People v. Armstrong

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMELLE EDWARD ARMSTRONG,

Defendant and Appellant.

S126560

Los Angeles County Superior Court

NA051938-01

February 4, 2019

Justice Corrigan authored the opinion of the court, in which

Chief Justice Cantil-Sakauye and Justices Chin and Kruger

concurred.

Justice Liu filed a dissenting opinion in which Justices Cuéllar

and Perluss* concurred.

_____________________

* Presiding Justice of the Court of Appeal, Second Appellate

District, Division Seven, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

PEOPLE v. ARMSTRONG

S126560

Opinion of the Court by Corrigan, J.

After a jury convicted defendant Jamelle Edward

Armstrong of kidnapping, robbing, raping, torturing, and

murdering Penny Sigler, it returned a death verdict. On

automatic appeal, we affirm Armstrong’s convictions but

reverse his death sentence because, under the standards of

Witherspoon v. Illinois (1968) 391 U.S. 510 and Wainwright v.

Witt (1985) 469 U.S. 412, multiple prospective jurors were

improperly excused for cause.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Guilt Phase Trial

On the night of December 29, 1998, Penny Sigler, a 45-

year-old Long Beach woman, was attacked and killed by three

strangers: Kevin Pearson, Armstrong, and Armstrong’s older

half-brother, Warren Hardy. Each of them was tried separately,

convicted, and sentenced to death. We have previously resolved

the Hardy and Pearson appeals. (See People v. Hardy (2018) 5

Cal.5th 56; People v. Pearson (2012) 53 Cal.4th 306.)

1. Prosecution Evidence

Sigler lived with her husband and Joseph O’Brien in Long

Beach. On the evening of December 29, 1998, O’Brien asked

Sigler to buy him cereal and milk. She took the food stamps he

offered and left on foot between 10:00 p.m. and 10:30 p.m. She

never returned.

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The following morning, a Caltrans worker found Sigler’s

body on an embankment near the 405 Freeway. The body was

in an area surrounded by a chain link fence and concrete

retaining wall. The body would have been difficult to see from

the road. There were blood spatters and drag marks near the

corpse. Shoe impressions were later identified as similar to the

treads on Hardy’s and Pearson’s shoes. Police noted a broken

wooden stake at the base of a nearby fence and recovered a food

stamp book cover matching the serial number of the stamps

O’Brien had given Sigler.

Sigler died from asphyxiation and multiple other injuries.

Before she died, she suffered 11 broken bones, 20 distinct

internal injuries, and 94 separate external injuries. Her right

ear was partially torn. Lacerations and bruising of the genitalia

were consistent with forcible penetration. A large wooden

splinter was embedded in her vaginal tissue.

Pearson, Hardy, and Armstrong were arrested the

following week, and Armstrong confessed. Detective Steven

Lasiter related remarks Armstrong made before the taping of

his statement began. The taped confession was played for the

jury.

Armstrong told investigators that he, Pearson, and Hardy

were drinking with others at the house of a friend, Monte Gmur,

on the night of December 29. Sometime after 10:00 p.m.,

Pearson, Hardy, and Armstrong left. After failing to find

someone to buy alcohol for them, the three decided to go to the

home of Hardy’s girlfriend in Los Angeles. They rode a metro

train to its last stop, then proceeded toward a bus stop. Walking

under the 405 Freeway, Armstrong called out, “I can’t wait ‘til

’99.” A female voice responded. The three men approached the

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woman, Sigler, who said something like, “I hate you.” Hardy

offered Sigler money for oral sex. Sigler said no, pushed past

Pearson and Hardy, and slapped Armstrong as she went by.

Sigler reached a leafy area near the street, turned, and

stuck out the middle fingers of both hands. Using racial slurs,

she said, “I hope they kill you all.” Pearson ran toward her,

saying, “I’m fixing to BKC this bitch.” Armstrong explained that

“BKC” was a Long Beach term, “bitch killer connect,” for

someone the speaker did not like who might get beaten up.

Pearson punched Sigler and knocked her down. Armstrong and

Hardy walked toward them. Armstrong heard Pearson say,

“Give me your money.” Pearson went through Sigler’s pockets,

found food stamps, then started to remove her pants. When she

struggled, he asked Hardy and Armstrong to hold her arms and

legs. They did so. Pearson removed Sigler’s pants and asked

where her money was. He tore open her shirt and underwear,

then unzipped his pants and asked for a condom. Hardy stood

off to the side. Armstrong was still holding Sigler’s arms and

said it appeared Pearson was engaging in intercourse.

After he finished, Pearson said, “This ain’t over yet bitch.

Let’s kill this bitch.” He kicked and stomped her in the chest

and face. Armstrong also kicked her several times. She made

gurgling, moaning noises. Armstrong recognized Sigler was in

considerable pain.

