People v. Hardy

Filed 5/31/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S113421

v. )

)

WARREN JUSTIN HARDY, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. NA039436-02

___________________________ )

A jury convicted defendant, Warren Justin Hardy, of the first degree murder

of Penny Sigler with the special circumstances of murder committed during the

commission of robbery, kidnapping for rape, rape, and sexual penetration by a

foreign object, and the infliction of torture. (Pen. Code, §§ 187, 189, 190.2, subd.

(a)(17), (18).)1 The jury also found that defendant was an aider and abettor and

either had the intent to kill or was a major participant who acted with reckless

indifference to human life, but it did not find that he was the actual killer. In

addition, the jury convicted defendant of robbery, kidnapping for rape, rape, rape

in concert, sexual penetration by a foreign object, sexual penetration by a foreign

object in concert, and torture of Sigler. (§§ 206, 209, subd. (b)(1), 211, 261, subd.

(a)(2), 264.1, 289, subd. (a)(1).) In connection with the rape and sexual

penetration convictions, the jury found true that defendant kidnapped and tortured

1 All further statutory citations are to the Penal Code unless otherwise

indicated.

SEE DISSENTING OPINION

Sigler. (§ 667.61, subds. (a), (d).) The jury found not true or did not reach a

verdict on allegations that he personally used a deadly and dangerous weapon in

connection with the charges. Defendant admitted a prior robbery conviction.

After a penalty trial, the jury returned a verdict of death. The trial court

denied the automatic motion to modify the verdict and imposed a judgment of

death. This appeal is automatic.

We affirm the judgment.

I. THE FACTS

The evidence showed that defendant and two other men, Jamelle

Armstrong (defendant’s half-brother) and Kevin Pearson, killed Penny Sigler

during a robbery and sexual assault. The crimes took place on the night of

December 28–29, 1998, by a freeway embankment in Long Beach.2

A. Guilt Phase

Sometime after 10:00 p.m., December 28, 1998, Sigler left her Long Beach

home with six dollars’ worth of food stamps her roommate gave her to buy soda

and candy. Sigler’s nude body was discovered the next day on an embankment of

Interstate 405 near the intersection of Long Beach Boulevard and Wardlow Road,

less than a mile from her home. Her body was near the bottom of the

embankment, separated from the streets by a drainage ditch, and, above the ditch,

a nylon mesh fence supported by wooden stakes. Near Sigler’s body was a shoe, a

broken stake, and other debris, and blood was in the surrounding area.

2 The three men were tried separately and each received a sentence of death.

Armstrong’s appeal is pending in this court. This court reversed Pearson’s first

death sentence. (People v. Pearson (2012) 53 Cal.4th 306.) On remand, he again

received the death penalty. His appeal from that judgment is also pending in this

court.

2

Sigler suffered extensive injuries. The medical examiner counted 114

injuries, including at least 10 skull fractures that appeared to have been inflicted

before death. Other injuries included blunt force injuries to her face, neck, back,

chest, abdomen, arms, and thighs, a partially torn right ear, bruising and bleeding

of the neck, broken neck bones, a broken rib, a chipped tooth, and bite marks on

her breast and knee. Sigler also had bruising and lacerations on her internal and

external genitalia, perineum, and anus. Some of the injuries, such as the chipped

tooth and the lacerations and bruises to Sigler’s genitalia and anus, were consistent

with having been caused by a wooden stake. A wood splinter was recovered from

her vagina. Deoxyribonucleic acid (DNA) from one of the bite marks matched

defendant. The medical examiner concluded that blunt force trauma was the

major cause of death, but he also found signs of asphyxiation.

Police recovered the cover of a food stamp booklet near Sigler’s body.

Through the booklet’s serial number, detectives traced the food stamps to a nearby

grocery store. The store’s manager recognized defendant as a regular customer,

and remembered that around the time of the murder defendant had purchased food

using food stamps. Detectives executed a search warrant of defendant’s home,

recovering a pair of shoes with a sole pattern consistent with marks found at the

scene, a leather jacket with blood stains, and other articles of clothing. DNA on

the jacket and other clothes in defendant’s home matched that of Sigler.

Detectives interviewed defendant the day of the search. He made three

unrecorded statements and one recorded statement based on his third unrecorded

statement. In his first two statements, defendant denied being involved in Sigler’s

death. After being told that Armstrong was also in custody, defendant became

visibly upset and related a third version of events. Portions of the transcript and

recording of this statement were provided to the jury.

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According to this statement, as supplemented by later statements to the

detectives, defendant was at a friend’s home the night of Sigler’s death where he,

Armstrong, Pearson, and others were drinking. Defendant, Armstrong, Pearson,

and two others left around 11:00 p.m. The two others took the “Metro”

southbound, while defendant, Armstrong, and Pearson took it northbound to Long

Beach. As the three were walking to a bus station along Long Beach Boulevard,

they noticed Sigler across the street and, unprovoked, heard her yell at them,

“Fuck you, niggers.” The three crossed the street to confront Sigler; for defendant,

something “clicked” when he heard the slur.

Once they reached Sigler, everyone began yelling at one another. In the

process, Sigler grabbed at defendant, and he bit her on her breast in self-defense.

Sigler then slapped him in the face. Pearson told defendant and Armstrong to

bring Sigler over the fence that ran along the freeway embankment; defendant

could not recall how they managed to do so. Pearson then ordered Sigler to lie

down, and ordered defendant to remove her shoes. Defendant left to throw away

Sigler’s shoes as Pearson removed Sigler’s pants, but in the process tripped and

dropped one of the shoes. When he returned, defendant saw Pearson on top of

Sigler, and then Pearson ordered Sigler to orally copulate him. Still angry from

earlier, defendant punched Sigler in the jaw twice. Sigler reached out her hand to

him and asked for his help, but he did nothing. Armstrong then appeared carrying

a wooden stick, which he gave to Pearson. Pearson hit Sigler in the face with the

stick, then stomped on her with his boots.

Defendant gathered the clothing and one shoe into a plastic bag he found

nearby and climbed back over the fence with Armstrong and Pearson. Looking

back at Sigler’s body, he saw a stick protruding from Sigler’s vagina. He returned

to Sigler’s body to remove the stick. Defendant gave inconsistent statements as to

what happened to the stick: in one version, he threw it into the parking lot; in

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another, he threw it into a dumpster; and in a third, he gave it to Armstrong, who

put it in a dumpster.

The three boarded a bus, transferred to another bus, and went to defendant’s

home. Somewhere along the way, Pearson discarded the bag with Sigler’s clothes.

All three left their clothing at defendant’s home. Defendant claimed Pearson

threatened to kill him if he talked.

The defense cross-examined prosecution witnesses but did not present any

witnesses of its own. Defendant stipulated that he had a prior attempted robbery

conviction.

B. Penalty Phase

1. Prosecution evidence

Cory Garro testified regarding the facts behind the prior attempted robbery

conviction. One night in December 1996, as Garro and his wife were walking to

their hotel in Long Beach, three men accosted them. One of the men (not

defendant) pressed a gun to Garro’s chest. The men demanded Garro hand over

his wallet; while one man removed Garro’s wallet, another tried to take his wife’s

purse. She screamed, causing the men to flee. Defendant later told police that he

and two other men had attempted to rob Garro and his wife. One of the other men

held the gun.

On April 11, 1996, police responded to a call from defendant’s residence in

Long Beach. There, they found defendant’s young son bleeding from a two-inch

puncture wound on the back of his leg. Defendant repeatedly told his son to say

that the injury had been an accident. Defendant gave conflicting accounts of what

had happened, but ultimately he told a police detective that he had a knife in his

front pocket with the blade pointing upward. When defendant went to say good

bye to his son, he lifted him up and set him on his lap, causing the knife to stab

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him. He had forgotten about the knife. Police found a bloodstained knife with a

five-inch blade in a kitchen drawer.

Monty Gmur, whose house defendant had visited before Sigler’s death,

testified that defendant, Armstrong, Pearson and another man had been working in

Gmur’s music studio the evening of the murder. At some point, defendant left and

returned with alcohol, which he drank with the other men. Defendant and the

others were at Gmur’s house for three to four hours; Gmur was in another part of

the house much of this time. Gmur believed that defendant and the others had

been drinking, as they showed signs of intoxication and the alcohol bottles were

empty.

Teddy Keptra, Sigler’s son, testified about the impact of her murder on

him. He had been 16 years old when his mother died, and subsequently dropped

out of high school and had difficulty holding a job. He missed his mother and

thought of her daily.

2. Defense evidence

Friends, relatives, and mental health experts testified regarding defendant’s

childhood, upbringing, and character.

Defendant’s mother, Pamela Armstrong, testified that she and defendant’s

father had been together for three years until Pamela discovered that the father was

having a baby with another woman. She gave birth to defendant in an attempt to

get his father back, but the father abandoned her and defendant. Defendant was

born with numerous birthmarks, as well as with an eye that turned to the side.

Defendant had corrective surgery for the eye as a child. His vision problems

caused him to be clumsy and have difficulties at school, problems that the surgery

alleviated but did not eliminate.

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Pamela married Armstrong’s father when defendant was one year old, and

gave birth to Armstrong when defendant was four or five years old. Armstrong’s

father was abusive toward Pamela. Although he initially treated defendant well,

he increasingly favored Armstrong over defendant as they grew older. Both

Pamela and Armstrong’s father drank and used drugs, and the physical abuse

worsened. On occasion, the teenaged defendant would try to intervene by hitting

Armstrong’s father and telling him not to hurt his mother. Between his learning

disabilities and his deteriorating relationship with his stepfather, defendant’s

grades worsened, and he eventually dropped out of school. Instead, he spent his

time with gang members.

Defendant’s family pastor, Albert Scales, testified that defendant had been

a well-behaved child at church, and that he had never seen him act in a mean-

spirited manner. Scales counselled defendant’s mother and stepfather, and was

aware that there were drinking problems in the home, that defendant was not well

cared for, and that his stepfather was violent towards his mother.

Dr. Carl Osborn, a forensic psychologist, opined that defendant had never

fit in at home or school. Defendant’s stepfather was a heavy drinker and drug user

who was abusive towards defendant’s mother, who also drank heavily. Defendant

became his mother’s caretaker, yet his mother generally sided with his stepfather,

leaving defendant feeling unwanted. His home environment was surrounded by

violence; his mother and stepfather were violent, his stepfather was involved in

gangs, his aunt had been raped and had been involved in a knife fight with his

mother, and the neighborhood was the site of several shootings. Once, a man was

gunned down in front defendant’s house while defendant was watching. At

school, defendant was small and had a birth defect that caused severe learning

disabilities that were never identified or corrected. Other students consequently

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picked on him, and his academic performance was poor. In Dr. Osborn’s view,

defendant desperately sought support, a role model, and a place to fit in.

By age 13, the two bright spots in defendant’s life were that he showed

some athletic talent and was involved in choir at church. But when he was 13, he

had to choose between football and choir. Pastor Millard Jackson told him that if

he chose choir, he could go to Disneyland. Because he hated spending time at

home, he spent several nights with Jackson. Defendant claimed that Jackson

molested him, specifically, that Jackson fondled defendant while he ejaculated.

Defendant began a downward spiral after this, hiding behind alcohol and with his

only sense of self-worth coming from his gang involvement.

Dr. Osborn opined that defendant’s alcoholism stemmed from a dysthymic

disorder—defendant was initially unable to recall a time when he had been happy.

Defendant continued to drink even while in jail, and the combination of dysthymia

and alcohol led to explosive disinhibition, causing violent and impulsive

tendencies to manifest themselves. Those tendencies were occasionally directed

against defendant himself. His mother testified that at age 16, defendant ran away

from home and reported having suicidal thoughts. Tiyarie Felix, the mother of

defendant’s children, testified that defendant demonstrated suicidal tendencies

three times, once pulling a cord tight around his neck, once putting a gun to his

head, and once throwing himself in front of a car. These tendencies, in Dr.

Osborn’s opinion, were consistent with defendant’s dysthymia and alcoholism.

Felix also testified about defendant’s problems with alcohol. The two met

when they were 18 years old, at which time Felix had two sons from a prior

relationship. Felix then had two more sons with defendant. Defendant loved all

four of her sons equally, and treated them well. But defendant could be abusive

towards Felix when he drank. Despite recognizing that his violence was linked to

his drinking, defendant continued to drink. Eventually, Felix asked him to move

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out. Felix also testified about the incident in which defendant’s son was cut in the

back of his leg. Immediately after the incident, her son told her it was an accident.

Witnesses also testified that defendant was a follower, not a leader. James

Johnson ran a community training program that defendant completed. Johnson

testified that defendant lacked initiative, but was willing to learn and seemingly

wanted a job to support his children. Following the program, defendant worked

for Johnson for about a year installing toilets until Johnson’s company went out of

business. During that time, defendant worked well, but he still tended to be more

of a follower than a leader. Felix and Scales supported this view. Dr. Osborn

determined that defendant had an I.Q. of 83, putting him in the 13th percentile of

the general population. Based on his intellectual abilities and background, Osborn

believed that defendant lacked the “horsepower” to lead on the streets.

Based on his sessions with defendant and review of the records, Dr. Osborn

came to three conclusions regarding Sigler’s death: The crimes would have been

out of character for defendant had he been sober; defendant actively participated

but was dominated by Pearson and Armstrong; and they were crimes of passion

due to defendant’s intoxication, because drinking caused defendant to become

violent or suicidal.

Dr. Gordon Plotkin, a medical doctor, testified that Sigler’s autopsy

toxicology report showed that she had ingested methamphetamines and alcohol

before her death. Other records showed that she had been diagnosed with

depression. Methamphetamines, alcohol, and depression in combination could

cause a person to have poor impulsivity and suffer loss of judgment, and could

cause that person to have increased aggression and possibly act violently.

Dr. Plotkin also testified that defendant’s reported alcohol abuse and

drinking on the night of Sigler’s death could have meant that he was so intoxicated

that he did not remember what happened. His intoxication could have aggravated

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any violent tendencies and reduced impulse control. Because defendant

remembered some details about the night, including mundane ones, Dr. Plotkin did

not think defendant had blacked out.

Robert Grace, a Los Angeles County deputy district attorney, testified

regarding defendant’s cooperation during a murder prosecution in 1997.

Defendant had witnessed a shooting between rival Crips and Bloods gang

members. He cooperated with the prosecution to identify suspects and did not

recant or change his testimony. His testimony, which put his life in danger, was

necessary to obtain convictions for conspiracy to commit murder against Crips

gang members. Defendant himself was a member of the Bloods.

3. Prosecution rebuttal

Monty Gmur testified that at one point during the evening defendant and

Pearson asked to use his music studio to “jump in” or initiate someone into a gang,

but Gmur refused.

The prosecution presented evidence about an incident on a bus the night of

Sigler’s death. The bus driver testified he picked up three young African-

American men, whom he could not identify, near Wardlow Road and Long Beach

Boulevard after midnight. One of them argued over the fare, and the three argued

among themselves and a fourth African-American man about gangs. Defendant

later told a detective he was involved and the dispute was over Crips, Bloods, and

gang colors.

Pastor Jackson, the pastor defendant claimed molested him, testified that,

after Sigler’s death, he spoke to defendant and defendant’s mother about the

allegation. Jackson had counselled defendant as a young teenager, and defendant

had occasionally stayed at Jackson’s house in the spare bedroom. Jackson denied

molesting defendant.

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Sergeant Steve Newman of the Los Angeles County Sheriff’s Department

testified regarding gangs. He explained that “jumping in” was an initiation

process in which a new gang member would be beaten for one to three minutes.

Newman testified that a tattoo defendant bore indicated that he was a member of

the Bloods. Although the Bloods might frown on a member testifying against the

Crips, as defendant had done, it might be tolerated.

II. JURY SELECTION ISSUES

A. Excusal for Cause of Two Prospective Jurors

Defendant contends the trial court improperly excused two prospective

jurors for cause due to their views on the death penalty in violation of his Fifth,

Sixth, Eighth and Fourteenth Amendment rights.

