informed defendant he would be placed
in a detention room until the morning. Defendant became argumentative and
aggressive. Bee then sprayed defendant with Mace, and as he did so, defendant

14
swung and struck Bee in the chin and chest. Bee sustained a sore jaw and a
bruised chest.

(4) Bridget R.
Bridget R. testified that she dated defendant for about three months, during
which time they lived together with Bridget R.‘s sister and three-year-old
daughter. On February 21, 1994, defendant accused Bridget R. of cheating on him
and became very violent. He struck Bridget R.‘s face with his fists multiple times;
forced Bridget R. to orally copulate him; hit her on the top of her head with hair
clippers, causing her to bleed from her forehead; choked her to the point of
unconsciousness three times; and raped her in front of her daughter. At the time of
the attack, defendant was aware that Bridget R. was pregnant with his child or
possibly his twins. The attack caused a miscarriage.
Defendant eventually tied Bridget R. up with a telephone cord. He then left
the house to buy a new telephone cord and took Bridget R.‘s daughter with him,
telling Bridget R.: ― ‗I‘m taking your little girl in case you get loose.‘ ‖ Bridget
R. freed herself, ran upstairs to a neighbor‘s residence, and asked the neighbor to
call the police. When defendant returned, Bridget R. pretended that she had just
gotten loose.
When the police arrived, Bridget R. told the police what had happened.
Defendant subsequently called Bridget R. from jail and apologized for causing the
miscarriage. However, he also threatened to kill Bridget R.‘s family members if
she testified against him.

(5) Deputy Roberto Perovich
Los Angeles County Sherriff‘s Deputy Roberto Perovich testified that on
December 10, 1996, around 11:00 p.m., he was patrolling the disciplinary cells at
East Facility when he heard screaming from one of the cells. Upon responding to

15
the cell with another deputy, Deputy Perovich observed that inmate Sevedo
Sanchez was screaming and had redness and swelling on the left side of his face.
Defendant was the only other occupant of the cell. Deputy Perovich observed a
Bible in the cell toilet.

(6) Deputy Arthur Penate
Los Angeles County Sheriff‘s Deputy Arthur Penate testified that on
January 31, 1999, he was conducting a security check of the seventh floor of the
Twin Towers jail facility. The seventh floor housed two types of prisoners in
single cells: mentally ill inmates and extremely violent inmates. Deputy Penate
understood that defendant fell into the latter category. Deputy Penate opened a
small slot in the cell door to give defendant his food. As he received the tray,
defendant bent down and threw a carton containing feces and urine at Deputy
Penate. Defendant aimed at Deputy Penate‘s face but struck him in the torso. In
the days following the incident, defendant laughingly told Deputy Penate, ― ‗See.
See. I told you I was going to get you.‘ ‖ Defendant also wrote, ―Penate is a
bitch‖ and ―Fuck off‖ on the interior walls of his cell, along with various gang-
related comments.
Deputy Penate further testified that a few days before the incident,
defendant accused Deputy Penate of ―disrespecting‖ him when Deputy Penate told
another inmate that defendant was a troublemaker. On a separate occasion about
two weeks before the incident, defendant complained that his food was late.
When Deputy Penate told him to be patient, he replied: ― ‗No. No. No. No. No.
Let me tell you who I am and how it is. [¶] Let me tell you who I am and what I
am capable of doing. [¶] . . . [¶] You know who I am? [¶] You better ask your
deputy friends and ask who I am.‘ ‖

16
Finally, Deputy Penate testified that defendant ―continuously manipulates
and tries to control other deputies‖ and that defendant would often condition his
compliance with orders from prison staff on receiving special items such as extra
clothing or blankets.

b) Circumstances of the Crimes

(1) Crimes against Coleman and Latasha W.
The prosecution presented substantially the same evidence in the penalty
retrial that was presented at the guilt phase of the trial, including the testimony of
Detective Sal LaBarbera, Latasha W., and Dr. Pedro Ortiz. The parties stipulated
to the substance of the DNA evidence testimony provided by Madeline Marini,
Michael Mastrocovo, and Dr. Robin Cotton.

(2) Gang Expert Testimony
Los Angeles Police Detective Christopher Barling testified as an expert on
the Harvard Park Brims gang, also known as the Six Deuce Brims gang. The
Harvard Park Brims gang was an African-American Bloods gang affiliate that was
associated with the color red. It was not uncommon for members of the Harvard
Park Brims gang to refer to themselves as ―Blood.‖ The Coleman and Foster
crime scenes were within the territory of the Harvard Park Brims gang. Defendant
had the letters H.P.B., short for Harvard Park Brims, tattooed on his left arm.

(3) Crimes against Foster
The prosecution presented substantially the same evidence in the penalty
retrial that was presented at the guilt phase, including the testimony of Detective
Frank Weber, Yvonne McGill, Patricia Manzanares, and Officer Marcelo Raffi.
The parties also stipulated to the following facts: (1) the gun recovered by
Officer Raffi was the murder weapon in the Foster shooting; (2) the recovered gun
contained six live rounds, including two CCI brand rounds and one Speer brand

17
round; (3) the Speer round in the recovered gun and the Speer cartridge casings
recovered from the Foster crime scene were the same types of rounds that were
found in the ammunition box recovered from defendant‘s residence; (4) police
executed a search warrant at defendant‘s residence and recovered four red T-shirts,
an empty nine-millimeter luger ammunition box, and a jacket; (5) Dr. Steve
Scholtz performed an autopsy on Foster and determined the cause of death was
gunshot wounds to the head; and (6) a blood screening revealed cocaine
metabolite in Foster‘s system.

c) Victim Impact Testimony — Chandra Vinning
Coleman was survived by his elder sister Chandra Vinning (Chandra), his
mother Sandra Vinning (Sandra), and his daughter. Because Sandra suffered from
a medical disability that made it difficult for her to write, Chandra wrote a letter
that summarized Sandra‘s feelings about losing her son. Chandra testified that
Coleman had been a great help to Sandra, ensuring that she went to her numerous
doctor‘s appointments by driving her or giving her cab fare. Sandra‘s health had
deteriorated since Coleman‘s death.
Chandra further testified that Coleman‘s daughter was ―the joy of his life.‖
She identified a photograph depicting Coleman with his daughter, who was then
four years old. On the night of his murder, Coleman had taken his daughter to an
amusement park.

2. Defense Case

a) Defendant’s Mental Health

(1) Dr. Louis W. Weisberg
Dr. Louis W. Weisberg, a board-certified psychiatrist, testified that he
evaluated defendant at the CYA in 1988. Although Dr. Weisberg had no
independent recollection of the evaluation, he had written a report about it. The

18
report indicated that defendant had made the following statements with respect to
his attack on Sandra Hess: (1) ―he felt very frightened of what he had done
because Hess was older‖; (2) ―he was afraid that he might really hurt someone‖;
and (3) ―[h]e feels frightened about his behavior.‖ The report also indicated that
defendant‘s mother had a history of alcohol and drug abuse.
Dr. Weisberg diagnosed defendant with severe conduct disorder
―[u]ndifferentiated‖ type. Conduct disorder is characterized by disruptive
conduct, a disregard for law and authority, and an avoidance of consequences.
Conduct Disorder also refers to a pattern of antisocial behavior in persons under
the age of 18. In adults, antisocial personality disorder is characterized by an
unstable employment history, frequent arrests due to unlawful behavior,
aggressiveness, impulsiveness, a tendency to lie, and an absence of remorse. Dr.
Weisberg also diagnosed defendant with intermittent explosive disorder, a disorder
characterized by outbursts of violent or aggressive behavior. He noted that
defendant had reported a history of blackouts associated with violence.
In his report, Dr. Weisberg recommended that defendant be evaluated to
rule out organic brain disorder and a seizure disorder. Defendant required ―an
intensive treatment program.‖

(2) Dr. Michael Gold
Dr. Michael Gold, a medical doctor practicing as a neurologist, testified
that he performed a neurologic examination on defendant for purposes of the
penalty phase trial. The examination included an interview with defendant and a
general physical examination. It also included the following diagnostic tests to
evaluate defendant‘s brain characteristics and function: (1) a brain wave or
electroencephalogram (EEG) test; (2) a magnetic resonance imaging (MRI) brain
scan; and (3) a single photon emission computed tomography (SPECT) scan, a

19
nuclear imaging test that employs glucose injected with radioactive material to
measure brain activity.
The physical examination revealed that defendant‘s general physical health
was normal. The neurologic test, however, suggested that defendant perceived
less sensation on the left side of his body. The left side of defendant‘s body also
demonstrated different reflexes than the right side. The results of these tests
indicated to Dr. Gold that something was affecting the right side of defendant‘s
brain.
Defendant‘s EEG test and MRI scans were normal. The SPECT scan,
however, revealed an abnormality: a decrease in the utilization of the
radioactively laced glucose in the temporal lobes.
Based on the ―complimentary [sic]‖ results of defendant‘s physical exam
and the SPECT scan, Dr. Gold diagnosed defendant with malfunction or abnormal
function of both of his temporal lobes. The left temporal lobe is responsible for
understanding, reading, speaking, and writing language, and the right temporal
lobe is responsible for behavior, impulse control, and emotions.