Pearson asked what to do with Sigler, then told Armstrong

to jump over a chain link fence and hold it down so they could

move her behind it. When Pearson and Hardy hoisted Sigler

over the fence, she landed head first in a concrete ditch. Pearson

dragged her 20 feet to a dark spot. He tripped over and broke

off a three-foot long wooden stake. Using the stake, he hit Sigler

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Opinion of the Court by Corrigan, J.

five to 15 times with a two-handed grip, swinging as hard as he

could. Sigler blinked and moaned in response to the blows.

Pearson then inserted the stake in Sigler’s vagina, pulling it in

and out. Hardy took the stake and did the same. When Sigler

finally made no more noise, Armstrong held a lighter to her face

and saw her eyes close.

Pearson and Armstrong moved the body further up the

embankment toward the freeway. Armstrong threw away the

stake and a trash bag filled with Sigler’s clothes. The three men

caught a bus and spent the night at the residence of Hardy’s

girlfriend.

Blood on a pair of Armstrong’s overalls matched Sigler’s

DNA. A stain on his shirt contained his own semen and blood

from an indeterminate source.

Armstrong’s girlfriend, Jeanette Carter, testified that a

week after the murder Armstrong told her he had done

something very bad. He said Pearson had beaten and raped a

woman and put a stick in her vagina while Armstrong held her

down. A tape of an earlier police interview of Carter was also

played during which she related similar admissions by

Armstrong.

Keith Kendrick, a friend of Pearson’s and Armstrong’s,

testified he was with them when they saw a news report of the

murder. Kendrick, to whom Pearson had already confessed,

said, “I know who did that. [¶] . . . [¶] Killer Kev did it.”

Armstrong whispered to Pearson, “How did he know?” and then

sat silently as Pearson recounted the details.

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2. Defense Evidence

Armstrong was the sole defense witness. He conceded he

had been with Pearson and Hardy during the crimes but

minimized his role.

The three men were out walking the night of December 29,

1998. Armstrong was in a good mood and yelled out, “We are

going to have a Happy New Year for ’99.” He then heard Sigler

yell from across the street, “Fuck you niggers.” Hardy walked

across the street toward Sigler. Pearson and Armstrong

followed. Sigler and the three men were the only ones on the

street. Armstrong thought Sigler was on drugs.

Hardy offered Sigler $50 to perform fellatio on all three

men, but Armstrong knew he was joking because Hardy did not

have that much money. Sigler ran past him, turned, displayed

the middle fingers of each hand, and said, “Fuck you niggers.

You niggers should die.” Pearson ran up to Sigler and struck

her in the face. Armstrong held her down because Pearson

demanded he do so. He saw Pearson go through her clothes, but

Armstrong did not intend to steal from her. He saw Pearson

take food stamps from Sigler’s pocket and place them in his own.

When Pearson stopped going through Sigler’s clothes,

Armstrong let her go.

When Pearson renewed the assault, kicking and stomping

Sigler, Armstrong said they should leave. He did not leave by

himself because he had no money for bus fare. Armstrong held

Sigler down again at Pearson’s direction. Armstrong never

kicked Sigler himself, but at one point while restraining her he

had his foot on her chest and pushed her with his foot.

Armstrong did not try to stop Pearson because he feared

Pearson would turn on him. When Pearson raped Sigler,

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Armstrong was standing behind him, not holding Sigler down.

Pearson and Hardy threw Sigler over the chain link fence.

Armstrong thought the attack was scandalous and animal-like,

but helped Pearson move Sigler up the embankment. He threw

away both the stake and Sigler’s clothes because Pearson told

him to, and because he was afraid of Pearson. The encounter

lasted around 30 minutes.

3. Charges and Guilt Phase Verdict

Pearson, Hardy, and Armstrong were tried separately.

(See People v. Pearson, supra, 53 Cal.4th 306; People v. Hardy,

supra, 5 Cal.5th 56.)

Armstrong was charged with various counts of murder,

kidnapping, robbery, rape, and torture, with six attendant

special circumstances.1 Armstrong was also charged with

kidnapping and torture as sentence enhancements. (§ 667.61,

subds. (a), (d).) The jury convicted Armstrong on every count

and found every special allegation true, except for the special

circumstance that Armstrong committed murder during a

kidnapping.

1

The charged offenses included first degree murder, second

degree robbery, kidnapping for purposes of rape, rape, rape

while acting in concert, sexual penetration with a foreign object,

sexual penetration with a foreign object while acting in concert,

and torture. (Pen. Code, §§ 187, subd. (a), 189, 206, 209, subd.

(b)(1), 211, 261, subd. (a)(2), 264.1, subd. (a), 289, subd.

(a)(1)(A).) The special circumstances included robbery,

kidnapping, kidnapping for purposes of rape, rape, rape by

instrument, and torture murder. (§ 190.2, subd. (a)(17)(A), (B),

(C), (K), (a)(18).) All further unlabeled statutory references are

to the Penal Code.

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B. Penalty Phase Trial

1. Prosecution Evidence

Monte Gmur testified that on the evening of the murder,

Pearson asked him if Pearson, Hardy, and Armstrong could use

a bedroom to initiate a man named Chris into their gang. Gmur

refused because he did not want a violent initiation ritual in his

house. The three men left for 15 to 20 minutes. When they

returned, Hardy borrowed Gmur’s phone to call a man named

Capone and tell him Chris was “cool” and would be called

“Playboy.”