“A prospective juror in a capital case may be excluded for cause if his or

her views on capital punishment ‘would “prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his

oath.” ’ (Wainwright v. Witt (1985) 469 U.S. 412, 424.) Prospective jurors ‘may

not know how they will react when faced with imposing the death sentence, or

may be unable to articulate, or may wish to hide their true feelings.’ (Id. at

p. 425.) Accordingly, ‘deference must be paid to the trial judge who sees and

hears the juror’ and must determine whether the ‘prospective juror would be

unable to faithfully and impartially apply the law.’ (Id. at p. 426.) We apply this

standard to determine whether excusing a prospective juror in a capital case for

cause based on the prospective juror’s views on capital punishment violates the

defendant’s right to an impartial jury under article I, section 16 of the California

Constitution. [Citations.]

“ ‘ “On appeal, we will uphold the trial court’s ruling if it is fairly

supported by the record, accepting as binding the trial court’s determination as to

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the prospective juror’s true state of mind when the prospective juror has made

statements that are conflicting or ambiguous.” ’ [Citation.] ‘ “In many cases, a

prospective juror’s responses to questions on voir dire will be halting, equivocal,

or even conflicting. Given the juror’s probable unfamiliarity with the complexity

of the law, coupled with the stress and anxiety of being a prospective juror in a

capital case, such equivocation should be expected. Under such circumstances, we

defer to the trial court’s evaluation of a prospective juror’s state of mind, and such

evaluation is binding on appellate courts.’ ’ ” (People v. Souza (2012) 54 Cal.4th

90, 122-123.)

Defendant first argues the test established in Wainwright v. Witt, supra, 469

U.S. 412, should be modified. However, the United States Supreme Court

established that test. If it is to be modified, it is up to that court to do so, not this

court. (People v. Rices (2017) 4 Cal.5th 49, 79-80.)

Defendant also argues the trial court erred under the Witt standard. We

disagree. We discuss the two prospective jurors in question.

1. The First Prospective Juror at Issue

David D. wrote on the jury questionnaire that he “would initially be leaning

towards the defense. I have developed a mistrust of prosecutors.” He

“abhorre[d]” the death penalty. He was “strongly against it” and viewed it as

“cruel and unusual.” He stated that the “death penalty is out of step in a modern

society as ours,” and that it was for the purpose of “revenge” or “political”

reasons. He also felt that “the killing of any human being diminishes us all and

goes against the laws of nature and man,” and that “only the most barbaric

countries on earth still impose it.”

In response to the question whether he could vote for the death penalty, he

responded “no.” In response to the question whether he could vote for life in

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prison, he responded “yes.” He wrote, “I’m not sure,” to the question whether he

would “automatically vote for life without the possibility of parole, in every case

regardless of the evidence presented to you?” In response to the question whether

he would “always vote against death, no matter what the evidence might be

presented or argument made during a penalty trial,” he answered “no.”

During voir dire, David D.’s responses were somewhat equivocal. The

court asked him whether he could keep an open mind in the penalty phase; he

answered, “I believe I can.” When the prosecutor asked him whether he could

impose the death penalty, he responded, “I’m not sure. I think I have to sit in that

jury room and make that decision at the time of the deliberations.” Then he

expressed the opinion that the death penalty is barbaric, but he believed he could

impose it “if it was necessary to follow the law, and the law said this was the only

answer to this case.” He could impose it only “if it was clear–cut that the law—

the law made it very clear that the death penalty had to be imposed. I don’t feel

that I’m above the law. However, I hold these convictions very strongly. I think

if I sat in the jury room and it became very clear there was only one answer, I

believe I could impose the death penalty. . . .”

The trial court explained that “the law doesn’t say that you have to impose

the death penalty. I won’t be telling you. You will be telling me. Basically, the

court will be asking what is the appropriate penalty.” The prosecutor added, “The

court is not going to tell you it’s a clear-cut in this circumstance. You vote for

death in this circumstance [or] you vote for life. It is subjective. Do you believe

that you can impose death?” David D. responded, “I believe—I believe I could. It

would be very difficult for me. I would have to have almost everyone on the jury

trying to convince me that it would be essential or necessary to impose death.”

Defendant’s attorney explained to David D. that neither the court nor the

law would ever require a death sentence and asked whether he could vote for the

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death penalty. The juror responded, “I’m trying to figure out. This is a huge

question. Can I have a couple days to think about it?” He was told no. Later, he

said, “If the law states one thing I would feel compelled to follow the law.” When

the court reiterated that the law will never compel a death verdict, he said he could

vote for the death penalty “if the other jurors were able to convince me to vote for

the death penalty, I would do it, yes.”

Later, when defense counsel asked whether he could “come to a conclusion,

after hearing the evidence in the penalty phases, that this was a case which called

for the death penalty,” David D. responded, “I could, yes.”

The prosecutor challenged David D. for cause. The court granted the

challenge: “I sort of have a two-fold problem with this juror. One is based on his

answers. At least initially, it certainly appeared that his views would prevent or

substantially impair his performance as a juror, in accordance with the law. So it

would seem at the outset, that he probably could not impose the death penalty no

matter the circumstances. The second problem that I have, if he was a juror and

the jury did impose death, I’m not sure that that verdict would be worth much

because he told us repeatedly if it comes back with the death verdict that means 11

people voted for death and so did he. So I don’t think he will be helpful or useful

to us in this case. So I’m going to grant the People’s challenge for cause.”

The record supports this ruling. The court reasonably found that the juror’s

views in opposition of the death penalty would “prevent or substantially impair”

his performance as a juror in defendant’s case.

Defendant argues that David D. stated numerous times that he could follow

the law and vote for death. But he also made clear that he could impose the death

penalty only if the law compelled him to do so, even when the attorneys and the

court repeatedly explained to him that the law would never require a verdict of

death. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 402 [trial

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court properly dismissed a potential juror based partially on her statement that she

would vote for the death penalty only if the law required her to do so.]) Yet when

the juror seemed to understand the law correctly, he was unsure if he could impose

the death penalty, stating, “I believe – I could. It would be very difficult for me.”

In addition, David D. stated several times that he would only vote for death

if the other jurors were able to convince him that death was the appropriate

outcome. When the court stated that a death verdict would not be “worth much,”

it appeared to mean that had David D. been on the jury, a death verdict would not

have reflected a unanimous decision to impose death, but rather an 11–1 vote if

David D. voted for death only because he felt pressured to do so.

The record supports the court’s ruling excusing this juror due to his views

on the death penalty.

2. The Second Prospective Juror at Issue

With respect to the death penalty, Kirk F. stated on the questionnaire that it

was a “tough moral decision.” He stated that while when he was “younger [he]

was for the death penalty, as [he] grew older [he was] more unsure.” He went on

to state that he felt the death penalty is used “too seldom.” Nevertheless, he stated

that while he supported the death penalty, he “may not be able to make the final

decision for the penalty.” He wrote that “taking of another person’s life, based on

judgment, is difficult from my religious experiences and social awareness.” He

also indicated that he could not set aside his religious beliefs, explaining that he

would “try to set aside beliefs but [he could not] say for certain [he] will be able

to.”

When asked if he could, in the appropriate case, “reject[] life in prison

without the possibility of parole and vot[e] for the death penalty,” he said “no,”

but explained that he “would need to see the details and the level of involvement

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as compared to the others.” He also indicated that he would not automatically

vote for either the death penalty or life without the possibility of parole.

During voir dire, Kirk F. initially stated that he would “try to” keep an open

mind and decide between the two penalties. He explained: “Of what I’ve seen of

the case so far, I feel strongly more about the death penalty . . . .” Nevertheless,

when the court asked whether he would be able to keep an open mind because he

“hadn’t firmly fixed in [his] mind what the penalties would be . . . because [he]

hadn’t heard . . . the evidence,” he replied that yes, he would be able to do so.

His answers to questions the attorneys posed were more equivocal. When

defendant’s attorney asked whether he could vote for death if this was the

appropriate case in which to do so, he replied, “Right.” But later he indicated that

his religious upbringing might interfere with his ability to do so. “I don’t know

what will happen when I actually try to make the decision, whether I’ll just look at

what is there or my personal beliefs will—.” When defense counsel interrupted to

ask what those beliefs were, he mentioned his Lutheran upbringing and said, “I

guess it’s kind of uncertain for me. I don’t know, exactly, where I stand.” He said

he had beliefs about “taking someone else’s life or making that decision to take

another person’s life.”

When Kirk F. indicated that his hesitancy to vote for the death penalty

would be due to lingering doubt about the defendant’s guilt, defendant’s attorney

told him that “this case isn’t like that. . . . There is going to be physical evidence,

DNA evidence, confessions . . . coming out of the mouth of my client as to what

he did, and about his involvement. This is not going to be that kind of case where

you go, oh, maybe the witness was lying and maybe really he wasn’t there, or that

kind of thing. . . . So try to think of it in removing any doubt about the actual

guilt, now we’re just talking strictly about the penalty. With that removed and just

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thinking about the penalty, would you be able to make a decision considering

death or life?” Kirk F. replied, “Yes. If I was comfortable with that, yes.”

On questioning by the prosecutor, Kirk F. said the Lutheran faith is against

imposing the death penalty. He could not say for certain that he could set aside his

personal beliefs.

The court excused Kirk F., stating, “It would appear to me that the juror’s

views on capital punishment would prevent or substantially impair the

performance of his duties if he was a juror, in accordance with the law. So we’ll

excuse that juror.”

This record also supports this ruling. While his negative views toward the

death penalty were less clear than those of David D., he was unable or unwilling to

state unequivocally that he would be able to set aside his personal beliefs and vote

for the death penalty in an appropriate case. He gave conflicting answers with

respect to his feelings about the death penalty. While he believed it was not

imposed enough, he could never say whether he personally could vote for death.

He stated he was not religious, but also that he felt he could not set aside his

Lutheran faith, which he believed was against the death penalty. All of this

supported the court’s finding of substantial impairment.

B. Prosecutor’s Use of Peremptory Challenges

Defendant, who is African-American, contends the prosecutor improperly

used peremptory challenges to excuse African-Americans due to their race in

violation of Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978)

22 Cal.3d 258.

1. Procedural Background

The prosecutor exercised five peremptory challenges during selection of the

original 12 jurors, one to excuse Frank G., the only African-American who was

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available during that part of jury selection. She exercised all four of her

peremptory challenges while picking alternates, two to excuse Darin B. and

Marion H., the first two African-Americans who became available during that part

of jury selection. The prosecutor twice passed with Marion H. in the box, then

challenged her after the defense exercised two additional challenges. After both

sides exhausted their peremptory challenges for alternates, an African-American

was seated as the fourth and final alternate.

After the alternates were selected, defendant objected that the prosecutor

had exercised her challenges against African-Americans for reasons of group bias.

He noted that the prosecutor had challenged all three African-Americans that she

could have challenged. The prosecutor argued that defendant had not established

a prima facie case, but before the court ruled on the matter, she volunteered to give

her reasons for the challenges. After she gave her reasons as to all three jurors, the

court asked defense counsel, “Did you want to respond?” Defense counsel

answered, “No.”

The court then denied the motion. “The court doesn’t believe that there is

sufficient showing to meet the prima facie finding. Even if the court had reached

that point, the prosecution has explained race neutral reasons for excusing the

jurors. And, naturally, the explanation doesn’t have to be one that the court would

do, if the court was still a lawyer. But the only one that was kind of out of the

ordinary for the court, was as to the alternate, and I’m not even sure if there has

ever been a case that addresses how Wheeler would apply to alternates. It’s

unlikely that we’ll use any of the alternates in this case, and even more unlikely

that we’ll get to alternate No. 3. But, nonetheless, just because of the fact when I

was a lawyer, just because I might not have done that, doesn’t mean that the

reason is not sufficient pursuant to Wheeler. So the Wheeler motion is denied.”

18

2. Applicable Legal Principles

“The United States and California Constitutions prohibit exercising

peremptory challenges based on race. When a defendant alleges discriminatory

use of peremptory challenges, the defendant must first make a prima facie

showing of impermissible challenges. If the trial court finds a prima facie case,

the prosecutor must then state nondiscriminatory reasons for the challenges. At

that point, the trial court must determine whether the reasons are credible and

whether the defendant has shown purposeful discrimination under all of the

relevant circumstances. The defendant has the ultimate burden of persuasion.”

(People v. Melendez (2016) 2 Cal.5th 1, 14.) “The ‘Constitution forbids striking

even a single prospective juror for a discriminatory purpose.’ ” (Foster v.

Chatman (2016) 578 U.S. __, __ [136 S.Ct. 1737, 1747], quoting Snyder v.

Louisiana (2008) 552 U.S. 472, 478.)

“At the third step of the Batson/Wheeler analysis, the trial court evaluates

the credibility of the prosecutor’s neutral explanation. Credibility may be gauged

by examining factors including but not limited to ‘ “ ‘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.’ ” ’ [Citation.]”

(People v. Gutierrez (2017) 2 Cal.5th 1150, 1168.)

Here, the court found no prima facie case, but only after the prosecutor had

stated her reasons for the challenges. In this situation, “we infer an ‘implied prima

facie finding’ of discrimination and proceed directly to review of the ultimate

question of purposeful discrimination.” (People v. Scott (2015) 61 Cal.4th 363,

387, fn. 1, quoting People v. Arias (1996) 13 Cal.4th 92, 135.) Accordingly, “we

must determine whether the trial court correctly ruled that the defense did not

demonstrate discriminatory purpose at the third stage. The prosecutor’s

justification does not have to support a challenge for cause, and even a trivial

19

reason, if genuine and race neutral, is sufficient. The inquiry is focused on

whether the proffered neutral reasons are subjectively genuine, not on how

objectively reasonable they are. The reasons need only be sincere and

nondiscriminatory. We review the trial court’s determination with restraint,

presume the prosecutor has exercised the challenges in a constitutional manner,

and defer to the trial court’s ability to distinguish genuine reasons from sham

excuses.” (People v. Melendez, supra, 2 Cal.5th at pp. 14-15.)

Reviewing the trial court’s determination with restraint does not, however,

mean abdication. “ ‘Although we generally “accord great deference to the trial

court’s ruling that a particular reason is genuine,” we do so only when the trial

court has made a sincere and reasoned attempt to evaluate each stated reason as

applied to each challenged juror.’ [Citation.] ‘When the prosecutor’s stated

reasons are both inherently plausible and supported by the record, the trial court

need not question the prosecutor or make detailed findings. But when the

prosecutor’s stated reasons are either unsupported by the record, inherently

implausible, or both, more is required of the trial court than a global finding that

the reasons appear sufficient.’ [Citation.] However, we also have stated that a

trial court is not required ‘to make explicit and detailed findings for the record in

every instance in which the court determines to credit a prosecutor’s demeanor-

based reasons for exercising a peremptory challenge.’ ” (People v. Williams

(2013) 56 Cal.4th 630, 653.)

“Some neutral reasons for a challenge are sufficiently self-evident, if

honestly held, such that they require little additional explication. . . . Moreover, a

peremptory challenge may be based on a broad range of factors indicative of juror

partiality, even those which are ‘ “apparently trivial” ’ or ‘ “highly speculative.” ’

[Citation.] Yet when it is not self-evident why an advocate would harbor a

concern, the question of whether a neutral explanation is genuine and made in

20

good faith becomes more pressing. That is particularly so when, as here, an

advocate uses a considerable number of challenges to exclude a large proportion

of members of a cognizable group.” (People v. Gutierrez, supra, 2 Cal.5th at p.

1171.)

“At this stage, a defendant may engage in ‘comparative juror analysis’; that

is, may compare the responses of the challenged jurors with those of similar

unchallenged jurors who were not members of the challenged jurors’ racial group.

Such analysis is not necessarily dispositive, but it is one form of relevant

circumstantial evidence. When comparative juror arguments are made for the first

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

generally did not explain, the reasons for not challenging other jurors. In that

situation, the reviewing court must keep in mind that exploring the question at trial

might have shown that the jurors were not really comparable. Accordingly, we

consider such evidence in light of the deference due to the trial court’s ultimate

finding of no discriminatory purpose.” (People v. Melendez, supra, 2 Cal.5th at p.