(3) Dr. Carl Osborne
Dr. Carl Osborne, a forensic psychologist, testified that he was engaged by
the defense in 1998 to interview and diagnose defendant. Dr. Osborne spent about
18 hours with defendant over eight visits. He reviewed extensive records
pertaining to defendant, including previous psychological and psychiatric reports,
records from the Department of Social Services and Child Protective Services,
interviews with defendant‘s family members, and some of defendant‘s own
writings. Dr. Osborne also performed three psychological tests on defendant:
(1) the Wechsler Adult Intelligence Scale Third Edition, an IQ test comprised of
14 separate subtests measuring different areas of functioning; (2) the Validity

20
Indicator Profile, a test designed to measure whether the test taker is malingering;
and (3) the Wechsler Memory Scale, a test used to assess the test taker‘s memory.
Defendant was cooperative during the interviews and testing. Defendant
scored a 94 on the Wechsler Adult Intelligence Scale, indicating normal
intelligence. However, Dr. Osborne found that defendant seemed to have
significant difficulty with three tasks that comprise ―working memory,‖ which is
the ability to store information in one‘s brain and manipulate that information on a
short-term basis. Defendant appeared eager to do the best he could on the Validity
Indicator Profile test, but the results of that test suggested that defendant was not
paying close attention to what he was doing.
Dr. Osborne concluded that defendant suffered from several severe and
chronic mental illnesses. He diagnosed defendant as suffering from intermittent
explosive disorder. Individuals suffering from this disorder experience periods
during which tensions or emotions build up until they ―explode‖ in the form of
aggressive or violent behavior. An explosive episode is followed by a period of
quiescence, during which the pressure builds anew. Dr. Osborne also opined that
defendant probably suffers from substance dependence.
According to Dr. Osborne, defendant‘s test results were consistent with Dr.
Gold‘s theory of underlying brain damage. In particular, a diagnosis of
intermittent explosive disorder would be consistent with temporal lobe damage
because the temporal lobe affects impulse control and intermittent explosive
disorder is an impulse control disorder. Similarly, a problem with working
memory would be consistent with Dr. Gold‘s diagnosis of temporal lobe damage.
Dr. Osborne opined that defendant‘s behavior throughout his life was
influenced by the following factors: (1) his mother was a drug addict who
neglected him; (2) his early life was very chaotic; (3) his mother took him away
from his aunt‘s home where he was happy; (4) his father was absent from his life

21
and very violent toward his mother; (5) he suffered extreme intrauterine trauma
caused by a car accident that occurred when his mother was pregnant; and (6) he
had deficient working memory, which is consistent with brain damage and an
impaired ability to reason.
Dr. Osborne testified that medications exist that could control defendant‘s
behavior, but that these medications must be taken on a very regular basis over a
long period of time to be effective. On cross-examination, Dr. Osborne stated that
defendant will likely remain as violent as he has ever been but that his violent
behavior might remit as he aged.

(4) Dr. Iraj Mansoori
Dr. Iraj Mansoori, a psychologist with a Ph.D. in clinical psychology,
testified that in 1991 he counseled defendant for approximately 12 to 15 hours
over the course of six months while defendant was a ward at the CYA. Dr.
Mansoori got along well with the defendant.
On May 14, 1991, Dr. Mansoori wrote a parole evaluation report on
defendant. Defendant was found not suitable for parole. In response to being
informed by Dr. Mansoori that he would not be paroled, defendant stated simply,
―That‘s okay.‖ Dr. Mansoori interpreted defendant‘s response as indicating a
preference for the CYA over what defendant was offered at home.

b) Defendant’s Childhood

(1) Mary Goldie
Mary Goldie testified that on January 21, 1977, she was a detective with the
Pasadena Police Department assigned to the juvenile section. On that day, a
woman by the name of Mrs. Berkins came in with defendant, who was three years
old at the time. Berkins was not a relative, and no relative could be located.
Goldie took defendant into protective custody and transported him to a shelter care

22
home arranged through McClaron Hall, a facility for abused and neglected
children.

(2) Juanita Terry
Juanita Terry testified that in 1978 she was working as a protective services
employee in the ―Metro Office‖ of the Los Angeles County Department of Public
Social Services. Terry was assigned to defendant‘s case on March 31, 1978. By
that time, defendant had been placed with his aunt, Barbara Mitchell. He had been
removed from his mother‘s care because she was mentally unstable, had been
beating him, and had not provided him consistent care and supervision.
Terry‘s notes indicated that on several occasions, defendant‘s mother had
attempted to remove him from nursery school or had interfered with his care in
Mitchell‘s home. In October 1978, defendant‘s mother regained custody of
defendant against Terry‘s recommendation.

(3) Ms. Emery
The parties stipulated to the testimony that would have been provided by a
certain Ms. Emery, who was defendant‘s and his mother‘s neighbor in 1978.
Emery would have testified that during January and February of 1978, she
witnessed defendant‘s mother speaking to people who were not there and
―scream[ing] and yell[ing] and act[ing] strange.‖ Emery also witnessed
defendant‘s mother striking him. As a result of these observations, Emery called
the Department of Public Social Services.

c) Defendant’s Family

(1) Linda Allen
Linda Allen is defendant‘s maternal aunt; defendant‘s mother, Carole
Sparks, is her older sister. Allen testified that Sparks was a heavy drug user and
stripper. Sparks discovered she was three months pregnant with defendant after

23
she was hit by an automobile while exiting a nightclub. She sustained serious
injuries and was in a full body cast for a ―long time.‖ Allen took care of Sparks
while she was injured, and Sparks told her that she did not want to keep the baby.
While pregnant, Sparks took prescribed medication and illegal drugs. She gave
birth to defendant while her pelvis and legs were still in casts.
Allen testified that defendant‘s father, Melvyn Banks (Melvyn), was very
abusive. Melvyn burned Sparks with cigarettes and beat her with golf clubs.
Allen recalled one time when she went in an ambulance with Sparks after finding
Sparks on the floor of her apartment with burns to her chest. Allen could not
remember whether this incident occurred before or after defendant was born
because there were so many similar incidents. Melvyn died two or three years
before defendant‘s trial.
Sparks attempted suicide many times. Once she drank Drano. Allen could
not recall if that incident occurred before or after defendant‘s birth.
After she got married in 1975, Allen did not see defendant for a long period
of time. Allen renewed contact with defendant in 1978 when he was three or four
years old and living with Allen‘s and Sparks‘s sister, Barbara Mitchell. When
defendant was returned to his mother‘s custody, Allen again lost contact with him.
Sparks prohibited Allen from having contact with defendant and, at one point,
attempted to attack Allen and threatened to kill her and burn down her house
because she thought Allen had picked up defendant from a foster home where he
was living. Although defendant was affectionate towards Sparks, Sparks never
reciprocated his affection.
Allen saw defendant at a grocery store when he was six or seven years old.
Defendant was trying to make money for his mother by taking customers‘ grocery
bags to their cars. Allen prepaid a grocery store to provide defendant food

24
because he complained that he was hungry. She did not give defendant money
directly because he would give it to his mother.
During the period when defendant was not in custody from November 30,
1993 through February 21, 1994, Allen saw defendant frequently at family
gatherings. She was ―setting him up on programs, taking him [to job] interviews,
getting his I.D. and birth certificate‖ in an attempt to help him become a better
person. Defendant was always respectful in Allen‘s presence and never exhibited
any violence towards her or others.
Allen loved defendant and wanted him to live.

(2) Barbara Mitchell
Barbara Mitchell is defendant‘s maternal aunt; Carole Sparks is her
younger sister. Mitchell testified that she took care of Sparks after Sparks was
injured in a car accident. Sparks took prescribed pain medication while she was
pregnant with defendant but, to Mitchell‘s knowledge, did not take any illegal
drugs.
At some point after defendant was born, Sparks and defendant went to live
with defendant‘s father Melvyn. Melvyn beat Sparks, choked her, pushed her
down stairs, slammed car doors on her, and pulled her hair. Mitchell sporadically
cared for defendant during this time.
When defendant was two years old, Sparks dropped him off at the daycare
attended by Mitchell‘s children with a note pinned to his jacket stating, ―Take him.
I don‘t want him.‖ Mitchell took defendant and obtained legal custody of him.
Defendant lived with Mitchell for about three years, during which time Mitchell
cared for defendant as her own. Defendant was an affectionate child. Mitchell
believed that defendant loved Sparks, but that he was afraid of Sparks at the same

25
time. Sparks would tell defendant: ― ‗You‘re a man child. [¶] You have to fend
for yourself.‘ ‖
Mitchell testified that Sparks was a drug addict who had used PCP,
marijuana, and cocaine. She swallowed Drano one time. Mitchell believed
Sparks was crazy.
Sparks eventually told Mitchell she wanted to take defendant back because
she was getting child assistance money from the county, and the county had
discovered that defendant was not living with Sparks. After a hearing, a court
returned custody of defendant to Sparks.
Mitchell had no further contact with defendant until he was about nine
years old. At that time, defendant was living in a halfway house because he had
been ―bad.‖ Mitchell visited him there, and defendant cried during her visits.
Defendant was moved from one foster home to another.
Mitchell had never seen defendant act in a violent manner. She loved
defendant and did not want him to die.

(3) Carole Sparks
Carole Sparks, defendant‘s mother, testified. She admitted that she had
refused to speak with defense counsel and the defense investigator when they
contacted her. The two penalty phase trials were the only times she had been
willing to speak with defense counsel.
Sparks testified that the accident in which she was seriously injured
occurred before she knew she was pregnant with defendant. Sparks admitted to
smoking marijuana before the accident but denied ever using heroin, cocaine, or
PCP. However, she was on pain medication during her pregnancy. According to
Sparks, defendant was born in 1972. But the parties stipulated that defendant was
born on April 3, 1973. Sparks denied that Mitchell and Allen took care of her

26
after her accident or that they cared for defendant when he was an infant. She
denied that defendant ever lived with Mitchell. She did not get along with either
Allen or Mitchell, and referred to them as her mother‘s daughters, not her sisters.
Sparks denied having been a stripper. She claimed she had been a beauty
school student, a bartender, and a waitress. Sparks denied drinking Drano but
acknowledged drinking a mixture of peroxide, sugar, water, and a few other
ingredients to clear out her system from suspected PCP in her home‘s ventilation
system. She testified that defendant‘s father lived with her from 1969 through
1971 but denied that defendant‘s father beat her or that she was accompanied by
her sisters to the hospital after any such beatings.
Sparks denied that she dropped defendant off at a daycare center with a
note stating she did not want him. Although defendant was in foster homes and a
group home for some time, whenever he ran away his probation officer released
him to live with her.
Sparks recalled an incident when appellant was nine or 10 years old and he
came home with stolen property (possibly a bicycle); she made him return it.

3. Prosecution Rebuttal Case
At the behest of the prosecution, Dr. Ronald Markman, a forensic
psychiatrist, conducted a personal interview with defendant for about one and one-
half hours in the lockup area of the courthouse on September 2, 1998. Dr.
Markman asked defendant questions about the crimes defendant had committed.
He also reviewed defendant‘s handwritten notes regarding his past.
Dr. Markman testified that defendant denied committing the crimes he was
convicted of in the guilt phase. Dr. Markman declined to label defendant
manipulative but opined that defendant‘s responses appeared to be carefully
thought through and self-serving.