Janisha Williams, a childhood friend of Armstrong’s,

testified he was a member of the Capone Thug Soldiers gang.

The gang required “jumping in,” i.e., fighting a gang member to

join. On occasion Williams had seen Armstrong kick people, hit

them with sticks, or stomp on them during fights.

Sheriff’s Deputy Hugo Baraja testified that Armstrong

and three other African-American prisoners attacked a Hispanic

inmate.

Sigler’s son testified he was unable to finish high school

after the murder because of the pain of her loss.

2. Defense Evidence

Detective Steven Lasiter testified that during his police

interview Armstrong appeared to feel badly about what he had

done.

Reverend Larry Clark testified that he knew Armstrong

and his family, although he had not seen them since the

defendant was 14 or 15. The Armstrong family lived in a high-

crime neighborhood and had financial problems. Armstrong’s

father, James, was sometimes absent. Armstrong had potential

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as an artist and would sometimes help with church cleanup or

charity work.

James Armstrong admitted he had been a poor parent. He

earned a living selling drugs and pimping, was frequently

absent, and never taught Jamelle right from wrong. He

supplied Jamelle with drugs and alcohol. Jamelle’s mother,

Pamela, was an alcoholic who drank and used drugs. James

beat his wife in their son’s presence.

3. Rebuttal Evidence

The People called Jamelle’s mother, Pamela, who

described a different family dynamic. Various police officers

testified to Jamelle’s gang membership.

4. Penalty Phase Verdict and Sentence

The jury returned a death verdict, which the court

imposed. It added consecutive terms of 30 years, 25 years to life,

and life with the possibility of parole.2

2

The abstract of judgment indicates, incorrectly, that

Armstrong’s conviction on four counts was pursuant to a plea

rather than a jury verdict. The abstract of judgment also

incorrectly indicates Armstrong received nine years on the rape

count, not eight, and incorrectly lists a determinate term of 56

years, not 30 years. Finally, the abstract of judgment fails to

indicate that in addition to the determinate term for rape in

concert, sexual penetration with a foreign object, and sexual

penetration with a foreign object while acting in concert,

Armstrong received a 25-year-to-life term under section 667.61,

subdivisions (a) and (d), which was then stayed under section

667.61, subdivision (g). The People ask, without opposition, that

we order the abstract of judgment corrected. We will do so. (See

People v. Mitchell (2001) 26 Cal.4th 181, 185.)

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II. DISCUSSION

A. Juror Selection Issues

1. Excusal of Prospective Jurors for Cause

Prospective jurors initially completed a questionnaire.

The court then conducted Hovey voir dire, during which

potential jurors were asked outside the presence of others about

their death penalty views. (See Hovey v. Superior Court (1980)

28 Cal.3d 1, 80–81.) Armstrong contends the court erred by

excusing multiple jury candidates on the ground they could not

fairly and impartially consider whether death was the

appropriate punishment. We agree. During our discussion, we

refer to both written and oral responses.

a. Legal Principles

“[T]he Sixth Amendment’s guarantee of an impartial jury

confers on capital defendants the right to a jury not

‘uncommonly willing to condemn a man to die.’ ” (White v.

Wheeler (2015) 577 U.S. ___, ___ [136 S.Ct. 456, 460], quoting

Witherspoon v. Illinois, supra, 391 U.S. at p. 521.) To

accommodate this right, “ ‘[p]ast decisions of the United States

Supreme Court and this court establish that “[a] prospective

juror may be challenged for cause based upon his or her views

regarding capital punishment only if those views would

‘ “prevent or substantially impair” ’ the performance of the

juror’s duties as defined by the court’s instructions and the

juror’s oath. (Wainwright v. Witt[, supra,] 469 U.S. [at p.] 424;

People v. Crittenden (1994) 9 Cal.4th 83, 121; People v. Mincey

(1992) 2 Cal.4th 408, 456.) ‘ “ ‘A prospective juror is properly

excluded if he or she is unable to conscientiously consider all of

the sentencing alternatives, including the death penalty where

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appropriate.’ ” ’ ” ’ ” (People v. Pearson, supra, 53 Cal.4th at p.

327.) The party seeking excusal bears the burden of developing

evidence for dismissal. (Wainwright, at p. 423; People v. Stewart

(2004) 33 Cal.4th 425, 445.)