15.) “The individuals compared need not be identical in every respect aside from

ethnicity: ‘A per se rule that a defendant cannot win a Batson claim unless there is

an exactly identical white juror would leave Batson inoperable; potential jurors are

not products of a set of cookie cutters.’ ” (People v. Gutierrez, supra, 2 Cal.5th at

p. 1173, quoting Miller-El v. Dretke (2005) 545 U.S. 231, 247, fn. 6.) “[B]ut they

must be materially similar in the respects significant to the prosecutor’s stated

basis for the challenge.” (People v. DeHoyos (2013) 57 Cal.4th 79, 107.)

In this case, two of the three prospective jurors at issue could only have

been selected as alternates. The trial court stated that it would call the alternates

onto the main panel, if needed, in the order they were seated. During the trial,

only one alternate was called to serve on the main panel. Neither of the

prospective jurors at issue would have been in the first seat, and thus neither

21

would have served as an actual juror. Accordingly, any error as to those two

jurors would have been harmless. (People v. Mills (2010) 48 Cal.4th 158, 182.)

But that does not mean the prosecutor’s reasons for challenging them are

irrelevant. Those reasons, if unsupported, weak, or implausible, may “be

considered part of an overall and deliberate plan to remove all African-Americans

from the jury in violation of [the defendant’s] constitutional rights.” (Ibid.)

For this reason, although we will focus on the validity of the prosecutor’s

excusal of Frank G., we will also examine the prosecutor’s excusal of the two

other jurors for whatever light it may shed on the validity of her reasons for

excusing Frank G.

3. Application to This Case

For two reasons, the prosecutor’s use of peremptory challenges warrants

close scrutiny. First, although the numbers are small, she excused every African-

American prospective juror she could have excused—one while selecting the main

panel and two while selecting the alternates. An African-American was ultimately

selected as an alternate, but that occurred only after both parties had exhausted

their peremptory challenges. Second, this case had definite racial overtones.

Defendant is African-American; the victim was White. Defendant told the police

that she had yelled a racial slur at him and his cohorts, triggering the incident.

These circumstances are not dispositive. “[A] prosecutor, like any party,

may exercise a peremptory challenge against anyone, including members of

cognizable groups. All that is prohibited is challenging a person because the

person is a member of that group.” (People v. Cleveland (2004) 32 Cal.4th 704,

733.) But the circumstances are troubling. The fact the prosecutor excused all

possible African-Americans is a “probative circumstance[], although [it is] not

dispositive, especially considering the small numbers involved.” (People v. Jones

22

(2011) 51 Cal.4th 346, 362; see People v. Gutierrez, supra, 2 Cal.5th at p. 1171.)

The racial overtones, although again alone not dispositive, “raise[] heightened

concerns about whether the prosecutor’s challenge was racially motivated.”

(People v. O’Malley (2016) 62 Cal.4th 944, 980.)

We will examine the prosecutor’s excusal of the prospective jurors at issue

with these and all other relevant circumstances in mind.

Defendant and the dissent (dis. opn., post, at pp. 5-6) argue that we should

not defer to the trial court’s finding because the court did not make “ ‘a sincere

and reasoned attempt to evaluate’ ” the prosecutor’s reasons. (People v. Williams,

supra, 56 Cal.4th at p. 653.) The court essentially made a “ ‘global finding’ ” that

the reasons were sufficient. (Ibid.) But, as we will discuss, the reasons were

generally supported by the record, inherently plausible, and self-evident. Some, at

least, were strong and have a firm basis in accepted trial strategy. When the trial

court invited defense counsel to comment, counsel declined, thus offering nothing

to challenge the credibility of the prosecutor’s reasons. “Under the circumstances,

the court was not required to do more than what it did.” (People v. Jones, supra,

51 Cal.4th at p. 361.) Moreover, as we explain, even if we did not review the trial

court’s ruling deferentially, no reason appears for this court to doubt the

genuineness of the prosecutor’s stated reasons.

a. Frank G.

The prosecutor stated six reasons for excusing Frank G.: (1) “He indicated

on question no. 42, ‘Police are not always truthful and tend to exaggerate’ ”; (2)

“He speaks to attorneys daily, and knows 50 to 60 civil or criminal lawyers”; (3)

“He did not want to sit on this case”; (4) “He was arrested in 1992 by the Los

Angeles Sheriff’s Department”; (5) During questioning, “he refused to smile at

me, although he smiled for the defense”; and (6) “He also indicated that LWOP

23

[life without the possibility of parole] was worse for a defendant.” She said that,

“in combination,” these were the reasons she “kicked him.”

With one discrepancy, the record supports each of these reasons except, of

course, the record does not record the juror’s demeanor. Collectively, these

reasons are inherently plausible and reasonable and have a basis in accepted trial

strategy. Considered in combination, they provide ample race-neutral grounds for

the challenge. We discuss each reason in the order the prosecutor gave.

Regarding the juror’s answer to question 42 on the jury questionnaire, there

is a discrepancy. The juror in fact wrote, “I believe prosecutors are not always

truthful and tend to exaggerate.” Thus, the prosecutor erroneously said this belief

concerned “police” rather than “prosecutors.” Because the discrepancy was not

raised at trial, we do not know whether the prosecutor simply misspoke—saying

police when she meant prosecutors—or misremembered—police and prosecutors

are closely connected in this context. (Eleven days had elapsed between the

individual questioning of this juror and the prosecutor’s explanation, and the

attorneys had many long questionnaires to review.) But no reason exists to doubt

the prosecutor’s sincerity or suspect she simply made it up. She correctly quoted

the rest of the juror’s answer, and it provides a strong reason for excusing the

juror. There is “no Batson violation when the prosecutor excused a prospective

juror for a factually erroneous but race-neutral reason.” (People v. O’Malley,

supra, 62 Cal.4th at p. 980 [mistaken recollection that a juror had spoken of

prejudice did not establish discriminatory intent].)

In People v. Silva (2001) 25 Cal.4th 345, the prosecutor made completely

unsupported statements that a juror “would be reluctant to return a death verdict or

that he was ‘an extremely aggressive person.’ ” (Id. at p. 385.) We found this

circumstance critical and reversed the trial court’s denial of the defendant’s

motion. “Although an isolated mistake or misstatement that the trial court

24

recognizes as such is generally insufficient to demonstrate discriminatory intent

[citation], it is another matter altogether when, as here, the record of voir dire

provides no support for the prosecutor’s stated reasons for exercising a peremptory

challenge and the trial court has failed to probe the issue [citations].” (Id. at p.

385.) The slight discrepancy here is like the prosecutor’s error in People v.

O’Malley, supra, 62 Cal.4th 944, not the one in Silva.

It is true that the trial court did not comment on this one-word mistake.

Neither did defense counsel. It is unrealistic to expect the trial court to discover

the mistake under trial conditions when it was not brought to the court’s attention.

Many jurors were examined over several days, and hundreds of prospective jurors

filled out the 52-page questionnaire containing 237 questions.

When the trial court invited defense counsel to respond to the prosecutor’s

statement of reasons, counsel declined. This failure to respond is significant. In

Uttecht v. Brown (2007) 551 U.S. 1, the high court reviewed a claim that the trial

court erred in excusing a juror for cause. The defendant had not objected to the

excusal. Although the failure to object did not forfeit the claim, the court found it

significant to its review of the court’s ruling. It noted that “diligent judges often

must [rely] upon both parties’ counsel to explain why” the juror was not subject to

challenge for cause. (Id. at p. 18.) “By failing to object, the defense did not just

deny the conscientious trial judge an opportunity to explain his judgment or

correct any error. It also deprived reviewing courts of further factual findings that

would have helped to explain the trial court’s decision.” (Ibid.; see People v.

McKinnon (2011) 52 Cal.4th 610, 644.)

This concern applies here. By failing to respond when given the chance,

counsel deprived the trial court of the opportunity to consider arguments in an

adversarial context. Judges necessarily rely on the arguments of counsel. (Uttecht

v. Brown, supra, 551 U.S. at p. 18.) The failure also denied the prosecutor the

25

opportunity to defend herself against defendant’s claims that her reasons were

pretextual, thus further denying this court the opportunity to consider any such

defense. If defense counsel had noted that the juror had referred to prosecutors

rather than police, the prosecutor could have explained herself, and the court could

have made a reasoned ruling that we could review. The defendant has the ultimate

burden of persuasion regarding the prosecutor’s motivation. (People v. O’Malley,

supra, 62 Cal.4th at p. 974.) Under the circumstances, we find defendant did not

meet that burden.

Moreover, the one-word discrepancy was minor. Indeed, a precisely

accurate statement would, if anything, have provided an even stronger reason for

the excusal. The fact that the juror distrusted prosecutors, and not just some of the

witnesses, might reasonably be of even greater concern to a prosecutor. As

defendant notes, the juror said the same thing about criminal defense attorneys.

But this circumstance does not significantly reduce the strength of this reason.

Prosecutors, especially, are expected, even required, to be truthful and to seek

justice, not a conviction at any cost. (E.g., Berger v. United States (1935) 295

U.S. 78, 88.) Moreover, they have the burden of proof beyond a reasonable doubt,

unlike defense attorneys, who merely need to raise a reasonable doubt. A juror

who distrusts both sides of a case may well be more likely to have a reasonable

doubt and thus be problematic for the prosecution. The fact that the juror

distrusted all attorneys involved in the criminal justice system, and not just

prosecutors, does not invalidate this reason. “A prospective juror’s distrust of the

criminal justice system is a race-neutral basis for his excusal.” (People v. Clark

(2011) 52 Cal.4th 856, 907.)

The record fully supports the prosecutor’s second reason. The juror wrote

on the questionnaire, “In my occupation I speak with lawyers on a daily basis

regarding civil litigation and know about 50-60 civil and criminal defense

26

attorneys.” During voir dire, he explained that he supervised civil litigation for

Hertz Corporation, that he was currently supervising a case in Santa Monica in

which he was a possible defense witness and had “signed all of the discovery and

verification responses.” Such a close and pervasive connection to lawyers and the

judicial system is a legitimate and recognized reason for a prosecutor to exercise a

peremptory challenge. (People v. Clark, supra, 52 Cal.4th at p. 907.) Moreover,

the prosecutor might reasonably have found the juror’s cynicism about prosecutors

and defense attorneys even more troubling in light of his frequent professional

contact with lawyers.

The record also supports the third reason. The juror stated on the

questionnaire, “I would not like to sit on this jury due to the nature of the alleged

crimes.” When the prosecutor asked him why he did not want to be a juror in the

case, he responded, “Other than it’s a big decision, it’s probably maybe the length

of the trial.” He was concerned serving as a juror might interfere with trial in the

case he was involved with in Santa Monica. The prosecutor and court explained

to him that this trial would probably end before his other trial would begin.

Additionally, the court told the juror it had “a great deal of influence with that

Santa Monica court.” The reassurance seemed to satisfy the juror. Nevertheless,

that the juror did not want to sit in the case was a legitimate race-neutral reason.

In isolation, especially given the concerns we have expressed, it was also a rather

weak reason. Many prospective jurors do not want to sit on a jury in a death

penalty case, including some in this case the prosecutor did not challenge.

Standing alone, this reason might present a situation where the “question of

whether a neutral explanation is genuine and made in good faith becomes more

pressing.” (People v. Gutierrez, supra, 2 Cal.5th at p. 1171.) But it does not stand

alone. It is a legitimate reason to add to the others.

27

The record also supports the fourth reason. The juror stated on the

questionnaire that he had been arrested in 1992 by “LASD” (presumably Los

Angeles Sheriff’s Department) due to a “computer error by rental agency.” He

went to court, but the charge was dismissed. He wrote, “I was falsely accused of

stealing a rental auto because of a computer/human mistake.” “A ‘negative

experience with law enforcement’ is a valid basis for a peremptory challenge.”

(People v. Melendez, supra, 2 Cal.5th at p. 18.) As defendant notes, the juror

checked boxes stating that he had been treated fairly by police and justice had

been served. But he also said he felt “ambivalent” about the result; in another part

of the questionnaire, he wrote that “wrongful accusations” are a major problem

with the criminal justice system. Under these circumstances, it was reasonable for

the prosecutor to be concerned about a prospective juror who had been falsely

arrested regardless of how understanding and forgiving that juror might appear to

be.

The fifth reason was based on demeanor—the juror did not smile at the

prosecutor although he smiled at the defense. Obviously, the record does not

reflect demeanor, and the trial court did not specifically comment on it. But

defense counsel did not dispute this reason. “[T]he prosecutor’s demeanor

observations, even if not explicitly confirmed by the record, are a permissible

race-neutral ground for peremptory excusal, especially when they were not

disputed in the trial court.” (People v. Mai (2013) 57 Cal.4th 986, 1052.)

Finally, as the prosecutor correctly stated, the juror said he believed life

without the possibility of parole to be a worse punishment than death. He

reiterated that view when the prosecutor asked him about it on voir dire. This is

another legitimate race-neutral reason to exercise a peremptory challenge. (People

v. Davis (2009) 46 Cal.4th 539, 584.) Standing alone, it might also be considered

28

a weak reason, especially given the concerns we have expressed. But, in

combination with the other reasons, it is legitimate.

Although some of the reasons, in isolation, might not be very convincing,

as a whole they support the trial court’s ruling. Three are especially strong: the

juror’s distrust of police (if the prosecutor misremembered) or prosecutors (if the

prosecutor misspoke), the juror’s close and daily professional relationship with

lawyers and the court system, and the juror’s false arrest.

Defendant and the dissent argue the prosecutor did not ask the juror about

some of her concerns. This factor is relevant but not particularly probative. “A

party is not required to examine a prospective juror about every aspect that might

cause concern before it may exercise a peremptory challenge.” (People v. Jones,

supra, 51 Cal.4th at p. 363.) The prosecutor did question the juror about some,

although not all, of her concerns. Moreover, she had a lengthy and detailed

questionnaire to review, and she heard questioning during voir dire by the court

and defense counsel. “Under these circumstances, we place little weight on the

prosecutor’s failure to individually or more thoroughly question a prospective

juror before exercising a peremptory challenge.” (People v. Dement (2011) 53

Cal.4th 1, 21; accord, People v. Melendez, supra, 2 Cal.5th at p. 19.)

Defendant also engages in comparative juror analysis regarding this juror.

The analysis does not aid him. Some unexcused jurors shared some of the traits

the prosecutor cited regarding Frank G., including not wishing to sit on the jury

and believing life without the possibility of parole is worse than death. But parties

with limited peremptory challenges generally cannot excuse every potential juror

who has any trait that is at all problematic. They must instead excuse those they

believe will be most problematic under all the circumstances. There will always

be some similarities between excused jurors and nonexcused jurors. Defendant

cites no unexcused juror who exhibited the cynicism about prosecutors that this

29

juror showed, or who had been mistakenly arrested for a crime and remained

ambivalent about it, or who had such close and continual professional contacts

with attorneys and the court system that this juror had. Unlike jurors defendant

cites, this juror did not simply have casual or occasional contact with attorneys.

Although not a lawyer, he supervised civil litigation for a large corporation.

Contrary to the views expressed in the dissent, all of these circumstances sharply

distinguish this juror from others the dissent and defendant cite as supposedly

similar. (Dis. opn., post, at pp. 9-10.)

As defendant and the dissent note, in some respects, Frank G. appeared to

be a fine juror for the prosecution. He was a stable family man with a responsible

job, had served in the Air Force, and favored the death penalty. But the question

is not whether a prosecutor should or should not have excused a prospective juror.

It is whether this prosecutor excused him for an improper reason. The record

provides no sufficient reason to so conclude or for this court to overturn the trial

court’s ruling regarding Frank G.

b. Selecting the Alternate Jurors

The prosecutor stated five reasons for challenging Darin B.: (1) “He is

currently on probation for driving under the influence. . . . [T]he fact that he is

currently on probation, I think it’s highly unusual that a prosecutor would keep

somebody that’s currently on probation for a criminal offense on a jury, let alone a

death case”; (2) “He was also roughed up by the police, for no reason at all,

according to his questionnaire”; (3) “He also feels that mental defects may alter

intent, thus making death unwarranted and LWOP would suffice. That’s question

219”; (4) “He also had great concerns about whether or not it was fair to make

those with little money, while they were on death row, and later found not guilty—

I think we talked about that with him . . . ”; and (5) “He’s an attorney, and I don’t

30

normally keep attorneys on my panel. I think they have too many problems in the

jury.”