27
Dr. Markman found defendant‘s written notes about his childhood
memories to be unconvincing. Defendant wrote, for example, that at two years old
he was concerned that his mother was being physically abused by his father and
that she would die and leave him. Dr. Markman testified it was highly unlikely
that defendant would remember an event that occurred when he was two years old.
A child typically does not develop the concept of death until he or she is about
eight or nine years old.
Dr. Markman opined that several of defendant‘s violent acts demonstrated
premeditation and therefore were not caused by temporal lobe disorder.
Dr. Markman further testified that he is familiar with EEGs, MRIs, and
SPECT imaging. Defendant‘s normal MRI indicated the absence of physical
abnormalities. Defendant‘s normal EEG test suggested that the electrical function
in his brain was normal. SPECT imaging, upon which Dr. Gold relied for his
diagnosis, shows whether all areas of the brain are getting proper blood perfusion,
but cannot be used to make a diagnosis or predict behavior. Dr. Markman
accepted Dr. Gold‘s interpretation that defendant‘s SPECT scan showed there was
some blood flow impairment in defendant‘s temporal lobes, but he rejected Dr.
Gold's conclusion that defendant had brain damage.
II. DISCUSSION
A. Guilt Phase Issues

1. Jury Selection: Batson/Wheeler Challenge
Defendant, who is black, contends that the trial court erred in overruling his
objection to the prosecutor‘s use of peremptory challenges against three black
prospective jurors. We disagree.

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a) Factual Background
The prosecutor exercised five of his first 11 peremptory challenges against
black prospective jurors. Defense counsel did not object to the first four of those
challenges. After the prosecution exercised a preemptory challenge against a fifth
black prospective juror, defense counsel made a motion under People v. Wheeler
(1978) 22 Cal.3d 258 (Wheeler). She pointed out that the prosecutor had struck
five black jurors. Defense counsel argued: ―It appeared to me that certain jurors
were very neutral on everything.‖
The trial court noted that it was ―an interesting time to bring the motion‖
because the last prospective juror, Prospective Juror A.I., had been excused for an
obvious reason, i.e., she had said that she was not sure she could be fair because
defendant was so young. Defense counsel replied that youth is a mitigating factor
and added that she ―couldn‘t see the reason for the peremptory on the first woman
who was excused which was Juror [J.R.].‖ Defense counsel then listed the
specific prospective African-American jurors that the prosecutor had excused.
When the trial court inquired if there was ―anything else that [defense counsel]
wish[ed] to add,‖ defense counsel responded: ―Nothing at this time.‖ Shortly
thereafter, defense counsel acknowledged that the challenged prospective jurors
had expressed ―some degrees [sic] of hesitation‖ about their ability to impose the
death penalty, but suggested that other prospective jurors who had not been
challenged had expressed some degree of hesitation as well.
The prosecutor at first declined to comment because no prima facie case of
discrimination had been shown. He took the opportunity, however, to clarify the
record. The prosecutor noted that he had exercised 11 peremptory challenges: six
against women, five against men, five against black jurors, two against white
jurors, three against Hispanic jurors, and one against an Asian-American juror.
The trial court added that defense counsel had peremptorily struck 10 prospective

29
jurors, comprised of two Hispanics, three Asian Americans, three whites, one
black, and one man from the Philippines.
The prosecutor said the current panel included four blacks, two white men,
an Armenian man, two white women, an Asian-American woman, and a man of
uncertain racial background. Defense counsel agreed that there were four blacks
on the jury panel but classified the Armenian man as white and the man of
uncertain race as Hispanic.
The trial court concluded that no prima facie showing had been made. It
noted that defense counsel had exercised 10 peremptory challenges, only one of
which was against a black prospective juror. Defense counsel‘s strikes were
relevant, the trial court reasoned, ―not because there is anything impermissible, but
[because] it artificially skews things.‖ ―[W]hen the defense does not excuse jurors
of a particular sex or race, or what have you, the other side is left in a situation
where mathematically as a matter of probability the chances will rise dramatically
that the prosecution will exercise challenges [against members of the group in
question].‖ ―If you take out the green socks out of the drawer and leave the blue
ones in,‖ the trial court explained, ―any challenge will be made to a blue sock.‖
The trial court further observed that each of the challenged black prospective
jurors ―gave answers in their questionnaire that present[ed] an ample ground in
this case for the prosecution to exercise peremptories.‖ While it was true that all
the prospective jurors had ―passed the cause muster, which is not that difficult to
do,‖ the trial court found that there were ―things in the questionnaire‖ that could
legitimately ―bother‖ the prosecution.
The trial court then informed the prosecutor that he was permitted, but not
required, to indicate his reasons for striking the five black prospective jurors. The
prosecutor responded, ―I think it is creating a problem for me to justify when there
is no prima facie showing. [¶] I would say that the questionnaires speak for

30
themselves in terms of the answers written there. [¶] The number of answers they
provided while they were seated in the box either caused me discomfort or
concern on their ability to impose the death penalty. [¶] That is why I excused all
of these people was for inability to impose the death penalty.‖
Asked if she had anything to add, defense counsel noted that although
blacks comprised about one-third of the entire panel of 150 jurors, the prosecution
had exercised almost half of his peremptory challenges against black jurors. The
trial court reiterated that, under the circumstances, it was difficult to draw any
inference from the number of challenges alone because ―when you don‘t exclude
jurors of a particular race, that means by the nature of math and counting that more
of that group will be excluded from the other side because that is what is left when
the side makes its challenges.‖ The trial court also said: ―Given the answers of
those jurors that you complain of, and many other jurors, not just those, other
jurors that were excused in this case by the prosecution, it is obvious to the court
that the reason the jurors were being excused has to do with answers given in the
questionnaire. [¶] . . . [¶] Each of those jurors expressed problems with the
concept of the death penalty and its imposition and doubts about their ability and
confusion in some cases. [¶] Many I don‘t know answers and things of that
nature. [¶] Many other things that would certainly give pause to a reasonable
opponent in a criminal case.‖
The seated jury consisted of six black and six white jurors.

b) Analysis
― ‗The prosecution‘s use of peremptory challenges to remove prospective
jurors based on group bias, such as race or ethnicity, violates a defendant‘s right to
trial by a jury drawn from a representative cross-section of the community under
article I, section 16 of the California Constitution and his right to equal protection

31
under the Fourteenth Amendment to the United States Constitution.‘ ‖ (People v.
McKinzie (2012) 54 Cal.4th 1302, 1319; see Batson v. Kentucky (1986) 476 U.S.
79, 89 (Batson); Wheeler, supra, 22 Cal.3d at pp. 276–277.) Although defense
counsel invoked only Wheeler, a Wheeler objection preserves a Batson claim.
(People v. Yeoman (2003) 31 Cal.4th 93, 117−118.)
A Batson/Wheeler objection triggers a three-step inquiry. ―First, the
defendant must make out a prima facie case ‗by showing that the totality of the
relevant facts gives rise to an inference of discriminatory purpose.‘ [Citation.]
Second, once the defendant has made out a prima facie case, the ‗burden shifts to
the State to explain adequately the racial exclusion‘ by offering permissible race-
neutral justifications for the strikes. [Citations.] Third, ‗[i]f a race-neutral
explanation is tendered, the trial court must then decide . . . whether the opponent
of the strike has proved purposeful racial discrimination.‘ [Citation.]‖ (Johnson v.
California (2005) 545 U.S. 162, 168, fn. omitted; see People v. Thomas (2011) 51
Cal.4th 449, 473.)
Here, the trial court first found that there was no prima facie case with
respect to any of defendant‘s Batson/Wheeler claims. Nonetheless, after initially
hesitating, the prosecutor accepted the court‘s invitation to explain his strikes and
stated that all three jurors were struck because of what he perceived to be their
reluctance to impose the death penalty. The trial court agreed with the prosecution
that the challenged jurors had demonstrated reluctance about the death penalty.
―We have characterized such a circumstance as a ‗first stage/third stage
Batson hybrid,‘ which renders ‗ ―moot‖ ‘ whether defendant established a prima
facie showing of a discriminatory purpose. [Citations.] ‗Accordingly, we express
no opinion on whether defense counsel established a prima facie case of
discrimination and instead skip to Batson‘s third stage to evaluate the prosecutor‘s

32
reasons for dismissing [the] African-American prospective jurors.‘ ‖ (People v.
Riccardi (2012) 54 Cal.4th 758, 786–787.)
At the third stage of Batson, the ―critical question . . . is the persuasiveness
of the prosecutor‘s justification for his peremptory strike.‖ (Miller-El v. Cockrell
(2003) 537 U.S. 322, 338–339.) Usually, ―the issue comes down to whether the
trial court finds the prosecutor‘s race-neutral explanations to be credible.
Credibility can be measured by, among other factors, the prosecutor‘s demeanor;
by how reasonable, or how improbable, the explanations are; and by whether the
proffered rationale has some basis in accepted trial strategy.‖ (Id. at p. 339.)
― ‗As with the state of mind of a juror, evaluation of the prosecutor‘s state of mind
based on demeanor and credibility lies ―peculiarly within a trial judge‘s
province.‖ ‘ ‖ (Ibid.) Thus, in reviewing a trial court‘s reasoned determination
that a prosecutor‘s reasons for striking a juror are sincere, we typically defer to the
trial court and consider only ―whether substantial evidence supports the trial
court‘s conclusions.‖ (People v. Lenix (2008) 44 Cal.4th 602, 627 (Lenix).)
In this case, defendant challenges the trial court‘s ruling with respect to
three of the five black jurors struck by the prosecutor: J.R., R.W., and A.I.
Defendant first argues that the trial court erred in considering the fact that
defendant‘s decision to strike only one black juror rendered it statistically more
probable that the prosecutor would strike black jurors at a higher rate than the rate
at which such jurors were represented in the venire. We disagree. In deciding
whether substantial evidence supports a trial court‘s determination that a
peremptory challenge was not motivated by race, we must consider the ―entire
record‖ before the court. (Lenix, supra, 44 Cal.4th at p. 621.) In this case, as the
trial court explained, the manner in which defense counsel exercised her
peremptory challenges provided relevant context. Because black jurors comprised
roughly a third of the venire, the fact that defense counsel had exercised only one

