People v. Woodruff

Filed 7/19/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S115378

v. )

)

STEVE WOODRUFF, )

) Riverside County

Defendant and Appellant. ) Super. Ct. No. RIF095875

____________________________________)

A jury convicted defendant of the first degree murder of Riverside Police

Officer Charles Douglas Jacobs and the attempted murder of Police Officer

Benjamin Baker. (Pen. Code, §§ 187, 664.)1 It found true three special

circumstances allegations: murder to avoid or prevent a lawful arrest, intentional

killing of a peace officer engaged in the performance of his or her duties, and

murder by means of lying in wait. (§§ 190.2, subd. (a)(5), (7), (15).) It also found

true allegations of personal discharge of a firearm causing great bodily injury

(§ 12022.53, subd. (d)) and personal discharge of a firearm (§ 12022.53, subd.

(c)).

After finding that defendant did not have an intellectual disability, and

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

automatic motion to modify the verdict (§ 190.4, subd. (e)) and imposed a

judgment of death. It also imposed a prison sentence on the other counts and

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

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enhancement allegations. This appeal is automatic. (§ 1239, subd. (b).) We

reverse the judgment of death because of the erroneous exclusion of a prospective

juror during jury selection and remand the case for a new penalty trial. We affirm

the judgment in all other aspects.

I. THE FACTS

A. Guilt Phase

1. Overview

Police responded to a neighbor’s call that defendant’s mother, who lived in

a two-unit house upstairs from defendant, was playing a loud radio outside, which

had been a longstanding source of conflict. Because the mother refused to turn

down the radio, officers began to arrest her. During the process, defendant, who

had retrieved a gun from his house and was watching and listening from his porch,

leaned into the outdoor stairwell leading up to the mother’s apartment, and, as

observed by Officer Benjamin Baker and by a neighbor, fired up at the officers,

killing Officer Douglas Jacobs. That evening, defendant admitted to the police

that he shot Jacobs. At trial, however, he denied killing Jacobs, and he also

presented evidence to contest the required mental state. The parties also presented

contested evidence as to whether defendant had an intellectual disability and a

brain injury.

2. Prosecution Evidence

On the afternoon of January 13, 2001, Holly Menzies called the Riverside

Police Department because her neighbor Parthenia Carr had been playing very

loud music outside for 45 minutes. Carr lived upstairs and her son, defendant,

lived downstairs in a two-unit house. Carr would play her radio outside her door

on the landing at the top of her stairs. Over the past year, Menzies and her

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husband had spoken to Carr several times about the loud music and had reported it

to the police at least twice. Carr’s response invariably was contentious and angry.

On-duty Police Officer Baker responded to the disturbance call. When he

arrived at the residence, he saw a portable radio outside, on the landing. The

music was at its maximum volume and “extremely loud,” such that other sounds

were inaudible.

There was a porch on the ground floor. Seeing someone moving inside the

house, Baker asked through the screen door if the person had called the police.

The male, defendant, responded “No,” and that it was his mother’s radio upstairs.

Baker went upstairs and turned off the radio. Carr opened the screen door

and “began screaming and yelling, saying that it was her radio, it’s her property.

[Baker had] no right to touch her radio . . . .” Baker informed Carr about the

disturbance call. Carr was angry and “out of control pretty much the entire time

[Baker] was there, constantly talking, not pausing between words, just constantly

saying something.” She threatened to sue Baker for violating her Fourth

Amendment rights.

Baker radioed his supervisor, Sergeant Leach, for assistance. Leach

responded he was en route. Baker continued to speak with Carr, who refused to

cooperate. Baker informed Carr he would arrest her for disturbing the peace if she

did not lower the radio volume.

Baker left to speak with Menzies. The music sounded “extremely loud”

from outside Menzies’s house. Menzies signed a citizen’s arrest form but wanted

to speak with Carr to resolve the situation informally. Baker accompanied

Menzies to Carr’s landing to provide assistance. Carr came out on the landing and

“immediately began screaming” at Menzies, pushed open the screen door into

Menzies’s foot, and “lunged” toward Menzies, startling her. According to

Menzies, she was jostled when Carr opened the door and she did not perceive that

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Carr was intentionally pushing her. Baker stepped between them and Menzies

started walking down the stairs. Menzies observed Baker to be “exceedingly

polite” throughout the encounter.

Baker grabbed Carr’s wrist to arrest her for disturbing the peace and for

committing battery on Menzies. Menzies, who had returned to her home, could

from a window hear Carr tell Baker he could not arrest her. At that point, Claude

Carr (Claude), who, unbeknownst to Baker, had been sleeping inside, came out

and stepped between Baker and Carr, within four inches of Baker, and told him to

“[g]et your hands off my mom.”

Baker then heard defendant say from downstairs in a threatening manner,

“You better not touch my momma.” Baker saw defendant leaning over the

stairway from the porch. Mark Delgado, who lived across the street and had been

outside washing his car, saw defendant come out of his house, walk to the end of

the porch and look up, and say something like, “Don’t be touchin’ my momma.

Leave my momma alone.”

Feeling unsafe, Baker called for immediate assistance. Within a couple of

minutes, Jacobs, Baker’s beat partner, arrived and Baker met him in the middle of

the stairs to brief him on the situation. Baker had determined to arrest Carr and

Claude, and wanted to wait for Leach for additional assistance. While waiting,

Baker and Jacobs walked up to the landing to prevent Carr and Claude from going

inside and creating an unsecure situation. The officers informed Carr they were

detaining her for disturbing the peace. Carr said she was going into her house if

the officers did not leave and started to do so. Baker grabbed her wrist to start the

arrest. Claude tried to grab Baker, so Jacobs grabbed Claude’s wrist and put him

in a wrist lock. Baker let go of Carr to assist Jacobs. Carr went into the house.

When Claude became still, Baker reached for his handcuffs.

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As Baker moved to handcuff Claude, he heard a gunshot. Baker

immediately looked down the stairs where the shot came from and saw defendant

standing on the porch, leaning over the railing with his body minimally exposed,

pointing a handgun up at the officers. Baker let go of Claude, saw Jacobs going

into the house, and thought Jacobs was taking cover. According to Claude, Jacobs

looked surprised and pushed Claude to the ground as Claude heard gunfire. Baker

was not sure if he was the only one on the landing at that point. He grabbed his

gun, a .40-caliber firearm, and fired at defendant.

Baker saw defendant, who had fired the first shot, point the gun in his

direction and shoot multiple times. Jacobs did not have his gun out. Defendant

retreated after Baker’s third shot.

After defendant had told the officers to leave Carr alone, Delgado saw him

walk back into his house for a second and come back out. He looked across at

Delgado. Delgado noticed defendant had a silver- or chrome-plated handgun.

When Delgado looked over, defendant put the gun behind his back slightly.

Defendant walked to the end of the porch, peeked up over the railing furtively,

held the gun up and aimed, firing twice without hesitation. He then walked

quickly back into the house. Delgado had an unobstructed view of defendant.

Defendant looked agitated and like he “didn’t think twice” before getting the gun

and shooting. No more than 30 seconds passed from the time defendant told the

police to leave Carr alone to the time he fired the gun. Menzies had heard Claude

yell “No, don’t,” in a “heart-wrenching plea” to defendant just before she heard

shots.

Baker realized Jacobs, who was lying faceup with his torso in Carr’s

doorway, had been shot. Blood was coming out of Jacobs’s nose “like a water

faucet,” and his airway was full of blood. Baker could not feel a pulse. He

radioed that an officer was down. Baker saw Leach arriving and advised him that

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defendant was downstairs and had shot Jacobs. Leach took Carr and Claude down

to the curb. A paramedic arriving to assist observed that Jacobs’s gun was

holstered.

Other officers arrived. They set up a perimeter around the house,

announced their presence over a speaker system, and ordered anyone in the house

to come out.

Suddenly the downstairs door flew open, defendant yelled that he was

coming out, and he threw out a rifle. Defendant crawled out of the house naked.

The police arrested defendant and put him in a squad car. They later found a

jammed bullet in the rifle.

Defendant told the officer who was handcuffing him that he was sorry or

that he had not meant “to do this.” During the ride to the station, defendant

volunteered that he did not mean to kill the officer and had panicked because they

would not let Carr go.

After securing the house, officers found defendant’s four-year-old daughter

hiding under a bed. They found a rifle and bullets on the bedroom floor along

with .30- and .44-caliber ammunition in the closet area, a Lorcin nine-millimeter

handgun on the kitchen stove and a rifle in the pantry, and expended shotgun

shells and two 9-millimeter Speer casings in the backyard. The police took photos

of a possible bullet strike to the wall adjacent to the outside stairs. About a year

later, the police cut out a portion of the wall and found a bullet lodged inside.

Detectives interviewed defendant the evening of the shooting. Defendant

told them that when Baker first arrived, defendant called his brother John

Woodruff (John) to say that the police were there again harassing Carr. He went

outside and heard Baker tell Carr that she would go to jail if she did not turn down

her music. Defendant watched for a minute until he saw Baker calling someone.

He then walked into his house and retrieved his gun from the bedroom closet,

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loaded it, and placed it on the television. Watching from inside his front door,

defendant saw Jacobs arrive in his police car, jump out, and run up the stairs.

Defendant went outside with the gun to listen. Nobody could see the gun.

He listened for about one or two minutes, until he heard Claude ask the officers to

wait for a sergeant. Jacobs responded, “We’re not waitin’ on no sergeant,” and

grabbed Carr. Defendant told Jacobs to let Carr go and fired his gun. Defendant

fired three times and ran into the house. The officers returned fire. Once inside,

defendant got a rifle because he thought the officers might kill him, but then

changed his mind, threw the gun out of the house, removed his clothes so that the

police would not shoot him, and crawled out. Defendant acknowledged that the

rifle had jammed.

Defendant explained he panicked, and was not thinking but instead reacted.

He did not aim. He explained that the police would come to the house two or

three times a day about the loud music and that Menzies was using the police to

harass Carr. John had filed a complaint about it with the police.

In response to defendant’s explanation that he panicked, the detectives

pointed out that he had retrieved his gun, and then watched and waited before

shooting at the officers. Defendant’s response was that he did not “mean” to do it

and that it was a coincidence that he hit Jacobs. When confronted with Baker’s

statement that he saw defendant aiming through the sight of his gun and with the

interviewing detective’s disbelief that defendant would not aim since his mother

and brother were also in the group, defendant responded that he lost his “cool” and

acknowledged that he was “mad.” Defendant meant to shoot at the officers and

shot Jacobs. He also acknowledged that the officers did not hurt Carr.

Carr testified that the police did not hurt her. Delgado could hear Carr

yelling but she was not calling for help and did not sound scared or in pain.

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Jacobs died from a bullet entering his nose and passing through the base of

his brain. It destroyed 50 percent of his brain stem and rendered him immediately

unconscious.

Senior criminalist Richard Takenaga compared bullets test-fired from the

Lorcin recovered from defendant’s kitchen to the Speer bullet recovered from

Jacobs’s skull and concluded that the Lorcin had discharged the bullet that killed

Jacobs. The bullet found in the wall was damaged and difficult to compare, but

had characteristics similar to those of the bullet from the Lorcin.

3. Defense Evidence

Carr testified on cross-examination in the prosecution’s case that Baker

seemed angry. Baker grabbed Claude by the wrist and took his gun out and

pointed it at Claude. Carr was crying and felt afraid and angry. Carr testified that

she grew up in Mississippi watching the civil rights movement and felt she had not

committed any crime or broken any law that day and that Baker was violating her

constitutional rights. She felt that the police shoot and kill Black people, including

“Tyisha Miller” (an apparent reference to a police killing of a young African-

American woman about two years before this shooting), and that they had been

harassing her family. She described an incident in which she said that the police

would not let her other son Jimmy Taylor use the bathroom and arrested him for

urinating on a tree. The police had been to the house about the radio three or four

times but they had never harmed her.

Defendant testified and denied shooting Jacobs. When Jacobs arrived,

defendant saw that he was wearing a gun and moving fast. Defendant got his gun

because he was “afraid that the police had sent some crooked police” to his house

who were “disrespectful [and] prejudiced.” He feared the police would harm Carr

because he knew she would not turn down the radio volume. Carr seemed upset

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and yelled, “You’re hurtin’ me.” Defendant thought the police were hurting Carr

when he heard her screaming, and “chills” went over his body. Defendant was

“furious” and “ready to go to war.”

Defendant got his gun, ran across the porch to the railing, raised his gun,

and asked the officers what they were doing. When Baker saw defendant’s gun,

Baker reached for his gun. Defendant shot first, over Baker’s head, when he saw

that Baker was going to shoot him. Baker started shooting and defendant returned

fire before going into the house.

Stella Alvarez lived across the street and had been cooking dinner that day

by her kitchen window. She saw the police go up Carr’s stairs with Menzies, saw

Menzies hurry down the stairs, and heard a male voice say to leave his mom alone.

Alvarez then heard gunfire and saw defendant run in and out of his house, but did

not see weapons on him.

John, defendant’s brother, testified that defendant called him that day to

come over because the police were harassing Carr and defendant was concerned

because he had a driving under the influence (DUI) warrant and did not want to go

outside. Defendant did not recall telling John about a warrant.

Several years before the shooting, Carr had had a mental breakdown and

was diagnosed with paranoid schizophrenia. Before moving in, defendant would

visit Carr most days and would cook and go to the store for her. Defendant

explained, “She was the only one that raised me and . . . in ’63, you know, it was

hard back then. And she did not leave us, you know. She kept her

responsibilities . . . .” Defendant worried about Carr because she became hard to

handle after her breakdown. Carr played the radio because it would calm her and

make her happy.

Defendant recounted the four previous times that the police had come to his

house about the radio and said John had filed a complaint with the police for

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harassing Carr. Defendant felt the police were harassing his family because of

where he grew up. He described what he had observed of the incident concerning

Jimmy Taylor. Defendant later saw his mother crying and upset about the

incident. He knew Tyisha Miller’s mother and felt that the police had murdered

Miller and had no regard for Black people. John also testified that the police had

come to the house three or four times and that he had filed a complaint with the

police.

Defendant could read and write “[a] little” and reached the tenth grade in

school. He was an electrician by trade and did plumbing and Sheetrock work and

worked on cars. He had worked for the Press-Enterprise newspaper as a driver

and would count, stack, and bundle the papers. He had a “learning problem” and

was in special education classes. He was in the process of purchasing the house he

lived in and knew about escrow.

Defendant had been knocked unconscious three times in his life, including

in 1985 when a car ran over him. He lost consciousness, suffered spinal injuries

and a split skull, and had to learn to walk again.

Dr. Joseph Wu, a physician and clinical director of the University of

California, Irvine School of Medicine’s Brain Imaging Center, evaluated

defendant for brain injury by administering a PET (positron emission tomography)

scan, which shows activity in the brain. Wu compared defendant’s scan to that of

56 “normal” patients, meaning patients who did not have identified brain disease.

Specifically, Wu compared defendant’s scan to an image generated from the 56

normal patients that was also “normalized” for differences in age, gender, brain

size, and shape. Wu observed abnormalities in defendant’s temporal lobe, interior

cortex, and central cortex. The abnormalities observed would affect the ability to

regulate emotion, to think “appropriately or correctly,” and to make abstract

inferences. Based on his review of the PET scan and defendant’s medical records,

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which stated defendant had suffered head injuries when he was run over by a car

in 1985 and assaulted in 1989, Wu opined that defendant had traumatic brain

injury.

Dr. Curtis Booraem, a clinical psychologist, evaluated defendant. Booraem

was experienced in assessing people with developmental disabilities but had never

been court-appointed for an evaluation in a criminal case. He met with defendant,

administered the Wechsler Adult Intelligence Scale, Third Edition (WAIS-III),

reviewed defendant’s school and medical records, and concluded defendant was a

“high functioning” intellectually disabled person. Defendant had a full-scale IQ

score of 66, a verbal score of 68, and a performance score of 69. In school,

defendant was diagnosed with a learning disability, earned mostly D’s and F’s,

and scored poorly on standardized and diagnostic tests.