The record supports each of these reasons, they are plausible, and,

collectively at least, are strong. Lawyers and those currently on probation are

often excused peremptorily. The prosecutor questioned the juror about most of

these concerns, although not all.

Defendant engages in comparative juror analysis, but it does not aid him.

He identifies no unexcused juror who was currently on probation, a point the

prosecutor stressed, or was a lawyer. Defendant cites primarily one actual juror as

supposedly similar to Darin B. That juror stated on the questionnaire that he had

never been a defendant in a court proceeding and left blank the question of

whether he had ever been arrested. But on the question of whether he had ever

visited or been inside a jail, he said “yes,” and designated “self” as the person he

visited and the charge as “drunk driving.” From this, defendant infers the juror

must have been convicted of drunk driving, and he compares the prosecutor’s

failure to challenge that juror with the challenge of Darin B. The questionnaire

was unclear. The actual juror said he had never been a defendant and did not

mention a drunk driving charge under his arrest history. But even if we assume he

had once been convicted of drunk driving, there is no indication that he was

currently on probation.

The prosecutor stated three reasons for challenging Marion H.: (1) The

“juror watches CSI, Crime Scene Investigation, all the time; she underlined that on

her jury questionnaire. This case, as we have indicated to the court, does involve

DNA, a substantial amount of DNA”; (2) “Some of the questions that I asked her

just a few minutes ago concerning being a jailer, she indicated that it was dark and

she didn’t want to be involved with these type of people. I feel that she has some

special knowledge with regards to what it would be like to be in jail, and that may

31

play a part in her decision making process. I did not want someone . . . with that

frame of mind, i.e., that it’s dark to be in jail, to be on this particular panel”; and

(3) “She indicated that she finds it difficult to judge another,” and “that she did not

want to be on this panel, it would be extremely hard for her to put someone to

death, and it is a sad case, on question number 231.”

The record supports each of these reasons. For example, on the

questionnaire, the juror indicated that her religion was very important to her, and

on voir dire, in response to a question by the prosecutor, she agreed that her

difficulty in judging another person was “based on religious or philosophical or

moral reasons.” The prosecutor also questioned this juror about some of these

concerns, although, again, not all. These reasons are also plausible, although

collectively probably not as strong as the reasons for the other two challenges at

issue. In particular, a prosecutor can legitimately be concerned about a person

whose religion is very important to her, and who finds it difficult to judge another

due to religious, philosophical, or moral reasons. Defendant also engages in

comparative juror analysis but, again, fails to identify any nonexcused juror who

was at all similar.

Additionally, the prosecutor twice passed the alternates with Marion H. still

sitting. Although this circumstance, like others, is not dispositive, it strongly

suggests that her later challenge of this juror was not based on race. (People v.

Gutierrez, supra, 2 Cal.5th at p. 1170.)

In a point not briefed by either party, the dissent finds pernicious that, in

deciding how to exercise her final peremptory challenge while selecting the

alternate jurors, the prosecutor questioned an African-American juror extensively,

while she questioned a White juror only briefly. (Dis. opn., post, at pp. 20-21.)

But the African-American juror, who became the fourth alternate, happened to be

a particularly interesting juror for reasons entirely unrelated to her race. Among

32

other things, she stated on the questionnaire that her husband was a “ret. Judge

atty,” and that she had worked in her husband’s law office. She also disclosed that

her “husband’s cousin’s wife shot & killed him.” Obviously, and reasonably,

interested in these answers, the prosecutor asked her a series of questions about

them.

It is true that the prosecutor questioned the White juror only briefly, mainly

about her brother’s past conviction. But that juror’s questionnaire answers

indicated little that would raise questions for a prosecutor. She had no connection

to the legal profession. The dissent suggests the prosecutor should have

questioned the juror about her spouse’s conviction in addition to asking her about

her brother’s, and about a car theft. (Dis. opn., post, at p. 21.) But that is

micromanaging. The juror said her brother’s conviction would not affect her

decisionmaking. Given the rest of the juror’s rather unremarkable questionnaire,

the prosecutor might reasonably have been satisfied with that answer. The two

jurors were very different. We see nothing invidious in the different ways the

prosecutor questioned them.

The prosecutor’s exercise of peremptory challenges while selecting the

alternates provides no reason to be skeptical of the genuineness of her reasons for

excusing Frank G. The record supports the trial court’s denial of defendant’s

Batson/Wheeler motion. We see no error.

III. GUILT PHASE ISSUES

A. Exclusion of Victim’s Toxicology Report

Defendant contends the trial court erred by excluding Sigler’s postmortem

toxicology report during the guilt phase. He argues that it was disputed whether

Sigler had called him and his cohorts “niggers,” thereby provoking them to attack

33

her, and that the toxicology report would tend to explain why Sigler might have

used a racial slur. We see no abuse of discretion.

1. Background

Defense counsel sought to admit Sigler’s toxicology report at the guilt

phase. According to the autopsy, Sigler’s blood contained 0.73 micrograms of

methamphetamine per milliliter and 0.22 micrograms of alcohol per milliliter. He

sought to introduce the report to help make credible defendant’s statement that

Sigler yelled a racial slur that led to the subsequent events. Specifically, he argued

the report would help explain why a small White woman would have shouted a

racial slur at three African-American men late at night. Counsel also argued that

the report helped to corroborate defendant’s confession, including portions of the

confession favorable to the defense. The prosecutor objected to the report as

irrelevant on the question of guilt.

The trial court excluded the report during the guilt phase. It found that

whether “she appeared to be under the influence of drugs, or alcohol, or both . . .

adds so little to the bolstering or corroborating of his confession, compared to the

amount of time that we will spend even right here out of the presence of the jury,

haggling over whether it should come in at the guilt phase, it’s not relevant at the

guilt phase, and there’s just too much of a problem with having the jury consider it

for guilt, which it’s not relevant for us to introduce it.”

Evidence regarding the level of methamphetamine and alcohol in the

victim’s blood was admitted by stipulation during the penalty phase, and the

expert witness testified about the meaning of the numbers.

2. Analysis

“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.)

“Relevant evidence is evidence ‘having any tendency in reason to prove or

34

disprove any disputed fact that is of consequence to the determination of the

action.’ ” (People v. Scott (2011) 52 Cal.4th 452, 490, quoting Evid. Code,

§ 210.) “The court in its discretion may exclude evidence if its probative value is

substantially outweighed by the probability that its admission will (a) necessitate

undue consumption of time or (b) create substantial danger of undue prejudice, of

confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “In general,

the trial court is vested with wide discretion in determining relevance and in

weighing the prejudicial effect of proffered evidence against its probative value.

Its rulings will not be overturned on appeal absent an abuse of that discretion.”

(People v. Edwards (1991) 54 Cal.3d 787, 817.)

Here, the prosecution never argued that Sigler did not yell a racial slur;

indeed, she said during her opening statement that the jury would “hear testimony

or evidence that [Sigler] made some racial remarks, and that the defendant and his

companions approached her as a result of these.” This left defense counsel free to

argue that the attack was provoked by the racial epithets—as, in fact, he did. Even

assuming the report had some relevance at the guilt phase, the trial court acted

within its discretion in excluding it. Under the circumstances, the court could

reasonably conclude that whether Sigler used a racial slur had little probative

value regarding guilt and risked sidetracking the trial. The evidence was more

relevant regarding penalty. It was admitted at the penalty phase. We see no abuse

of discretion in the court’s admitting the evidence at the penalty phase but not the

guilt phase.

B. Medical Examiner’s Testimony

Defendant contends the trial court erred when it allowed Dr. Raffi

Djabourian, a deputy medical examiner, to testify about aspects of Sigler’s

autopsy that he did not himself perform. He argues that this testimony was

35

inadmissible hearsay, and violated his Sixth Amendment right to confront

witnesses under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and

subsequent cases. We see no error.

Dr. Djabourian testified that during the autopsy he removed a “splinter-

type” object that was “well imbedded” in Sigler’s vaginal tissue. That splinter was

marked as Exhibit 8. Also included in Exhibit 8 was another, larger splinter, but

the witness could not say where that splinter was found or whether he recovered it

himself. When asked if due to the “location of the splinters, way inside the

vaginal area, would that have been painful?” Djabourian replied, “Yes.” He also

testified that, in his opinion, the injuries to her vagina occurred before the fatal

injuries to her head.

Preliminarily, the Attorney General urges us to find defendant’s claim

forfeited for failure to object at trial. “But because defendant’s trial occurred

before the decision in Crawford, he has not forfeited his Crawford challenge.”

(People v. Clark (2016) 63 Cal.4th 522, 563.) We thus proceed to the merits.

We have explained that, under Crawford, supra, 541 U.S. 36, “[t]he

prosecution may not use ‘[t]estimonial statements’ of a witness who does not

appear at trial, unless the witness is unavailable to testify and the defendant had a

prior opportunity for cross-examination.” (People v. Dungo (2012) 55 Cal.4th

608, 616.)

We need not decide whether anything in Exhibit 8 was testimonial because

Dr. Djabourian never gave any specific testimony concerning the second splinter.

He testified about his own discovery of a small, two-millimeter splinter found

approximately four inches into Sigler’s vagina. When asked to identify the

second, larger splinter also included in Exhibit 8, he explained that he was “unable

to determine” from where that splinter was recovered. He never testified that the

second splinter was found in Sigler’s vaginal tissue. Moreover, the prosecution

36

mentioned only one splinter during closing arguments. It never relied on the

existence of a splinter other than the one Dr. Djabourian found himself.

Accordingly, no error occurred.

C. Sufficiency of the Evidence of the Felony-Based Special

Circumstances

Defendant contends the evidence was insufficient to support the special

circumstance findings that he committed the murder in the commission of robbery,

kidnapping for rape, rape, and sexual penetration by a foreign object. Specifically,

he argues the evidence was insufficient to prove that he had a felonious purpose

independent of the murder under the rule established in People v. Green (1980) 27

Cal.3d 1 (Green). We disagree.

“To determine whether sufficient evidence supports a jury verdict, a

reviewing court reviews the entire record in the light most favorable to the

judgment to determine whether it discloses evidence that is reasonable, credible,

and of solid value such that a reasonable jury could find the defendant guilty

beyond a reasonable doubt.” (People v. Rountree (2013) 56 Cal.4th 823, 852-

853.) “This standard of review applies when the evidence is largely circumstantial

and to review of special circumstance findings.” (People v. Johnson (2015) 60

Cal.4th 966, 988.)

In Green, the defendant “took his victim’s clothing for the purpose of

burning it later to prevent identification.” (Green, supra, 27 Cal.3d at p. 61.)

Although this conduct “technically” constituted robbery (ibid.), we said it “was

not in fact a murder in the commission of a robbery but the exact opposite, a

robbery in the commission of a murder.” (Id. at p. 60.) We held that the robbery

special circumstance did not apply “when the defendant’s intent is not to steal but

to kill and the robbery is merely incidental to the murder . . . because its sole

object is to facilitate or conceal the primary crime.” (Id. at p. 61, italics added.)

37

The Green rule applies to this 1998 crime, although the law has since

changed. (People v. Brents (2012) 53 Cal.4th 599, 608-609, fn. 4.) “At the time

of defendant’s offense, this special circumstance required an independent

felonious purpose to commit one of the listed felonies (in this case, kidnapping).

In other words, the kidnapping could not be merely incidental to the murder, with

the murder being the defendant’s primary purpose. [Citations.] We have,

however, found sufficient evidence to support this special circumstance so long as

there was a concurrent purpose to commit both the murder and one of the listed

felonies.” (Id. at pp. 608-609, fn. omitted.) The question is “whether the

defendant had a ‘purpose for the kidnapping apart from murder.’ ” (People v.

Brooks (2017) 3 Cal.5th 1, 63, quoting People v. Raley (1992) 2 Cal.4th 870, 902.)

“It is only when the underlying felony is merely incidental to the murder that the

felony-murder special circumstance does not apply.” (People v. Bolden (2002) 29

Cal.4th 515, 554.)

This case is not remotely like Green, supra, 27 Cal.3d 1. The evidence was

ample for the jury to find that defendant had multiple felonious purposes apart

from the murder: to rob, to kidnap for rape, to rape, and to commit sexual

penetration by a foreign object. From defendant’s recall of the series of events,

the jury could infer that the crimes were committed in successive fashion that

eventually led to an intent to kill and the eventual murder. But even if defendant

had formed the intent to kill Sigler at the outset, that alone would not remove the

possibility that he also formed the independent, if also concurrent, intent to

commit the other crimes. “But even if a defendant harbored the intent to kill at the

outset, a concurrent intent to commit an eligible felony will support the special

circumstance allegation.” (People v. Davis, supra, 46 Cal.4th at p. 609.)

The victim was moved to the embankment before being raped, from which

the jury could infer that defendant and his codefendants kidnapped her with the

38

intent to rape in addition to the intent to kill. The medical examiner testified that

Sigler’s injuries indicated that she was raped with the stick while she was still

alive; the jury could therefore have concluded that the rape was committed for

sexual gratification rather than just to kill. The jury was not compelled to find that

these crimes were solely incidental to the murder. One does not have to commit

all, or even any, of them to kill; none of them helped conceal the perpetrators’

identity or otherwise facilitated the murder. The evidence was ample that

defendant committed the other felonies for independent felonious purposes.

D. Sufficiency of the Evidence of Robbery and Robbery Special

Circumstance

Defendant contends the evidence was insufficient to support the robbery

conviction or the robbery special-circumstance finding.

“Robbery is ‘the felonious taking of personal property in the possession of

another . . . and against [the person’s] will, accomplished by means of force or

fear.’ (§ 211.) If a defendant does not harbor the intent to take another’s property

at the time the force or fear is applied, the taking is a theft, not a robbery.”

(People v. Harris (2013) 57 Cal.4th 804, 851.) Defendant contends the evidence

was insufficient to permit the jury to find that (1) defendant intended to steal

before using force or fear, (2) the force or fear was greater than the minimum

required merely to take the property, and (3) the taking occurred while the victim

was still alive. We disagree.

Evidence was presented that Sigler had been given food stamps, that an

empty food stamp booklet was found at the scene of the crime, and that food

stamps bearing that serial number were used at a nearby market. The owner of the

market testified that defendant used food stamps to purchase items around that

time. This evidence was sufficient to support the conclusion that defendant took

39

the victim’s food stamps and used them. This conclusion, in turn, supported the

robbery finding.

“Where a person is left dead or dying in ‘relative proximity’ to property

that was taken, and such property is later found in the defendant’s possession, the

jury is entitled to infer that the victim was robbed and that the defendant

committed the crime.” (People v. DePriest (2007) 42 Cal.4th 1, 47.) “ ‘[W]hen

one kills another and takes substantial property from the victim, it is ordinarily

reasonable to presume the killing was for purposes of robbery.’ [Citation.] And,

significantly, we have observed that ‘[i]f a person commits a murder, and after

doing so takes the victim’s wallet, the jury may reasonably infer that the murder

was committed for the purpose of obtaining the wallet, because murders are

commonly committed to obtain money.’ ” (People v. Hughes (2002) 27 Cal.4th

287, 357.) The jury could reasonably infer that defendant and his cohorts intended

to rob Sigler from the beginning of the encounter, or at least before or during the

application of force or fear.

E. Instructional Issues

Defendant contends the trial court committed several instructional errors.

A reviewing court may review an instruction even absent an objection “if the

substantial rights of the defendant were affected thereby.” (§ 1259.) However,

“[a] party may not argue on appeal that an instruction correct in law was too

general or incomplete, and thus needed clarification, without first requesting such

clarification at trial.” (People v. Hillhouse (2002) 27 Cal.4th 469, 503.) Except as

specifically indicated, we find the contentions cognizable, for the asserted error

would generally have affected defendant’s substantial rights.