A person’s particular views on the death penalty, the

strength with which those views are held, and their effect, if any,

on the person’s ability to perform a juror’s duties are often

nuanced questions. “ ‘[N]ot all who oppose the death penalty are

subject to removal . . . ; those who firmly believe that the death

penalty is unjust may nevertheless serve as jurors in capital

cases so long as they state clearly that they are willing to

temporarily set aside their own beliefs in deference to the rule

of law.’ (Lockhart v. McCree (1986) 476 U.S. 162, 176.) ‘The

critical issue is whether a life-leaning prospective juror — that

is, one generally (but not invariably) favoring life in prison

instead of the death penalty as an appropriate punishment —

can set aside his or her personal views about capital punishment

and follow the law as the trial judge instructs.’ ” (People v. Jones

(2017) 3 Cal.5th 583, 614.) Jurors are not required to like the

law, but they are required to follow it. A jury candidate who will

not, or cannot, follow a statutory framework, is not qualified to

serve. Yet so long as prospective jurors can obey the court’s

instructions and determine whether death is appropriate based

on a sincere consideration of aggravating and mitigating

circumstances, they are not ineligible to serve. (People v.

Stewart, supra, 33 Cal.4th at p. 447; People v. Lewis (2001) 25

Cal.4th 610, 633.)

Whether a candidate is substantially impaired is an issue

for the trial court’s determination, and its ruling is entitled to

deference. (People v. Souza (2012) 54 Cal.4th 90, 122.)

Impairment need not be proven with “ ‘unmistakable clarity.’ ”

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(Wainwright v. Witt, supra, 469 U.S. at p. 424.) Excusal is

permitted when the trial judge has been “left with the definite

impression that a prospective juror would be unable to faithfully

and impartially apply the law.” (Id. at p. 426; accord, People v.

Thompson (2016) 1 Cal.5th 1043, 1066.) We review the ruling

for abuse of discretion. (People v. Scott (2015) 61 Cal.4th 363,

378; People v. Jones (2012) 54 Cal.4th 1, 41.)

Here, the court improperly excused at least four

candidates. In doing so, it committed two kinds of errors: (1) it

applied an erroneous standard to the question of qualification;

and (2) it relied on factual bases not supported by the record. As

a result, the death verdict must be reversed. (People v. Heard

(2003) 31 Cal.4th 946, 966.)

b. Prospective Juror S.R.

S.R. wrote in his questionnaire that he supported the

death penalty and believed it was “a big deterrent to many

others who may wish to kill.” The death penalty should not be

mandatory, but should be available in “special circumstances.”

S.R. saw death as an appropriate punishment “if the crime was

horrendous enough,” as in cases of “mutilations [or] torture.” He

could vote for either life or death, but would not automatically

vote for either. He considered his “duty as a juror to be fair and

un-biased.” He was willing to serve because he was “a fair

person. I have always been one to listen to both sides of an

argument. I also know people [who] have done good things, and

people who have done bad things. A defendant/prosecution

deserves jurors that are not one-sided and biased.”

During voir dire, S.R. confirmed he could vote for either

death or life, and would choose neither automatically. He could

keep an open mind, and would consider whatever factors the

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court instructed were relevant. S.R. could vote for death if the

aggravating circumstances substantially outweighed those in

mitigation, and for life if they were equal. S.R. saw death as a

“far worse” punishment than life in prison without possibility of

parole, and would reserve it for “a truly horrible crime.”

Nevertheless, “if it does fit the crime,” S.R. could choose death.

The prosecutor focused S.R.’s questioning on three

hypotheticals involving a liquor store robbery, a beating death,

and a bank robbery. In the liquor store hypothetical, a

defendant walking by noticed the cash register was open,

entered the store on the spur of the moment, killed the cashier,

and stole the money. S.R. was unsure which penalty he would

select without having more facts, which the prosecutor declined

to supply. Based only on the information provided, S.R. said he

would probably not vote for death. Asked to assume that

unspecified aggravating circumstances substantially

outweighed any mitigating circumstances, S.R. said he could

vote for death. The prosecutor stressed S.R. would be instructed

that life remained an option even if the aggravating

circumstances outweighed the mitigating circumstances and

asked again if S.R. could choose death. S.R. replied, “I’m sure I

probably could,” but voting for life or death was “not something

I would take lightly.”

In the deadly beating hypothetical, one person held a

victim’s arms while a second person inflicted the beating. S.R.

thought the one restraining the victim to be nearly as guilty as

the beater, but not equally so. If the aggravating circumstances

substantially outweighed any in mitigation, S.R. affirmed he

could vote for death for the restraining participant. The

prosecutor challenged the plausibility of this answer in light of

S.R.’s belief that the restrainer was slightly less culpable and

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the court’s instruction that death was not mandatory even if the

aggravating circumstances were substantially greater. S.R.

replied: “[Y]ou asked if I could [vote for death], if it was possible,

if [the aggravating circumstances were more than the

mitigating circumstances]. I could. I’m not saying I would, you

know, you’re [asking] could I?” The prosecutor challenged his

answer: “If you don’t think that the two people are equally

guilty, wouldn’t you give them different punishments, because

they weren’t equally guilty?”3 To explain why he could vote for

death, S.R. relied on the additional factor supplied by the

prosecutor, that the aggravating circumstances outweighed the

mitigating circumstances. The prosecutor asked a third time:

“So in your mind, because the person holding the arms is not as

guilty as the person actually doing the punching, wouldn’t you

impose life without the possibility of parole on him and give the

other guy, the one actually doing the punching, the death

penalty?” S.R. adhered to his answer: “I could do both in that

[circumstance]. Like I said, you asked, could I do either [life or

death]?”