Booraem took a limited social history of defendant and found him to be a

person of few words. Defendant’s affect was flat, which is an indication of mental

illness or brain dysfunction. Booraem observed defendant to be emotional and

distraught in the video of the police interview, which would cause decreased

intellectual functioning and would cause a person to say what the interviewer

wanted.

4. Rebuttal Evidence

Dr. Alan Waxman, a physician and co-chair of the department of imaging

for Cedars-Sinai Medical Center in Los Angeles, reviewed Wu’s assessment.

Waxman concluded that Wu’s method was appropriate for research but not

diagnostics. He criticized Wu’s methodology of “morph[ing]” the 56 images of

normal brains to fit into the same shape for comparison, which would result in

artificial “abnormalities” and faulty comparison, and he challenged Wu’s lack of

validation of his method. Waxman explained that Wu’s scanning machine, which

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was “almost an obsolete machine,” would not have accounted for variation in skull

thickness and would have produced a lot of image “noise.” Two colleagues

performed a blind comparison of defendant’s brain to the 56 normal brains and

found defendant’s brain to be one of the more “normal” brains, with fewer

irregularities and asymmetries. Waxman concluded defendant’s brain was a

“normal brain.” Waxman did not perform any tests on defendant’s brain using his

own brain imaging machine.

Dr. Craig Rath, a clinical psychologist, evaluated defendant. Rath had

performed evaluations in over 6,500 court cases, including approximately 400

court-appointed defense evaluations on intellectual disability, and had testified

mostly for the defense. Rath met with defendant three times, reviewed his records,

and readministered the WAIS-III. Defendant had a full-scale IQ of 78, a verbal

quotient of 80, and a performance quotient of 79. Rath readministered the WAIS-

III because defendant said he had not tried hard the first time. Rath would have

accounted for “practice effects” of retaking the test within five months but

defendant’s areas of improvement would not have been due to test familiarity.

According to Rath, it is not possible for an intellectually disabled individual to

fake more aptitude than his true capacity. Defendant scored 86 on the Vineland

Adaptive Behavior Scales test (Vineland test), administered by Rath, and a 65 on

the communication portion of the test.

Based on his experience with approximately 1,000 intellectually disabled

individuals, Rath had no doubt that defendant was not intellectually disabled.

Defendant had a learning disability. Rath, however, observed defendant to be

communicative, providing detailed information, understanding the questions posed

by Rath, and recalling his personal history with general accuracy. Defendant

recalled he had worked as an electrician through the temporary agency Manpower,

at a factory assembly, and at the Press-Enterprise newspaper, where he had

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managed a crew. Defendant had performed commercial work where he would

“wire rooms, run wires, fix switches, install[] receptacles,” and, in his own words,

“troubleshoot[].” He also repaired automobiles.

Defendant demonstrated levels of abstract reasoning inconsistent with

intellectual disability, such as explaining that we study history to learn where we

have been, who we are, and where we are going. Removing his clothing so that

the police would not shoot him was another example of defendant’s abstract

reasoning ability, which was all the more significant given the high-stress

situation. Defendant was able to discuss abstract concepts that he had learned

from the Bible and could describe his cooking skills, his ability to write and mail

letters and make long-distance phone calls, the events for which he was charged,

world events, and card games he had played, as well as his understanding of the

fundamentals of chess. Defendant described daily activities of self-care and

personal shopping, passing the written test to obtain a driver’s license, his ability

to drive and follow directions, and his ability to engage in monetary transactions

with the assistance of a calculator, all of which indicated higher-level functioning

and adaptive behavior. At age 30, defendant was able to successfully apply the

Heimlich maneuver, which he learned in high school, on a child that he had

observed choking in a restaurant.

B. Intellectual Disability Phase

Booraem, the sole witness to testify during the intellectual disability

hearing, concluded defendant was “mildly” intellectually disabled. Booraem

explained that intellectual disability is typically ascribed to people with an IQ

under 70 to 75, taking into consideration the standard error of measurement, along

with deficiency in at least two areas of adaptive behavior.

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Booraem concluded defendant had adaptive deficits in communication,

academics, work, and self-direction. Defendant was deficient in communication

based on his score of 65 on that portion of the Vineland test. Defendant had

earned poor grades in school, tested at the third or fourth grade level in various

subject areas at age 16, and had been diagnosed with a learning disability.

Defendant was “significantly deficient” in the areas of self-direction and work

because he had had only brief periods of employment and seemed “satisfied with

not being employed.”

C. Penalty Phase

The prosecution presented evidence of defendant’s criminal activity

involving the use or threatened use of force or violence (§ 190.3, factor (b)), and

the impact of the incident on Baker and on the victims’ families.

In a 1988 physical altercation initiated by a previous live-in girlfriend,

Patricia Woodson, defendant repeatedly pushed Woodson, causing her arm to go

through a window and requiring hospital treatment.

In 1989, a man named Arnold Palmer, his sister Tamara, and Clinton

Williams went to a liquor store. Children were in the car. Defendant, his cousin

Dennis Smith, another adult passed out drunk, and children were in another car

parked nearby. An altercation developed and accounts varied as to who shot first.

Tamara observed two shooters, Smith and another man who was not defendant.

The other man shot at Palmer. Palmer died from a bullet wound and Williams was

shot in the stomach. Smith testified that defendant was present, but he thought

defendant was in the liquor store or in the car during the shooting. Smith did not

see defendant with a gun. Freddy Williamson, who was friends with defendant,

told a detective that defendant said he was involved in a liquor store shootout and

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a bullet grazed his shoulder. The detective visited defendant in jail and observed a

scar on his shoulder.

A few days after the liquor store shooting, the police arrested defendant and

Smith during a traffic stop in Arizona for possession of a concealed firearm as

well as a second, altered, firearm.

In 1993, defendant robbed and assaulted Paul Spicer, who had to go to the

hospital for a fractured wrist.

In 1999, the police arrested defendant for carrying a concealed weapon

after his girlfriend Melvina Crowden called the police because defendant was

upset that she was moving out and had showed her a gun.

In 1999, Freddy Williamson and Mario Brooks went to a house to buy

marijuana. According to Williamson, four males approached their vehicle, and

someone tried to hit Brooks with an object. Defendant might have been present.

Someone shot Brooks. Williamson told a detective that defendant was involved in

the confrontation. Another officer testified that “Eddie Phillips” told him during a

hospital interview, while Phillips was receiving treatment for a gunshot wound,

that defendant approached him that day while he was in a vehicle and tried to hit

him with an object. The officer did not know if Phillips was the same person as

Brooks.

Baker testified about having posttraumatic stress disorder and not returning

to work as a police officer because of the event’s impact on him and his family.

He believed Jacobs probably saved his life. Baker’s wife testified about the

impacts of the shooting on her family, their two young children, and on Baker,

who became withdrawn, lost his optimistic and cheerful demeanor, and suffered

from nightmares.

Jacobs’s widow, Tammy Jacobs, testified about her grief in losing her

husband and having to make decisions alone, and the impact Jacobs’s death had on

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their daughter and on Tammy’s son from a previous relationship. Jacobs had

become a loving father to her son, who had since gone into a “downward spiral”

and was in therapy and on medication. Jacobs had been studying for his master’s

degree. Jacobs’s mother, Cathy Miller, testified about the grief that she and

Jacobs’s siblings experienced; the kind, hard-working and involved son Jacobs

was from childhood; how he aided her as a single mother; and how he had

diligently pursued his dream to become a police officer.

The defense presented evidence about defendant’s background and mental

functioning. John testified that defendant was born prematurely and was

hospitalized for a month when he was run over by a car in 1985. Defendant had

trouble holding a job and had lived in his van at times. Defendant worried about

Carr. The family was religious. Defendant was a loving partner and father,

including to a former partner’s children. John’s wife testified that defendant was

kind, a loving dad, and not a violent person.

Wu testified that defendant had a brain injury that impairs a person’s ability

to regulate emotions and respond appropriately to provocation under stress. Dr.

Booraem testified that defendant had the mental functioning of a 10-year-old,

which meant that in emotional situations he tended to act in fight-or-flight mode.

II. DISCUSSION

A. Competence To Stand Trial

Citing several instances when he expressed on the record a lack of

comprehension of certain aspects of the court proceedings, defendant contends the

trial court erred in failing to declare a doubt, sua sponte, as to his competence to

stand trial, and that remand is required for a retrospective competency

determination.

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“Both the due process clause of the Fourteenth Amendment to the United

States Constitution and state law prohibit the state from trying or convicting a

criminal defendant while he or she is mentally incompetent.” (People v. Rogers

(2006) 39 Cal.4th 826, 846; see § 1367, subd. (a); Drope v. Missouri (1975)

420 U.S. 162, 172.) “A defendant is incompetent to stand trial if [he] is unable to

consult with [his] attorney with a reasonable degree of rational understanding or

lacks a rational and factual understanding of the proceedings against [him].”

(People v. Rodriguez (2014) 58 Cal.4th 587, 624.)

“The decision whether to order a competency hearing rests within the trial

court’s discretion, and may be disturbed upon appeal ‘only where a doubt as to

[mental competence] may be said to appear as a matter of law or where there is an

abuse of discretion.’ (See People v. Pennington (1967) 66 Cal.2d 508, 518 . . . .)

When the court is presented with ‘substantial evidence of present mental

incompetence,’ however, the defendant is ‘entitled to a section 1368 hearing as a

matter of right.’ [Citation.] On review, our inquiry is focused not on the

subjective opinion of the trial judge, but rather on whether there was substantial

evidence raising a reasonable doubt concerning the defendant’s competence to

stand trial. [Citation.] . . . A trial court reversibly errs if it fails to hold a

competency hearing when one is required under the substantial evidence test.”

(People v. Mickel (2016) 2 Cal.5th 181, 195.)

Defendant first points to statements he made during a pretrial hearing

requested by the prosecution to inquire into the qualifications of retained pro bono

counsel Mark Blankenship to try a capital case and whether defendant was making

an informed decision as to his choice of counsel.2 During the hearing, defendant

2 Apparently, Blankenship agreed to represent defendant pro bono. We use

the term “retained” in the sense that Blankenship’s representation was secured by

the defendant, rather than by court appointment.

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responded to the trial court’s suggestion that he listen to its review of pertinent

case law with “I don’t understand nothin’ you sayin’, Judge. . . . I’m not a lawyer,

you know. I’m listening. I just don’t understand.” Later, when the court asked if

defendant wanted to continue with Blankenship’s representation, defendant

explained, “Yes. I’ll assure you, Judge, that, you know, there is a higher up that

sent Mr. Blankenship to me, and he must be the one to represent me, you know,

because there’s someone over you and that you work for. So, I really don’t

understand what is really going on here, anyway, you know.”

Further discussion with the court resolved defendant’s comprehension

difficulties. When defendant said he was listening but did not understand, the

court responded that it would explain in nonlegal language. The court explained

to defendant that it was his choice whether to proceed with Blankenship, that he

had the right to an attorney, that the court would appoint one for him if he could

not afford an attorney, and that the public defender’s office had many experienced

attorneys who had handled capital cases. The court emphasized Blankenship’s

lack of familiarity with the criminal justice system. The court admonished

defendant to listen carefully, explained further that it had serious concerns about

Blankenship’s failure to request defense investigation funds, and told defendant

again that if he could not afford an attorney, the court would appoint a qualified,

experienced death penalty attorney to represent him. The trial court asked

defendant if he understood, and defendant replied affirmatively. The court asked

if he still wished to proceed with Blankenship, and defendant said that he did.

Regarding defendant’s comment that a “higher up” had sent Blankenship to

represent defendant, and that he did not understand what was “going on here,” the

court further explained that defendant needed to carefully consider his legal

representation because he was facing a potential sentence of death. Nevertheless,

the court reassured defendant that it could not later remove Blankenship against

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defendant’s wishes. When defendant expressed confusion about Blankenship’s

failure to request money, the court explained that money was available for the

investigation of defendant’s defense under state law. Defendant said that he

understood.

Defendant’s desire to proceed with Blankenship’s representation because a

“higher up” had sent Blankenship did not suggest an inability to understand the

proceedings. On the contrary, it reflected defendant’s desire to accept

Blankenship as his attorney and thus defendant’s ability to assist in his defense.

Simply because, as defendant characterizes it, his comment indicated “a belief that

his volunteer attorney was a gift from God,” it does not follow that he was not

competent to understand the proceedings. (See People v. Mendoza (2016) 62

Cal.4th 856, 895 [“[R]eligion-infused comments,” without more, are not indicative

of mental illness and do not suggest the need for a competency determination].)

Second, defendant contends that his request for bail, despite his attorney’s

explanation that bail was not available in capital prosecutions, was another

indication of his incompetence. But the fact that defendant, a nonlawyer, did not

understand the unavailability of bail did not suggest incompetence. Neither

defendant’s confusion about bail nor his inability to understand the court’s

discussion of case law was evidence of inability to understand the proceedings

against him. (People v. Bradford (1997) 15 Cal.4th 1229, 1364 [“ ‘technical legal

knowledge’ ” is irrelevant for determining competency].)

Reviewed in their entirety, defendant’s comments at the hearing support a

finding that he understood the proceedings and could communicate how he wanted

to try his case. For example, defendant asked the court, “You, the Judge, is going

to be doing this trial, too, right?” After the judge’s affirmative response, he asked

further, “They not gonna change you, right?” When the court responded

affirmatively again, defendant stated, “Well, I’m satisfied.” Defendant’s questions

19

and comments showed that he could discuss his confusion with the court and

express his concerns, and thus showed that he was able “ ‘to conduct his own

defense in a rational manner.’ ” (People v. Pennington, supra, 66 Cal.2d at

p. 515.)

As further evidence of incompetence, defendant next points to his trial

testimony that he “somewhat” understood what was happening at trial that day,

that he could read and write a “little bit,” and that he did not understand what he

was reading at the jail law library. We have reviewed defendant’s testimony at

trial and cannot conclude that defendant lacked understanding of the proceedings.

Defendant answered questions coherently. On direct examination, he explained

his protective relationship towards his mother and his family’s negative

experiences with law enforcement, and gave his account of what happened on the

day of the shooting. On cross-examination, he was able to adhere to his version of

events despite persistent questioning from the prosecutor. Similarly, he was able

to appropriately state when he did not understand a question. Defendant “testified,

in a completely rational manner, in his own defense.” (People v. Rundle (2008)

43 Cal.4th 76, 180.)

Finally, defendant notes that defense evidence showed he had an IQ score

of 66 and a verbal comprehension index score of 61. The prosecution expert

testified defendant’s full-scale IQ score was 78 and his verbal quotient was 80. As

we have previously explained, the “evidence, which addressed defendant’s alleged

intellectual disability, did not pertain to the question of competence to stand trial.

Although a defendant’s incompetence to stand trial might, in some cases, be

inferred from evidence of severe intellectual disability, the . . . evidence of

possible incompetence presented here was not so substantial as to deprive the trial

court of discretion. Therefore, we defer to the trial court, which heard

the . . . evidence, observed defendant and the witnesses, and did not form a doubt

20

about defendant’s mental competence.” (People v. Sattiewhite (2014) 59 Cal.4th

446, 467.)

We therefore see no due process or statutory error resulting from the

absence of a competency hearing. For these reasons, we also reject defendant’s

claim of violation of his other federal constitutional rights.3

B. Attorney Representation Issues

Attorney Mark Blankenship substituted in for the public defender as

defendant’s retained pro bono counsel a few days after defendant’s arrest.