40

1. Instruction on Felony Murder

The court instructed the jury on four theories of murder: deliberate and pre-

meditated, felony murder, torture murder, and aiding and abetting. It also

instructed that the jury need not agree on any one theory of guilt. For felony

murder, the court instructed the jury pursuant to CALJIC No. 8.21 as adapted to

the case: “The unlawful killing of a human being, whether intentional,

unintentional or accidental, which occurs during the commission of any of the

following crimes: robbery, kidnap for rape, rape in concert, rape, sexual

penetration by a foreign object in concert, sexual penetration by a foreign object or

torture, is murder of the first degree when the perpetrator had the specific intent to

commit that crime. The specific intent to commit any of the following crimes:

robbery, kidnap for rape, rape in concert, rape, sexual penetration by a foreign

object (a wooden stake) in concert, sexual penetration by a foreign object (a

wooden stake) or torture and the commission of any such crime must be proved

beyond a reasonable doubt.”

Defendant argues that the “pattern instruction appears to have contemplated

use in the situation of a single section 189 felony. Its use was error when multiple

section 189 felonies were alleged because it permitted jurors to find [defendant]

guilty of murder, if jurors found the killing occurred during one listed felony, and

defendant had the specific intent to commit another, unrelated listed felony.” For

example, he argues that a juror might have found him guilty of murder if he or she

believed the killing occurred during a rape but that defendant had only the intent to

rob. If any juror relied on this improper instruction, he argues, then his murder

conviction must be overturned.

We disagree. In People v. Kelly (2007) 42 Cal.4th 763, we rejected a

similar claim where robbery and rape were listed as the predicate felonies.

“[R]eading the entire instruction in context, including the last portion of the first

41

sentence (‘when the perpetrator had the specific intent to commit such crime’) and

the second sentence, informing the jury that the ‘specific intent to commit rape

and/or robbery . . . must be proved beyond a reasonable doubt,’ we see no

reasonable likelihood the jury would parse the instruction in a way that did not

require the intent to commit the underlying felony.” (Id. at p. 791.)

The same is true here. The instruction did not allow the jury to

impermissibly link the commission of one felony with the intent to commit a

different felony. The instruction states that the “unlawful killing of a human being

. . . which occurs during the commission of any of the following crimes . . . is

murder in the first degree when the perpetrator had the specific intent to commit

that crime.” (Italics added.)

2. Instruction on Aiding and Abetting

Defendant contends the court incorrectly instructed the jury on an aider and

abettor’s liability for unintended crimes. “[A] defendant may be held criminally

responsible as an accomplice not only for the crime he or she intended to aid and

abet (the target crime), but also for any other crime [nontarget crime] that is the

‘natural and probable consequence’ of the target crime.” (People v. Prettyman

(1996) 14 Cal.4th 248, 261.) To find an aider and abettor guilty of a nontarget

crime under the natural and probable consequences theory, the jury must find that

the defendant aided and abetted the target crime, that a coparticipant in the target

crime also committed a nontarget crime, and that this nontarget crime was a

natural and probable consequence of the target crime the defendant aided and

abetted. (Id. at p. 262.)

If a prosecutor does not rely on the natural and probable consequences

theory, the court need not instruct on the doctrine. (People v. Prettyman, supra,

14 Cal.4th at p. 270.) But if a court does instruct on it, the “court should identify

42

and describe the target or predicate crime that the defendant may have aided and

abetted.” (Id. at p. 268.) However, a defendant cannot be found guilty of first

degree murder under the natural and probable consequences theory of accomplice

liability. (People v. Chiu (2014) 59 Cal.4th 155, 166.)

The court instructed on the natural and probable consequences doctrine

with a modified version of CALJIC No. 3.02. As relevant to defendant’s

contention, the court instructed as follows: “One who aids and abets another in

the commission of a crime or crimes is not only guilty of that crime or those

crimes, but is also guilty of any other crime committed by a principal which is a

natural and probable consequence of the crimes originally aided and abetted.

“In order to find the defendant guilty of any one of the following crimes of

murder, or robbery, or kidnap for rape, or rape in concert, or rape, or sexual

penetration rape by a foreign object (a wooden stake) in concert, or sexual

penetration rape by a foreign object (a wooden stake) . . . , you must be satisfied

beyond a reasonable doubt that: 1. The crime or any of the following crimes of:

murder, or robbery, or kidnap for rape, or rape in concert, or rape, or sexual

penetration rape by a foreign object (a wooden stake) in concert, or sexual

penetration rape by a foreign object (a wooden stake), were committed; 2. That

the defendant aided or abetted any one of those crimes; 3. That a co-principal in

that crime committed any one of the following crimes: murder, or robbery, or

kidnap for rape, or rape in concert, or rape, or sexual penetration rape by a foreign

object (a wooden stake) in concert, or sexual penetration rape by a foreign object

(a wooden stake); and 4. That any one of the following crimes: murder, or

robbery, or kidnap for rape, or rape in concert, or rape, or sexual penetration rape

by a foreign object (a wooden stake) in concert, or sexual penetration rape by a

foreign object (a wooden stake) were a natural and probable consequence of the

commission of any one of the crimes of robbery, or kidnap for rape, or rape in

43

concert, or rape, or sexual penetration rape by a foreign object (a wooden stake) in

concert, or sexual penetration rape by a foreign object (a wooden stake).

“You are not required to unanimously agree as to which originally

contemplated crime the defendant aided and abetted, so long as you are satisfied,

beyond a reasonable doubt, and unanimously agree that the defendant aided and

abetted the commission of any one of the identified and defined target crimes of

murder, or robbery, or kidnap for rape, or rape in concert, or rape, or sexual

penetration rape by a foreign object (a wooden stake) in concert, or sexual

penetration rape by a foreign object (a wooden stake), and that any one of those

crimes were a natural and probable consequence of the commission of any of the

target crimes.”

Defendant contends these instructions incorrectly allowed the jury to find

him guilty on each count without requiring any natural and probable consequence

connection between the offense he was alleged to have aided and abetted (target

offense) and the offense committed by one of his cohorts (nontarget offense). He

argues that while the instruction would have been correct if he had been accused

of only one target offense and one nontarget offense, the modified version of the

instruction impermissibly allowed a “mixing and matching” of target and

nontarget offenses.

We disagree. We “reject[ed] any challenge to the adequacy of CALJIC No.

3.02’s explication of the natural and probable consequences doctrine.” (People v.

Richardson (2008) 43 Cal.4th 959, 1022.) The instruction cannot reasonably be

interpreted the way defendant claims. It began by telling the jury an aider and

abettor is “guilty of any other crime committed by a principal which is a natural

and probable consequence of the crimes originally aided and abetted.” (Italics

added.) In other words, the jury was instructed that the nontarget crime must be a

44

natural and probable consequence of “the” crime or crimes aided or abetted, which

states the law precisely.

However, to the extent it permitted a first degree murder conviction based

on the natural and probable consequences doctrine, the instruction was erroneous

under our later decision in Chiu, where we held that an aider and abettor in one

crime cannot be held liable for first degree murder under a natural and probable

consequences theory. (People v. Chiu, supra, 59 Cal.4th at p. 166.) The error was

harmless. The record shows the jury necessarily relied on at least one valid theory

of first degree murder: felony murder. By finding the felony-based special

circumstance allegations true, the jury necessarily found defendant committed all

four of the special circumstance crimes. Thus, it made all the necessary findings

to find defendant guilty of first degree felony murder, with robbery, kidnapping

for rape, rape, and sexual penetration by foreign object as the underlying felonies.

These findings made the error under Chiu harmless beyond a reasonable doubt.

(People v. Covarrubias (2016) 1 Cal.5th 838, 902, fn. 26.)

3. Form of Guilt Verdict

Defendant contends the verdict form for the murder count “fails to reflect

with any certainty that the jury convicted [him] of first degree murder on a valid

legal theory.” He argues the form made it appear the jury could convict him of

first degree murder if it found he merely acted in reckless disregard for human life.

We disagree. The instructions the jury received informed it of its duty. The

verdict form was merely the means for it to register its verdict.

The verdict form for the murder count required the jury to indicate whether

it found defendant guilty of murder in the first or second degree. The jury

indicated first degree. The jury next was required to decide whether defendant

was either “A. The Actual Killer; or [¶] B. An Aider and Abettor and had the

45

intent to kill or was a Major Participant and acted with Reckless indifference to

human life.” It indicated choice B. The jury then was required to answer “true” or

“not true” to each of the special circumstance allegations for robbery, kidnapping

for rape, rape, rape by a foreign object, and torture. The jury indicated “true” for

each allegation.

Defendant argues that this form was a “hybrid” general verdict and special

verdict. “The jury must render a general verdict, except that in a felony case,

when they are in doubt as to the legal effect of the facts proved, they may. . . find a

special verdict.” (§ 1150.) “A special verdict is that by which the jury find the

facts only, leaving the judgment to the Court. It must present the conclusions of

fact as established by the evidence, and not the evidence to prove them, and these

conclusions of fact must be so presented as that nothing remains to the Court but

to draw conclusions of law upon them.” (§ 1152; see People v. Webster (1991) 54

Cal.3d 411, 446-447.) Defendant contends that the verdict form was a hybrid

because it contained both the verdict of guilt under a general verdict and findings

of fact without a judgment of guilt.

We disagree. Each of the findings on the form had legal significance. The

jury found defendant guilty of first degree murder. Then it found he was a major

participant and acted with reckless disregard for life, a prerequisite for the felony-

based special circumstances. (§ 190.2, subd. (d).) Then it found each of the

special circumstance allegations true. The jury did not merely find facts and leave

the judgment to the court. It stated its conclusions of law: Defendant was guilty

of first degree murder committed under the specified special circumstances.

Moreover, special verdicts are permissible “so long as they do not interfere

with the jury’s deliberative process.” (People v. Webster, supra, 54 Cal.3d at p.

447.) Defendant argues that the jury could have been confused about the “A” and

“B” choices, and applied them to its determination that defendant was guilty of

46

first degree murder rather than only applying the choices to the special

circumstance allegations. He argues that “[t]he trial court did not instruct the jury

that it should select Options A or B only if, and after, the jury had already

independently found that [he] was guilty of first degree murder.”

On the contrary, the court instructed the jury: “If you find the defendant in

this case guilty of murder in the first degree, you must then determine if one or

more of the following special circumstances are true or not true . . . .” (Italics

added; see CALJIC No. 8.80.1.) Thus, the court explained the proper order by

which the jury needed to make its findings. The verdict form merely provided the

jury the means to state its findings; it did not purport to contain full instructions.

4. Instruction on Specific Intent

Defendant argues the trial court did not properly instruct the jury that

torture and aiding and abetting require specific intent. Aiding and abetting

liability and torture both require a specific intent. Torture requires “the intent to

cause cruel or extreme pain and suffering for the purpose of revenge, extortion,

persuasion, or for any sadistic purpose . . . .” (§ 206; see People v. Pearson,

supra, 53 Cal.4th at pp. 320-321; People v. Massie (2006) 142 Cal.App.4th 365,

370-371.) Aiding and abetting liability requires “the intent or purpose of

committing, encouraging, or facilitating the commission of the offense.” (People

v. Beeman (1984) 35 Cal.3d 547, 561; accord, People v. Mendoza (1998) 18

Cal.4th 1114, 1123.) As we explain, the court instructed the jury correctly

regarding aiding and abetting. It also gave a correct instruction regarding torture,

but inconsistently also included torture among the listed general intent crimes and

not among the listed specific intent crimes. Viewing the instructions as a whole

we find the inconsistency could not have misled the jury.

47

Regarding aiding and abetting, the court gave the standard instruction as

follows: “A person aids and abets the commission of a crime when he, 1. with

knowledge of the unlawful purpose of the perpetrator; and 2. with the intent or

purpose of committing or encouraging or facilitating the commission of a crime;

and 3. by act or advice aids, promotes, encourages, or instigates the commission of

the crime.” (Italics added; see CALJIC No. 3.01.)

Defendant focuses on the language “intent or purpose” and argues that the

jury could have understood “purpose” as “something different from, and less

than,” the required specific intent. However, we used that same language in both

People v. Beeman, supra, 35 Cal.3d at page 561, and People v. Mendoza, supra,

18 Cal.4th at page 1123. If anything, “purpose” is a higher standard than “intent.”

(See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.

(1999) 20 Cal.4th 163, 172-173.) The court did not err in using the language we

have used to describe the required mental state for aiders and abettors.

When the court defined the crime of torture, it correctly instructed pursuant

to CALJIC No. 9.90 that the jury had to find that defendant “inflicted great bodily

injury upon the person of another,” and that he “did so with specific intent to cause

cruel or extreme pain and suffering . . . .” Similarly, it instructed that in order to

find the torture special circumstance true, the jury had to find that “[t]he murder

was intentional” and “defendant intended to inflict extreme cruel physical pain and

suffering upon a living human being . . . .”

However, the court listed torture among the crimes for which, “unless

otherwise instructed,” the jury had to find “a union or joint operation of act or

conduct and general criminal intent.” It also gave two instructions concerning

specific intent crimes in which it failed to list torture among those crimes. First it

gave a modified version of CALJIC No. 2.02, telling the jury it could not convict

of murder, robbery, or kidnap for rape, or find the allegations under section 667.61

48

(enhancement allegations involving torture) to be true, “unless the proved

circumstances are not only (1) consistent with the theory that the defendant had

the required specific intent or mental state, but (2) cannot be reconciled with any

other rational conclusion.” Second, it gave a modified version of CALJIC No.

3.31, which told the jury that for the crimes of murder, robbery, and kidnap for

rape, “there must exist a union or joint operation of act or conduct and a certain

specific intent in the mind of the perpetrator. Unless this specific intent exists, the

crimes or allegations to which it relates is not committed or is not true. The

specific intent required is included in the definition of the crimes or allegations set

forth elsewhere in these instructions.”

Defendant is correct that the trial court should not have included torture

among the general intent crimes rather than among the crimes requiring specific

intent. Doing so contained the negative implication that torture is not a specific

intent crime. But the omission could not have misled the jury. The court stated

that general intent instruction applied “unless otherwise instructed.” When it

specifically defined torture, it correctly instructed that torture was a specific intent

crime. It also correctly instructed that the torture special circumstance required

specific intent. Additionally, the prosecutor herself stated to the jury multiple

times that she had to prove defendant had the specific intent to inflict the pain.

Viewing the instructions as a whole, together with the prosecutor’s argument, it is

not reasonably likely the jury understood the instructions as permitting it to find

defendant guilty of torture without finding the requisite specific intent. (People v.

Kelly, supra, 42 Cal.4th at p. 790.) Moreover, because the jury, properly

instructed, found the torture special circumstance true, it clearly found the

requisite specific intent, thus making any error harmless.

49

5. Torture Felony-Murder Instruction

The trial court included torture as a possible predicate felony for first

degree murder under a felony-murder theory. “[T]his was error, as torture in

violation of section 206 was not added to section 189’s list of predicate felonies

for first degree murder until 1999, after Sigler’s murder.” (People v. Pearson,

supra, 53 Cal.4th at p. 319.)

But the error was harmless for the reasons the same error was harmless in

Pearson. The jury found true special circumstance allegations that defendant

murdered Sigler in the commission of robbery, kidnapping for rape, rape, and

foreign object rape. “Because a killing in commission of any of these offenses

constitutes first degree murder under section 189, it follows the jury must

unanimously have found defendant guilty of first degree murder on the valid

theory the killing occurred during the commission of these felonies. [Citations.]

The erroneous instruction thus did not affect the verdict and was, on any standard

of prejudice, harmless.” (People v. Pearson, supra, 53 Cal.4th at p. 320.)

Defendant seeks to distinguish Pearson based on some of his earlier

arguments of other instructional error. Because we have rejected those arguments,

we reject this one also.

6. Failure to Instruct on Lesser Included Offense of Theft

Regarding the robbery count, the court did not instruct the jury on theft as a

lesser included offense of robbery. Defendant argues the evidence did not

establish whether he had formed the intent to take Sigler’s food stamps before or

after he used force on her. If after, he would be guilty only of theft, not robbery.

(See Green, supra, 27 Cal.3d at pp. 53–54.)

A trial court has an independent obligation to instruct the jury on all lesser

included offenses the evidence warrants, even against the defense’s wishes. Such

instructions are required when, but only when, a jury could reasonably conclude

50

that the defendant committed the lesser offense but not the greater one. (People v.

Breverman (1998) 19 Cal.4th 142, 161-162.)