33
of her 10 peremptory challenges against a black juror increased the percentage of
blacks remaining on the panel, thus increasing the likelihood that the prosecutor
would exercise a disproportionate share of his peremptory challenges against black
jurors for entirely permissible reasons.
Moreover, the disparity between the percentage of blacks in the entire jury
pool and the percentage of peremptory challenges the prosecutor exercised against
black prospective jurors is not very significant. The prosecutor used about 45
percent of his peremptory challenges to remove black jurors. Had he removed one
fewer black juror, that percentage would have fallen to about 36 percent, almost
equal to the percentage of blacks in the entire jury pool. And at the time defendant
made his Wheeler motion, four of the 12 prospective jurors on the panel — exactly
one-third — were black. Given the small sample size at issue, the trial court
reasonably refused to infer a discriminatory intent on the basis of these statistics.
(See People v. Cleveland (2004) 32 Cal.4th 704, 734 (Cleveland) [where the jury‘s
minority composition is ultimately ―either slightly higher or slightly lower‖ than
the venire‘s, such statistics are ―probative‖ although not necessarily ―dispositive‖
of a lack of discriminatory intent].)
Second, defendant argues that the prosecutor‘s stated reason for excusing
each of the three prospective jurors — their ―inability to impose the death penalty‖
— is belied by the record. He further argues that the prosecutor‘s initial
reluctance to explain the reasons for his challenges is ―suspect.‖ If the prosecutor
―had valid, race-neutral reasons for challenging each of the jurors,‖ defendant
argues, ―then logically it would create no problem for him to justify those
challenges in a succinct statement to the court.‖
As an initial matter, the prosecutor was not obliged to state his reasons for
challenging any prospective juror because the trial court concluded that defendant
had not made a prima facie case of discrimination. (People v. Carasi (2008) 44

34
Cal.4th 1263, 1292.) Thus, there is nothing suspect about any reluctance the
prosecutor may have had to state his reasons.
In any event, the trial court‘s conclusion that defendant did not carry his
burden of demonstrating that the prosecutor acted with discriminatory intent is
supported by substantial evidence. The prosecutor offered valid race-neutral
reasons for excusing each of the three prospective jurors. All three prospective
jurors answered the written questionnaire in a manner that suggested a significant
degree of confusion or hesitation regarding their ability to impose the death
penalty. Prospective Juror J.R. circled both ―yes‖ and ―no‖ in response to question
31(f) of the questionnaire, which asked: ―Regardless of your views on the death
penalty, would you as a juror, be able to vote for the death penalty on another
person if you believe after hearing all the evidence, that the penalty was
appropriate?‖ During voir dire, J.R. explained that the question ―didn‘t have an ‗I
don‘t know‘ so I put a yes and no.‖ When asked if ―don't know‖ was her answer,
J.R. stated, ―Well, I understood it, but my answer to that is I don‘t know anything
much about the death penalty.‖ Similarly, J.R. selected ―don‘t know‖ in answer to
questions 33 and 34. Question 33 asked, ―In this penalty phase would you
automatically, in every case, regardless of the evidence, vote for life in prison
without the possibility of parole?‖ And question 34 asked, ―Do you have any
conscientious objections to the death penalty which you believe might impair your
ability to be fair and impartial in a case in which the prosecution is seeking the
death penalty?‖
Prospective Juror R.W. responded to question 30 of the questionnaire by
writing: ―I have never given a serious thought to the death penalty I would have to
say I honestly don‘t know if I could vote on putting some one to death.‖ Question
31(e) of the questionnaire asked, ―Do you feel California should have the death
penalty?‖ to which Prospective Juror R.W. responded, ―I don't know. I don‘t see it

35
as a way to stop crime because we don‘t kill everybody who commits a crime.‖
She also wrote, in answer to a later question: ―I don't know what the purpose [of
the death penalty] is because it still doesn‘t stop crime!‖ In response to question
34, she selected ―don‘t know‖ as to whether she had any conscientious objections
to the death penalty. During voir dire, when questioned by the court about her
answers to these questions, R.W. twice stated only that she ―th[ought]‖ she would
be able to impose the death penalty if she found the aggravating factors to
outweigh the mitigating factors.
Prospective Juror A.I.‘s written and oral answers also revealed that she had
qualms about the death penalty and wasn‘t sure she could serve as an impartial
juror because of defendant‘s age. In response to question 33, A.I. selected, ―don‘t
know.‖ When asked at voir dire if she could ―think of any reason [she] would
tend to favor one side or the other,‖ A.I. hesitated to answer and then at the court‘s
urging replied, ―I don‘t know. He seems very young. I might hesitate.‖
Prospective Juror A.I. also told the trial court that she would have difficulty
looking at pictures of ―autopsies‖ and the ―murder scene.‖
Defendant correctly observes that none of these three prospective jurors
would have been excusable for cause because each expressed a willingness to
follow the law if selected for the jury. However, ―[a] prosecutor‘s reasons for
exercising a peremptory challenge ‗need not rise to the level justifying exercise of
a challenge for cause.‘ ‖ (People v. Hamilton (2009) 45 Cal.4th 863, 901
(Hamilton).) ―Moreover, even when jurors have expressed neutrality on the death
penalty, ‗neither the prosecutor nor the trial court [i]s required to take the jurors‘
answers at face value.‘ [Citation.] If other statements or attitudes suggest that the
juror has ‗reservations or scruples‘ about imposing the death penalty, this
demonstrated reluctance is a race-neutral reason that can justify a peremptory

36
challenge, even if it would not be sufficient to support a challenge for cause.‖
(People v. Lomax (2010) 49 Cal.4th 530, 572.)
In sum, substantial evidence supports the trial court‘s determination that the
prosecutor‘s strikes of Prospective Jurors J.R., R.W., and A.I. were motivated by
the answers on their juror questionnaires indicating ambivalence about the death
penalty. Our determination is additionally supported by the fact that at the time
defendant made his Batson motion, the jury‘s racial composition exactly matched
the venire‘s and by the fact that half of the jurors ultimately seated were black, a
higher ratio than in the venire. This is a significant ― ‗indication of the
prosecution‘s good faith in exercising his peremptories.‘ ‖ (People v. Huggins
(2006) 38 Cal.4th 175, 236; see Cleveland, supra, 32 Cal.4th at p. 734.)
For the first time on appeal, defendant identifies over two dozen
unchallenged prospective jurors, three of whom ultimately served on the jury, who
circled at least one ―don‘t know‖ answer to questions 32, 33, and 34. Assuming
that defendant has not forfeited this argument by waiting until his reply brief to
raise it, the comparative juror analysis he urges does not demonstrate that the
strikes at issue were based on the jurors‘ race.
First, the answers of the prospective jurors who never made it into the jury
box are irrelevant because they do not prove that the prosecutor would have
accepted such jurors. Nor is it relevant whether a prospective juror circled ―don‘t
know‖ with respect to question 32, which asked whether a juror would always
vote to impose the death penalty.
Second, with respect to the three jurors who ultimately served on the jury,
none circled ―don‘t know‖ in answer to both questions 33 and 34, and none took
the step of indicating uncertainty in response to question 31(f), as Prospective
Juror J.R. did. None wrote explicit comments akin to R.W.‘s indicating that he or
she doubted the efficacy of the death penalty, nor did any give repeated equivocal

37
answers akin to R.W.‘s at voir dire. To the contrary, each of the three seated
jurors indicated strong support for the death penalty and a clear willingness to
impose such a sentence in both their juror questionnaires and their voir dire.
Similarly, none came close to demonstrating the type of reservations expressed by
A.I. about imposing the death sentence on this particular defendant because of his
youthful appearance.
Third, the trial court had the opportunity to see the demeanor of all of the
relevant jurors, and it stated on the record that the challenged jurors had
demonstrated more reluctance to impose the death penalty than other jurors whom
the prosecution did not challenge. Thus, even considering the comparative juror
analysis urged by defendant, substantial evidence supported the trial court‘s
determination that the prosecutor‘s peremptory challenges against Jurors J.R.,
R.W., and A.I. were proper.

2. Whether Defendant Was Properly Convicted of Willful,
Deliberate, and Premeditated Attempted Murder of Latasha
W.
Defendant argues that the trial court erred by permitting the jury to convict
him of the willful, deliberate, and premeditated attempted murder of Latasha W., a
crime with which he was not expressly charged in the indictment. We do not
decide whether defendant consented to be tried for willful, deliberate, and
premeditated attempted murder because we agree with defendant that the jury was
not properly instructed on the meaning of the terms ―willful,‖ ―deliberate,‖ and
―premeditated‖ in any event. We therefore order a reduction of defendant‘s
conviction on count 2 to a conviction for regular attempted murder. We
conditionally impose a lower term sentence on that count, but permit the
prosecution to seek resentencing should it wish to do so.

38
a) Factual Background
In count 2 of the indictment, defendant was charged with attempted murder,
in violation of Penal Code, sections 664 and 187, subdivision (a). Count 2 alleged
that ―On or about July 1, 1996, in the County of Los Angeles, the crime of
attempted murder, in violation of Penal Code section 664/187(A), a felony, was
committed by [defendant], who did willfully, unlawfully and with malice
aforethought attempt to murder Latasha [W.], a human being.‖ (Some
capitalization omitted.) The indictment did not allege that the attempted murder
was ―deliberate‖ or ―premeditated.‖ That omission is significant because the
sentence for regular attempted murder is a determinate term of ―five, seven, or
nine years‖ of imprisonment. (§ 664, subd. (a).) The sentence for attempted
―willful, deliberate, and premeditated murder,‖ by contrast, is ―life with the
possibility of parole.‖ (Ibid.)
Nor was the jury instructed on a theory of attempted willful, deliberate, and
premeditated murder. When discussing CALJIC No. 8.20, which is the instruction
regarding the definitions of the terms ―willful,‖ ―deliberate,‖ and ―premeditated,‖
in the context of one of the first degree murder charges, the parties informed the
court that they had agreed that the instruction would be given only with respect to
the Michael Haney murder, of which defendant was acquitted. The parties did not
discuss giving CALJIC No. 8.67, the analogous instruction pertaining to willful,
deliberate, and premeditated attempted murder, with respect to count 2. When
orally instructing the jury regarding the elements of count 2, the trial court
described the count only as alleging ―attempted murder.‖ The court said nothing
suggesting that defendant was charged with attempted willful, deliberate, and
premeditated murder of Latasha W., and it did not give CALJIC No. 8.67 or
otherwise define those terms with respect to count 2.