Defendant raises a set of contentions related to asserted deficiencies in

Blankenship’s representation and his potential conflicts of interest. First, he

contends the trial court erred in failing to remove Blankenship for incompetence

and in failing to ensure that defendant had made a knowing and intelligent waiver

of his right to effective assistance of counsel with respect to his decision to

continue with Blankenship as his counsel. Next, he claims the trial court erred in

misleading Blankenship regarding the requirements for appointment of cocounsel

in a capital case and that Blankenship was ineffective for failing to request

appointment of cocounsel. Finally, defendant contends his waivers of his rights to

conflict-free counsel with respect to Blankenship’s prior representation of two

prosecution witnesses were not knowing, intelligent and voluntary.

3 “With respect to this and other claims on appeal, defendant contends that

the asserted error also violated various of his constitutional rights. The

constitutional claims do not invoke [different] facts or legal standards . . . but

merely assert that the alleged errors were also constitutional violations. Because

we find no error, we necessarily also find no constitutional violation.

Accordingly, we provide no separate constitutional discussion.” (People v. Avila

(2014) 59 Cal.4th 496, 513, fn. 3.)

21

1. Asserted Failure To Remove Blankenship for Incompetence and

To Make Adequate Inquiry into Defendant’s Choice of Counsel

Defendant contends the trial court failed to intervene and remove

Blankenship for incompetence. Relatedly, defendant challenges the adequacy of

the trial court’s inquiry into defendant’s choice of Blankenship as counsel. We

review the pertinent proceedings below.

a. Factual Background

i. Prosecution’s Motion and the Ensuing Hearing on

Blankenship’s Qualifications for Capital Litigation

and on Defendant’s Choice of Counsel

In August 2001, about a month before trial, the prosecutor moved for a

court inquiry into Blankenship’s qualifications to try a capital case, and for an

inquiry into whether defendant was making an informed choice regarding his

retention of Blankenship, who was representing him pro bono, and if necessary to

obtain a waiver from defendant that he wished to proceed with Blankenship’s

representation despite being informed that Blankenship had previously been

suspended from the practice of law. The State Bar had previously suspended

Blankenship from the practice of law for incompetence and he was serving a five-

year probation.

At the hearing in September, Blankenship described his educational

background and explained that he had handled “a variety of criminal trials” and “a

strong handful of civil trials.” The court asked him several questions about his

trial preparation. Regarding whether he had considered filing a motion to set aside

the indictment, Blankenship explained, “I would just as soon take my chances with

the jury as opposed to outlining a series of evidentiary presentations which, to me,

are tantamount to choreographing the strategy we intend to utilize at the trial

level.” Regarding change of venue, Blankenship believed defendant would get “a

better trial in his own community,” which was “suffering from racial strife when it

22

comes to minorities and law enforcement.” Blankenship provided similar

explanations regarding other motions he declined to file.

In reliance on our decision in Smith v. Superior Court (1968) 68 Cal.2d

547, the trial court decided not to remove Blankenship, concluding he had “set

forth in an articulate fashion and demonstrate[d] clearly that [he had] considered

these issues” and made strategic decisions after consultation with defendant.

The court explained to defendant two areas of concern. First, with a month

remaining before trial, Blankenship had done little penalty phase investigation.

Second, Blankenship had not applied for indigent defense funds. Blankenship

responded he needed more time to prepare.

The court informed defendant that he had the right to representation by an

attorney at no cost, and that the Riverside County Public Defender’s Office had

death penalty experienced attorneys. The court told defendant to “listen to me

carefully” because it had “very, very serious concerns” that Blankenship had not

sought defense funds. The court repeated, “If you cannot afford to hire an

attorney, I will appoint an experienced death penalty qualified attorney to

represent you.” Defendant said that he understood.

As previously noted, defendant told the court, “I’ll assure you, Judge, that,

you know, there is a higher up that sent Mr. Blankenship to me, and he must be the

one to represent me, you know, because there’s someone over you and that you

work for. So, I really don’t understand what is really going on here, anyway, you

know.” The court explained that if the jury found just one of the special

circumstances true, defendant would die in prison whether by a life sentence or by

the death penalty. The court cautioned, “So it is in your best interest that you

consider very carefully your representation in this matter.” The court explained

that it was defendant’s right to choose Blankenship, and the court would not

interfere with defendant’s decision. Defendant responded, “You tellin’ me that’s

23

my decision, but then later on down in trial, you’s tellin’ me that you have the

power to say that this man might not be competent to represent me.” The court

explained it would not remove Blankenship. Blankenship interjected, “Your

Honor, Mr. Woodruff has said—and I know Mr. Woodruff fairly well. He said

that he chooses me as his counsel, and that he said that in his mind it’s based on

his own feelings and beliefs.” Defendant agreed. The prosecutor informed

defendant that Blankenship’s suspension was for incompetence.

The trial court verified that defendant understood that defense funding was

available and that a well-trained death penalty lawyer would have applied for

funds. The court explained again, “I want you to understand, because ultimately

your life is the one that’s on the line here, this Court, me, I will, if you ask me to, I

will appoint an attorney to represent you for free, who is experienced in this type

of defense, a person who has handled death penalty cases in the past and who is

intimately familiar with all of the requirements involved in a death penalty case,

both in terms of investigation, preparation, the interviewing of witnesses, the

conducting of the trial, all the way from jury selection through the penalty phase.

And I will do that if you ask me to.

“If you don’t ask me to, that’s fine. If you want to proceed with Mr.

Blankenship, knowing of the concern that I have with respect to his

experience . . . . And as Mr. Blankenship has readily acknowledged, his

background in criminal law is not extensive. He has had some victories, both in

San Diego County and this county, but none of those cases even approach the

gravity or seriousness of the case involving you.”

Defendant indicated that he understood. The court stated again, “Now,

with that in mind, is it your decision, at least at this point, to continue to proceed

with Mr. Blankenship representing you?” Defendant responded affirmatively.

24

The trial court vacated the impending trial date, electing to “take a wait-and-see

approach” and to monitor defense counsel’s progress.

ii. Further Hearings Indicating Blankenship’s Lack of

Preparedness, Defendant’s Affirmance of

Blankenship as Counsel of Choice, and the Trial

Court’s Efforts To Ensure Adequate Defense

At trial readiness conferences in March 2002, Blankenship’s lack of

preparedness again became evident. The prosecution had not received any defense

discovery requests with two weeks remaining before the new trial date.

Blankenship needed additional time to procure a ballistics expert, and he also had

not filed a Pitchess motion discussed several months before. Of most concern,

Blankenship had not yet obtained a psychological evaluation of defendant.

Despite Blankenship’s reassurance, the court determined it would have to

postpone the trial by several more weeks and dismiss the 183 jurors who had been

time-qualified during two days of jury selection.

The court expressed concern about potentially sentencing to death someone

whose trial counsel was unprepared and decided to delay the trial to make sure the

defense had sufficient time to prepare. It explained to Blankenship, “I admire

your zealousness and your desire to defend this man, . . . but I think you’re in over

your head here.”

Blankenship responded, “My position is that my tactical decisions through

the course of this trial regarding the protection of my client and the promotion and

preservation of the truth, those decisions that I’ve made, they may not be perfect

and they may be different than what you would do or different than what

[prosecutor] Soccio would do . . . .”

The court noted that the defense “probably should” have filed the following

motions: a motion attacking the makeup of the grand jury; a motion to challenge

the sufficiency of the grand jury testimony, particularly with respect to one of the

25

special circumstance allegations; and a motion for change of venue. Blankenship

responded that motions that a court would likely deny are “an exercise in futility.”

The prosecutor asked the court to again take a waiver from defendant

because of the “appearance of ineffective assistance” and asked the court to

appoint experienced counsel to consult with Blankenship and defendant.

The court asked defendant, “Mr. Woodruff, are you comfortable with the

way your case is being handled thus far?” Defendant responded, “Yes.” The

court determined it would not inquire of defendant at the length it had done

previously, stating: “Mr. Woodruff has made, in my estimation, a sound and

informed decision to continue on with counsel of his choice, and I cannot conclude

that there has been ineffective assistance at this point.”

The court concluded, “There’s no question in my mind that the

representation being provided thus far to Mr. Woodruff is zealous and, thus far,

within the bounds of the law.” The court stated further, “In examining the history

of this case, the Court feels that there may well be sound, tactical reasons behind

the failure to pursue certain motions, such as those I referred to earlier this

morning. . . . All of these, in my opinion, had such motions been brought they

would have been denied.

“And taking Mr. Blankenship at his word, he may very well have had a

sound, tactical reason and may have concluded legally . . . that such motions

would have been fruitless.” The court noted, however, that there was “no sound,

tactical” reason for failing to make a Pitchess motion and “strongly suggest[ed]”

that Blankenship do so. Blankenship agreed and the court set a hearing date.

Although Blankenship filed the Pitchess motion, the trial court found it to

be defective, and after providing several opportunities, denied the final motion for

failure to cure the defect. The court concluded that Blankenship’s performance,

26

while poor, did not rise to the level of “flagrant ineffective assistance,” but that if

it were to do so in the future, the court would not hesitate to remove Blankenship.

b. Analysis

i. No Error in Allowing Blankenship To Represent

Defendant

Defendant contends the trial court failed to intervene and remove

Blankenship when the prosecutor raised doubts about Blankenship’s competence

to provide adequate representation in defendant’s capital trial. The trial court did

not err.

The Sixth Amendment right to counsel guarantees a criminal defendant the

right to choose his own counsel when he does not need appointed counsel.

(United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144.) While a defendant

has a constitutional right to competent representation, he also has the right to

counsel of his choice so that he may defend himself in “ ‘whatever manner he

deems best.’ ” (Smith v. Superior Court, supra, 68 Cal.2d at p. 559.)

“California decisions in this area reflect a determination that respect for the

dignity of the individual shall be maintained within the context of enforcing the

criminal law, and that a reasonable accommodation of seemingly conflicting

values shall thereby be achieved. Thus, though it is clear that a defendant has no

absolute right to be represented by a particular attorney, still the courts should

make all reasonable efforts to ensure that a defendant financially able to retain an

attorney of his own choosing can be represented by that attorney.” (People v.

Crovedi (1966) 65 Cal.2d 199, 207, fn. omitted.) The erroneous deprivation of a

defendant’s right to counsel of his choice results in automatic reversal. (United

States v. Gonzalez-Lopez, supra, 548 U.S. at p. 150; People v. Ramirez (2006)

39 Cal.4th 398, 422.)

27

In People v. Ramirez, supra, 39 Cal.4th at pages 419 to 422, the defendant

contended that the trial court erred in granting his request for substitution of

counsel despite the court’s concerns that his two chosen counsel were unqualified

to try a capital case. Concluding there was no error, we explained that a trial court

can deny a defendant counsel of his choice only if it “ ‘ “will result in significant

prejudice to the defendant.” ’ ” (Id. at pp. 422-423.)

In Maxwell v. Superior Court (1982) 30 Cal.3d 606, 613, where the

question was under what circumstances a defendant could demand deficient

counsel, we concluded that “[w]hile … the right to chosen counsel is not absolute

[California decisions] limit severely the judge’s discretion to intrude on

defendant’s choice of counsel in order to eliminate potential conflicts, ensure

adequate representation, or serve judicial convenience.” We explained that while

a defendant has a constitutional guarantee to effective counsel, that effectiveness is

“linked closely to representation by counsel of choice. When clients and lawyers

lack rapport and mutual confidence the quality of representation may be so

undermined as to render it an empty formality.” (Ibid.; see Smith, supra,

68 Cal.2d at pp. 561 [the attorney-client relationship is “particularly essential”

when defending the client’s life].)

In Smith, the issue concerned whether a trial court could remove an

indigent defendant’s attorney based on “the judge’s subjective opinion that the

attorney [was] ‘incompetent’ . . . .” (Smith, supra, 68 Cal.2d at p. 549.) We

explained that “the constitutional guarantee of the defendant’s right to counsel

requires that his advocate . . . be free in all cases of the threat that he may be

summarily relieved as ‘incompetent’ by the very trial judge he is duty-bound to

attempt to convince of the rightness of his client’s cause.” (Id. at p. 562.) While

“it is the duty of the trial judge to protect the defendant’s right to a counsel who is

effective . . . in discharging that duty the judge must be on his guard neither to

28

infringe upon the defendant’s right to counsel of his choice, nor to compromise the

independence of the bar.” (Id. at p. 559.)

We explained that a trial court has several measures available “when it

appears to him that a defense counsel is making serious mistakes to his client’s

prejudice.” (Smith, supra, 68 Cal.2d at p. 560.) The “judge may intervene, at least

within reasonable limits,” such as by “controlling the scope of examination,

questioning witnesses himself, making appropriate suggestions as to the items or

order of proof, commenting on the evidence, admonishing or instructing the jury

on his own motion, or exercising any of his other inherent powers over the

conduct of the proceedings to insure that the defendant receives a fair trial.”

(Ibid.)

Nonetheless, “[w]hile we recognize that courts should exercise their power

to remove defense counsel with great circumspection,” a trial court has a duty to

remove counsel even over the defendant’s objection where other measures have

failed, in cases of “ ‘obviously deficient performance’ ” such as when counsel

refuses to participate in the trial. (People v. McKenzie (1983) 34 Cal.3d 616, 630.)

Here, the trial court relied on Smith in declining to relieve Blankenship.

The court took the approach endorsed in Smith, intervening when it observed that

Blankenship’s actions or omissions could potentially harm defendant. For

instance, the court provided guidance to Blankenship about applying for defense

funds and urged him to do so, and afforded repeated opportunities and instruction

on how to file a sufficient Pitchess motion. The court also delayed the trial for a

year through several continuances to allow Blankenship time to prepare. (Cf.

People v. Crovedi, supra, 65 Cal.2d at pp. 208-209 [court reasonably delayed trial

by several weeks to allow a defendant to keep his retained counsel and have time

to prepare].) As a result, Blankenship did retain a psychologist to examine

defendant and arranged for further testing to support the defense theory that

29

defendant had an intellectual disability and a brain injury. The court also

intervened at times during the trial, for example by admonishing the jury that it

was not to consider a witness’s opinion as to guilt when Blankenship elicited a

prosecution investigator’s opinion that defendant was guilty.

Given the court’s twin duties as outlined in Smith—to protect defendant’s

right to effective assistance as well as his right to chosen counsel (Smith, supra,

68 Cal.2d at pp. 558-562)—and given defendant’s repeated affirmance of

Blankenship as his choice of counsel, the court’s approach was reasonable.

Moreover, it is evident from the record that Blankenship never relinquished

his responsibility to represent defendant and instead actively litigated issues and

examined witnesses on defendant’s behalf throughout the trial. As Blankenship

explained at the September 2001 and March 2002 hearings, his approach was not

to rely on motions that he felt would telegraph the defense strategy, but instead to

try the case in front of the jury and allow it to determine the strength of the

evidence. Blankenship’s actions throughout the trial reflected his stated strategy

of presenting this case as a Riverside community issue involving minorities and

law enforcement. For example, during jury selection, Blankenship questioned

potential jurors about their sensitivity to racial injustice and their knowledge of the

Tyisha Miller shooting. Blankenship’s examination of defendant and Carr at trial

similarly demonstrated this approach by highlighting the family’s earlier

experiences with law enforcement as well as their familiarity with the Tyisha

Miller shooting.

Thus, Blankenship actively defended defendant with a strategy we cannot

say was unreasonable, given the evidence in the case and the events taking place

in the Riverside community at the time. “Different attorneys will pursue different

strategies with regard to investigation and discovery, development of the theory of

defense, selection of the jury, presentation of the witnesses, and style of witness

30

examination and jury argument.” (United States v. Gonzalez-Lopez, supra,

548 U.S. at p. 150.) We also note that Blankenship endeavored to work with the

court to meet its concerns and the court accepted his explanations as to his actions.

We cannot say Blankenship’s decisions rose to the level of “ ‘flagrant

circumstances of attorney misconduct or incompetence when all other judicial

controls have failed.’ ” (Maxwell v. Superior Court, supra, 30 Cal.3d at p. 615,

quoting Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678,

697.) Rather, Blankenship’s decisions fall into the realm of tactical choices by the

defense with which the court could not properly interfere. When Blankenship did

make mistakes, such as the failure to arrange for expert evaluations in a timely

manner, the trial court mitigated the harm by delaying the trial.