We need not decide whether there was substantial evidence of only theft in

this case, because defendant invited any error. When the court and parties

discussed the instructions to be given, the trial court asked if either side thought

“there were any lesser includeds that were appropriate.” Defense counsel

responded, “I didn’t ask for any.” The prosecutor then asked defense counsel,

“And are you not asking for any as a result of tactical reasons?” Defense counsel

responded, “Yes.”

“[A] defendant may not invoke a trial court’s failure to instruct on a lesser

included offense as a basis on which to reverse a conviction when, for tactical

reasons, the defendant persuades a trial court not to instruct on a lesser included

offense supported by the evidence. [Citations.] In that situation, the doctrine of

invited error bars the defendant from challenging on appeal the trial court’s failure

to give the instruction.” (People v. Barton (1995) 12 Cal.4th 186, 198; accord,

People v. Horning (2004) 34 Cal.4th 871, 905.) Defense counsel said that she was

not requesting instructions on lesser included offenses for tactical reasons.

Accordingly, the record “shows that defendant’s ‘lack of objection to the proposed

instruction was more than mere unconsidered acquiescence.’ ” (Horning, at p.

905.)

Defense counsel did not specifically state what her tactical reasons were,

but we have never required such a statement. In this case, it is easy to infer what

counsel’s tactical reasons might have been. Persuading the jury that defendant

committed only theft because he took the food stamps after the victim had become

unconscious would provide defendant with little practical benefit, considering the

number of remaining serious charges and special circumstance allegations. But

51

doing so would force the jury to focus on the circumstance that defendant was

involved in the assault to the end, a focus that could only be detrimental to him.

7. Failure to Instruct on Provocation as It Relates to First Degree

Murder

Defendant contends the court should have instructed the jury on

provocation as it relates to first degree murder. (See CALJIC No. 8.73.) He

argues that Sigler provoked him, Pearson, and Armstrong by calling them

“niggers,” and that this provocation negated deliberation and premeditation,

thereby making the killings at most second-degree murder.

Defendant forfeited this claim by not requesting additional instruction on

provocation at trial. Instructions on provocation are pinpoint instructions that need

not be given sua sponte but only on request. (People v. Rogers (2006) 39 Cal.4th

826, 878-879.)

Moreover, we see no error. The court instructed, “If you find that the

killing was preceded and accompanied by a clear, deliberate intent on the part of

the defendant to kill, which was the result of deliberation and premeditation, so

that it must have been formed upon pre-existing reflection and not under a sudden

heat of passion or other condition precluding the idea of deliberation, it is murder

of the first degree.” (Italics added; see CALJIC No. 8.20.) The italicized

language gave defendant the full opportunity to argue to the jury, and for the jury

to consider, that Sigler’s provocative words made him act in a sudden heat of

passion negating deliberation and premeditation.

Additionally, any error would have been harmless. The court instructed the

jury on felony murder as another theory of first degree murder. By finding true

the special circumstance allegations that the murder involved robbery, kidnapping

for rape, rape, and rape by a foreign object, the jury necessarily found that Sigler’s

murder was first degree murder under a felony-murder theory. The failure to

52

instruct on provocation “was therefore harmless, as the jury necessarily

determined the killing was first degree murder . . . under other properly given

instructions.” (People v. Demetrulias (2006) 39 Cal.4th 1, 25.)

8. Defining “Asportation”

Defendant contends the trial court erroneously instructed the jury on the

asportation element of kidnapping because it allowed the jury to consider factors

other than distance. “At the time of the crime here, there existed two distinct

standards of asportation for kidnapping, depending on whether the kidnapping was

for robbery (aggravated kidnapping) under section 209, subdivision (b) . . . , or

was a simple kidnapping under section 207[, subdivision ](a).” (People v. Rayford

(1994) 9 Cal.4th 1, 11-12, fn. omitted.) The rule for aggravated kidnapping is that

the movement must not be “merely incidental to the commission of the robbery,

and [must] substantially increase[] the risk of harm over and above that necessarily

present in the crime of robbery itself.” (Id. at p. 12.) This rule applies to other

forms of aggravated kidnapping, including kidnapping for rape. (Id. at p. 14.)

By contrast, asportation for purposes of simple kidnapping used to be

exclusively based on distance. (People v. Castaneda (2011) 51 Cal.4th 1292,

1319.) We changed the rule for simple kidnapping in People v. Martinez (1999)

20 Cal.4th 225 to make it similar to the rule for aggravated kidnapping, but the

change cannot apply retroactively to defendant’s crime. (Id. at pp. 238-241;

People v. Brooks, supra, 3 Cal.5th at pp. 68-69.)

The court correctly instructed the jury on aggravated kidnapping. (CALJIC

No. 9.54.) It also gave an instruction that erroneously indicated the jury could

consider factors other than distance for simple kidnapping. (CALJIC No. 9.50.)

However, the error was harmless. The jury did not return any verdict of guilty or a

true finding of a special allegation that concerned simple kidnapping. All the

53

guilty verdicts and true findings, including the findings under section 667.61,

subdivisions (a) and (d), involved the asportation standard for aggravated

kidnapping, on which the jury was correctly instructed. (See People v. Diaz

(2000) 78 Cal.App.4th 243, 245-247.) The jury either returned no verdict or a not

true verdict regarding any special allegations that might have involved simple

kidnapping.

9. Using the Word “Stake”

Defendant contends the trial court erred in using the word “stake” instead

of “stick” in the guilt phase jury instructions in describing the weapon allegedly

used in the crimes. He argues that doing so impermissibly favored the prosecution

by repeatedly using a word that is more “offensive and brutal” than the word

defendant himself used to describe the weapon. He also argues that using the

word “stake” “implicitly told jurors that the prosecution had proved the weapon

was a stake and it was similar to the stakes the prosecutor introduced into

evidence.”

Defendant was charged with several counts that alleged he used a

“stake/stick” as a dangerous and deadly weapon. When discussing the jury

instructions, the trial court stated, “When the instructions get to the sexual

penetration by a foreign object and then you have, dash, a wooden stake, I’m

thinking I’ll just put ‘a wooden stake’ in parenthesis.” The prosecutor agreed.

Defense counsel did not object. In the instructions, the court used the words

“wooden stake” many times to describe either the deadly weapon allegedly used in

the attack, or the foreign object allegedly used in the sexual penetration counts.

Defendant does not argue that the jury instruction was legally deficient but

that it was biased. “A party may not argue on appeal that an instruction correct in

law was too general or incomplete, and thus needed clarification, without first

54

requesting such clarification at trial.” (People v. Hillhouse, supra, 27 Cal.4th at p.

503.) Defendant did not object to the jury instructions or to the prosecution’s or

witnesses’ use of the term during the trial. This claim is therefore forfeited.

The claim also lacks merit. Defendant argues that the use of the word

“stake” versus “stick” rendered the instructions argumentative and “invited the

jury to draw inferences favorable to one of the parties from specified items of

evidence.” (See People v. Earp (1999) 20 Cal.4th 826, 886.) It did not do so.

Defendant’s own counsel used both terms interchangeably throughout the trial,

starting with his opening statement. The parties never disputed whether the object

was to be a called a “stick” or a “stake,” nor was it the prosecution’s burden to

prove that it was a “stake” instead of a “stick.” In addition, much evidence

showed that the stakes admitted into evidence, although not the actual weapon

used during the attack, were consistent with Sigler’s injuries. Even accepting

defendant’s contention that “stake” is more evocative than “stick,” “stake”

accurately described the objects introduced at trial and is not by itself unduly

offensive or shocking to the contemporary ear. We see no error in the court’s use

of the term “stake” rather than “stick.”

10. Failure to Instruct on the Independent Purpose Requirement

The trial court did not instruct the jury on the requirement that, for the

felony-based special circumstances to apply, it had to find defendant committed

the felonies for an independent felonious purpose. Defendant contends the court

erred in not so instructing.

The court need not give the instruction in every case in which felony-based

special circumstances are alleged. “This court has recognized that the independent

felonious purpose rule is not an element of the special circumstance, on which a

court must instruct in every case in which a felony murder special circumstance

55

has been alleged. [Citation.] The rule ‘merely clarifies the scope of the

requirement that the murder must have taken place “during the commission” of a

felony.’ [Citations.] From this we have concluded that a trial court has no duty to

instruct on the independent felonious purpose rule ‘unless the evidence supports

an inference that the defendant might have intended to murder the victim without

having an independent intent to commit the specified felony.’ [Citations.] Put in

affirmative terms, a court has a duty to instruct the jury, on its own motion, that

the felony cannot have been merely incidental to the murder when there is

evidence from which the jury could have inferred that the defendant did not have

an independent felonious purpose for committing the felony.” (People v. Brooks,

supra, 3 Cal.5th at pp. 117-118.)

Here, no such evidence existed. On this evidence, no reasonable jury could

conclude that defendant kidnapped for rape, raped, sexually penetrated, and

robbed the victim solely to facilitate the murder without any independent purpose.

Indeed, defense counsel never argued to the jury that any of the felonies were

merely incidental to achieving the murder. (See People v. D’Arcy (2010) 48

Cal.4th 257, 297.) The point was a nonissue at trial. Accordingly, we find no

error.

Additionally, the jury’s actual verdict shows it did find an independent

felonious purpose. The kidnap-based special circumstance did not involve simple

kidnapping but kidnapping for rape. Kidnapping for the purpose of rape is clearly

an independent felonious purpose. Thus, any error in failing to give the

instruction would have been harmless.

In Brooks, we found prejudicial error regarding a kidnapping-murder

special circumstance in not giving the independent felonious intent instruction.

(People v. Brooks, supra, 3 Cal.5th at pp. 116-120.) But that case was different.

It did not contain evidence of the kidnapping for rape, of the rape, of the sexual

56

penetration, or of the robbery that this case contains. The question of an

independent felonious intent was close in that case; it is not close in this case.

IV. PENALTY PHASE ISSUES

A. Sustaining a Relevance Objection

In cross-examining one of the police officers who testified about the April

1996 incident in which defendant’s son received a stab wound, defense counsel

ascertained that the witness had contacted the “Department of Children Services”

(the department) about the incident. Counsel then asked, “Were you aware of

their determination of what happened?” The court sustained the prosecutor’s

objection on relevance grounds, and the question was not answered. Defendant

contends the question sought relevant evidence, and it was admissible under

Evidence Code section 356. He also contends that sustaining the objection

violated his constitutional right to present mitigating evidence.

The Attorney General contends the claim is not cognizable. Normally, a

reviewing court may not consider a claim that the trial court erroneously excluded

evidence unless “[t]he substance, purpose, and relevance of the excluded evidence

was made known to the court by the questions asked, an offer of proof, or by any

other means . . . .” (Evid. Code, § 354, subd. (a).) However, the rule does not

apply when “[t]he evidence was sought by questions asked during cross-

examination or recross-examination.” (Id., subd. (c).) “Normally, if the trial court

excludes evidence on cross-examination, no offer of proof is necessary to preserve

the issue for consideration on appeal.” (People v. Foss (2007) 155 Cal.App.4th

113, 127.) This exception applies only to questions within the scope of the direct

examination. “If the evidence the defendant seeks to elicit on cross-examination is

not within the scope of direct examination, an offer of proof is required to preserve

the issue.” (Ibid.) Here the question to which the court sustained the objection

57

was within the scope of direct examination. Accordingly, Evidence Code section

354 requires no offer of proof. The claim is cognizable.

Two recent cases from this court have found contentions that the trial court

erred either by refusing to permit, or sustaining objections to, questions asked on

cross-examination to be noncognizable for failure to make an offer of proof.

(People v. Capistrano (2014) 59 Cal.4th 830, 866-867; People v. Vines (2011) 51

Cal.4th 830, 868-869.) Capistrano correctly found the claim not cognizable for

another reason. The codefendant, not the defendant, had sought to present the

evidence, and the defendant did not join the codefendant’s request. (Capistrano,

at p. 867.) But to the extent Capistrano and Vines suggest that a party must make

an offer of proof to challenge on appeal a court’s ruling limiting cross-

examination, they are inconsistent with Evidence Code section 354, subdivision

(c), and we hereby overrule them.

Turning to the merits, we see no error. “The trial court is accorded broad

discretion in determining the relevance of evidence.” (People v. Lucas (2014) 60

Cal.4th 153, 229.) The court did not abuse its discretion. We do not know what

answer the question would have elicited. It appears defense counsel was

expecting an answer something like that the department took no action, perhaps

after an investigation. Even assuming that would have been the answer, the court

acted within its discretion in finding it irrelevant. Many reasons might explain the

department’s failure to act. What was relevant was evidence that defendant either

did or did not assault his child. If the department failed to act because of some

evidence that defendant did not assault his child, that evidence would be relevant.

Defendant was entitled to admit any such evidence. But whether a governmental

agency did or did not act is irrelevant to whether defendant committed that crime.

Moreover, we note that to the extent the officer would recount what the

department concluded, or why, the testimony would have been hearsay.

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Defendant also claims that the ruling violated Evidence Code section 356,

which provides as relevant: “Where part of an act, declaration, conversation, or

writing is given in evidence by one party, the whole on the same subject may be

inquired into by an adverse party; . . . when a detached act, declaration,

conversation, or writing is given in evidence, any other act, declaration,

conversation, or writing which is necessary to make it understood may also be

given in evidence.” “ ‘The purpose of this section is to prevent the use of selected

aspects of a conversation, act, declaration, or writing, so as to create a misleading

impression on the subjects addressed.’ ” (People v. Melendez, supra, 2 Cal.5th at

p. 25.) This section does not apply here. Evidence of what the department did or

did not do is not necessary to make the evidence of what occurred understood or to

avoid any misleading impression on the subject.

Defendant contends that sustaining the relevance objection violated his

right to present mitigating evidence in capital proceedings under Lockett v. Ohio

(1978) 438 U.S. 586 and the California Constitution. We disagree. The court did

not prevent defendant from presenting mitigating evidence. Whether and how the

department acted was irrelevant to either mitigation or aggravation. “Application

of the ordinary rules of evidence generally does not impermissibly infringe on a

capital defendant’s constitutional rights.” (People v. Kraft (2000) 23 Cal.4th 978,

1035.) The court only precluded testimony regarding the department’s action. It

did not foreclose defendant from presenting other mitigating evidence, including

evidence regarding the incident in question.

B. Admitting Gang Activity Evidence on Rebuttal

The prosecution introduced evidence of defendant’s involvement in gang

activity during its penalty phase rebuttal.

59

Monte Gmur testified that defendant, Pearson, Armstrong, and another man

were at Gmur’s house before the assault on Sigler. At one point during the

evening, Gmur heard defendant and Pearson conversing. “They were saying back

and forth, ‘You ask him. No, you ask him.’ ” Pearson then asked Gmur if they

could use one of the rooms to “jump him in,” meaning to initiate someone into

their gang. Gmur refused, at which point defendant and the others left the house

for about twenty minutes. When they returned, Gmur heard defendant make a

phone call during which defendant said they had just initiated the other man.

Additionally, the prosecution presented evidence that, on a bus shortly after

Sigler’s killing, the defendants argued among themselves about Crips and Bloods

and had a dispute with a fourth African-American man about gangs—specifically,

about Crips, Bloods, and gang colors.

Defendant contends that this evidence was improper rebuttal evidence. It

appears to have been proper rebuttal. (See People v. Loker (2008) 44 Cal.4th 691,

709.) The defense presented evidence suggesting that the charged crimes were out

of character and that defendant was a follower, not a leader. The rebuttal evidence

tended to show otherwise. But in any event, admitting the evidence was harmless.

The defense itself introduced evidence of defendant’s gang membership. Four

defense witnesses, including defendant’s mother and the mother of his children,

testified that defendant was a gang member and was involved in gang activity.

The rebuttal evidence did not relate any particularly violent, shocking, or

inflammatory incidents. It told the jurors little beyond what defense evidence had

already told them. There is no reasonable possibility admitting the evidence

affected the verdict. (People v. Gonzalez (2006) 38 Cal.4th 932, 960-961.)