39
The court did define the terms ―deliberate‖ and ―premeditated‖ when it read
CALJIC No. 8.20 to the jury in connection with count 7, the Haney murder.
Immediately before doing so, however, the court explicitly told the jury that the
instruction ―applies to the Haney homicide charge only.‖ The word ―HANEY‖ is
handwritten at the top of the copy of CALJIC No. 8.20 that was given to the jury.
Nonetheless, during closing argument the prosecution asserted that
defendant‘s actions demonstrated that defendant‘s attempt to kill Latasha W. was
willful, deliberate, and premeditated. The prosecution had argued a similar theory
to the grand jury when securing the indictment.
There was no discussion between the parties and the court regarding the
jury verdict form for count 2. That form first asked the jury to find whether
defendant attempted to murder Latasha W. It then asked the jury to find true or
not true the allegation that the attempted murder was ―willful, deliberate and
premeditated.‖ The jury found the allegation to be true.

b) Analysis
Defendant contends that because he was not charged in the indictment with
willful, deliberate, and premeditated attempted murder, it was statutory and
constitutional error for the court to permit the jury to consider whether he acted
with deliberation and premeditation and then to sentence him on that basis rather
than for having committed regular attempted murder. Alternatively, he says that
the trial court‘s failure to instruct the jury on the meanings of ―willful,‖
―deliberate,‖ and ―premeditated‖ deprived him of his right to a jury trial under the
Sixth and Fourteenth Amendments to the United States Constitution. He therefore
urges that his life sentence on count 2 for attempted willful, deliberate, and
premeditated murder be reduced to a determinate sentence for regular attempted
murder.

40
The Attorney General responds that defendant forfeited his claim that he
was not properly charged in the indictment by failing to raise it at trial.
Alternately, defendant impliedly consented to being tried with that enhancement
by not objecting to the jury verdict form. The Attorney General also argues that
the indictment reflects a mere ―technical inadequacy‖ because defendant was on
notice of the prosecution‘s intent to charge him with willful, deliberate, and
premeditated murder, both because count 2 alleged that defendant acted
―willfully‖ and because the grand jury transcript revealed the prosecutor‘s theory.
As to the trial court‘s failure to properly instruct the jury, the Attorney General
concedes the error but argues that the error was harmless beyond a reasonable
doubt.
Because we find that the trial court prejudicially erred in failing to instruct
the jury on the meanings of ―willful,‖ ―deliberate,‖ and ―premeditated,‖ we do not
address whether defendant consented to having those allegations placed before the
jury. Assuming without deciding that defendant was properly charged with
willful, deliberate, and premeditated murder, the trial court was required to instruct
the jury on what those terms mean. The willful, deliberate, and premeditated
nature of an attempted murder is ― ‗the functional equivalent of an element‘ ‖ of
the offense insofar as it increases the punishment for an attempted murder.
(People v. Seel (2004) 34 Cal.4th 535, 548.) As such, it must be submitted to a
jury and proved beyond reasonable doubt. (Id. at p. 549; see Apprendi v. New
Jersey (2000) 530 U.S. 466, 490.)
In turn, because the willful, deliberate, and premeditated nature of an
attempted murder is the functional equivalent of an element of the offense, the trial
court was required to instruct the jury on those elements even though defendant
did not request such an instruction. (See, e.g., People v. Montoya (1994) 7 Cal.4th
1027, 1047 [―It is settled that, even in the absence of a request, a trial court must

41
instruct on general principles of law that are commonly or closely connected to the
facts before the court and that are necessary for the jury‘s understanding of the
case.‖].) Thus, the trial court erred in permitting the jury to consider the charge of
attempted willful, deliberate, and premeditated murder without a proper
instruction on what those terms mean.
The failure to instruct the jury on an element of an offense is federal
constitutional error because it violates the defendant‘s due process and Sixth
Amendment rights to have a jury adjudicate guilt beyond a reasonable doubt.
(People v. Gonzalez (2012) 54 Cal.4th 643, 662–663; People v. Bolden (2002) 29
Cal.4th 515, 560.) Such error is ―harmless only if, after conducting a thorough
review of the record, the court determines beyond a reasonable doubt that the jury
verdict would have been the same absent the error.‖ (Bolden, at p. 560; see
Gonzalez, at p. 663; Chapman v. California (1967) 386 U.S. 18, 24.)
On the facts here, we cannot be certain beyond a reasonable doubt that the
jury would have found defendant guilty of attempted willful, deliberate, and
premeditated murder had it been properly instructed. In order to find defendant
guilty of that charge, the jury would have had to conclude that his acts were the
result of ― ‗ ― ‗careful thought and weighing of considerations‘ ‖ ‘ ‖ rather than an
― ‗ ―unconsidered or rash impulse.‖ ‘ ‖ (People v. Manriquez (2005) 37 Cal.4th
547, 577 (Manriquez); see People v. Anderson (1968) 70 Cal.2d 15, 26–27; see
also CALJIC No. 8.67.) That standard is not met by showing only that a
defendant acted willfully and with specific intent to kill. ―By conjoining the
words ‗willful, deliberate, and premeditated‘ in its definition and limitation of the
character of killings falling within murder of the first degree the Legislature
apparently emphasized its intention to require as an element of such crime
substantially more reflection than may be involved in the mere formation of a

42
specific intent to kill.‖ (People v. Thomas (1945) 25 Cal.2d 880, 900, italics
added.)
Latasha W. testified that defendant shot Coleman in the head at point-blank
range shortly after entering Coleman‘s house and again before departing. But
defendant did not take equally deliberate steps toward killing Latasha W. Instead,
one of his confederates tied her up with a telephone cord. Then, only as defendant
was on the verge of leaving the house, did he fire a shot at Latasha W. that grazed
her ear. No doubt there is sufficient evidence from which a rational factfinder
could infer that defendant acted with deliberation and premeditation. But the
pertinent question here is whether there is no reasonable possibility that the jury
could have concluded otherwise had it been properly instructed. The manner in
which defendant shot Coleman and later, for good measure, shot him a second
time plainly indicates that defendant killed him with deliberation and
premeditation. But the manner in which defendant shot at Latasha W., while
sufficient to support a finding of intent to kill, does not necessarily compel a
finding that defendant fired the single shot at her as a result of ― ‗ ―careful thought
and weighing of considerations‖ ‘ ‖ as opposed to an ― ‗ ― ‗unconsidered or rash
impulse‘ ‖ ‘ ‖ just before exiting the home as his two accomplices waited outside.
(Manriquez, supra, 37 Cal.4th at p. 577.) On these facts, we cannot say it would
have been unreasonable for the jury, had it been properly instructed, not to find
deliberation and premeditation.
The Attorney General‘s argument that the jury likely relied upon the
definition of the terms ―willful,‖ ―deliberate,‖ and ―premeditated‖ contained in the
instructions regarding the murder of Haney is not persuasive. The court
specifically instructed the jury to consider that instruction as ―to the Haney
homicide charge only.‖ (Italics added.) We ―presume the jury followed the
court‘s instructions.‖ (People v. Letner and Tobin (2010) 50 Cal.4th 99, 172.)

43
Furthermore, because the jury found defendant not guilty of the Haney murder, in
which defendant was charged with both first degree and second degree murder, the
jury would have had little cause to consider what the critical terms ―deliberate‖
and ―premeditated‖ mean in connection with that charge. Thus, when the jury was
deliberating on the attempted murder charge, the only instructions it likely would
have considered are the ones the court gave regarding regular attempted murder,
which did not explain the standard for a finding of deliberation and premeditation.
The Attorney General is similarly unpersuasive in her contention that the
court‘s instructional error was harmless because the jury verdict form told the
jurors that they should only find willfulness, deliberation, and premeditation if
they could do so beyond a reasonable doubt. This contention simply begs the
question as to what legal question the jury thought it was answering.
Because the instructional error with respect to count 2 was not harmless
beyond a reasonable doubt, we reverse the penalty enhancement under section
664, subdivision (a) for ―willful, deliberate, and premeditated‖ attempted murder.
Defendant‘s conviction for attempted murder remains intact.
Rather than remand for resentencing on the attempted murder conviction,
we impose the lower term sentence of five years and permit the prosecution to
request resentencing before the superior court within 60 days after the filing of our
remittitur should it choose to do so. We recently followed the same approach in
People v. Boyce (July 24, 2014, S092240) __ Cal.4th __. There, as here, we found
an error that affected the noncapital portion of the sentence imposed upon a capital
defendant. Recognizing that the length of the noncapital sentence would ―have
little practical significance given our affirmance of the special circumstances and
death sentence‖ and that there is considerable ―time and expense involved in
resentencing a capital prisoner‖ (id. at p. ___ [p. 73]), we imposed the lower term
sentence but permitted the prosecution to request resentencing (id. at pp. __, __

44
[pp. 73, 76]). Here, the trial court imposed the mandatory sentence of life without
the possibility of parole for a conviction of attempted willful, deliberate, and
premeditated murder. The trial court therefore had no chance to consider what
sentence would be appropriate for a conviction of regular attempted murder.
Because we do not know what sentence the trial court would have imposed had it
had a chance to consider the proper term, we follow the same approach we
adopted in Boyce.
Our disposition is without prejudice to the prosecution retrying defendant
for the willful, deliberate, and premeditated murder of Latasha W. if doing so is
consistent with statutory and constitutional double jeopardy principles, a question
that was not briefed and that we do not address.

3. Sufficiency of the Evidence that the Foster Homicide was
Committed in the Course of an Attempted Robbery
Defendant contends that there is insufficient evidence to sustain the finding
that he harbored the specific intent to steal from Charles Foster, the victim who
was shot at the ATM. If correct, defendant‘s argument would require us to vacate
defendant‘s convictions on count 9 (robbery of Foster) and count 8 (first degree
murder of Foster on a felony-murder theory). We conclude that the jury could
have reasonably inferred the elements of an attempted robbery from the totality of
the circumstances. Therefore, there is sufficient evidence to sustain the
convictions on both counts.
a) Background
The evidence showed that at 1:13 a.m. on July 26, 1996, Foster walked up
to an ATM while Yvonne McGill and Sandra Johnson waited 12 feet away in a
parked truck. At 1:23 a.m., defendant approached the passenger side of the truck
and pointed a handgun at McGill. As Johnson and McGill drove away, defendant
turned and approached Foster at the ATM.

45
The prosecution introduced a videotape of time-lapse photographs from
two cameras on either side of the ATM. The videotape provides a time-stamped
account of the moments leading to Foster‘s death. The events recorded on the
videotape are as follows.
After Johnson and McGill drove away, defendant stood immediately behind
Foster for 25 seconds before he raised his gun to fire the fatal shots. At one point
during those 25 seconds, defendant placed a hand on Foster‘s arm while
brandishing his gun. Thereafter, Foster turned to face the ATM while defendant
observed with his gun at his side. For the next 11 seconds, Foster was partially
turned toward defendant. Then, without any further physical contact or gesturing,
defendant raised his gun and, with Foster then facing him, shot Foster.
b) Analysis
In reviewing a challenge to the sufficiency of the evidence, we ―review the
whole record to determine whether any rational trier of fact could have found the
essential elements of the crime or special circumstances beyond a reasonable
doubt. [Citation.] The record must disclose substantial evidence to support the
verdict — i.e., evidence that is reasonable, credible, and of solid value — such that
a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence.
[Citation.]‖ (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)
Moreover, ― ‗ ―[c]ircumstantial evidence may be sufficient to connect a defendant
with the crime and to prove his guilt beyond a reasonable doubt.‖ ‘ ‖ (People v.
Thomas (1992) 2 Cal.4th 489, 514.) Accordingly, ―[w]e ‗must accept logical
inferences that the jury might have drawn from the circumstantial evidence.
[Citation.]‘ ‖ (Zamudio, at p. 357.)