Defendant asserts the trial court was unaware it possessed the discretion to

remove Blankenship for incompetence. However, the court stated just the

opposite, acknowledging that “[t]he narrow circumstances in which removal may

occur are flagrant attorney misconduct or incompetent attorney, incapacity,

significant[] prejudice to the defendant, or serious circumstances that undermine

the integrity of the judicial process or orderly administration of judicial process.”

Aware of this discretion, however, the trial court concluded, “There’s no question

in my mind that the representation being provided thus far to Mr. Woodruff is

zealous and, thus far, within the bounds of the law.” At a later hearing, the court

said it would not hesitate to remove Blankenship if he reached a standard of

“flagrant ineffective assistance.”

The trial court’s “wait-and-see” approach, coupled with active intervention

when concerns arose, struck the right balance in protecting defendant’s dual rights

to effective assistance of counsel and to defend himself in “ ‘whatever manner he

deems best.’ ” (Smith, supra, 68 Cal.2d at p. 559.)

31

ii. The Inquiry into Defendant’s Choice of Counsel

was Sufficient

Defendant also challenges the court’s inquiry into his choice of

Blankenship as his counsel. Specifically, defendant contends that the trial judge

did not make adequate inquiry “into the defendant’s comprehension of his

constitutional rights and how defense counsel’s actions were jeopardizing them,”

and “did not actually ask Mr. Woodruff to waive his right to effective assistance.”

The trial court did not err.

“[T]the right to counsel can be waived only if such waiver is knowing,

intelligent and voluntary.” (People v. McKenzie, supra, 34 Cal.3d at p. 635.)

When posed with the claim that a defendant had “impliedly waived his right to

effective assistance of counsel,” we explained that “ ‘The record must show, or

there must be an allegation and evidence which show, that an accused was offered

counsel but intelligently and understandingly rejected the offer.’ ” (Id. at p. 636.)

On the question of when a defendant may demand deficient counsel, where the

issue concerns a conflict, we explained that when “the danger of proceeding with

chosen counsel has been disclosed generally to defendant, he may insist on

retaining his attorney[] if he waives the conflict knowingly and intelligently for

purposes of the criminal trial.” (Maxwell v. Superior Court, supra, 30 Cal.3d at

p. 619.) If “an adequate waiver of defendant’s effective-assistance rights cannot

be obtained on the record, the court must presume that he has not knowingly and

intelligently chosen to proceed with retained counsel. [Citation.] The court may

then protect the record and defendant’s right to effective assistance by requiring

counsel’s withdrawal.” (Id. at p. 620.)

At the September 2001 hearing, the trial court inquired of defendant

whether he wished to proceed with Blankenship as his attorney, urging him to

“consider very carefully your representation,” given the possibility of a death

32

sentence. The court sought to ensure that defendant was making an informed

decision to retain Blankenship by describing its concerns about Blankenship’s

limited experience and his failure to take certain actions in the case, and verifying

that defendant nonetheless wished to continue with Blankenship. The court

discussed its concerns about Blankenship’s failure to apply for defense funds

carefully and at length. Defendant participated in the discussion, offering

comments and asking questions when he did not understand, and the court

provided further clarification. The court also explained at length that he had the

right to an attorney at no cost and that the court would appoint a public defender

experienced in capital cases if defendant wished and verified that defendant

understood.4

Every time the court asked defendant whether he wanted to proceed with

Blankenship as his counsel, defendant responded affirmatively, even reassuring

the judge that Blankenship “must be the one to represent me” and obtaining

confirmation that the court would not later override defendant’s decision.

Defendant indicated that he understood the court’s concerns about Blankenship.

Defendant sought further assurance from the trial judge that the judge would

remain assigned to the case, finally telling the court, “Well, I’m satisfied.”

Thus, the court took the time to inform defendant of his right to counsel and

of its concerns regarding Blankenship’s lack of experience and lack of preparation,

and cautioned defendant to think carefully about his choice of counsel given the

serious consequences he faced. Given that the trial court did not find Blankenship

to be ineffective, defendant’s argument about the failure to take a “waiver” of

effective assistance is misplaced. In response to concerns the prosecution raised

4 A few days after defendant’s arrest, the court had advised defendant of his

right to an attorney. Defendant asked for and was appointed a public defender that

day.

33

regarding Blankenship, the court sought to affirmatively ensure that defendant was

making an informed decision in his choice of counsel, as was his right.

At the hearing in March 2002, when the court determined that Blankenship

was again unprepared for trial, the court asked and received an affirmative

response from defendant to the question, “Mr. Woodruff, are you comfortable with

the way your case is being handled thus far?” Concluding defendant had made “a

sound and informed decision to continue” with Blankenship, the court reasonably

elected not to question him to the extent it had at the September hearing; further

inquiry could have been viewed as interference with defendant’s right to counsel

of his choice. “We observed in Maxwell v. Superior Court[, supra,] 30 Cal.3d [at

p. 615,] . . . ‘[d]efendant’s confidence in his lawyer is vital to his defense. His

right to decide for himself who best can conduct the case must be respected

wherever feasible.’ ” (People v. Ramirez, supra, 39 Cal.4th at p. 422.)

The court again concluded Blankenship had not provided ineffective

assistance “at this point.” It noted areas where it had concerns about

Blankenship’s representation of defendant, but also found that Blankenship had

“sound, tactical reasons” for his decision not to file or pursue certain motions.

Thus, the circumstance did not call for taking a “waiver” of effective assistance of

counsel.

Further, defendant’s repeated affirmative choice of Blankenship as his trial

counsel has not prevented him from raising ineffective assistance in support of

various claims in his appeal. “A defendant whose request to substitute counsel is

granted cannot complain on appeal that the trial court should have denied that

request. The defendant’s only contention on appeal in such circumstances can be

that he or she was denied effective assistance of counsel.” (People v. Ramirez,

supra, 39 Cal.4th at p. 423; see Wheat v. United States (1988) 486 U.S. 153, 162

[“we note . . . the apparent willingness of Courts of Appeals to entertain

34

ineffective-assistance claims from defendants who have specifically waived the

right to conflict-free counsel”].)

Defendant further contends that the court erred in making no attempt to

determine his “mental ability to knowingly and intelligently waive his rights . . . .”

However, as noted in section II.A., ante, the record does not indicate that

defendant was incompetent to stand trial, and nothing in his colloquy with the

court suggests he lacked the mental capacity to make an informed decision to

continue with Blankenship.

Therefore, the trial court’s inquiry into defendant’s knowledge of his right

to counsel and his decision to proceed with his chosen counsel did not fall short of

any requirement in the circumstances.

2. Availability of Appointment of Cocounsel

As explained in Keenan v. Superior Court (1982) 31 Cal.3d 424, 429, a

trial court has discretion under section 987 to appoint cocounsel to the defense in a

capital case. Defendant claims the trial court abused its discretion when it “misled

the inexperienced defense attorney into thinking he had a high threshold for

obtaining” cocounsel. Defendant also contends Blankenship was prejudicially

ineffective in failing to request the appointment of second counsel.

a. Factual Background

At a hearing in March 2001, the prosecution inquired whether Blankenship

would request appointment of Keenan counsel since there were indications that

defendant did not have funds for a private attorney. The court stated that it would

“consider anything you wish to bring to my attention.” Keenan counsel was a

“novel” concept to Blankenship. The court explained, “I’m sure once you conduct

your evaluation you’ll discover that the justification for appointing second

counsel—or as it’s referred to, Keenan counsel, is limited to some rather narrowly

35

defined situations, particularly regarding the complexity of the case, the types of

issues that will be raised during the course of the case, and various related factors.

So once you’ve had a chance to evaluate that, by all means bring it to my

attention.”

When Blankenship raised the prospect of Keenan counsel at the September

2001 hearing, the trial court noted uncertainty about whether it could appoint

second counsel in the current situation, stating: “Well, there’s a question in my

mind about that. Now, Keenan counsel, in certain circumstances, can be

appointed, assuming the appropriate procedures regarding the request for second

counsel are complied with. But . . . the Keenan case itself involved appointed first

counsel, and in virtually every situation I have seen that is the case. Appointed

counsel makes the request for a second appointed counsel and, you know, that’s

how it goes. . . . [M]y question to you, . . . very simply stated, is whether the

Keenan case allows for appointment of second counsel in a situation where first

counsel is not appointed but rather retained.” The court also observed that it might

become necessary for Blankenship to brief this question.

Blankenship responded that he had received a lot of inquiries about offers

to assist the defense, so he felt “certain” he would be able to bring in another

attorney to serve pro bono.

b. Analysis

i. The Trial Court Did Not Discourage Defense

Counsel from Seeking Appointment of Cocounsel

Section 987, subdivision (d), provides that in a capital case, a trial court

“may appoint an additional attorney as a cocounsel upon a written request of the

first attorney appointed. The request shall be supported by an affidavit of the first

attorney setting forth in detail the reasons why a second attorney should be

appointed. . . . The court shall appoint a second attorney when it is convinced by

36

the reasons stated in the affidavit that the appointment is necessary to provide the

defendant with effective representation. If the request is denied, the court shall

state on the record its reasons for denial of the request.” “The initial burden . . . is

on the defendant to present a specific factual showing as to why the appointment

of a second attorney is necessary to his defense against the capital charges.”

(People v. Lucky (1988) 45 Cal.3d 259, 279.) “The appointment of a second

counsel in a capital case is not an absolute right protected by either the state or the

federal Constitution.” (People v. Clark (1993) 5 Cal.4th 950, 997, fn. 22.) We

review a decision denying the appointment of second counsel for abuse of

discretion. (People v. Verdugo (2010) 50 Cal.4th 263, 278.)

Defendant asserts the trial court “discouraged” Blankenship from seeking

appointment of second counsel. On the contrary, the court stated it would

“consider anything you wish to bring to my attention,” with regard to a Keenan

appointment. Moreover, in response to Blankenship’s comment that Keenan

counsel was a “novel” concept to him, the court helpfully responded that once

Blankenship had a chance to consider the matter, he would learn the requirements

for the appointment of second counsel, stating generally the criteria to be “the

complexity of the case, the types of issues that will be raised during the course of

the case, and various related factors.” (See Keenan v. Superior Court, supra,

31 Cal.3d at p. 432 [When assessing the need for another attorney, the court “must

focus on the complexity of the issues involved, keeping in mind the critical role

that pretrial preparation may play in the eventual outcome of the prosecution.”].)

Therefore, rather than discouraging Blankenship from applying for cocounsel, the

court seemed to encourage him.

Further, the statute providing for the appointment of second counsel states

that it may be available “upon a written request of the first attorney appointed.”

(§ 987, subd. (d).) Thus, the trial court reasonably questioned whether it could

37

appoint second counsel where defendant had privately retained his attorney and

simply suggested to Blankenship that he might need to brief the issue. (See

People v. Verdugo, supra, 50 Cal.4th at p. 278 [finding no error in the trial court’s

denial of an application for appointment of second counsel, “[e]ven assuming

without deciding” that the court could appoint second counsel where the first

counsel was privately retained]; People v. Carrasco (2014) 59 Cal.4th 924, 954

[noting that section 987 states that cocounsel can be appointed on the request of

the “first attorney appointed”].)

Moreover, since defendant never filed an application for cocounsel, as

section 987 requires, there is no decision to review. “ ‘[T]he trial court lacks any

specific authority to appoint a second attorney in the absence of a request from the

first attorney and the making of a factual record sufficient to support such an

appointment. To the extent that defendant’s argument is that the trial courts have

inherent power to appoint a second attorney, no authority supporting that

proposition is cited.’ ” (People v. Cunningham (2015) 61 Cal.4th 609, 667.)

Assuming, arguendo, that the court discouraged defense counsel, counsel still had

to apply for cocounsel to preserve the court’s decision for review.

ii. Defense Counsel Was Not Ineffective in Failing To

Request Cocounsel.

Defendant also contends Blankenship rendered ineffective assistance by

failing to apply for cocounsel.

“[A] defendant claiming a violation of the federal constitutional right to

effective assistance of counsel must satisfy a two-pronged showing: that counsel’s

performance was deficient, and that the defendant was prejudiced, that is, there is

a reasonable probability the outcome would have been different were it not for the

deficient performance.” (People v. Alexander (2010) 49 Cal.4th 846, 888, citing

Strickland v. Washington (1984) 466 U.S. 668, 687.) Rarely is ineffective

38

assistance of counsel established on appeal since the record usually sheds no light

on counsel’s reasons for action or inaction. (E.g., People v. Mendoza Tello (1997)

15 Cal.4th 264, 265-268.)

The record does not show that Blankenship provided ineffective assistance

in failing to request appointment of second counsel. Defendant contends “it would

have been an abuse of discretion [for the court] not to appoint second counsel for

Mr. Woodruff because of the inexperience of defense counsel, who was totally

unfamiliar with capital trial procedure . . . .” However, it was defendant’s

repeated choice to remain with Blankenship despite the court’s warning about

Blankenship’s lack of experience. Thus, given defendant’s choice, Blankenship’s

lack of experience did not provide grounds for appointment of second counsel.

(See People v. Lancaster (2007) 41 Cal.4th 50, 62-64, 71-73 [rejecting capital

defendant’s claim of abuse of discretion in denying appointment of second counsel

where counsel retained by defendant and serving pro bono was inexperienced and

unprepared].)

Defendant also contends it would have been an abuse of discretion not to

appoint second counsel given “the complexity of the issues, which included

scientific testimony to mental retardation5 and brain injury, as well as other

criminal acts alleged as aggravating factors at the penalty phase.” On the contrary,

the trial court would have been within its discretion to deny an application for

second counsel based on this bare assertion of complexity. “An ‘abstract

assertion’ regarding the burden on defense counsel ‘cannot be used as a substitute

for a showing of genuine need.’ ” (People v. Staten (2000) 24 Cal.4th 434, 447;

5 This opinion uses the term “intellectually disabled” in accordance with

current terminology except when quoting from the source. (See Stats. 2012, ch.

448 [revising various statutes to replace the term “mental retardation” with the

term “intellectual disability”].)

39

see People v. Jackson (1980) 28 Cal.3d 264, 287 [no abuse of discretion where

denied application for cocounsel made no “factual assertions,” instead relying

generally on the “ ‘circumstances surrounding the case’ ”]; People v. Verdugo,

supra, 50 Cal.4th at p. 278 [application for second counsel insufficient because

“unlike in Keenan, on which defendant relies, counsel did not state that he needed

to interview more than 100 witnesses, that the case involved complicated scientific

and psychiatric testimony, that trial would occur soon after counsel was appointed,

or that other criminal cases were pending against defendant and that the

prosecution intended to rely on evidence related to those cases here”].)

“In any event, because the claim is presented as one of ineffective

assistance of counsel, relief depends solely on whether counsel’s error, if any, may

have affected the outcome.” (People v. Webster (1991) 54 Cal.3d 411, 437.)

Defendant does not explain how any failure to obtain cocounsel prejudiced him,

only summarily stating, “In failing to make the request anyway, defense counsel

provided prejudicially ineffective assistance.” Regardless, as discussed in section

II.B.1., ante, the trial court monitored the case and protected defendant’s rights,

for example, by delaying the trial by several months so that Blankenship would

have sufficient time to prepare. The record does not suggest that a more favorable

result was reasonably probable but for the failure to request cocounsel.

3. Adequacy of Defendant’s Waivers of Right to Conflict-free

Counsel

Finally, defendant contends that the trial court erred in “solicit[ing] three

pretrial waivers of [the] right to unconflicted counsel without showing defendant

made [a] knowing, intelligent and voluntary choice,” and that Blankenship

violated his duty of loyalty. Defendant contends that Blankenship’s conflicts

“adversely affected” his performance. (Cuyler v. Sullivan (1980) 446 U.S. 335,

348.) Defendant fails to show that Blankenship’s representation was ineffective.