60

C. Prosecutor’s Alleged Use of a Different Theory at the

Codefendant’s Trial

Defendant and his original codefendants, Pearson and Armstrong, were

tried separately. Defendant contends that during the penalty phase of defendant’s

trial, the prosecutor portrayed him as a leader during the attack on Sigler, but that

during the penalty phase of Pearson’s later trial, the same prosecutor argued that

Pearson was the leader. He contends that this use of inconsistent theories violates

due process.

Because this claim was not the subject of any proceeding in the trial court,

and indeed involves events occurring after defendant’s trial, it is not cognizable on

appeal. “[T]he issue is better decided on a petition for writ of habeas corpus than

on direct appeal, at least under the circumstances here presented. Where, as here,

the asserted inconsistencies in prosecutorial theory were not the subject of any

proceeding in the trial court and, hence, neither the inconsistencies nor any

explanations the prosecutor may have been able to offer appear in the appellate

record, any due process claim defendant can state should be ‘presented by petition

for writ of habeas corpus rather than by appeal.’ ” (People v. Sakarias (2000) 22

Cal.4th 596, 635.)

D. Cumulative Prejudice

Defendant contends that the cumulative effect of the asserted errors

requires reversal of the death judgment. We disagree. None of the errors we have

identified was prejudicial individually, and they did not have any cumulative

effect.

E. Challenges to California’s Death Penalty Law

Defendant reiterates numerous challenges to California’s death penalty law.

We have repeatedly rejected these claims and continue to do so.

61

“Penal Code sections 190.2 and 190.3 are not impermissibly broad, and

factor (a) of Penal Code section 190.3 does not make imposition of the death

penalty arbitrary and capricious.” (People v. Sánchez (2016) 63 Cal.4th 411, 487.)

CALJIC No. 8.88, which instructs that jurors must be “persuaded that the

aggravating circumstances are so substantial in comparison with the mitigating

circumstances” to warrant a death judgment, is not unconstitutionally vague or

deficient in other respects. (People v. Landry (2016) 2 Cal.5th 52, 122–123.) The

use of adjectives like “extreme” and “substantial” in defining mitigating factors in

section 190.3 does not impermissibly limit the jury’s consideration of mitigating

evidence. (Sánchez, at pp. 487-488.) “A trial court is not required to delete

inapplicable sentencing factors or to instruct that statutory mitigating factors are

relevant solely as potential mitigators.” (People v. Streeter (2012) 54 Cal.4th 205,

268.) “ ‘Except for evidence of other crimes and prior convictions, jurors need not

find aggravating factors true beyond a reasonable doubt; no instruction on burden

of proof is needed; the jury need not achieve unanimity except for the verdict

itself; and written findings are not required.’ ” (Sánchez, at p. 487.) “Intercase

proportionality review is not required.” (Id. at p. 488.) “California’s use of the

death penalty does not violate international law.” (Ibid.) The court need not

instruct the jury that the prosecutor has the burden of persuasion regarding the

existence of aggravating factors, the weight of aggravating versus mitigating

factors, and the appropriateness of a death judgment. (People v. Mendoza (2016)

62 Cal.4th 856, 916.) There is no presumption of life. (People v. Parker (2017) 2

Cal.5th 1184, 1233.)

“Finally, the cumulative impact of these purported deficiencies in

California’s death penalty scheme does not render the penalty unconstitutional.

We have rejected each of [defendant’s] challenges to the death penalty statute, and

these challenges are no more persuasive when considered together.” (People v.

62

Simon (2016) 1 Cal.5th 98, 150.) “California’s capital sentencing scheme as a

whole provides adequate safeguards against the imposition of arbitrary or

unreliable death judgments.” (People v. Williams (2008) 43 Cal.4th 584, 648;

accord, People v. Johnson (2016) 62 Cal.4th 600, 658.)

V. CONCLUSION

We affirm the judgment.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.

BAKER, J.*

——————————————————

* Associate Justice of the Court of Appeal, Second Appellate District,

Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

63

DISSENTING OPINION BY LIU, J.

Defendant Warren Hardy, a black man, was convicted and sentenced to

death for raping and murdering Penny Sigler, a white woman. During jury

selection, the prosecutor used peremptory strikes to remove every black juror she

could have removed. She struck the only black prospective juror from the main

panel, Frank G. (Juror No. G-2041), and the first two black prospective jurors

from the alternate panel, Darin B. (Juror No. B-3747) and Marion H. (Juror No. H-

4826). One black juror, Juror No. S-6169, was eventually seated as the fourth and

final alternate after both parties had exhausted their peremptory strikes. (I refer to

prospective jurors by name after initially identifying their juror number. I refer to

seated jurors by number only; their names are under seal in the record.)

After jury selection, Hardy brought a motion under Batson v. Kentucky

(1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258

(Wheeler). The prosecutor gave six reasons for striking Frank G.; the trial court

accepted the reasons without elaboration. Today’s opinion affirms the trial court’s

ruling, finding three reasons “especially strong” and three reasons “weak” or “not

. . . very convincing” but “legitimate” when considered “in combination with the

other reasons.” (Maj. opn., ante, at pp. 28–29.)

I respectfully disagree. In light of all of the relevant circumstances —

including the answers given by Frank G. and other jurors on their questionnaires

and during voir dire, the fact that the prosecutor did not question Frank G. about

several concerns she identified as reasons for striking him, and her apparent lack

of concern about nonblack jurors with similar traits — I cannot affirm the trial

court’s ruling, which is devoid of any reasoned evaluation of the prosecutor’s

reasons for the strike. “ ‘[T]he Constitution forbids striking even a single

prospective juror for a discriminatory purpose.’ ” (Snyder v. Louisiana (2008) 552

U.S. 472, 478 (Snyder).) The standard is whether it is “more likely than not that

the challenge was improperly motivated.” (Johnson v. California (2005) 545 U.S.

162, 170; People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez).) That

standard has been met here, and because the error undermines the fairness of the

trial, the judgment must be reversed.

I.

Today’s opinion acknowledges two reasons why “the prosecutor’s use of

peremptory challenges warrants close scrutiny. First, although the numbers are

small, she excused every African-American prospective juror she could have

excused—one while selecting the main panel and two while selecting the

alternates. . . . Second, this case had definite racial overtones. Defendant is

African-American; the victim was White. Defendant told the police that she had

yelled a racial slur at him and his cohorts, triggering the incident.” (Maj. opn.,

ante, at pp. 22.) These circumstances are indeed “troubling” and “ ‘raise[]

heightened concerns.’ ” (Id. at p. 23.)

I would add three further observations as context for evaluating the Batson

issue here. First, there is reason to believe Frank G. “should have been an ideal

juror in the eyes of a prosecutor seeking a death sentence.” (Miller-El v. Dretke

(2005) 545 U.S. 231, 247 (Miller-El).) At the time of Hardy’s trial, Frank G. was

a 68-year-old married homeowner in South Central Los Angeles with five grown

children and four grandchildren. He previously served 10 years in Air Force

intelligence, achieving the rank of staff sergeant. He held a supervisory position at

2

the Hertz car rental company, evaluating liability claims and assisting in civil

litigation. On his juror questionnaire, he wrote that he “enjoy[s] his present

position and take[s] pleasure in resolving difficult cases.”

Frank G. indicated on the questionnaire that he “favor[ed]” the death

penalty — a view that he said had not changed over time — and he felt it was used

“too seldom.” He believed California should have the death penalty because

“certain crimes deserve” such punishment. He did not report any “social,

philosophical, or religious convictions” that would prevent him from voting to

impose the death penalty, and he was not a member of any organization that

opposed capital punishment. He wrote that he could see himself personally voting

for death for “heinous crimes” and that he was “not likely” to take a defendant’s

background or childhood experiences into consideration when doing so. When

defense counsel asked Frank G. to expand on this answer, he said it would be

“difficult” for him to consider the defendant’s background because “everybody

has their own choices in life,” but he ultimately said he could consider such

evidence.

The year before Hardy’s trial, Frank G. had been the victim of a home

burglary. Although the person responsible was never identified or arrested, he

said he was “satisfied” with the police’s conduct in that case. Ten years before

Hardy’s trial, he had been falsely arrested for car theft due to a “computer error by

[the] rental agency.” The case was dismissed, and he wrote on the questionnaire

that he had been “treated fairly by police” and that “justice [was] served.” Asked

his views on what should be done about crime, Frank G. wrote, “Hire more law

enforcement” and “Enforce, strongly, current laws.” In his view, the major crime

problem in Los Angeles was “gang activity” that led to “too many innocent

persons [being] harmed.” When asked for his “thoughts about how childhood

experiences affect a person’s development in relationship to committing criminal

3

acts,” he wrote, “I don’t believe in too many mitigating factors. People have

choices.” He checked “no” when asked whether he believed “a person’s

upbringing may relieve that individual from responsibility for committing violent

or criminal acts.” Overall, he thought the criminal justice system was “slow but in

most cases fair.” He also wrote, “I sincerely respect judges.”

When asked about prejudice and biases, Frank G. wrote, “I experienced

racial prejudice while in the Air Force stationed in San Antonio, Texas in 1952,”

and “I am biased against drug & alcohol abusers and gang activity.” He checked

“yes” when asked if he “believe[d] that a white/caucasian person can be the victim

of a hate crime.” When asked if there were “any reasons [he] might be biased or

prejudiced either for, or against, Black Americans,” he wrote, “No.”

Frank G. had never served on a jury before. He wrote that “[i]f selected,

[he] will serve,” that “[i]t is my duty as [a] citizen to serve,” and that he expected

to be “fair, impartial & listen to evidence” as a juror. When asked “[w]hat is it

about yourself that makes you feel you can be an impartial juror,” he wrote, “I am

a good listener and observer.” When asked “whether your attitudes on our

criminal justice system are such that you would be leaning towards the prosecution

or the defense stance before hearing both sides,” he wrote, “I would not lean one

way or the other until all evidence is heard.”

The prosecutor asked very few questions of Frank G. during voir dire. In

addition to the topics discussed further below, the prosecutor asked him “what [his

five kids] do for a living.” Consistent with his questionnaire, Frank G. said they

worked as a cement mason, a construction foreman, a human resource director, an

owner of a maintenance business, and an accounting director, respectively.

Second, the prosecutor gave six reasons for striking Frank G. We recently

said that when confronted with this “ ‘laundry list’ approach (Foster v. Chatman

(2016) 578 U.S. __, __ [136 S.Ct. 1737, 1748]),” courts must be cognizant that

4

“[a] prosecutor’s positing of multiple reasons, some of which, upon examination,

prove implausible or unsupported by the facts, can in some circumstances fatally

impair the prosecutor’s credibility. (See U.S. v. Chinchilla (9th Cir. 1989) 874

F.2d 695, 699 [where two bases for the challenges were acceptable and two were

not, appellate court holds motion under Batson should have been granted: ‘the

fact that two of the four proffered reasons do not hold up under judicial scrutiny

militates against [the supported reasons’] sufficiency’].)” (People v. Smith (May

21, 2018, S065233) __ Cal.5th __ [pp. 24–25] (Smith).) The level of suspicion

here is further heightened by the fact that the prosecutor did not ask Frank G. or

various seated jurors about any of the concerns that today’s opinion finds

especially strong. (See Miller-El, supra, 545 U.S. at p. 246 [“[T]he prosecution

asked nothing further about the [purported reason], as it probably would have done

if the [reason] had actually mattered.”]; id. at p. 250, fn. 8 [“the failure to ask

undermines the persuasiveness of the claimed concern”]; Gutierrez, supra, 2

Cal.5th at p. 1170 [lack of inquiry by the prosecutor “raises a question as to how

interested he was in meaningfully examining” the issue proffered as a reason for a

contested strike].)

Third, in ruling on Hardy’s Batson motion, the trial court made a “ ‘ “global

finding” ’ ” with no reasoned analysis of any of the prosecutor’s stated concerns.

(Maj. opn., ante, at p. 23.) “A trial court’s conclusions are entitled to deference

only when the court made a ‘sincere and reasoned effort to evaluate the

nondiscriminatory justifications offered.’ ” (Gutierrez, supra, 2 Cal.5th at

p. 1159.) In Gutierrez, we concluded that “[b]ecause the prosecutor’s reason for

[a contested] strike was not self-evident and the record is void of any explication

from the court, we cannot find under these circumstances that the court made a

reasoned attempt to determine whether the justification was a credible one.” (Id.

at p. 1172.) Here, the stated reasons are also not self-evident; by the court’s own

5

admission, at least two of the reasons are “weak,” and the demeanor-based reason

finds no support in the record. (Maj. opn., ante, at pp. 28–29.) Further, the fact

that the trial court did not comment on the discrepancy between the prosecutor’s

first reason and Frank G.’s answer on the questionnaire (id. at p. 24) suggests that

the trial court had not carefully examined the stated reasons when it ruled. We

cannot apply a deferential standard of review in this case. (See Gutierrez, at

pp. 1171–1172; People v. Silva (2001) 25 Cal.4th 345, 385–386; People v.

Fuentes (1991) 54 Cal.3d 707, 716, fn. 5, 717; cf. Smith, supra, __ Cal.5th at p. __

[p. 25] [deferring to trial court’s ruling on multiple reasons stated by the

prosecutor where “[t]he court engaged actively in the third-stage analysis,

questioning counsel closely on certain points”].) We must undertake our own

independent review of the record.

II.

With this backdrop, I now examine each of the prosecutor’s stated reasons.

As I explain, this is not a case where a prosecutor has given several highly credible

reasons and some less so. Each one of the stated reasons is problematic and raises

doubts about the neutrality of the strike.

A.

First, the prosecutor said Frank G. “indicated on question no. 42, ‘police are

not always truthful and tend to exaggerate.’ ” As today’s opinion acknowledges,

the prosecutor was mistaken. In answer to question 42, Frank G. wrote, “I believe

prosecutors are not always truthful and tend to exaggerate,” and in answer to

question 44, he wrote he had the “same” view of defense counsel.

The prosecutor’s mistake can be understood in one of two ways. The

prosecutor could have actually intended to say Frank G. believed police are not

always truthful and tend to exaggerate. If so, the prosecutor’s concern would lack

support in the record. Nothing in the record suggests that Frank G. had such views

6

of the police. As noted, he said he was satisfied with the police’s conduct when

his home was burglarized the year before the trial, he felt he had been treated

fairly by the police during his false arrest for car theft, and he felt a solution to

reducing crime was to “[h]ire more law enforcement.” The prosecutor did not

question Frank G. about his views of the police. Nor did the prosecutor raise this

issue with Juror No. C-1938, who wrote on his questionnaire that he would not

automatically trust a police officer’s testimony because “[p]olice have been known

to embellish or withhold facts, plant evidence and perjure themselves.”

Alternatively, the prosecutor could have meant to say Frank G. believed

prosecutors are not always truthful and tend to exaggerate. If so, it is unclear why

Frank G., who indicated an identical negative view of defense counsel, would not

have been a good juror for the prosecution, especially in light of his strong support

for the death penalty and his other pro-law enforcement views. Today’s opinion

speculates that “[a] juror who distrusts both sides of a case may well be more

likely to have a reasonable doubt and thus be problematic for the prosecution.”

(Maj. opn., ante, at p. 27.) The court further speculates that such a juror “might

reasonably be of even greater concern to a prosecutor” because prosecutors, unlike

defense counsel, “are expected, even required, to be truthful and to seek justice,

not a conviction at any cost.” (Id. at p. 26.) But it is hardly obvious that Frank

G.’s expressed neutrality would have had such lopsided consequences or, more

importantly, that any of this was the prosecutor’s concern.

In Gutierrez, the prosecutor stated as a reason for striking a Hispanic juror

that “ ‘[s]he’s from Wasco and she said that she’s not aware of any gang activity

going on in Wasco.’ ” (Gutierrez, supra, 2 Cal.5th at p. 1160.) We said “[i]t is

conceivable . . . that the prosecutor genuinely believed gang activity to be so

rampant in Wasco that this panelist must have been either untruthful or

uninformed in denying her awareness of Wasco gang activity. If this had been the

7

case, such reasoning should have been articulated by the prosecutor. ‘[A]

prosecutor simply has got to state his reasons as best he can and stand or fall on

the plausibility of the reasons he gives. A Batson challenge does not call for a

mere exercise in thinking up any rational basis.’ ” (Id. at p. 1169, quoting Miller-

El, supra, 545 U.S. at p. 252.) Similarly here, even if Frank G. “may well” or

“might reasonably” have posed the concerns suggested by the court (maj. opn.,

ante, at pp. 26–27), “such reasoning should have been articulated by the

prosecutor” (Gutierrez, at p. 1169).