46
Defendant contends that the mere fact that the homicide occurred at an
ATM is insufficient evidence to infer he had the specific intent to steal. He says
there is no evidence that he demanded or reached for any of Foster‘s property
either before or after the shooting. Thus, he contends, inferring the specific intent
element of robbery is entirely speculative.
We disagree. Time-lapse photographs from two cameras show defendant
interacting with Foster for approximately 25 seconds before raising his gun to fire.
During that time, defendant touched Foster‘s arm, brandished his gun, and stood
by as Foster attempted to use the ATM. A trier of fact could reasonably infer from
the totality of these circumstances that defendant had the specific intent to steal
from Foster. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1129–1130 [jury‘s
finding of an attempted robbery sufficiently evidenced by the totality of
circumstances, even though attackers had not specifically demanded money or
drugs], citing People v. Gilbert (1963) 214 Cal.App.2d 566, 567−568 [―where two
armed men appeared in market shortly after closing time and simultaneously
displayed their weapons,‖ lack of phrases such as ― ‗hand over your money‘ ‖ does
not bar the reasonable inference that a forceful taking of property was intended‖].)
(Rodrigues, at pp. 1129-1130.) For example, the jury could have reasonably
inferred that defendant intended to rob Foster but fled after shooting him, knowing
that Johnson and McGill would be summoning the police. (See People v. Zapien
(1993) 4 Cal.4th 929, 984 [affirming a jury‘s reasonable inference that the
defendant fled without completing the robbery because he knew someone had
telephoned the police].) Alternatively, the jury could have reasonably found that
defendant shot Foster because Foster refused to give him money, as evidenced by
the possible argument between the two men, or because defendant realized that,
having failed to use the ATM, Foster likely had no money to steal. (Cf. People v.
Carroll (1970) 1 Cal.3d 581, 584−585 [finding that robbery and shooting of victim

47
constituted one indivisible transaction where defendant shot the victim after
becoming angry when the victim turned out to have no money].)
Because the ― ‗circumstances reasonably justify the trier of fact‘s
findings‘ ‖ that defendant attempted to steal money from Foster, reversal of the
convictions on counts 8 and 9 is unwarranted. (People v. Thomas, supra, 2
Cal.4th at p. 514.) For the same reason, substantial evidence supports the jury‘s
true finding on the special circumstance allegation that the murder was committed
during the commission of an attempted robbery.

4. Instruction on Second Degree Murder as Lesser Included
Offense
Defendant contends the trial court committed error under California law by
failing to instruct the jury sua sponte on second degree murder as a lesser included
offense of the felony murder of Foster charged in count 8 of the indictment. We
agree but find the error harmless. We reject defendant‘s related argument that the
failure to instruct on second degree murder violated his federal constitutional
rights under Beck v. Alabama (1980) 447 U.S. 625 (Beck).

a) Background
Count 8 charged that defendant ―did willfully, unlawfully, and with malice
aforethought murder Charles Foster, a human being.‖ It further alleged that the
murder occurred while defendant ―was engaged in the commission of the crime of
attempted robbery, within the meaning of Penal Code section 190.2(a)(17).‖
When discussing the jury instructions, the prosecution informed the court
that it intended to proceed only on a felony-murder theory with respect to count 8
instead of arguing a first degree premeditated malice murder theory as well. The
following colloquy then occurred between the court and defense counsel:
―[The Court:] [The prosecution] is asking for felony murder only on the
last of the homicides over at the A.T.M. [¶] This will be more up to the defense, it

48
would seem to me . . . . [¶] I think a logical inference to be drawn is that the
fellow was killed at the A.T.M. to try to get money. [¶] But that is not necessarily
the only inference. [¶] You have some evidence, how strong it is is up to the jury,
but you have evidence of some sort of an argument taking place, verbal argument.
And the only thing there to suggest a robbery is the fact that the guy is at the
A.T.M. window. [¶] You have no words of demand or property taken as far as we
know.
―[Prosecutor]: Well, he walked up on him with a shirt wrapped around his
head to conceal his identity.
―The Court: And then shot him in the head and walked away. [¶] The
eyewitnesses say nothing about the logical thing happening and the guy goes to
the wallet.
―[Prosecutor]: That‘s true.
―The Court: I mean it — [¶] I think I probably know what happened. Most
people die at ATM‘s, it is probably a robbery. But here you have evidence that
something else could have been going on. [¶] Some sort of fight. I don‘t know.
[¶] Anyway, on that one, if they want to go felony murder only, what do you want
to do on that? [¶] First or second on that one?
―[Defense counsel]: No.
―The Court: Felony murder only?
―[Defense counsel]: Yes.
―The Court: Fair enough.‖
Defense counsel then asked the court if it would also be willing to instruct
on manslaughter as a lesser included offense if defendant agreed to the jury being
instructed on second degree murder. The court rejected defense counsel‘s
proposal because ―[t]here is nothing to reduce this to a manslaughter. No way,

49
shape or form.‖ Defense counsel did not then request a second degree murder
instruction with respect to count 8.
The jury was instructed that it could find defendant guilty of murder only
on a felony-murder theory on count 8. The jury found defendant guilty of count 8
and found true the allegation that the murder was committed in the course of an
attempted robbery. As noted, the jury also found defendant guilty of count 9,
attempted robbery of Foster.

b) Analysis
Defendant argues that the court should have instructed the jury on second
degree murder as a lesser included offense with respect to count 8, even though
defense counsel declined to request such an instruction when invited to do so.
Defendant‘s primary argument is not that second degree murder is always a lesser
included offense of felony murder. Rather, he argues that second degree murder is
a lesser included offense of count 8 as charged in the indictment.
The Attorney General does not respond directly to defendant‘s argument
that second degree murder is a lesser included offense of felony murder as charged
in count 8. Instead, she contends that second degree murder is not a lesser
included offense of felony murder as a general matter because felony murder does
not require the prosecution to prove malice, a key element of second degree
murder. In the alternative, the Attorney General argues that there was insufficient
evidence to support a second degree murder instruction on these facts because
defendant did not introduce evidence to support a theory that the shooting of
Foster was perpetrated for any reason other than robbery. Finally, the Attorney
General argues that even if there was instructional error, such error was harmless.

50
The Attorney General does not argue that defendant invited any error by
declining the trial court‘s offer to instruct on second degree murder. We therefore
do not address whether counsel‘s conduct amounted to invited error.
― ‗ ― ‗[I]t is settled that in criminal cases, even in the absence of a request,
the trial court must instruct on the general principles of law relevant to the issues
raised by the evidence. [Citations.] The general principles of law governing the
case are those principles closely and openly connected with the facts before the
court, and which are necessary for the jury‘s understanding of the case.‘
[Citation.] That obligation has been held to include giving instructions on lesser
included offenses when the evidence raises a question as to whether all of the
elements of the charged offense were present [citation], but not when there is no
evidence that the offense was less than that charged. [Citations.]‖ ‘ ‖ (People v.
Valdez (2004) 32 Cal.4th 73, 115 (Valdez).)
The rule that juries must be instructed on lesser included offenses
― ‗prevents either party, whether by design or inadvertence, from forcing an all-or-
nothing choice between conviction of the stated offense on the one hand, or
complete acquittal on the other. Hence, the rule encourages a verdict, within the
charge chosen by the prosecution, that is neither ―harsher [n]or more lenient than
the evidence merits.‖ ‘ ‖ (People v. Smith (2013) 57 Cal.4th 232, 239–240
(Smith).) Because instructing on lesser included offenses serves to increase the
accuracy of verdicts, the requirement to do so applies ― ‗even when as a matter of
trial tactics a defendant not only fails to request the instruction but expressly
objects to its being given.‘ [Citation.]‖ (Valdez, supra, 32 Cal.4th at p. 115.)
―On appeal, we review independently the question whether the trial court
improperly failed to instruct on a lesser included offense.‖ (People v. Souza
(2012) 54 Cal.4th 90, 113 (Souza).) ―For purposes of determining a trial court‘s
instructional duties, we have said that ‗a lesser offense is necessarily included in a

51
greater offense if either the statutory elements of the greater offense, or the facts
actually alleged in the accusatory pleading, include all the elements of the lesser
offense, such that the greater cannot be committed without also committing the
lesser.‘ ‖ (Smith, supra, 57 Cal.4th at p. 240, italics added.) When applying the
accusatory pleading test, ―[t]he trial court need only examine the accusatory
pleading.‖ (Id. at p. 244.) ―[S]o long as the prosecution has chosen to allege a
way of committing the greater offense that necessarily subsumes a lesser offense,
and so long as there is substantial evidence that the defendant committed the lesser
offense without also committing the greater, the trial court must instruct on the
lesser included offense.‖ (Ibid.)
Here, under the accusatory pleading test, second degree murder was plainly
a lesser included offense of felony murder as charged in count 8. Count 8 charged
defendant with willfully killing Foster with malice aforethought. ― ‗Second degree
murder is the unlawful killing of a human being with malice, but without the
additional elements . . . that would support a conviction of first degree murder.‘ ‖
(People v. Taylor (2010) 48 Cal.4th 574, 623 (Taylor).) Thus, it is evident that
second degree murder was a lesser included offense of felony murder as charged
in count 8, which alleged not merely that defendant killed in the course of a
robbery but that he did so willfully and maliciously. Accordingly, the trial court
was required to instruct the jury on second degree murder so long as substantial
evidence would have supported such a finding. We therefore need not and do not
reach the question raised by the Attorney General of whether second degree
murder is a lesser included offense of felony murder under the statutory elements
test.
The evidence of second degree murder in the Foster shooting, though not
particularly strong, was sufficient to obligate the trial court to instruct on second
degree murder. The ―substantial evidence requirement is not satisfied by ‗ ―any