The prosecutor then turned to a scenario involving three

bank robbers: a getaway driver, a lookout, and the actual killer

who went inside and shot someone. Asked whether he would

consider the getaway driver equally or less culpable than the

3

It appears the court and prosecutor used the term “guilty”

with some imprecision. As a matter of law, an aider and abettor

can be as “guilty” of an offense as a direct perpetrator, in the

sense that both may be convicted of the same crime. (People v.

McCoy (2001) 25 Cal.4th 1111, 1116–1117.) The term as used

here seemed to involve not legal guilt but respective degrees of

blameworthiness or culpability as that concept relates to

sentencing.

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actual killer, S.R. asked whether the driver knew the shooter

was going to kill someone. When told the driver did not, S.R.

concluded the driver was less culpable and he would probably

not impose death. Likewise with the lookout: If neither aider

and abettor knew a shooting was intended, S.R. would reserve

death for the actual killer.

The prosecutor moved to excuse S.R. During argument

over the motion, defense counsel reasserted a continuing

objection to the prosecutor’s questioning using aiding and

abetting hypotheticals without any instruction on when, as a

matter of law, a person who was not the actual killer could be

eligible for death. The prosecutor argued against instruction:

“If a juror knew the law, the juror would then frame his [answer]

in accordance with the law. A true test of the juror’s state of

mind with regard to aiding and abetting, and accomplices, is to

find that out without pre-instructing them, because then we

know what their true views are. If they know what the law is,

in advance, we cannot find out what their true views are,

because they want to follow the law.” (Italics added.)

The court embraced the prosecutor’s position against pre-

instruction because it would color the jurors’ responses. It

reasoned that those who wished to follow the law would shape

their answers to conform with legal requirements, and asking

uninstructed jurors would give better insight into their true

feelings: “By not giving the [aiding and abetting] instruction,

. . . wouldn’t that be a better way to test their mind, a true test

of their mind, as to whether or not they would be able to impose

the penalty of death, whether they could on an aider and

abettor?” The court further explained: “[N]ormal people . . .

understand that [there] should be different liabilities for an

aider and abettor [than] for the perpetrator. [¶] And given that

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is the case, if that is, in fact, the true state of mind of a particular

prospective juror, that is a worthy test of whether or not, given

that they see a difference in liability in their state of mind,

would that create a variance as to their ability to be able to

impose punishment? Because that, effectively, would be a fair

way to determine whether the person would automatically, in

fact, not impose the penalty of death and would automatically

impose life without parole, because of their varying views on the

liability of an accomplice.[4] [¶] And that’s the reason why this

4

In referring to what a candidate would “automatically” do,

the court overlooked how the United States Supreme Court’s

thinking on disqualification had developed, an evolution that

has shifted the focus to subtler considerations: “In Wainwright

v. Witt[, supra,] 469 U.S. 412 . . . , the United States Supreme

Court reconsidered language in Witherspoon v. Illinois[, supra,]

391 U.S. 510 . . . , to the effect that prospective jurors may be

excused for cause if they make it ‘unmistakably clear (1) that

they would automatically vote against the imposition of capital

punishment without regard to any evidence that might be

developed at the trial of the case before them, or (2) that their

attitude toward the death penalty would prevent them from

making an impartial decision as to the defendant's guilt.’ (Id. at

p. 522, fn. 21.) This standard had tended to be applied in

formulaic terms, with ‘lower courts stat[ing] that a

veniremember may be excluded only if he or she would

“automatically” vote against the death penalty, and even then

this state of mind must be “unambiguous,” or “unmistakably

clear.” [Citation.]’ (Witt, at p. 419.) [¶] In Witt, the high court

rejected such a narrow and formalistic approach and discarded

the Witherspoon formulation. It held instead that a trial court

may excuse a prospective juror for cause whenever ‘the juror’s

views would “prevent or substantially impair the performance

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

his oath.” ’ (Witt, supra, 469 U.S. at p. 424, fn. omitted.)” (People

v. Heard, supra, 31 Cal.4th at p. 983 (conc. & dis. opn. of Brown,

J.).)

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court is not going to give a pre-instruction on aiding and

abetting. I believe that that is a fair way to test the true state

of mind of lay people, because that’s exactly what we are trying

to do. [¶] We don’t want to pre-instruct them just so that they

can fit their answer with the law.”

The court excused S.R. for cause, concluding his fitness to

serve should be determined by his uninstructed views on the

relative culpabilities of hypothetical aiders and abettors: “[I]n

terms of an accomplice, or an aider or abettor, it is [S.R.’s] true

state of mind that they’re not equally guilty, and even if they are

guilty, they’re not equally guilty. In other words, in these folks’

eyes, the person is guilty, but there’s a degree of guilt. And that

is really the true test of whether or not they would be able to

consider the penalty of death or automatically vote for life

without parole.”