The trial court did not notice the prosecutor’s mistake and thus did not

probe the nature of the prosecutor’s concern. Today’s opinion finds it

“significant” that defense counsel did not point out the mistake and says “[i]t is

unrealistic to expect the trial court to discover the mistake under trial conditions

when it was not brought to the court’s attention. Many jurors were examined over

several days, and hundreds of prospective jurors filled out the 52-page

questionnaire containing 237 questions.” (Maj. opn., ante, at p. 25.)

But this reasoning is at odds with what we said in Gutierrez. There, as in

this case, the prosecutor gave a reason (the Wasco issue) that “left some lucidity to

be desired” (Gutierrez, supra, 2 Cal.5th at p. 1169) and “was not self-evident” (id.

at p. 1172), and the trial court “made a global finding that the prosecutor’s strikes

were neutral and nonpretextual” (id. at p. 1157). Our opinion in Gutierrez

contains no indication that defense counsel pointed out to the trial court why the

stated reason was infirm. Regardless, in reversing the judgment, we faulted the

trial court for “never clarif[ying] why it accepted the Wasco reason as an honest

one.” (Id. at p. 1171.) We did not say it was “unrealistic to expect the trial court

to discover” the inadequacy of the stated reason without the aid of defense counsel

(maj. opn., ante, at p. 25); the role of defense counsel played no part in our

analysis. Instead, we said: “Providing an adequate record may prove onerous,

8

particularly when jury selection extends over several days and involves a

significant number of potential jurors. It can be difficult to keep all the panelists

and their responses straight. Nevertheless, the obligation to avoid discrimination

in jury selection is a pivotal one. It is the duty of courts and counsel” — it is clear

in context that “counsel” here refers to the prosecutor — “to ensure the record is

both accurate and adequately developed.” (Gutierrez, at p. 1172.)

In sum, whether or not defense counsel elucidates the infirmity of a stated

reason, the trial court has an independent obligation to make “a reasoned attempt

to determine whether the justification was a credible one.” (Gutierrez, supra, 2

Cal.5th at p. 1172.) Here, as in Gutierrez, that did not happen. And because the

nature of the prosecutor’s concern is “not self-evident” in light of the record

(ibid.), the first stated reason does not weigh in favor of her credibility.

B.

The prosecutor’s second reason for striking Frank G. was that he spoke to

attorneys daily and knew “50 to 60 civil or criminal lawyers.” The prosecutor did

not inquire into Frank G.’s relationships with lawyers, nor did she ask whether he

had developed any views on criminal law through those interactions. (See Miller-

El, supra, 545 U.S. at p. 246 [“[T]he prosecution asked nothing further about the

influence his brother’s history might have had on [the prospective juror], as it

probably would have done if the family history had actually mattered.”].)

In addition, Juror No. M-7421 indicated on her questionnaire that she knew

“too many [lawyers] to name since [she] worked as a legal secretary for over 8

years,” yet the prosecutor accepted her on the main panel without asking any

question about her relationships with lawyers. Juror No. L-3164 and Juror No. S-

3388 had lawyers in their families; the prosecutor also accepted them on the main

panel without questioning. Nor did the prosecutor ask questions on this topic of

Jeffrey W. (Juror No. W-6681), who had close lawyer acquaintances and was

9

studying to be a paralegal; Jeffrey W. was accepted as an alternate by the

prosecutor but struck by the defense. (See Miller-El, supra, 545 U.S. at pp. 248,

250, fn. 9 [jurors accepted by the prosecution but struck by the defense are

relevant comparators].) Frank G. does not appear to have been any closer to

attorneys than jurors to whom the prosecutor did not object. (See SmithKline

Beecham Corp. v. Abbott Labs. (9th Cir. 2014) 740 F.3d 471, 478, fn. 4

(SmithKline) [finding pretextual the claim that a juror was stricken because he was

“acquainted with many people in the legal field” when “other jurors with close

relatives who were lawyers were not stricken but served on the jury”].)

The prosecutor’s stated concern was not that Frank G. was himself a lawyer

or had legal education, but instead that he knew and worked with lawyers.

Specifically, Frank G. worked with lawyers involved in civil litigation on behalf of

a car rental company, not criminal cases. It is not clear why his work on such

matters would have made him an undesirable juror for the prosecution, and the

prosecutor did not explain her reasoning. “The prosecutor may have conveyed the

gist of [her] concern . . . but [her] explanation left some lucidity to be desired.”

(Gutierrez, supra, 2 Cal.5th at p. 1169.)

C.

The prosecutor’s third reason was that Frank G. “did not want to sit on this

case.” As today’s opinion acknowledges, this reason is “rather weak.” (Maj. opn.,

ante, at pp. 27–28.)

Frank G. wrote in his questionnaire that he “would not like to sit on this

jury due to the nature of the alleged crimes.” But Frank G. was not the only one

concerned about the nature of the crimes. Juror No. A-4635 wrote that he did not

want to sit on the case because “the nature of the crime alone ma[de] [him] sick.”

Juror No. M-7421 wrote that “[t]he violent nature of this case [was] disturbing to

[her].” And Juror No. B-0057 wrote that he did not want to sit on the case

10

“because of the seriousness of the crime.” All of those jurors served on the main

panel without either party questioning them about those answers.

During voir dire, the prosecutor did not ask Frank G. about his comment

regarding the nature of the crimes. Instead, the prosecutor asked, “I think on your

questionnaire you indicated that you did not want to sit as a juror in this particular

case. Was there a particular reason, other than it’s a big decision?” Frank G.

answered, “Other than it’s a big decision, is probably maybe the length of the trial.

But I guess I can live with the length of the trial, as long as it’s not more than 30

days.” As today’s opinion recounts, Frank G. “was concerned serving as a juror

might interfere with trial in the case he was involved with in Santa Monica. The

prosecutor and court explained to him that this trial would probably end before his

other trial would begin. Additionally, the court told the juror it had ‘a great deal of

influence with that Santa Monica court.’ The reassurance seemed to satisfy the

juror.” (Maj. opn., ante, at p. 27.) Indeed, Frank G. said he would be amenable to

a trial of two weeks’ length and the arrangement proposed by the trial court.

The record thus indicates there was no basis for concern, in light of the trial

court’s assurances and Frank G.’s response, that Frank G. was unwilling to serve

based on the length of the trial. Moreover, four jurors who served on the main

panel — Juror No. S-5904, Juror No. A-4635, Juror No. M-7421, and Juror No. L-

3164 — as well as Jeffrey W., who was struck by the defense, also expressed

concerns that the length of the trial would cause them to miss work, school, or

medical appointments, or result in financial hardship. None of those jurors was

questioned by the prosecutor about such concerns. The circumstances here are

similar to those in Snyder, where the high court found pretextual the prosecutor’s

explanation that he struck a black juror, Mr. Brooks, because the juror had a

student-teaching obligation that would impair his ability to serve fully and

impartially on the jury. (Snyder, supra, 552 U.S. at pp. 479–485.) In response to

11

the stated concern, the trial court contacted Mr. Brooks’s dean, who said “he did

not think [Mr. Brooks’s jury service] would be a problem,” and “the record

contains no suggestion that Mr. Brooks remained troubled after hearing the report

of the dean’s remarks.” (Id. at p. 482.) In addition, “[t]he implausibility of this

explanation is reinforced by the prosecutor’s acceptance of white jurors who

disclosed conflicting obligations that appear to have been at least as serious as Mr.

Brooks’.” (Id. at p. 483.)

D.

The prosecutor’s fourth reason for striking Frank G. was his 1992 arrest by

the Los Angeles County Sheriff’s Department. Although “[w]e have repeatedly

upheld peremptory challenges made on the basis of a prospective juror’s negative

experience with law enforcement” (People v. Turner (1994) 8 Cal.4th 137, 171,

italics added), the record does not indicate that Frank G. had a negative experience

with law enforcement in the context of his 1992 arrest. This was not an instance

in which a prospective juror had been wrongly arrested because of a mistake or

malice on the part of law enforcement. Frank G. made clear in his questionnaire

that the false arrest resulted from a “computer error by rental agency.” He further

indicated that the case was dismissed, that he felt he was “treated fairly by police,”

and that “justice [was] served.” Frank G.’s experience with his 1992 arrest also

must be considered together with his expressed satisfaction with the police’s

conduct when his home was burglarized the year before the trial, as well as his

comment that the solution to reducing crime was to “hire more law enforcement.”

The record does not indicate that the 1992 arrest, which occurred 10 years before

this jury selection process, caused Frank G. to have negative views of law

enforcement or otherwise supported the prosecutor’s assertion that “he would not

be a good prosecutorial juror.”

12

Further, the prosecutor did not object to other panelists who reported

potentially negative experiences with the criminal justice system. Juror No. A-

4635 had witnessed “police beating someone” and had been jailed for driving

under the influence, yet the prosecutor asked no questions about either experience.

The prosecutor likewise accepted Juror No. R-5785, who had gone to court for a

traffic violation and lost. And Jeffrey W. said he was dissatisfied with the police’s

conduct on two occasions — one in which he was the victim of vandalism and

another in which he was arrested and jailed for possession of alcohol as a minor —

but the prosecutor accepted him without asking any questions about either

incident.

The prosecutor did follow up with some prospective jurors, including Juror

No. R-5785, about their interactions with police. But she did not ask Frank G. any

questions about his 1992 arrest. Of course, the prosecutor had no duty to attempt

to rehabilitate all the panelists about whom she harbored doubts. But her lack of

evenhandedness in investigating the reasons that purportedly concerned her is

suggestive, and especially so because the stated reason — being arrested (or, more

accurately, being arrested with no charges filed) — is known to disproportionately

affect African Americans. (See Miller-El, supra, 545 U.S. at p. 255 [“contrasting

voir dire questions posed respectively to black and nonblack panel members” are

probative of racial discrimination]; People v. Buza (2018) 4 Cal.5th 658, 698 (dis.

opn. of Liu, J.) [citing data showing that in California, African Americans are 6.5

percent of the population but made up 20.3 percent of adult felony arrestees in

2016, and “felony arrests of African Americans disproportionately result in no

charges or dropped charges”].)

E.

The prosecutor’s fifth reason was that Frank G. “refused to smile” at her

during voir dire but smiled at the defense. Although a prospective juror’s

13

demeanor can be a race-neutral justification for a peremptory strike, the trial court

did not make any findings about Frank G.’s demeanor. Here, as in Snyder, “[i]t is

possible that the judge did not have any impression one way or the other

concerning [the prospective juror’s] demeanor.” (Snyder, supra, 552 U.S. at

p. 479.) Snyder found it relevant that the juror at issue “was not challenged until

the day after he was questioned, and by that time dozens of other jurors had been

questioned.” (Ibid.) In this case, 11 days passed between the prosecutor’s brief

questioning of Frank G. and Hardy’s Batson motion. “Thus, the trial judge may

not have recalled [the prospective juror’s] demeanor. Or, the trial judge may have

found it unnecessary to consider [the prospective juror’s] demeanor, instead

basing his ruling completely on the [other] proffered justification[s] for the strike.”

(Ibid.) In these circumstances, a demeanor-based reason does not weigh in favor

of the prosecutor’s credibility, and the court agrees this is not an “especially

strong” reason for the strike. (Maj. opn., ante, at p. 29; see Harris v. Hardy (7th

Cir. 2012) 680 F.3d 942, 965 [“Demeanor-based explanations for a strike are

particularly susceptible to serving as pretexts for discrimination.”]; United States

v. McMath (7th Cir. 2009) 559 F.3d 657, 665–666; Brown v. Kelly (2d Cir. 1992)

973 F.2d 116, 121.)

F.

The prosecutor’s sixth reason for striking Frank G. was that he indicated on

his questionnaire that life without parole was worse than the death penalty.

Today’s opinion acknowledges that this “might also be considered a weak reason.”

(Maj. opn., ante, at p. 29.)

Frank G. was not alone in initially indicating that life without parole might

be worse than the death penalty. Juror No. C-1938 and Juror No. S-8868, both of

whom served on the main panel, also indicated on their questionnaires that life

without parole was worse than the death penalty. In fact, Juror No. C-1938’s

14

answer as to why he thought life without parole was worse (“The defendant will

not only lose his/her freedom, but will have the time to contemplate his/her

actions”) was substantially similar to the answer Frank G. gave (“you think about

what you did, the crime that you committed and the fact that you’re going to be

locked up for the rest of your life without no possibility of getting out, it could

have a trying effect on a person’s mind”). But the prosecutor did not ask Juror

No. C-1938 any questions about his views on the death penalty. Meanwhile,

Frank G., who favored the death penalty and thought it was used “too seldom,”

said in answer to questioning by defense counsel that he could accept that death

was the worse penalty, as the law required.

Miller-El is on point. There, the prosecutor similarly stated that he struck a

black juror because the juror “ ‘suggested that the death penalty was an easy way

out, that they should be made to suffer more.’ ” (Miller-El, supra, 545 U.S. at

p. 248.) While acknowledging that “the explanation is reasonable” on its face, the

high court said “its plausibility is severely undercut by the prosecution’s failure to

object to other panel members who expressed views much like [the struck

juror’s].” (Ibid.) “The fact that [the prosecutor’s] reason also applied to these

other panel members, most of them white, none of them struck, is evidence of

pretext.” (Ibid.)

G.

The analysis above — together with the racial overtones of this case, the

fact that the prosecutor struck every black juror she could have struck, and Frank

G.’s background and personal views, including his strong support for law

enforcement and the death penalty — leads me to conclude that it was more likely

than not that the strike of Frank G. was impermissibly motivated by race.

In resisting this conclusion, today’s opinion resorts to the familiar argument

that no unexcused juror was similar enough to the excused juror to allow an

15

inference of discrimination to be drawn from comparative juror analysis. (Maj.

opn., ante, at pp. 29–30.) It is true that the prosecutor said, “I felt that all of these

things, in combination, . . . indicated that he would not be a good prosecutorial

juror.” (Italics added.) But Jeffrey W. was closely matched as to three of the

reasons: he also had professional ties to attorneys, he preferred to not sit on the

case, and he had been arrested (but, unlike Frank G., was not satisfied with the

police’s conduct). Jeffrey W. was also similar to Frank G. in other ways: both

were older and married, both believed the solution to crime involved more law

enforcement, both strongly believed in personal responsibility, and both reported

they were in favor of the death penalty and felt it was used “too seldom.” Yet the

prosecutor accepted Jeffrey W. without questioning.

Today’s opinion says “parties with limited peremptory challenges generally

cannot excuse every potential juror who has any trait that is at all problematic.

They must instead excuse those they believe will be most problematic under all

the circumstances.” (Maj. opn., ante, at pp. 29–30.) But that point rings hollow

here. Each side had 20 strikes available in selecting the main panel, and the

prosecutor used only five of those strikes. She had ample strikes available to

remove nonblack jurors with traits she purportedly found problematic in Frank G.,

and there were 33 prospective jurors still left in the venire at the end of jury

selection. These circumstances cast further doubt on the credibility of her stated

concerns.

In any event, the fact that no other juror exactly matched Frank G. does not

dispel the inference of pretext arising from comparative juror analysis. The high

court squarely addressed this issue in Miller-El: “The dissent contends that there

are no white panelists similarly situated to [two black prospective jurors who were

struck] because ‘ “ ‘[s]imilarly situated’ does not mean matching any one of

several reasons the prosecution gave for striking a potential juror — it means

16

matching all of them.” ’ [Citation.] None of our cases announces a rule that no

comparison is probative unless the situation of the individuals compared is

identical in all respects, and there is no reason to accept one. . . . A per se rule that

a defendant cannot win a Batson claim unless there is an exactly identical white

juror would leave Batson inoperable; potential jurors are not products of a set of

cookie cutters.” (Miller-El, supra, 545 U.S. at p. 247, fn. 6.)

The high court has repeatedly drawn inferences of discrimination from

comparative juror analysis without regard to whether the co

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