52
evidence . . . no matter how weak‖ ‘ but rather by evidence from which a
reasonable jury could conclude ‗that the lesser offense, but not the greater, was
committed.‘ ‖ (People v. Avila (2009) 46 Cal.4th 680, 705.) The ATM video and
witness testimony in this case established that a gunman approached Foster at the
ATM. The two engaged in some sort of discussion (perhaps an argument), and
Foster turned toward the ATM before being shot. As noted, this evidence was
sufficient for the jury to infer that defendant was attempting to commit robbery.
However, Manzanares testified that Foster and the gunman were arguing, and
there was no evidence that defendant took any property or money from Foster
after the shooting. As the trial court observed, ―I think a logical inference to be
drawn is that the fellow was killed at the A.T.M. to try to get money. [¶] But that
is not necessarily the only inference. [¶] You have some evidence, how strong it is
is up to the jury, but you have evidence of some sort of an argument taking place,
verbal argument.‖ Thus, the evidence permitted the inference that defendant shot
Foster with malice in the course of an argument or fight, not necessarily in the
course of a robbery. Because the evidence was sufficient to support a theory of
second degree murder, the trial court should have instructed the jury on that
theory.
We nonetheless find the error harmless. Our precedent holds that an
erroneous failure to instruct the jury on a lesser included offense is subject to
harmless error analysis under People v. Watson (1956) 46 Cal.2d 818, 837, and
that evidence sufficient to warrant an instruction on a lesser included offense does
not necessarily amount to evidence sufficient to create a reasonable probability of
a different outcome had the instruction been given. (See People v. Beames (2007)
40 Cal.4th 907, 970–971; People v. Breverman (1998) 19 Cal.4th 142, 176.) Here,
there is no reasonable probability that the evidence of an argument between
defendant and Foster, minimal as it was, would have led the jury, had it been

53
properly instructed, to conclude that defendant shot Foster at the ATM out of
malice unrelated to any robbery. As the trial court observed, even though there
was ―some evidence‖ otherwise, the far more plausible inference is that the
―fellow was killed at the A.T.M. to try to get money.‖ Thus, the trial court‘s
failure to instruct on second degree murder was harmless.
Defendant‘s reliance on Beck, supra, 447 U.S. 625 for the proposition that
the failure to instruct on second degree murder violated the United States
Constitution is unavailing under our precedents. After Hopkins v. Reeves (1998)
524 U.S. 88, we have repeatedly rejected Beck claims in light of the differences
between California‘s death penalty scheme and the Alabama scheme at issue in
Beck. (See Taylor, supra, 48 Cal.4th at p. 625; People v. Wilson (2008) 43 Cal.4th
1, 17–18; People v. Rundle (2008) 43 Cal.4th 76, 143, disapproved of on other
grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Prince
(2007) 40 Cal.4th 1179, 1268–1269; Valdez, supra, 32 Cal.4th at pp. 118–119;
People v. Waidla (2000) 22 Cal.4th 690, 736, fn. 15.)

5. Hearsay
Defendant next contends the trial court violated his constitutional rights
under the Fifth, Eighth, and Fourteenth Amendments to the United States
Constitution and analogous provisions of the state Constitution by admitting
Officer Martinez‘s testimony recounting what Latasha W. had told him about the
events at the Coleman residence. As explained below, the trial court did not abuse
its discretion in allowing the evidence to be introduced under the spontaneous
declaration exception to the hearsay rule.
a) Background
Officer Martinez testified about statements Latasha W. made in the two-
hour period of time following the events that occurred at the Coleman residence.

54
Officer Martinez first encountered Latasha W. at approximately 3:00 a.m. as she
was ―running in the middle of the street yelling frantically . . . in hysterics . . .
crying.‖ In response to defense questioning, Officer Martinez also testified that
―over the course of the two hours [Latasha W.] was able to calmly relate
descriptions and things that went on in the house‖ in ―a chronological time and
sequence of events. However, by the end of the two hours, she was ―shocked still‖
and was crying and shaking from the ordeal. Concluding that the prosecution had
established that Latasha W.‘s statements were excited utterances or spontaneous
declarations, the trial court overruled four hearsay objections to Officer Martinez‘s
testimony.
b) Analysis
Under the spontaneous declaration hearsay exception, hearsay testimony is
admissible if it ―(a) [p]urports to narrate, describe, or explain an act, condition, or
event perceived by the declarant; and [¶] (b) [w]as made spontaneously while the
declarant was under the stress of excitement caused by such perception.‖ (Evid.
Code, § 1240.) ― ‗To render [statements] admissible [under the spontaneous
declaration exception] it is required that (1) there must be some occurrence
startling enough to produce this nervous excitement and render the utterance
spontaneous and unreflecting; (2) the utterance must have been before there has
been time to contrive and misrepresent, i.e., while the nervous excitement may be
supposed still to dominate and the reflective powers to be yet in abeyance; and (3)
the utterance must relate to the circumstance of the occurrence preceding it.‘ ‖
(People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).) ―When the statements in
question were made and whether they were delivered directly or in response to a
question are important factors to be considered on the issue of spontaneity.
[Citations.] But . . . ‗[n]either lapse of time between the event and the declarations
nor the fact that the declarations were elicited by questioning deprives the

55
statements of spontaneity if it nevertheless appears that they were made under the
stress of excitement and while the reflective powers were still in abeyance.‘ ‖ (Id.
at p. 319.) ―Under the same reasoning, the fact that the declarant has become calm
enough to speak coherently also is not inconsistent with spontaneity.‖ (Ibid.)
―Whether the requirements of the spontaneous statement exception are
satisfied in any given case is, in general, largely a question of fact. [Citation.]
The determination of the question is vested in the court, not the jury. [Citation.]‖
(Poggi, supra, 45 Cal.3d at p. 318.) Thus, if supported by substantial evidence,
we must uphold the trial court‘s determination of preliminary facts. (People v.
Brown (2003) 31 Cal.4th 518, 541.)
Defendant argues that Latasha W.‘s statement to Officer Martinez did not
meet the second Poggi requirement, i.e., the declaration was not made while
Latasha W.‘s reflective powers remained in abeyance. We disagree. When
Officer Martinez first encountered Latasha W., after she had run from Coleman‘s
residence, she was ―crying,‖ ―flinging her arms [and] screaming loud[ly],‖
―[f]rightened,‖ ―[h]ysterical,‖ ―[v]ery emotional,‖ and ―[s]peaking very rapidly.‖
At the end of the approximately two hours she spent with Officer Martinez,
Latasha W. ―was shocked . . . [a]nd still shaking by the ordeal.‖ Thus, the trial
court did not abuse its discretion in finding that the two-hour period of time during
which Latasha W. made her statements did not deprive them of their spontaneity.
(See, e.g., People v. Brown, supra, 31 Cal.4th at p. 541 [statements made two and
one-half hours after event held spontaneous where ―the declarant continued to
labor mightily under the emotional influence of the disturbing events he perceived,
so much so that he could not stop his body from shaking nor stem the flow of
tears‖].)
Defendant relies on People v. Lynch (2010) 50 Cal.4th 693, where we held
that a victim‘s statements made approximately two hours after she was attacked

56
were not spontaneous utterances. (Id. at p. 754.) But the ―[m]ost critical[]‖ reason
for our holding was that there was ―no testimony . . . demonstrat[ing] that . . . [the
victim] was excited or frightened as she spoke, or that her physical condition at the
time of her statements precluded deliberation.‖ (Ibid.) Here, there was significant
evidence that Latasha W. was still emotionally distraught throughout her
conversation with Officer Martinez. (See Poggi, supra, 45 Cal.3d at p. 319
[―[T]he fact that the declarant has become calm enough to speak coherently also is
not inconsistent with spontaneity.‖].)
Finally, ―the fact that the statements were delivered in response to
questioning does not render them nonspontaneous.‖ (Poggi, supra, 45 Cal.3d at
pp. 319–320.) Nothing in the record suggests that Officer Martinez‘s questions
throughout the ensuing two hours were anything but routine and nonsuggestive
inquiries. Thus, substantial evidence supports the trial court‘s determination that
all of Latasha W.‘s statements to Officer Martinez were ―made under the stress of
excitement and while the reflective powers were still in abeyance.‖ (Id. at p. 319,
italics omitted.)

6. Latasha W.’s Redirect Testimony
Defendant argues that the trial court erred in admitting Latasha W.‘s
redirect testimony that her friendship with Coleman was based upon his having
served as her protector after she was raped by a different individual on a prior
occasion. Defendant is incorrect. This testimony was admissible because it was
relevant to rebutting defense counsel‘s attack on Latasha W.‘s credibility.

a) Background
In response to defense counsel‘s cross-examination, Latasha W. testified
that she was aware that Coleman was a drug dealer and a gang member. She also
testified that she had previously spent the night at Coleman‘s house. On redirect,

57
the prosecutor asked Latasha W. about the nature of her relationship with
Coleman. Latasha W. explained that he was her best friend but not her boyfriend.
Over defense objection, she further testified that the basis for their close friendship
was that Latasha W. had previously been raped by another individual who had
continued to harass her. Coleman had threatened that individual, successfully
ending that individual‘s harassing behavior. And in response to a prosecution
question about her having spent the night at Coleman‘s house, Latasha W.
explained that on one occasion she had gone to the house with her sister and
stayed overnight when the hour became late.

b) Analysis
Defendant argues that the testimony about Latasha W.‘s prior rape and the
story of her having spent the night at Coleman‘s house should have been excluded
both as irrelevant and as impermissible victim impact testimony. As an initial
matter, we reject the Attorney General‘s argument that defendant forfeited his
claim that the testimony was impermissible victim impact testimony. Defendant
objected that the testimony was irrelevant. Labeling the objection ―impermissible
victim impact testimony‖ does not affect whether the evidence in question is
relevant or more probative than prejudicial. (See People v. Redd (2010) 48
Cal.4th 691, 731, fn. 20.) The substance of the objection is that the testimony in
question, which happens to pertain to victim impact, is not relevant to or
sufficiently probative of any disputed fact during the guilt phase. ―[T]he
proposition that the admission of irrelevant victim-impact evidence constitutes an
error‖ is no ―different from the admission of any other irrelevant evidence. Thus,
defendant‘s ‗relevance‘ objection preserved his [claim that the evidence was
irrelevant victim impact evidence].‖ (Ibid.) Thus, defendant‘s claim that the

58
testimony constituted impermissible guilt phase victim impact testimony is simply
an objection that the testimony was irrelevant or more prejudicial than probative.
Nor is there merit to the Attorney General‘s contention that defendant
forfeited his argument that the story about spending the night at Coleman‘s house
was irrelevant. Defense counsel had already lodged an objection to the line of
questions about Latasha W.‘s relationship with Coleman, and it was not incumbent
upon defense counsel to disrupt the trial by continuing to object to each
subsequent question in order to preserve the objection.
On the merits, defendant‘s claims fail. ― ‗ ―It is well settled that when a
witness is questioned on cross-examination as to matters relevant to the subject of
the direct examination but not elicited on that examination, he [or she] may be
examined on redirect as to such new matter.‖ ‘ [Citation.] ‗ ―The extent of the
redirect examination of a witness is largely within the discretion of the trial
court.‖ ‘ ‖ (Hamilton, supra, 45 Cal.4th at p. 921.) Here, defense counsel elicited
information that Latasha W. was best friends with Coleman despite knowing him
to be a drug dealer and a gang member. That testimony served little purpose other
than to impeach Latasha W.‘s credibility by impliedly connecting her to
Coleman‘s illicit activities. We discern no abuse of discretion in the trial court
having permitted the prosecutor to establish that the basis for Coleman‘s and
Latasha W.‘s friendship was not gang or drug related. Because the testimony was
admissible, there is no merit to defendant‘s further argument that admission of the
testimony violated his right to due process.