40

a. Factual Background

Defendant waived his right to conflict-free counsel on three occasions.

First, defendant waived the right with respect to Blankenship’s recent

representation of his mother, Carr, on charges of misdemeanor disturbing the

peace and resisting arrest stemming from the same event. The court explained to

defendant that “it is possible . . . some evidence that may have been produced

during the course of [Carr’s] trial . . . would be in conflict, or against your best

interests.” Defendant indicated he understood. The court explained further that

defendant would have to waive any conflict of interest in Blankenship’s

representation of his mother. Defendant indicated he was willing to waive the

potential conflict and that he was “satisfied with Blankenship.”

The second and third waivers concerned Blankenship’s former

representation of defendant’s cousin, Dennis Smith, whom the prosecution

expected to testify at the penalty phase and potentially at the guilt phase to

impeach defendant. Blankenship had represented Smith on an unrelated matter

and stated he had no confidential information that would benefit defendant. The

court surmised that conflict was unlikely but sought to protect both Smith’s and

defendant’s rights. Noting that Smith’s testimony would be incriminating to

defendant and would potentially result in an aggravated sentence, the court

explained at length to defendant that Blankenship would have limited ability to

impeach Smith with Smith’s prior criminal conduct because of Smith’s right to

attorney-client confidentiality. The court explained, “If someone else was

representing you, someone who had absolutely no connection with Mr. Smith over

here, . . . that attorney . . . [could] inquire to his heart’s content about information

that was exchanged between Mr. Smith and someone else, . . . without fear of any

conflict of interest, without fear of any attorney-client privilege.” Defendant

41

indicated that he understood and nonetheless wished to proceed with Blankenship,

and on both occasions, waived any potential conflict of interest.

The prosecution expected Smith to testify at the penalty phase about an

earlier incident at a liquor store, in which he would implicate defendant in a

shooting. Blankenship had no confidential information about the incident. The

court said that the defense could question Smith about whether he had had a felony

conviction involving moral turpitude but would disallow inquiry into the

underlying facts of the conviction.

b. Analysis

A defendant’s Sixth Amendment guarantee to effective assistance of

counsel includes the right to counsel free from conflicts of interest. (Wood v.

Georgia (1981) 450 U.S. 261, 271; People v. Doolin (2009) 45 Cal.4th 390, 411.)

“Conflicts of interest broadly embrace all situations in which an attorney’s loyalty

to, or efforts on behalf of, a client are threatened by his responsibilities to another

client . . . .” (People v. Bonin (1989) 47 Cal.3d 808, 835, citing ABA Model Rules

Prof. Conduct, rule 1.7 and com. thereto.) “Conflicts may also arise in situations

in which an attorney represents a defendant in a criminal matter and currently has

or formerly had an attorney-client relationship with a person who is a witness in

that matter.” (People v. Bonin, supra, 47 Cal.3d at p. 835.)

Assuming without deciding that Blankenship had a conflict of interest that

defendant did not validly waive, we do not find that his representation was

ineffective. A claim of ineffective assistance of counsel requires a defendant to

establish that counsel’s performance was deficient and that absent those

deficiencies it is reasonably probable the outcome would have been more

favorable to him. “ ‘Hence, to obtain reversal of a criminal verdict, the defendant

must demonstrate that (1) counsel labored under an actual conflict of interest that

42

adversely affected counsel's performance, and (2) absent counsel's deficiencies

arising from the conflict, it is reasonably probable the result of the proceeding

would have been different.’ ” (People v. Rices (2017) 4 Cal.5th 49, 65.)

“Determining ‘whether counsel's performance was “adversely affected” . . .

“requires an inquiry into whether counsel ‘pulled his punches,’ i.e., whether

counsel failed to represent defendant as vigorously as he might have, had there

been no conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by

the record. But where a conflict of interest causes an attorney not to do

something, the record may not reflect such an omission. We must therefore

examine the record to determine (i) whether arguments or actions omitted would

likely have been made by counsel who did not have a conflict of interest, and (ii)

whether there may have been a tactical reason (other than the asserted conflict of

interest) that might have caused any such omission.” [Citation.]’ ” (People v.

Rices, supra, 4 Cal.5th at p. 65.)

Here, the record does not indicate that Blankenship “pulled his punches” in

questioning either defendant’s mother or his cousin. Although called as a

prosecution witness, Carr’s testimony supported the defense’s case that the family

was afraid and distrustful of the police and that defendant was afraid the police

were hurting his mother that day. Blankenship cross-examined Carr thoroughly on

various topics, including earlier encounters with the police, her knowledge of the

Tyisha Miller shooting, her fear of the police, and her recollection of the events

that day, including her perception that Baker appeared angry and had aimed a gun

at Claude. Blankenship asked her repeatedly about whether she was screaming

and crying and afraid, which would have supported defendant’s testimony that he

reacted because he heard his mother screaming. Carr’s testimony was therefore

helpful to the defense, and Blankenship would not have needed to impeach Carr

with any confidential information.

43

Smith testified briefly at the penalty phase about the liquor store shooting

but, contrary to the prosecution’s expectation, he minimized defendant’s

involvement, stating that he did not see defendant with a gun. Thus, Blankenship

likely realized it was not in defendant’s interest to impeach Smith, since his

testimony indicated defendant had not been involved in the shooting. Suggesting

that Smith had a tendency for untruthfulness would have cast doubt on his

testimony that defendant was not involved. Blankenship stated in his penalty

phase closing argument that the prosecution’s evidence at most implicated

defendant as being present at the liquor store incident, which indicates his strategy

was to use Smith’s testimony at face value rather than to impeach it. Thus, there is

nothing to suggest that Blankenship “pulled his punches” with respect to either

witness.

Because Blankenship’s performance was not deficient, we need not reach

the second prong of the Strickland test, i.e., whether counsel’s performance

affected the outcome. Defendant offers no argument supporting the claim that

Blankenship’s deficient performance impacted the guilt or penalty verdicts.

Finally, defendant asserts that Blankenship labored under actual conflicts

with respect to defendant’s six-year-old daughter as well as his brother Claude

Carr, as evidenced by comments Blankenship made about the possibility of

sparing defendant’s daughter from testifying as a prosecution witness and about

potentially merging defendant’s trial with Claude’s. An attorney labors under an

actual conflict of interest when he “fail[s] to represent defendant as vigorously as

he might have, had there been no conflict.” (People v. Cox (2003) 30 Cal.4th 916,

948.) Based on these brief inquiries, we discern no potential for conflict.

Blankenship did not represent defendant’s daughter or Claude. Blankenship may

have had tactical reasons for his queries or may have been responding to an

instruction from defendant to spare his daughter the trauma of testifying.

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C. Jury Selection Issues

1. Exclusion of Prospective Juror Based on Written Questionnaire

Defendant contends the trial court, over defense objection, erroneously

excused for cause two prospective jurors, W.C. and D.K., based solely on their

written responses to questions about their views on capital punishment. We

conclude the trial court erred in excusing D.K. based on his questionnaire

responses, requiring reversal of the penalty verdict. We thus need not reach

defendant’s claim regarding W.C.

The prosecution challenged for cause prospective juror D.K. based on his

responses to the questionnaire. The defense would not stipulate to his removal.

The trial court denied the prosecution’s challenge, explaining, “He’s pretty strong

here. He doesn’t believe in the death penalty. He rates himself a one. He does

state in 55-C he would consider all the evidence. However, the reason I am not

gonna grant your challenge at this point is his response to 53-C where he says it

would not—Because he’s against the death penalty, his opinion would not make it

difficult to vote for the death penalty. He would follow the law. So, I think that

needs to be explored.”

On further argument by the prosecutor, the trial court responded, “But what

harm what do we lose if he comes in here and you question him further on this,

and if his answers don’t change I grant the challenge for cause?” The prosecution

articulated the suspicion that the reason for the court’s refusal to grant the

challenge as to D.K. was because he was African-American. The court had

previously stated concern “about the relatively small number of African-

Americans here.”

Regarding his general feelings about the death penalty, D.K. wrote in his

questionnaire, “I don’t believe in death penalty,” and on a scale of 1 to 10, circled

1, which corresponded to being “strongly against” the death penalty. (Circling 10

45

indicated being “strongly in favor of the death penalty.”) D.K. explained, “Men

are equals only God can make those choices.” However, D.K. checked “no” to the

question whether his opinion would make it difficult to vote for the death penalty

regardless of the evidence, explaining in his own words, “I would followed the

law.” D.K. responded “none” to the questions asking what purpose he thought the

death penalty served and what impressions he had of life in prison without parole

as a punishment for murder. On question 55, which asked whether he would

“ALWAYS” vote for the death penalty, or “ALWAYS” vote for life without

parole, or consider all the evidence and instructions and impose the penalty he

personally felt appropriate, D.K. checked the last response.6

The prosecution later filed a written motion asking the court to reconsider

its rulings denying the prosecutor’s request to remove three prospective jurors for

cause, including D.K., based on their written responses, reiterating the concern

that the court’s decision was based in part on the impermissible factor of race.

6 The full question read as follows: “It is important that you have the ability

to approach this case with an open mind and a willingness to fairly consider

whatever evidence is presented as opposed to having such strongly held opinions

that you would be unable to fairly consider all the evidence presented during the

penalty phase. [¶] There are no circumstances under which a jury is instructed by

the court that they must return a verdict of death. No matter what the evidence

shows, the jury is always given the option in a penalty phase of choosing life

without the possibility of parole. Assuming a defendant was convicted of a special

circumstance murder, would you:

__ a. No matter what the evidence was, ALWAYS vote for the death penalty.

__ b. No matter what the evidence was, ALWAYS vote for life without possibility

of parole.

__ c. I would consider all of the evidence and the jury instructions as provided by

the court and impose the penalty I personally feel is appropriate.”

46

At the hearing on the motion, the defense asserted that the prosecution

would have “plenty of opportunity during voir dire to determine whether or not the

answers, indeed, were trustworthy,” and that “the word ‘believe’ and all those

things are talked about in a vacuum. They are talked about in advance of hearing

and seeing evidence. They are—they are certainly not bright lines that would

deprive anyone of the right to serve on a jury.” The defense explained that it

might advance a Wheeler motion based in part on the prosecution’s challenges.7

The prosecution acknowledged that the defense was correct about the voir dire

process but that the court had not used the same standard in excusing for cause

prospective jurors of different races.

The trial court granted the motion as to W.C. and D.K., explaining it had

reconsidered the responses and determined that “there is not even a theoretical

possibility of evidence that would allow them to vote for the death penalty . . . .”

The next day, the defense added that the prosecution motion did not include

the information that D.K. had written in his questionnaire that he would follow the

law. The court explained that D.K.’s “statements otherwise in the questionnaire

make it clear to me . . . that there was no reasonable possibility he would vote for

the death penalty if placed in the position of having to do so.”

A prospective juror may be excused for cause due to that juror’s views on

the death penalty only when those views 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

be dismissed based on written questionnaire responses alone if the responses leave

no doubt that their views on capital punishment would prevent or substantially

impair the performance of their duties in accordance with the court’s instructions

7 People v. Wheeler (1978) 22 Cal.3d 258; see Batson v. Kentucky (1986)

479 U.S. 79.

47

and the jurors’ oath. [Citation.] By contrast, if a juror’s questionnaire responses

are inconsistent and do not clearly reveal an inability to serve, the court may not

grant a cause challenge without further questioning to clarify the juror’s views.’ ”

(People v. Covarrubias (2016) 1 Cal.5th 838, 863.)

“When the trial court’s assessment of a prospective juror’s capacity to serve

is based at least in part on the juror’s tone, demeanor, or other elements that

cannot be reflected in the written record, its ruling is owed deference by reviewing

courts. [Citation.] But no such deference is warranted when a trial court’s ruling

on a for-cause challenge is based solely on the prospective jurors’ answers to a

written questionnaire. [Citation.] In those circumstances, we review de novo the

trial court’s dismissal of the prospective juror for cause.” (People v. Zaragoza

(2016) 1 Cal.5th 21, 37.)

“[A] prospective juror may not be excluded for cause simply because his or

her conscientious views relating to the death penalty would lead the juror to

impose a higher threshold before concluding that the death penalty is appropriate

or because such views would make it very difficult for the juror ever to impose the

death penalty. Because the California death penalty sentencing process

contemplates that jurors will take into account their own values in determining

whether aggravating factors outweigh mitigating factors such that the death

penalty is warranted, the circumstance that a juror’s conscientious opinions or

beliefs concerning the death penalty would make it very difficult for the juror ever

to impose the death penalty is not equivalent to a determination that such beliefs

will ‘substantially impair the performance of his [or her] duties as a juror’ . . . .”

(People v. Stewart (2004) 33 Cal.4th 425, 447.)

Even if a juror checked the box indicating that it would be “very difficult”

for him or her to impose the death penalty, the juror might nonetheless, “in

response to brief follow-up questioning, persuasively demonstrate an ability to put

48

aside personal reservations, properly weigh and consider the aggravating and

mitigating evidence, and make that very difficult determination concerning the

appropriateness of a death sentence. Such a prospective juror would not be

substantially impaired in performing his or her duties as a juror.” (People v.

Stewart, supra, 33 Cal.4th at p. 447.)

Reviewing the decision to remove D.K. independently, we conclude the

trial court erred in sustaining the challenge for cause based on the juror’s written

questionnaire responses. Simply because he did not “believe” in the death penalty,

it does not follow that D.K. would have been unable to “put aside personal

reservations, properly weigh and consider the aggravating and mitigating

evidence, and make that very difficult determination concerning the

appropriateness of a death sentence.” (People v. Stewart, supra, 33 Cal.4th at

p. 447.)

Despite his beliefs, D.K., in response to question 55, which asked whether

he would always vote for the death penalty, always vote for life without parole, or

consider all the evidence and instruction and impose the penalty he felt

appropriate, chose the third option. Additionally, he responded “yes” to the

question whether, if the judge gave an instruction on the law that differed from his

beliefs or opinions, he would follow the law as instructed by the judge. D.K.’s

responses thus “did not clearly demonstrate that his death penalty views would

prevent or substantially impair the performance of his duties as a capital juror.”

(People v. Covarrubias, supra, 1 Cal.5th at p. 866.)

D.K.’s responses provide little ambiguity as to his ability to set aside his

beliefs and follow the law. In response to the question whether his beliefs (which

included that “only God can make those choices”) would make it difficult to vote

for the death penalty, D.K. responded “No,” explaining, “I would follow[] the

law.” Thus, D.K.’s written response did not support the trial court’s conclusion.

49

“Those who firmly oppose the death penalty may nevertheless serve as jurors in a

capital case as long as they state clearly that they are willing to temporarily set

aside their own beliefs and follow the law.” (People v. Avila (2006) 38 Cal.4th

491, 529.) Here, in his own words, D.K. expressly stated that he would “follow[]

the law.” These views, including the pledge to follow the law, do not demonstrate

a substantial impairment in his ability to serve as a juror.

The parties could have, and should have, examined D.K.’s responses

further through voir dire. As the trial court noted in its initial decision to deny the

challenge for cause, D.K.’s response that he would follow the law “need[ed] to be

explored” and there was nothing to be lost by questioning him in voir dire.

“We simply do not know how [this] potential juror[] would have responded

to appropriate clarifying questions posed to [him] by the trial court. Had the trial

court conducted a follow-up examination of [D.K.] and thereafter determined (in

light of the questionnaire responses, oral responses, and its own assessment of

demeanor and credibility) that the prospective juror’s views would substantially

impair the performance of his . . . duties as a juror in this case, the court’s

determination would have been entitled to deference.” (People v. Stewart, supra,

33 Cal.4th at pp. 450-451.)

“[U]nder existing United States Supreme Court precedent, the erroneous

excusal of a prospective juror for cause based on that person’s views concerning

the death penalty automatically compels the reversal of the penalty phase without

any inquiry as to whether the error actually prejudiced defendant’s penalty

determination.” (People v. Riccardi (2012) 54 Cal.4th 758, 783, citing Gray v.