We note several things here. First, the prosecutor’s

argument and the court’s ruling appear to presume that jury

candidates would violate their oath and commit misconduct by

shading their answers to secure a place on the jury. They also

misapprehend the appropriate test for qualification, which

turns on a willingness and ability to follow the law. It seems

counterintuitive to conclude that the “true test” of this ability

involves keeping candidates in the dark as to the law’s

requirements. Advocates may certainly inquire about a

candidate’s broader death penalty views and take them into

account when exercising peremptory challenges. But those

broader views, even if leaning significantly toward one side or

the other, will not support a challenge for cause unless they

would substantially impair the ability to serve.

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Second, the death penalty statutes reflect, as a matter of

policy and constitutional mandate, that a decision as to capital

punishment is to be made on an individualized basis. (Woodson

v. North Carolina (1976) 428 U.S. 280, 304.) Jurors are to

consider the nature of the crime, the circumstances of its

commission, and a variety of factors relating to the particular

defendant. These latter factors may include his past criminal

conduct and a variety of developmental and historical

experiences. This weighing can result in different degrees of

blameworthiness being assigned from case to case and among

co-participants. A juror willing to act in conformance with

statutory mandates, able to openly and honestly consider both

sentencing alternatives, may well identify different levels of

culpability for different participants in the same events. That a

juror can do so is not grounds for disqualification.

In determining otherwise, the court applied a test for

ineligibility that was erroneous as a matter of law. Under

Witherspoon and Witt, the state is permitted to cull from the jury

pool only those who would be unable to set aside their personal

views and follow the law and the court’s instructions. (Lockhart

v. McCree, supra, 476 U.S. at p. 176; People v. Jones, supra, 3

Cal.5th at p. 614; People v. Stewart, supra, 33 Cal.4th at

pp. 446–447.) An unimpaired juror who perceives differences in

culpability might well be open to a variety of determinations: (1)

though an aider and abettor was comparatively less

blameworthy, the crime was sufficiently egregious, and his

participation and knowledge sufficient, that both he and the

actual killer merit death; (2) only the actual killer merits death;

or (3) neither defendant does. That S.R. ascribed different

degrees of culpability to some aiders and abettors in some

hypotheticals offered no basis for determining he would be

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unable to follow the court’s instructions and choose between a

life or death sentence in accordance with the law. Indeed, his

answers indicated the contrary.5 By framing the test of

eligibility to serve as it did, the court risked excluding jurors

who could follow the court’s instructions and appropriately use

evidence in aggravation and mitigation to differentiate between

those who merited the death penalty and those who did not.

Third, when assessing a candidate’s ability to serve, fact-

based hypotheticals should be used with caution. “ ‘[T]he

Witherspoon-Witt . . . voir dire seeks to determine only the views

of the prospective jurors about capital punishment in the

abstract. . . . The inquiry is directed to whether, without

knowing the specifics of the case, the juror has an “open mind”

on the penalty determination.’ ” (People v. Zambrano (2007) 41

Cal.4th 1082, 1120, quoting People v. Clark (1990) 50 Cal.3d

583, 597.) Hypotheticals that too closely mirror the expected

facts of the case at hand may result in jurors prejudging a case

on a brief summary of the evidence. (Zambrano, at p. 1120;

People v. Pinholster (1992) 1 Cal.4th 865, 915.) Further,

questions focusing only on specific factual circumstances can

yield answers that might be used to erroneously cull competent

jurors. The way a question is posed may skew the answer. For

example, a hypothetical that emphasizes aggravating factors

might elicit an answer that leans heavily in favor of execution.

5

When asked whether he could comply with the court’s

instructions, even if he did not agree with them, S.R. checked

“yes” and wrote: “It’s the court’s instructions, we must follow

them.” He affirmed that he could “consider all of the relevant

factors that the court will give you.” He explained that his

ability to vote for death would depend in part on “what the judge

says” about the law.

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(See People v. Mason (1991) 52 Cal.3d 909, 940.) Trial courts

may prohibit such hypotheticals. (People v. Sanders (1995) 11

Cal.4th 475, 538–539.)

This case presents an obverse situation, with

hypotheticals describing defendants at, or beyond, the outer

reaches of death eligibility. The United States Constitution and

California’s sentencing scheme make lookouts, getaway drivers,

and others involved in, but absent from, a robbery or homicide

scene categorically ineligible for death without additional

showings as to the degree of their participation and the extent

of their awareness or intent that a fatality might result.

(§ 190.2, subd. (d); Enmund v. Florida (1982) 458 U.S. 782, 795–

798; People v. Banks (2015) 61 Cal.4th 788, 798–804.) As for the

prosecutor’s beating hypothetical, assault alone is not a basis for

special circumstance felony murder. (See § 190.2, subd. (a)(17).)