7. Confrontation Clause
Defendant contends that Dr. Cotton‘s testimony about the DNA sample
taken from Latasha W. denied him his Sixth Amendment right to confront the
witnesses against him because Dr. Cotton relied on DNA testing done by other

59
individuals who did not testify. We do not decide the merits of this issue because
any error was harmless in light of the fact that Dr. Cotton testified about her own
independent scientific conclusions. This unrebutted testimony, which did not
violate defendant‘s rights under the confrontation clause, convincingly established
that defendant‘s DNA matched that of Latasha W.‘s assailant.

a) Background
Dr. Cotton testified that analysts at her laboratory performed DNA tests on
the vaginal swab taken from Latasha W. that was sent to Cellmark. She testified
that based on testing at nine different DNA loci, the tests established that
defendant could not be excluded as a match to the sperm portion of the swab
sample and that Latasha W. could not be excluded as a match to the nonsperm
portions of the sample. The statistical likelihood of any given African-American
individual‘s DNA matching the sperm portion of the sample was one in 17
million.
Dr. Cotton explained that Cellmark‘s DNA tests produce a thin gel on a
glass plate. Those results are then copied onto an X-ray film. Because the glass
plates cannot be stored for long periods of time, the X-ray films are what are kept
in Cellmark‘s permanent files.
Dr. Cotton testified that she reviewed the X-ray film of the tests of both the
sperm and nonsperm portions of the sample taken from Latasha W. She
concluded that the results were of a particularly high quality. The prosecutor then
asked Dr. Cotton whether she ―concur[red] with the findings [of the two Cellmark
analysts who originally reviewed the DNA data] in the case.‖ Dr. Cotton
responded: ―Yes. [¶] I went back and analyzed the data in preparation of coming
to court so I can discuss it. And I looked at all of their interpretations and I did my
own and mine are the same as theirs.‖ The prosecution then asked: ―So three

60
scientists have looked at this data and all are in agreement in terms of these
findings?‖ Dr. Cotton responded that a fourth scientist had actually looked at
some of the results as well, but then reiterated that in ―preparation for court I had
to look at the information.‖

b) Analysis
Defendant argues that Dr. Cotton‘s testimony regarding the laboratory
results prepared by other Cellmark analysts violated his right under the Sixth
Amendment to confront the witnesses against him. He relies on Crawford v.
Washington (2004) 541 U.S. 36 (Crawford) and its progeny. (See Williams v.
Illinois (2012) __ U.S. __ [132 S.Ct. 2221] (Williams); Bullcoming v. New Mexico
(2011) __ U.S. __ [131 S.Ct. 2705] (Bullcoming); Melendez-Diaz v.
Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz).)
As an initial matter, the Attorney General is incorrect that defendant
forfeited this argument by failing to object at trial. Crawford was decided more
than five years after defendant‘s trial. Because Crawford ―was a dramatic
departure from prior confrontation clause case law,‖ a defendant‘s failure to raise
a Crawford claim in a pre-Crawford trial ―is excusable because defense counsel
could not reasonably have been expected to anticipate this change in the law.‖
(People v. Harris (2013) 57 Cal.4th 804, 840.) Thus, defendant‘s Crawford claim
is not forfeited.
As demonstrated by the passages above, Dr. Cotton‘s testimony can be
divided into two categories. First, she testified that she had reviewed the X-ray
films of the DNA results generated by Cellmark analysts and, based on her
independent review of those results, concluded that defendant‘s DNA matched
Latasha W.‘s assailant‘s. Nothing suggests that the X-ray films, which were
prepared by other Cellmark analysts, were signed or attested to under oath.

61
Second, Dr. Cotton testified that her conclusions were the same as those reached
by the analysts who prepared the X-ray films, although no reports by those
analysts were introduced into evidence.
In Crawford, supra, 541 U.S. 36, the high court held that criminal
defendants have a constitutionally protected right to cross-examine any witness
whose testimonial hearsay is offered against them. (See id. at pp. 50–56.) In a
series of decisions applying Crawford to the introduction of scientific evidence,
shifting majorities of the high court have variously defined what makes hearsay
testimonial. (See Melendez-Diaz, supra, 557 U.S. at pp. 310–311 [lab analysts‘
affidavits describing results of testing they performed were testimonial hearsay];
Bullcoming, supra, __ U.S. at p. __ [131 S.Ct. at p. 2717] [lab analyst‘s
certification as to his lab results, which complied with specific state laws for
admission of lab reports into evidence, was testimonial hearsay]; Williams, supra,
__ U.S. at p. __ [132 S.Ct. at p. 2228] (plur. opn. of Alito, J.); id. at p. __ [132
S.Ct. at p. 2225 (conc. opn. of Thomas, J.) [holding that an expert witness could
testify based on her assumption that unsworn results received from a DNA lab
were accurate, but disagreeing as to whether the unsworn nature of the data relied
on by the witness or the fact that the testimony was conveyed by an expert was the
reason the lab tests were not testimonial].)
Like many courts around the country, we have struggled to interpret and
apply the high court‘s confrontation clause cases. Nonetheless, a few rules emerge
from our cases. First, the introduction of machine-generated data does not
implicate the confrontation clause because ―unlike a person, a machine cannot be
cross-examined.‖ (People v. Lopez (2012) 55 Cal.4th 569, 583 (Lopez).) Second,
an expert witness‘s reliance on statements or reports by other individuals that
―merely record objective facts‖ do not implicate the confrontation clause because
―[s]uch observations are not testimonial in nature.‖ (People v. Dungo (2012) 55

62
Cal.4th 608, 619 (Dungo) [holding that a pathologist‘s ―statements describing
. . . anatomical and physiological observations about the condition‖ of a body upon
which an autopsy was being performed were not testimonial].) Finally, we have
held that a lab technician‘s act of initialing a report describing actions he or she
has taken with respect to a particular lab test is insufficient to convert that report
into a testimonial statement because initialing lacks the requisite formality, absent
(at the least) a signature, certification, or other form of swearing to the truth.
(Lopez, at pp. 584–585.)
Dr. Cotton‘s testimony regarding the opinions of the other analysts may
have violated defendant‘s right to confront those analysts, although it is difficult to
assess this claim because those analysts‘ reports are not in the record. However,
any error that may have occurred would be harmless because Dr. Cotton testified
that she independently reviewed the X-ray films and concluded from those films
that defendant could not be excluded as a match to the sperm portion of the
sample. Dr. Cotton testified as an expert witness observing objective scientific
data — the X-ray film output of a DNA test. Defendant does not suggest that the
X-ray films that Dr. Cotton relied on, which were not introduced into evidence,
were formally attested to by the Cellmark analysts or that they conveyed anything
other than objective scientific data. Thus, under Lopez and Dungo, defendant has
not demonstrated that Dr. Cotton‘s testimony as to her own conclusions based on
the X-ray films violated defendant‘s right to cross-examination. (See Dungo,
supra, 55 Cal.4th at p. 619; Lopez, supra, 55 Cal.4th at pp. 570–571.) Although
Dr. Cotton‘s testimony about her own conclusions may have been slightly
bolstered by the constitutionally dubious portion of her testimony about other
analysts‘ conclusions, any error that may have occurred was harmless beyond a
reasonable doubt. Defendant was unable to seriously impeach Dr. Cotton‘s expert

63
opinion and introduced no evidence that would have led a reasonable jury to doubt
Dr. Cotton‘s own analysis.

8. Ineffective Assistance of Counsel Based on Opening
Statement
Defendant argues that his attorney rendered ineffective assistance when,
during her opening statement, she referenced a partial confession defendant had
made to the police that the prosecution did not plan to introduce into evidence.
We need not determine whether counsel‘s error amounted to ineffective assistance
because defendant has not demonstrated a reasonable probability that but for
counsel‘s error, the result would have been more favorable to him. (See
Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).)

a) Background
On August 21, 1996, defendant admitted to homicide officers in a
videotaped interview that he was present at the scene of the Coleman killing but
denied having killed Coleman or having raped Latasha W. During her opening
statement, defense counsel told the jury: ―The givens are this: [¶] Mr. Banks
admitted to the police when he was questioned that he was present at the Coleman
murder. [¶] He denied that he was the shooter. [¶] He denied raping [Latasha W.].
[¶] But he did admit that he was present.‖
The prosecutor asked to approach and at sidebar informed both the court
and defense counsel that he had no intention of introducing defendant‘s
confession. Defense counsel said she assumed that the prosecutor had intended to
introduce the confession. The court responded, ―I don‘t know why they would put
that in when they have what they have, including an eyewitness. [¶] Again, one
way to find out rather than assuming is certainly to try to ask ahead of time.‖
The next day, defense counsel moved for a mistrial on grounds of her own
incompetence. The trial court denied the motion, stating, ―I don‘t see how it could

64
be incompetence to comment on what you believe the evidence will prove in the
case. [¶] If you have a belief that the evidence will show a particular thing, so be
it. [¶] If the people do not put that evidence on, that happens too. [¶] I say it is a
better idea for counsel to wait until the people have rested to make a statement but
I am not a defense attorney.‖

b) Analysis
Defendant first argues that defense counsel‘s conduct was so egregious as
to constitute complete abandonment under the high court‘s decision in United
States v. Cronic (1984) 466 U.S. 648. Under Cronic, if defense counsel ―entirely
fails t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2718100. Public record. Not legal advice.