Mississippi (1987) 481 U.S. 648.) Accordingly, “[u]nder compulsion of Gray, we

reverse defendant’s penalty phase verdict.” (Riccardi, at p. 783)

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2. Assertedly Biased Juror

We address defendant’s remaining claims of error concerning jury selection

since they may affect the validity of the guilt verdict. The court seated Juror No. 3

over the prosecutor’s challenge for cause. Based on Juror No. 3’s responses in his

written questionnaire and in voir dire, defendant asserts that the juror was biased,

and thus the trial court erred in seating him and defense counsel was ineffective

for failing to make a for-cause challenge and instead opposing it. Regardless of

how defendant frames the claim, we find no error.8

Juror No. 3, a 31-year-old African-American man, stated in his jury

questionnaire that the nature of the charges would make it “[d]ifficult to be fair”

because his mother and uncle were peace officers. However, he stated that he

would not credit the testimony of a witness simply because the witness is a law

enforcement officer. Juror No. 3 stated he would follow the law where it differed

from his opinions and would require the prosecutor to prove guilt beyond a

reasonable doubt. In his other responses, Juror No. 3 indicated he could listen to

fellow jurors and receive the benefit of their thinking. Juror No. 3, a former

Marine, had grown up in Alabama.

Both parties questioned Juror No. 3 at voir dire. The juror explained that

his mother’s status as a correctional officer, and the subject matter of the case,

would cause him to “be strongly on the side of [defendant] being guilty.”

However, he stated he would “evaluate options before making conclusions,” and

affirmed his duty to be “open-minded and listen[] to all the evidence.” The juror

stated more than once that he would “try to be fair and impartial” but expressed

uncertainty about his ability to do so. Defense counsel briefly questioned Juror

No. 3 about growing up in Alabama.

8 Because we conclude there is reversible Witt error, we do not review

defendant’s contention that Juror No. 3 had penalty bias.

51

The prosecution “hesitatingly” submitted Juror No. 3 for challenge to “see

if the court thought he could or could not be fair” to the defense. Defense counsel

opposed the challenge, citing the juror’s demeanor and race, and concluding for

“tactical reasons” that the juror was “perfectly accessible to my opinion, and he

has not answered in a way that he could not be fair.” The trial court denied the

challenge, noting it was not considering the juror’s race, and concluding Juror No.

3’s responses, “albeit somewhat hesitatingly, indicated that he would do his best to

be fair in both the guilt and penalty phases.”

Defendant does not meet his burden of demonstrating that his counsel’s

performance was deficient. Given the defense strategy of showing that defendant

and his family distrusted the police due to their experiences growing up in

Mississippi during the civil rights movement, it would have been reasonable for

defense counsel to conclude that Juror No. 3, who grew up in Alabama, would

have been “accessible,” as counsel described, and open to hearing defendant’s side

of the case. “[A] reviewing court will reverse a conviction based on ineffective

assistance of counsel on direct appeal only if there is affirmative evidence that

counsel had ‘ “ ‘no rational tactical purpose’ ” ’ for an action or omission.”

(People v. Mickel, supra, 2 Cal.5th at p. 198.)

Further, the record supports the trial court’s finding that Juror No. 3 could

be impartial. Although the juror expressed concern about his ability to be fair

because he had relatives in law enforcement, he repeatedly stated that he would try

to be fair and impartial. We credit the trial court’s conclusion, based on observing

the juror firsthand, that he had the ability to serve on defendant’s trial. “ ‘ “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

52

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, 123.) Defendant thus cannot show prejudice or that

the court erred.

Therefore, defendant’s claims fail.

3. Denial of Two Batson/Wheeler Motions

Defendant, an African-American, contends that the trial court erroneously

denied two motions challenging the prosecution’s peremptory challenges to three

African-American prospective jurors. (Batson v. Kentucky, supra, 476 U.S. 79;

People v. Wheeler, supra, 22 Cal.3d 258.) On the first motion, the court found no

prima facie showing of discrimination in the removal of L.T. and S.J. Defendant

disputes the finding with respect to S.J. On the second motion, challenging the

removal of M.M., defendant contests the court’s conclusion that the prosecutor’s

proffered race-neutral reasons were credible. We find no error.

a. First Motion

i. Background

When the court heard defendant’s first motion, 36 randomly selected jurors

had been questioned. The court excused seven jurors for hardship or cause,

leaving 29 jurors available for peremptory challenge, including three African-

Americans, L.T., S.J., and Juror No. 3. The prosecutor exercised nine peremptory

challenges; he used his first and sixth challenges on jurors L.T. and S.J.,

respectively. At one point, the prosecutor accepted the jury as composed with

Juror No. 3.

Before voir dire, prospective jurors filled out a 20-page questionnaire on

their views and background. Prospective juror S.J. felt “fine” about law

enforcement and the judicial system. He responded affirmatively to several

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questions about whether he could be a fair and impartial juror regarding race.

There was nothing about the charges that would affect his ability to be fair and

impartial, he would follow the law as instructed, he would not credit more or less a

police officer witness, he could discuss his thinking about the case and listen to

other jurors, and he could be fair to both sides because he had an “open mind.”

S.J. had “no feeling” about the death penalty, circled 6 out of 10 on whether he

was in favor of it, and explained that its purpose was “an eye for an eye.”

During defense voir dire, when asked if he wanted to sit on this jury, S.J.

responded, “I look at it as, if I have to, I have to.” When asked again if he were

willing to sit on the jury and be fair, S.J. replied, “Yes, if I have to.” In response

to the prosecutor’s question about whether he was a “very quiet man,” S.J. said

“sometimes.” He indicated he was not a “very private man.” When the prosecutor

pressed him about having no opinion on the death penalty, S.J. explained, “That

means that I believe that in some cases a death penalty is justified and in some

case I have to look at the case.” S.J. affirmed that the death penalty could be used

sometimes, stating, “Yeah, I would think I was more neutral. If I have to make a

decision, I can make that decision.” S.J. indicated he was not “easily fooled.”

The trial court found the defense had failed to make a prima facie showing

that the prosecutor had exercised peremptory challenges on the basis of race,

commenting that S.J.’s “initial remarks [were that jury duty] is like having a root

canal. He clearly didn’t want to be here. Would be here if forced to stay, but his

whole attitude and reluctance, the air about him suggests that a peremptory

challenge was appropriate.” However, the court appears to have at least partially

confused S.J. with another prospective juror, D.B., who made the comment

likening jury duty to a root canal. The court also noted that the prosecutor had

accepted the panel when it included Juror No. 3.

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Before the jury was sworn, the prosecutor peremptorily challenged a total

of 17 out of 47 jurors available for challenge after for cause and hardship excusals,

including challenges to three of four African-American jurors (L.T., S.J., M.M.,

Juror No. 3). In alternate jury selection, the prosecutor peremptorily challenged

three out of 13 jurors, including a challenge to one of two available African-

American jurors (challenging juror D.B. and accepting Alternate Juror No. 3).

ii. Analysis

“ ‘Both the federal and state Constitutions prohibit any advocate’s use of

peremptory challenges to exclude prospective jurors based on race. [Citations.]

Doing so violates both the equal protection clause of the United States

Constitution and the right to trial by a jury drawn from a representative cross-

section of the community under article I, section 16 of the California

Constitution.’ [Citation.]

“ ‘There is a rebuttable presumption that a peremptory challenge is being

exercised properly, and the burden is on the opposing party to demonstrate

impermissible discrimination.’ [Citation.] ‘A three-step procedure applies at trial

when a defendant alleges discriminatory use of peremptory challenges. First, the

defendant must make a prima facie showing that the prosecution exercised a

challenge based on impermissible criteria. Second, if the trial court finds a prima

facie case, then the prosecution must offer nondiscriminatory reasons for the

challenge. Third, the trial court must determine whether the prosecution’s offered

justification is credible and whether, in light of all relevant circumstances, the

defendant has shown purposeful race discrimination. [Citation.] “The ultimate

burden of persuasion regarding [discriminatory] motivation rests with, and never

shifts from, the [defendant].” ’ ” (People v. Parker (2017) 2 Cal.5th 1184, 1210-

1211.)

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“Because the trial predated the United States Supreme Court’s decision in

Johnson v. California (2005) 545 U.S. 162, and exactly what standard the lower

court used in finding no prima facie case is unclear, ‘we review the record

independently to “apply the high court’s standard and resolve the legal question

whether the record supports an inference that the prosecutor excused a juror” on a

prohibited discriminatory basis.’ ” (People v. Parker, supra, 2 Cal.5th at

pp. 1211-1212.)

“Although we examine the entire record when conducting our

review, certain types of evidence are especially relevant. These include whether a

party has struck most or all of the members of the venire from an identified group,

whether a party has used a disproportionate number of strikes against members of

that group, whether the party has engaged those prospective jurors in only

desultory voir dire, whether the defendant is a member of that group, and whether

the victim is a member of the group to which a majority of remaining jurors

belong. [Citation.] We may also consider nondiscriminatory reasons for the

peremptory strike that ‘necessarily dispel any inference of bias,’ so long as those

reasons are apparent from and clearly established in the record.” (People v.

Reed (2018) 4 Cal.5th 989, 999-1000.)

Defendant asserted in each of his Wheeler motions that the prosecutor’s

lengthier voir dire of African-American jurors, and his effort to establish bias,

revealed his race-based jury selection, especially when contrasted with his effort to

rehabilitate non-African-American jurors. He asserts the prosecutor’s comment

that he was “forced to take jurors simply because of their race” reveals his

discriminatory intent.

Defendant provides no examples in support of his general claim about the

prosecutor’s style of voir dire, and the record does not support his claim. The

prosecutor’s comment that he was forced to accept jurors on the basis of race was

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in response to an earlier comment by the trial court in which it expressed

reluctance to dismiss African-American jurors because of the small number of

available African-American jurors, and thus was a comment on the court’s

approach to jury selection.

The trial court found S.J. did not want to be a juror based on his demeanor,

which would have been a permissible basis for excusal. (E.g., People v. Parker,

supra, 2 Cal.5th at p. 1213.) S.J.’s response to the two questions about whether he

was willing to sit on the jury was, “if I have to,” which suggests he “didn’t want to

be here” as the court noted.

However, as defendant observes on appeal, the trial court erroneously

attributed to S.J. a comment likening jury service to a root canal. It is unlikely,

however, that the trial court completely confused the two jurors given that S.J. was

an African-American male and D.B. was a Caucasian female (peremptorily

challenged by defendant). As noted above, the trial court had stated its concern

about retaining African-American jurors in the pool, which could be seen, for

example, in the court’s effort to rehabilitate L.T. through its own voir dire of L.T.

when she had stated that she would have difficulty with the case. The more likely

explanation for the apparent confusion, therefore, is that both jurors appeared

reluctant to serve and the trial court correctly surmised S.J. “didn’t want to be

here” based on his demeanor, but misremembered which juror made the specific

comment. Notably, in his follow-up response in the hearing below, defense

counsel did not address the court’s observation about S.J.’s demeanor, instead

acknowledging the low number of African-Americans excluded and a lack of

pattern in the prosecutor’s peremptory challenges, but reiterating his assertion that

the prosecutor had questioned African-American jurors at length to establish bias.

The trial court also noted the prosecutor’s acceptance of Juror No. 3 on the

panel. (See People v. Clark (2011) 52 Cal.4th 856, 906 [while not dispositive,

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acceptance of a member of the group indicates prosecutor’s good faith].) With

respect to both Wheeler motions, defendant challenges the significance of this fact

because Juror No. 3 had expressed pro-prosecution sentiments as described in

section II.C.2, ante. The prosecutor had previously made a for-cause challenge to

Juror No. 3, for the reason that the juror had expressed bias in favor of the

prosecution, explaining in response to defense objection to the challenge, that he

had similarly stipulated to the excusal of other jurors who had expressed pro-

prosecution views out of a duty to ensure that defendant had a fair trial, which is

supported by the record. From these circumstances, it is difficult to draw an

inference about the prosecutor’s acceptance of Juror No. 3 on the panel. Even if

we agreed that the prosecutor accepted Juror No. 3 only because of his pro-

prosecution views, that circumstance would simply show that he was exercising

his challenges based on which jurors would be most favorable for him and not for

racial reasons.

Turning to jury statistics, prior to the court’s ruling on defendant’s motion,

“[w]hile the prosecutor did excuse two out of three [African-Americans], the small

absolute size of this sample makes drawing an inference of discrimination from

this fact alone impossible.” (People v. Bell (2007) 40 Cal.4th 582, 597-598, fn.

omitted.) Neither does the prosecutor’s use of two out of nine peremptory

challenges against African-American jurors suggest a disproportionate use of

peremptory challenges. (See, e.g., People v. Sánchez (2016) 63 Cal.4th 411, 436

[use of two of eight peremptory challenges against Hispanic jurors was

insignificant].) While the percentage of African-American jurors challenged (2

out of 3) was much higher than the percentage of African-American jurors

available for challenge (3 out of 29), “because of the small sample size the

disparity carries relatively little information.” (People v. Bell, supra, 40 Cal.4th at

pp. 598, fn. 4.) Before the jury was sworn, the prosecutor had struck three out of

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four available African-American jurors in the main jury pool and a total of four

out of six available jurors with the inclusion of the alternate jury selection. The

prosecutor used 3 out of his 17 challenges against African-American jurors in the

main jury selection and 4 out of 20 challenges in the entire jury selection. The

final jury and the alternate jury each included one African-American juror (Juror

No. 3 and Alternate Juror No. 3).

Any inference of bias is “ ‘necessarily dispel[led]’ ” because

nondiscriminatory reasons for the prosecutor’s peremptory strikes of L.T., M.M.,

and D.B. “are apparent from and clearly established in the record.” (People v.

Reed, supra, 4 Cal.5th at p. 1000.) L.T.’s responses both in her written

questionnaire and in her voir dire, and as noted by the prosecutor during two

earlier for cause challenges of her, revealed significant race-neutral reasons for

L.T.’s challenge, namely, that she perceived a conflict between her religious

beliefs and the death penalty, and had felt upset about an incident where she was a

victim and believed the Riverside Police Department had made an inadequate

investigation. L.T. had also expressed deep reluctance to serve on a jury where

she would have to view autopsy photos. As discussed in section II.C.3.b, post, the

record supports the prosecutor’s proffered race-neutral reason for peremptorily

challenging M.M. As to the prosecutor’s challenge to D.B. during alternate jury

selection, the trial court denied defendant’s third Wheeler motion at the first stage,

noting that D.B. had served on a hung jury, which defendant has not challenged on

appeal. The prosecutor had questioned D.B. about her service on the hung jury.

Likewise, the prosecutor’s voir dire of S.J. specifically addressed his questionnaire

responses and was not desultory. (People v. Edwards (2013) 57 Cal.4th 658, 698-

699.)

Defendant also asserts that “the prosecutor attempted to exclude the first

eight Black jurors to appear in the jury box.” Defendant does not identify any

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specific jurors. While a prosecutor’s specious for-cause challenge to other jurors

of the same race might support an inference of race-based discrimination (People

v. Sánchez, supra, 63 Cal.4th at p. 437), none appears here.

Defendant also requests that we compare S.J.’s questionnaire responses to

those of Juror Nos. 7 and 12, both non-African-American, asserting that all three

jurors “were males in their 50s, with service/repair jobs for major companies” and

all three circled “6” on the death penalty scale. “We have often declined to

undertake comparative juror analysis at step one of the Batson/Wheeler

framework. [Citations.] Nonetheless, such analysis can be helpful in certain

circumstances to assess whether a defendant established a prima facie case of

bias.” (People v. Reed, supra, 4 Cal.5th at p. 1002.) In his questionnaire, Juror

No. 7 was more expressive than S.J. in explaining his opinions. Neither juror’s

voir dire comments indicated a reluctance to serve, but neither was asked about it.