By definition, a competent juror who can consider both life and

death as options would be willing to vote for death in some cases

and for life in others. Given sufficiently mild hypothetical

scenarios, many competent jurors might say they would be quite

likely to vote for life without the possibility of parole. Such

responses do not necessarily reveal that the same juror would

not vote for death under more aggravating circumstances. (See

People v. Mason, supra, 52 Cal.3d at p. 940.)

Here, the prosecutor supplied no additional facts that

would make the hypothetical robbery and beating aider and

abettors legally eligible for death or clearly deserving of that

punishment. Instead, S.R. was required to assume an

unspecified special circumstance had been proven and

unspecified aggravating circumstances were present. Even so,

S.R., a death penalty supporter, consistently maintained that he

could vote for death under the appropriate circumstances, both

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in general and as applied to an aider and abettor. S.R.’s answers

give no indication he was unfit to serve.

The court also relied on S.R. being unable to consider

death as an option for some charged special circumstances. It

asserted that S.R. “picks and chooses the special circumstances

that he believes he would be able to consider the penalty of death

on.” The record does not support this assertion. S.R. never

indicated he could not consider death as an option for the

charged special circumstances. He simply expressed

uncertainty as to how he would vote if each of several of the

charged special circumstances was the only one found true. A

juror who indicates he could vote for death, but is unwilling to

guarantee he would do so, is not subject to excusal for cause.

(People v. Pearson, supra, 53 Cal.4th at p. 332.)

A court can abuse its discretion by applying an erroneous

legal standard or by making a ruling unsupported by

substantial evidence. (Haraguchi v. Superior Court (2008) 43

Cal.4th 706, 712.) Both problems are present here. The court’s

remarks, and a comparison of its ruling with the record, reflect

that it was overlooking the crucial question of whether S.R.

could set aside his personal views and follow the court’s

instructions. Instead, the court concluded S.R.’s views might

lead him to vote against death under particular unrelated facts.

Standing alone, views of that nature do not support a challenge

for cause. Additionally, the record reveals no substantial

evidence that S.R. would have had any difficulty following the

court’s instructions in determining the appropriate sentence.

The erroneous exclusion of S.R. was not an isolated

occurrence. The record reflects that the court applied the same

“true test” to other candidates, focusing on whether they would

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be equally willing to impose death on an aider and abettor as on

an actual killer, rather than on whether they could follow the

law and consider death as an option. Application of this test

excluded several essentially neutral candidates who professed

their ability to follow the court’s instructions and impose death

in an appropriate case.

We discuss the others in turn.

c. Prospective Juror M.M.

In her questionnaire, M.M. agreed that California should

have a death penalty and should not abolish it because “it serves

as a deterrent for some offenders.” Death would be an

appropriate punishment for “repeat murderers,” among others,

and serves to “provide justice in the cases that warrant it.” M.M.

repeatedly stated she could vote for death, but would not

automatically do so. Whether death was appropriate should be

decided “on a case-by-case” basis. M.M. had no religious or

moral views that would make it difficult for her to vote for

execution.

In voir dire, M.M. said that she was neutral as to sentence

and could vote for either. On six occasions, she affirmed her

ability to vote for death. When asked whether she could look at

the defendant and say, “I kill you,” M.M. replied: “I think that’s

a very hard position to be put in, but I think the approach I

would take is that I need to do the right thing, either not guilty

or guilty and where ever that falls, given the information, then

I would have to feel comfortable with that.”

Given that M.M. was neither for nor against the death

penalty, the prosecutor asked how she could determine whether

M.M. would vote for death. M.M. said her decision would

depend on the evidence, not prior leanings: “I don’t know that

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you can determine that [I would vote for death] at this point. I

think that determination or decision would be made after the

information was given to me or any other juror. [¶] At this

point, I don’t have a say one way or the other, because I haven’t

heard anything.” She went on: “I certainly would want to do

the right thing by the defendant or by the other side. [¶] I would

want to do whatever the evidence or the information warranted.

. . . [¶] It would be a very difficult decision if I had to decide

that it was a death penalty. I don’t think anybody would walk

away feeling great about doing that, but I feel I have to do what

was warranted by the case.” When asked again how she could

“impose the death penalty if you don’t even know what your

feelings are regarding it?,” M.M. said, “I really don’t have a set

decision like some people [where] I’m all for the death penalty

or totally opposed. [¶ Q.] You don’t have a feeling one way or

the other. [¶ A.] I don’t have a feeling one way or the other. I’m

neutral. My feeling would be each case would be individual and

unique in itself, and I think you need to go into [it] looking at it

like [that]. . . . Every case is different and unique.”

M.M. affirmed that she could vote for death if the

aggravating circumstances outweighed the mitigating

circumstances and could impose death on an aider and abettor

such as a defendant who held a victim’s arms while a second

defendant beat the victim to death. She repeated that she could

tell the defendant he was going to die.