It is difficult to form a conclusion without having observed the demeanor of the

three jurors.

S.J.’s affirmative response to several questions on the jury questionnaire

indicated that he could be fair and impartial, and the trial court, in concluding that

S.J. did not want to be a juror, erroneously attributed to him the comments made

by another juror likening jury service to a root canal. However, it is difficult to

make a prima facie showing from the statistics of the peremptory challenges and

the record reveals race-neutral reasons for the prosecutor’s challenges. Moreover,

S.J.’s comment that he would serve as a juror if required is consistent with the trial

court’s finding that S.J.’s demeanor indicated he did not want to be a juror. In his

response below, defendant did not address the court’s comment that S.J. “[w]ould

be here if forced to stay, but his whole attitude and reluctance, the air about him”

indicated that he did not want to perform jury duty. Defendant therefore fails to

show that “the totality of relevant circumstances gives rise to an inference of

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discriminatory purpose” in the prosecutor’s challenge of S.J. (People v. Parker,

supra, 2 Cal.5th at p. 1213.)

b. Second Wheeler Motion

i. Background

Defendant’s second Wheeler motion concerned the prosecutor’s fifteenth

peremptory challenge, to M.M. M.M. had a master’s degree in sociology and had

been working at the Los Angeles County Department of Public Social Services for

eight years as an administrator managing assistance programs and conducting

research in the jobs training program. M.M. stated he would be capable of voting

for the death penalty after hearing the facts. He affirmed that he would not hold

the prosecutor to a higher standard than the law required. M.M. was born in

Africa and had lived in the United States for 21 years, and explained that his

master’s thesis was about colonial education, which was, “[t]o put it simply, just a

brainwash to allow the education of Africa.” M.M. was “neutral” on the death

penalty, denied having “sociological problems” with it, concluded it was “just . . .

a form of punishment,” and “respect[ed] different views” about it. M.M. would be

able to vote for the death penalty even after seeing defendant in the courtroom for

several weeks.

In response to the Wheeler motion, the prosecutor explained that he

excused M.M. because his dissertation had been about colonization, which M.M.

“found . . . to be a brainwashing to exploit his country, I guess.” The prosecutor

had “grave concerns” about anyone who worked or had training in social services,

citing M.M.’s master’s degree in sociology and career at a social services agency.

The prosecutor was familiar with “the social services work mindset” and the

employment services division that employed M.M., and concluded M.M. “would

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not make a good juror.” During his voir dire of M.M., the prosecutor had stated

that people with a sociology degree often “want to help others.”

The trial court found defense counsel had made a prima facie showing of

race-based jury selection but credited the prosecutor’s race-neutral reasons for

excusing M.M. The court explained that in his experience both as a judge and a

former prosecutor, “prosecutors generally will excuse people with social welfare

type of backgrounds. And the reason for that—again, this is based on my

observations and personal experience—is that they are very much inclined to hold

the prosecution to a higher standard than that required by the law. In other words,

something more than proof beyond a reasonable doubt.” The court also observed

that Juror No. 3 was still on the jury.

ii. Analysis

At the third step of Batson analysis, after a prosecutor has posited a race-

neutral explanation for a peremptory challenge, “the trial court must decide

whether the movant has proven purposeful discrimination. [Citation.] In order to

prevail, the movant must show it was ‘ “more likely than not that the challenge

was improperly motivated.” ’ [Citation.] This portion of the Batson/Wheeler

inquiry focuses on the subjective genuineness of the reason, not the objective

reasonableness. [Citation.] At this third step, the credibility of the explanation

becomes pertinent. To assess credibility, the court may consider, ‘ “among other

factors, the prosecutor’s demeanor; . . . how reasonable, or how improbable, the

explanations are; and . . . whether the proffered rationale has some basis in

accepted trial strategy.” ’ [Citation.] To satisfy herself that an explanation is

genuine, the presiding judge must make ‘a sincere and reasoned attempt’ to

evaluate the prosecutor’s justification, with consideration of the circumstances of

the case known at that time, her knowledge of trial techniques, and her

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observations of the prosecutor’s examination of panelists and exercise of for-cause

and peremptory challenges. [Citation.] Justifications that are ‘implausible or

fantastic . . . may (and probably will) be found to be pretexts for purposeful

discrimination.’ [Citation.] We recognize that the trial court enjoys a relative

advantage vis-à-vis reviewing courts, for it draws on its contemporaneous

observations when assessing a prosecutor’s credibility.” (People v. Gutierrez

(2017) 2 Cal.5th 1150, 1158-1159.)

Here, the court, relying on its experience as a trial judge and a prosecutor,

credited the prosecutor’s reason for excusing M.M. because of his background in

sociology and career in social services. We conclude that the prosecutor’s

proffered reason, and the trial court’s reliance on its knowledge of jurors and

prosecutorial trial strategy, in crediting the reason, to be reasonable. (People v.

Streeter (2012) 54 Cal.4th 205, 225 [reasonable to believe that a social services

caseworker would be more sympathetic to the defense]; People v. Watson (2008)

43 Cal.4th 652, 677 [prosecutor’s concern about social worker’s ability to be

objective was reasonable in light of her work at the Los Angeles County

Department of Children and Family Services]; People v. Lewis (2008) 43 Cal.4th

415, 476 [finding credible prosecutor’s asserted reasons for striking a juror who

worked as a correctional counselor and had a background in psychology and

sociology].) There is substantial evidence in the record to support the prosecutor’s

stated reason given M.M.’s responses about his background and work and given

the prosecutor’s familiarity with the agency for which M.M. worked.

Defendant contends that comparative juror analysis shows that the

prosecutor’s reasons for excusing M.M. were not genuine because he accepted

Juror Nos. 2 and 11, who had similar backgrounds but were Caucasian.

“[E]vidence of comparative juror analysis must be considered in the trial court and

even for the first time on appeal if relied upon by the defendant and the record is

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adequate to permit the urged comparisons.” (People v. Lenix (2008) 44 Cal.4th

602, 622.) “ ‘The rationale for comparative juror analysis is that a side-by-side

comparison of a prospective juror struck by the prosecutor with a prospective juror

accepted by the prosecutor may provide relevant circumstantial evidence of

purposeful discrimination by the prosecutor. [Citations.]’ [Citation.] ‘If a

prosecutor’s proffered reason for striking a black panelist applies just as well to an

otherwise-similar nonblack who is permitted to serve, that is evidence tending to

prove purposeful discrimination to be considered at Batson’s third step.’

[Citation.] ‘At the same time, “we are mindful that comparative juror analysis on

a cold appellate record has inherent limitations.” [Citation.] In addition to the

difficulty of assessing tone, expression and gesture from the written transcript of

voir dire, we attempt to keep in mind the fluid character of the jury selection

process and the complexity of the balance involved.’ ” (People v. Winbush (2017)

2 Cal.5th 402, 442.)

The prosecutor’s proffered reasons for excusing M.M. were M.M.’s thesis

about the brainwashing of Africa through colonial education and his master’s

degree in sociology, as well as his career in social services. Juror No. 2 had a

master’s degree in entomology, the study of insects, and worked as a research

associate in that field. Juror No. 11 had a bachelor’s degree in “general

education,” including psychology courses, and had been working as an elementary

school teacher for four years. So, in fact, neither Juror No. 2 nor Juror No. 11

shared much in common with M.M. from a career or educational perspective.

This court has also compared the responses of a challenged juror to other

peremptorily challenged jurors of a different race. (People v. Lewis, supra, 43

Cal.4th at p. 478.) Prior to the peremptory challenge of M.M., the prosecutor

similarly inquired of, and peremptorily challenged, L.G., a non-Black juror, who

had a bachelor’s degree in sociology and career as a school teacher. The

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prosecutor asked L.G. if her background in sociology and child development

would make it difficult to impose the death penalty. Like M.M., L.G. said she

could impose the death penalty, but the prosecutor nonetheless excused her, which

suggests the reason for excusing M.M. based on his sociology background was

genuine.

Therefore, the record supports the trial court’s conclusion that the

prosecutor’s race-neutral reasons for challenging M.M. were credible.

4. Comment on Right to Trial

Defendant contends the prosecutor committed misconduct during voir dire

by making comments about a defendant’s right to trial.

A prospective juror had explained that she had been a witness to a crime

but that the case had never gone to trial because the defendant confessed. The

prosecutor responded, “Do you understand, though, that even somebody who did it

can ask for a trial?” He stated further, “That it’s a constitutional right for

everybody, even if they did it, to ask for a trial? Will you not hold it against the

defendant?” The court overruled defendant's objection. Counsel renewed the

objection the next day, expressing concern “that some of these jurors now think

that Mr. Woodruff could have avoided this trial but asked for it.” The trial court

concluded the comments were not prejudicial but instead “ingrain[ed] in the minds

of the jurors that they’re to follow the law, to accord him with the presumption of

innocence that the law requires . . . .”

“ ‘In general, a prosecutor commits misconduct by the use of deceptive or

reprehensible methods to persuade either the court or the jury.’ [Citation.]

‘When, as here, the point focuses on comments made by the prosecutor before the

jury, the question is whether there is a reasonable likelihood that the jury

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construed or applied any of the complained-of remarks in an objectionable

fashion.’ ” (People v. Thomas (2012) 53 Cal.4th 771, 797.)

Defendant contends the comments implied that the prosecution offered

defendant a plea deal that he had rejected and that the jurors would “plausibly

conclude that even though the defendant was guilty, he had asked for a trial.” The

comments were not misconduct. The prosecutor was responding to a juror’s

statement suggesting that cases do not go to trial if there has been a confession.

Because defendant admitted shooting Officer Baker, the prosecutor did not

commit misconduct in clearing up the juror’s misconception. The main point of

his comments was that the jurors could not hold defendant’s decision to go to trial

against him; in other words, jurors were to presume defendant to be innocent and

require that the prosecution prove him guilty beyond a reasonable doubt. “The

prosecutor’s statements ‘were not legally erroneous, and defendant had ample

opportunity to correct, clarify, or amplify the prosecutor’s remarks through his

own voir dire questions and comments.’ ” (People v. Thomas, supra, 53 Cal.4th at

p. 797.) And in fact, he did: on further voir dire, defense counsel commented to

the jury, “So, all of you believe at this point that Mr. Woodruff is innocent? You

all understand that concept? You all understand that Mr. Woodruff doesn’t have

to—It’s the prosecution’s obligation to prove that he’s not innocent. Do you

understand he’s innocent up until the point that you actually return a verdict . . . ?”

Therefore, defense counsel cleared up any erroneous assumptions by the jury.

“Moreover, as a general matter, it is unlikely that errors or misconduct

occurring during voir dire questioning will unduly influence the jury’s verdict in

the case. Any such errors or misconduct ‘prior to the presentation of argument or

evidence, obviously reach the jury panel at a much less critical phase of the

proceedings . . . .’ ” (People v. Medina (1995) 11 Cal.4th 694, 741.)

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D. Guilt Phase Issues

1. Presence of Officers in the Courtroom

Defendant contends the trial court erred in refusing his request to limit the

number of uniformed officers present in the courtroom, which “created [an]

intimidating atmosphere.”

Before trial, defendant requested an order “limiting or prohibiting the

presence of uniformed peace officers in the trial,” expressing concern that the

presence of several officers would distract the jury. The court responded, “I

certainly understand and understand your concern. I can’t say that I am not

without the same concern to some extent myself, but here’s the problem: I have

no right to tell them how to dress when they come in here. This is a public

proceeding and they can come in here.”

“The right to a public trial is not that of the defendant alone. (Cal. Const.,

art. I, § 29; Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 7.) The

public policy in favor of open judicial hearings was emphasized in this court’s

opinion in Press-Enterprise Co. v. Superior Court (1984) 37 Cal.3d 772, 779-780.

[Citation.] Only if restriction is necessary to preserve a defendant’s right to a fair

trial may the court restrict attendance by members of the public. Because a First

Amendment right of access to judicial proceedings is also recognized, they may

not be closed ‘unless specific, on the record findings are made demonstrating that

“closure is essential to preserve higher values and is narrowly tailored to serve that

interest.” ’ ” (People v. Cummings (1993) 4 Cal.4th 1233, 1298-1299.)

In determining whether the presence of uniformed officers denies a

defendant’s right to a fair trial, a reviewing court must look “at the scene presented

to jurors and determine whether what they saw was so inherently prejudicial as to

pose an unacceptable threat to defendant’s right to a fair trial; if the challenged

practice is not found inherently prejudicial and if the defendant fails to show

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actual prejudice, the inquiry is over.” (Holbrook v. Flynn (1986) 475 U.S. 560,

562, 572; People v. Stevens (2009) 47 Cal.4th 625, 638.)

We conclude there was no abuse of discretion. Defendant points to no

place in the record that states the number of officers present in the courtroom. At

the record correction hearing, when asked about the number of uniformed officers

present during the trial, the trial court noted there were never enough uniformed

officers present “to give me concern that there would be an intimidation factor”

and that if during the trial there had been more than two or three uniformed

officers present, the court would have expressed concern. Therefore the concerns

expressed by defendant prior to the trial are insufficient to support a claim of error

or prejudice.

Defendant also contends that the presence of officers wearing blue

wristbands in memory of Jacobs diminished his chance of receiving a fair trial.

Defendant bases this assumption on the responses of two officer-witnesses to

defense counsel’s own questions concerning the wristbands the witnesses were

wearing and whether many officers wore the wristbands. Because defendant never

objected to the presence of officers wearing wristbands and instead called

attention to them, he has forfeited his claim. (People v. Carrasco, supra,

59 Cal.4th at p. 965.)

Defendant also asserts an intimidating atmosphere was created when

“Officer Baker’s brother, a former police officer, had gestured with his fingers like

he was pointing a gun at the defendant as the room was emptying for a recess.”

Blankenship objected to the gesture at trial on the ground that it would intimidate

defendant, who was going to testify. The trial court asked the sheriff’s department

to investigate the incident and stated, “The Court will not tolerate any disruptive or

intimidating or other inappropriate conduct by anyone in the audience. And if it

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occurs and if I see it, you will, at the very least, be removed from the courtroom

for the duration of this trial. And, if appropriate, sterner measures will be taken.”

Blankenship’s objection at the trial was out of concern for defendant’s

“sense of peace” rather than for its effect on the jury, which was leaving for

recess. Thus, the claim is forfeited because defendant did not object on the ground

he now urges. It also lacks merit. Following the court’s instruction to the sheriff's

department to investigate the incident, the issue was not mentioned again.

“ ‘Spectator misconduct is a ground for mistrial if it is “of such a character as to

prejudice the defendant or influence the verdict,” ’ and the trial court has broad

discretion in making this determination.” (People v. Carrasco, supra, 59 Cal.4th

at p. 965.) Here there is no evidence that the jury saw or was prejudiced by the

gesture, assuming it occurred. We find no error.

2. Photographs of Defendant in Jail Jumpsuit

Defendant contends the trial court erred in admitting, over defense

objection, two photographs showing him in an orange jail jumpsuit on the day of

his arrest and that this allowed the jury to speculate that he was dangerous. Carr

testified that when defendant crawled out of the house, four or five officers

“dived” onto him and an officer put his knee into defendant’s back, and she heard

defendant cry out in pain. The prosecutor subsequently sought to introduce the

photos to show defendant was not injured and explained that defendant had been

given the jumpsuit to wear because he had not been wearing any clothes when he

was arrested. The trial court examined the photographs and found them to be

relevant and not prejudicial.

Later, a prosecution witness was shown a photograph of defendant in an

orange jail jumpsuit to identify for the jury what he looked like on the day of his

arrest. The witness testified that the police gave defendant the jumpsuit because

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he had come out of his house naked. Defense counsel renewed his earlier

objection, explaining his concern about the prejudicial impact of the sight of

defendant in jail clothing even though “it’s very clear that they know he’s in

custody.” Defendant wore civilian clothing at the trial. At an earlier hearing

concerning how defendant would appear at the crime scene viewing, the court had

noted that the jury “knows he’s in custody.”

The trial court did not abuse its discretion in admitting the photographs

because they corroborated the prosecution witnesses’ testimony. (People v.

Winbush, supra, 2 Cal.5th at p. 459.) In any event, defendant fails to show

prejudice. In People v. Johnson (2015) 61 Cal.4th 734, 768, the defendant

similarly objected on grounds of irrelevance and prejudice to the admission of a

photograph showing him in handcuffs and an orange prison jumpsuit. We

concluded, “To the extent the jury could have inferred that defendant had been in

custody and was dangerous because of the use of handcuffs, it seems unlikely for

the jury not to believe that he was, at some point, in custody and under arrest”

while the case was under investigation. (Ibid.) Here, although it was undisputed

that the jury knew defendant had been in custody, he wore civilian clothing

throughout the trial. There was, therefore, no “constant reminder” that defendant

was in custody, and “the fundamental presumption of our system of criminal

justice that the defendant is innocent until proved guilty beyond a reasonable

doubt” was not disturbed. (People v. Taylor (1982) 31 Cal.3d 488, 494, citing

Estelle v. Williams (1976) 425 U.S. 501, 504.)

3. Testimony Referencing Defendant’s Arrest Record

During cross-examination, prosecution witness Keith Kensinger briefly

referenced defendant’s “previous arrest record.” He said nothing specific about

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the record. Defense counsel did not object. Defendant contends the reference

violated his state and federal rights to due process and a fair trial.

“By statute, evidence of prior specific acts of misconduct is ordinarily

inadmissible either to prove conduct on a specific occasion or to attack a witness’

credibility. ([Evid. Code], §§ 787, 1101, subd. (a); see § 788 (exception for prior

felony convictions).) More specifically, it has long been held that evidence of an

accused’s prior arrests is inadmissible.” (People v. Anderson (1978) 20 Cal.3d

647, 650.) A witness’s volunteered statement can be the basis for error. (People

v. Wharton (1991) 53 Cal.3d 522, 565-566.)

Defendant has forfeited the contention by failing to object. (Evid. Code,

§ 353; People v. Jennings (1991) 53 Cal.3d 334, 375 [“Because defendant fails to

establish that testimony revealing his ex-convict status, and his prior arrest, is so

prejudicial that its admission must always result in reversal of the judgment, we

hold counsel’s failure to object or seek some other form of remedial action waived

the issue for appeal.”].)

Moreover, the comment was harmless beyond a reasonable doubt even if

we assume, without deciding, that it violated defendant’s federal constitutional

rights. (Chapman v. California (1967) 386 U.S. 18, 24.) The brief and vague

comment told the jury nothing it did not know from other evidence in the case.

The jury was already aware that defendant had an arrest record. In defendant’s

interview, the police had questioned him about whether he was currently on any

drugs or alcohol, noting his arrest history for drunk driving. Defendant explained

to the officers that he had stopped drinking when he got a DUI in 1994 and had

been sober since then. The jury also knew that defendant had been afraid to go

outside when the police arrived because he thought he had an arrest warrant for

drunk driving. No reason exists for the jury to believe the reference to an arrest

record referred to more than this. The comment could not have been prejudicial.

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4. Testimony of Lead Investigator Opining on Guilt

Several times, in response to questions by both parties, prosecution witness

Martin Silva, the lead investigator in the case, expressed to the jury his opinion

that defendant was guilty, as well as his reasons for so concluding. “ ‘[O]pinions

on guilt or innocence are inadmissible because they are of no assistance to the trier

of fact.’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.) Defendant

claims ineffective assistance of counsel, prosecutorial misconduct, and judicial

misconduct with respect to the admission of Silva’s testimony. We find no error.

Part of the defense strategy was to show that the police failed to make a

thorough investigation into the case because they prejudged defendant to have

murdered Jacobs. While questioning Silva, defense counsel tried to show that the

investigation had been compromised and that Silva was determined to conclude

defendant was guilty. At one point, counsel asked, “You believe, with everything

that you are, that Mr. Woodruff fired a bullet that didn’t ricochet that hit Mr.

Jacobs, don’t you?” Counsel then elicited the “factual basis for [Silva’s] belief.”

On redirect, the prosecutor reviewed with Silva the evidence that had been

developed in the investigation and that led him to conclude “that this defendant is

guilty of murder.” To the prosecution’s question whether, “having investigated

six to 700 murders . . . , [Silva had] any doubt that the defendant’s guilty,” Silva

responded he did not. On recross, defense counsel sought to show that Silva was

biased.

During a break, the court expressed concern that Silva’s opinion and

described reasons for concluding defendant was guilty had prejudiced defendant,

and discussed the issue with defendant at length before asking if he wished to

continue the trial and continue with Blankenship. Defendant said that he did.

Defense counsel explained that given the testimony presented by several

prosecution witnesses over the previous 13 days of trial, Silva’s testimony would

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not have prejudiced defendant and the jury would have surmised that Silva had

concluded that defendant was guilty. Thus Blankenship needed to elicit Silva’s

opinion about the case to expose his bias and show why the investigation had not

been thorough. The court concluded that the testimony had prejudiced defendant

nonetheless and that the court should have disallowed the questioning on its own

motion. Given defendant’s decision to continue with the trial, the court instructed

the jury with CALJIC No. 2.20 (“Believability of Witness”), and further instructed

the jury that “[a]ny witness who has testified in this proceeding and who may have

voiced an opinion as to the question of guilt or innocence of the defendant, that

testimony is not to be considered by you.” When Silva’s testimony resumed, the

court reinstructed the jury to disregard any opinion of any witness as to guilt and

that “only you will ultimately make that determination that is the ultimate question

of fact before you, and only you, the members of the jury, will make that

determination.”

We find no misconduct. In light of the defense strategy of trying to show

that the police simply believed defendant guilty and thus failed to investigate the

case fully, the prosecution was certainly entitled to show why the police did

believe him to be guilty and thus investigated the case as they did.

We also find no judicial error. The court did intervene, foreclosing any

further testimony by Silva as to his opinion on guilt, and reinstructing the jury

when it appeared the prosecution was revisiting the topic during redirect. Given

defense counsel’s stated strategy of drawing out Silva’s bias, and given

defendant’s reaffirmation of Blankenship as his choice of counsel, the court was

limited in its discretion to prohibit the testimony. “A criminal defendant’s

constitutional right to confront witnesses is violated when the court prohibits the

defendant from conducting otherwise appropriate cross-examination designed to

show a prototypical kind of bias on the witness’s part, and thereby provide the jury

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with facts from which it could appropriately draw inferences regarding the

witness’s reliability.” (People v. Sánchez, supra, 63 Cal.4th at p. 450.) Moreover,

the court offered defendant a mistrial, but he elected to continue the trial after

being sufficiently apprised by the court of its concerns about prejudice. Therefore,

the court did not abuse its discretion in acceding to defendant’s decision to

continue with Blankenship and in mitigating any harm by instructing the jury that

it alone was to determine guilt.

The real question is whether, as defendant contends, his attorney was

ineffective. To show ineffective assistance, defendant must show that “counsel’s

performance was deficient, and that the defendant was prejudiced, that is, there is

a reasonable probability the outcome would have been different were it not for the

deficient performance.” (People v. Alexander, supra, 49 Cal.4th at p. 888; see

Strickland v. Washington, supra, 466 U.S. at p. 687.) “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” (Strickland v.

Washington, supra, 466 U.S. at p. 694.) Trying to show that the police believed

defendant was guilty and thus did not adequately investigate the case was a

reasonable defense strategy. “A reviewing court will not second-guess trial

counsel’s reasonable tactical decisions.” (People v. Kelly (1992) 1 Cal.4th 495,

520.)

Moreover, we see no prejudice, especially in light of the trial court’s

admonitions. In People v. Riggs (2008) 44 Cal.4th 248, the prosecutor elicited

from an investigator (Pina), the opinion that the defendant was guilty. We found

no prejudice. The witness’s “testimony that he believed defendant was guilty as

charged . . . did not present any evidence to the jury that it would not have already

inferred from the fact that Pina had investigated the case and that defendant had

been charged with the crimes. There was no implication from the questions or

answers that Pina’s opinions were based upon evidence that had not been

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presented to the jury. [Citation.] In addition, we see nothing in the record that

would lead us to conclude that the jury was likely to disregard the instructions it

received concerning its duty to decide the issues of credibility and guilt based

upon its own assessment of the evidence, not the opinions of any witness.” (Id. at

p. 300.)

For similar reasons we see no prejudice here. As defense counsel noted,

the jury would hardly have been surprised that Silva had concluded that defendant

was guilty. Moreover, the jury had heard over two weeks of testimony from

prosecution witnesses before Silva testified, and none of his stated reasons for

concluding defendant was guilty was based on information that the jury had not

heard or would not hear from other prosecution witnesses. Thus, “[t]he jury’s

exposure to the unsurprising opinions of the investigating officer that he believed

the person charged with the crimes had committed them . . . could not have

influenced the verdict—especially in light of the overwhelming evidence against

defendant.” (People v. Riggs, supra, 44 Cal.4th at pp. 300-301.)

5. Asserted Prosecutorial Misconduct

a. Questioning About Defendant’s Mother’s

Convictions Resulting from the Same Incident

Defendant contends the prosecutor engaged in misconduct by asking

Parthenia Carr about her convictions for resisting arrest and for disturbing the

peace, stemming from the same events, and then further asking, after the court had

sustained a defense objection, whether she had gone through a trial regarding the

events.

“[E]vidence of a misdemeanor conviction, whether documentary or

testimonial, is inadmissible hearsay when offered to impeach a witness’s

credibility.” (People v. Wheeler (1992) 4 Cal.4th 284, 300.) However, Evidence

Code section 352 considerations aside, evidence of misdemeanor misconduct is

75

admissible to impeach a witness so long as it involves moral turpitude. (Id. at

pp. 295–297, p. 300, fn. 14.)

The trial court here concluded that the misdemeanor convictions were

inadmissible and, further, that they did not involve offenses of moral turpitude.

The court noted it had read to the jury the pretrial instruction to disregard any

question to which an objection was sustained and to not speculate as to what the

answer might have been, and further offered to instruct the jury to disregard the

question. Defense counsel wanted to consider, over the weekend, the best

approach for the defense, including whether, “now that the door’s open,” he might

want to elicit the fact that Carr had been “punished and she spent almost a year in

jail . . . .”

Defendant now contends that a “corrective instruction” would not have

cured the harm caused by the question and, further, that even though the court

sustained the objection, because the prosecutor nonetheless persisted in the line of

questioning by asking Carr if she had gone through a trial regarding the events, the

jury would have concluded that she had been convicted of the offenses. Defendant

contends two aspects of the error were prejudicial—the improper impeachment of

Carr, and the supposed inference that “if the mother was guilty of a crime, so was

the son.”

We do not find it reasonably probable that a different outcome would have

resulted had the prosecution not asked Carr about her convictions. (People v.

Riggs, supra, 44 Cal.4th at p. 298.) Furthermore, the question did not infect the

trial with such unfairness as to deny defendant due process. (Ibid.) The trial court

had preinstructed the jury to disregard any questions to which the court sustained

an objection and not to speculate as to the answer, and reinstructed it to the same

effect prior to closing argument. Further, the jury was aware of the facts

underlying the convictions—that Carr frequently played the radio loudly, causing

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Menzies to call the police, and that Carr was resisting the officer’s attempt to

arrest her for disturbing the peace. Carr’s involvement in the events was central to

the case. It is unlikely that evidence of Carr’s convictions stemming from the

same events was significant to the jury or would have caused it to reach a different

conclusion as to defendant’s guilt. Therefore, there was no prejudicial

misconduct.

b. Asserted Mocking of Defense Counsel

Defendant contends “the prosecutor . . . repeatedly mocked defense counsel

in front of the jury,” thereby undermining counsel’s credibility and that defense

counsel was ineffective where he failed to object. We find no merit to defendant’s

contentions.

Defendant claims there were five instances of prosecutorial misconduct.

We consider them in order. “With regard to some of the points raised in this

section, defendant registered no objection to the purported acts of misconduct, and

there is no reason to believe that any harm could not have been cured. Those

points must therefore be rejected on procedural grounds.” (People v. Osband

(1996) 13 Cal.4th 622, 693.) Moreover, we see no prejudice or general

misconduct even if defendant had objected.

Defendant first claims the “prosecutor mocked defense counsel’s haircut

with a gratuitous, sarcastic and irrelevant comment in jury selection, ‘Maybe I can

get a ponytail by the end of this trial.’ ”9 The prosecutor had asked a prospective

juror, “Not to point you out from anybody in the courtroom, but would anybody’s

haircut influence you in any way?” The juror answered “No,” to which the

prosecutor responded, “Maybe I can get a ponytail by the end of this trial.” The

9 While this incident took place during jury selection, we discuss it in this

section for efficiency.

77

court sustained defense counsel’s objection. The record does not state whether

Blankenship had a ponytail, but the parties assume the comment was about him.

“ ‘Personal attacks on opposing counsel are improper and irrelevant to the

issues.’ ” (People v. Lopez (2013) 56 Cal.4th 1028, 1072; see People v. Reyes

(1974) 12 Cal.3d 486, 506 [“name calling of opposing counsel should be

avoided”].) Assuming the comment was referring to Blankenship’s hairstyle, we

find it was harmless. The comment was “fleeting and rather obscure. Even if [it]

constituted misconduct, [it did] not constitute the type of deceptive and

reprehensible methods that require reversal.” (People v. Lopez, supra, 56 Cal.4th

at p. 1073.) Counsel immediately objected and the court sustained the objection.

(People v. Hill (1998) 17 Cal.4th 800.) Moreover, misconduct occurring during

voir dire is unlikely to unduly influence a jury’s verdict. (People v. Thomas,

supra, 53 Cal.4th at p. 797.)

Defendant next contends the prosecutor engaged in misconduct by

commenting in front of the jury that he “would ask for sanctions” regarding

defense counsel’s cross-examination of a police detective. The comment came

after a series of questions in which defense counsel sought to establish that the

police did not adequately investigate possible bullet entries in a tree and in the

ground and similarly did not do sufficient work to search for a bullet found more

than a year later lodged in the side of the house. The court sustained several

prosecution objections to the questioning before the prosecutor eventually made

the comment about sanctions. The court responded, “All right. You’ll not do that

in front of the jury. And you’ll move on to a new area. I think you’ve established

your point.”

During a recess, the court told the prosecutor not to ask for sanctions in

front of the jury, stating “You’re reacting to him, and you’re letting it show.” The

court then addressed defense counsel, “I can see what you’re doing. You

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obviously have a lot of ability. You’re an extremely intelligent gentleman. But

I’m gonna start cracking down on the editorializing before you ask your

questions.” Counsel complained of misconduct by the prosecutor in asking for

sanctions before the jury.

There is no reason to believe the prosecutor’s comment would have had any

significance to the jury in its deliberation of the charges. In response to the

comment, the court directed the prosecutor not to “do that” in front of the jury and

similarly reprimanded defense counsel to move to another topic in the questioning,

noting, “You’ve established your point.” If anything, the prosecutor’s comment

might have reflected poorly on him because, as the court noted during the break,

“you’re reacting to him, and you’re letting it show.”

Next, defendant claims that the prosecutor’s comment, while he was

searching for an exhibit in the jury’s presence, “I’m sure I’ll never see it again,”

was an “accusation that defense counsel was hiding or misplacing evidence.”

Defendant reaches this conclusion by referring to an earlier comment by the

prosecutor, out of the jury’s presence, that defense counsel had removed exhibits

from the court. “ ‘To prevail on a claim of prosecutorial misconduct based on

remarks to the jury, the defendant must show a reasonable likelihood the jury

understood or applied the complained-of comments in an improper or erroneous

manner.’ ” (People v. Dykes (2009) 46 C

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