The prosecutor then turned to the bank robbery

hypothetical with a getaway driver, a lookout, and the actual

killer. M.M. described the nonkillers as less culpable, but when

asked if she could impose death on the getaway driver if the

aggravating circumstances outweighed the mitigating

circumstances, she said she could. The prosecutor suggested

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those answers were inconsistent: “How can you impose the

death penalty on the person who is waiting out in the car, when

you believe he is not as guilty as the person who pulled the

trigger?” M.M. explained, “Because you said that . . . the bad

issues about him were more than the ones that weren’t bad.”

The prosecutor explained that under the law, a juror could, but

did not have to, impose death when aggravating circumstances

outweighed mitigating ones. She then asked, “[K]nowing that,

would you impose the death penalty on the person waiting in

the car?” (Italics added.) This time, M.M. said, “No.”

The prosecutor challenged M.M. on the ground that M.M.

did not know whether she was for or against the death penalty

and would be unable to impose death on an aider and abettor.

The court granted the motion on the basis that M.M. would not

impose the death penalty in the getaway driver scenario, and

the People defend the excusal on that basis alone.

The record offers no support for the prosecutor’s

assertions. M.M. consistently indicated, in her questionnaire

and in response to questions from the bench, defense attorney,

and prosecutor, that she could impose the death penalty in an

appropriate case based on the evidence submitted. She believed

California should have the death penalty and that it serves as a

deterrent. Being “neutral” on the death penalty before hearing

any evidence is not disqualifying. (People v. Pearson, supra, 53

Cal.4th at p. 332.) Indeed, M.M.’s answers show she was

unwilling to prejudge the matter. She confirmed that she could

impose the death penalty on a nonkilling aider and abettor, in

both the beating and bank robbery hypotheticals.

M.M. did indicate that, given the option, she would not

choose death for the getaway driver. That answer did not

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demonstrate substantial impairment or views that would

prevent her from serving. Recognizing different degrees of

culpability, M.M. acknowledged that hypothetically she could,

but would choose not to, impose death on a less culpable

defendant. This response does not indicate an inability to follow

the court’s instructions. Her answers reflect an ability to listen

to and follow the law. She properly declined to guarantee how

she would vote based on the facts proven at trial. Her excusal

was error.

d. Prospective Juror L.B.

Prospective juror L.B. described himself as “for” the death

penalty and thought it was used too seldom. He approved of

California having the penalty because “[i]f [a] very violent crime

is committed, [the] death penalty is justified.” Death was

appropriate for “premeditated, and brutal” crimes; life in prison

without possibility of parole gave him pause because he was

“afraid that the law can be changed” so that the defendant could

get out on parole. L.B. held no religious or moral objections to

the death penalty and could vote for it. Death should not be

automatic for intentional murders, but should “depend[] on [the]

person’s state of mind before and during committing the act.”

To L.B., a death sentence meant “that society will be somewhat

safer.”

Under questioning from the court and counsel, L.B.

indicated that before hearing the evidence, he was not leaning

toward life or death, would keep an open mind, could follow the

court’s instructions, and could vote for either sentence. He

indicated he could vote for death in the case of someone who,

seeing a cash register open, opportunistically killed the cashier

to steal the contents.

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As she had with other jurors, the prosecutor asked L.B.

hypothetically about the three participants in a bank robbery

and the two participants in a beating death. In the bank robbery

scenario, L.B. agreed the getaway driver, lookout, and actual

killer were equally responsible. He could impose death on the

getaway driver or lookout, depending on the balance of

aggravating and mitigating factors, provided the person knew

the actual killer was armed. In the beating hypothetical, L.B.

considered the person holding the victim down equally culpable.

He hesitated to say that he could impose death on him, however,

because he “still assume[d] that the guy who is holding him

didn’t probably know that he is going to be severely beaten.”

Asked to reconcile that hesitation with his willingness to impose

death in the armed robbery scenario, L.B. explained: “[W]hen

you start beating on somebody, I don’t think . . . you [are] doing

it with the intention that you are killing, but when you have [a]

weapon then it’s a different story. You have a weapon for one

reason[,] to hurt somebody, in my opinion.” Based on that

distinction, he did not feel the person holding another’s arms

should be executed if the beating victim ultimately died.

The prosecutor challenged L.B. for cause on the sole basis

that he could not apply the law with regard to aiding and

abetting. The court granted the motion on that basis, and the

People defend the excusal on the same ground.

The excusal of L.B. was flawed for the same reasons

discussed in connection with S.R. and M.M. L.B. consistently

indicated that he could follow the law and the court’s

instructions and could impose death in a number of factual

situations. That the prosecutor could construct a murder

hypothetical for which L.B. thought one perpetrator should be

spared execution does not mean he was substantially impaired

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within the meaning of Witt. The prosecutor offered no

additional facts that might actually support a special

circumstance finding, nor sufficient aggravating factors to

justify a vote for death. Many competent jurors might react to

such a hypothetical by indicating they would vote for life, not

death.

No other evidence supports the court’s ruling. The record

shows L.B. actively supported the death penalty, thought it was

used too infrequently, and would be able to consider either life

or death in a range of circumstances. Even the prosecutor

described L.B. as “good up until the last hypothetical.” The

excusal of L.B. was error.

e. Prospective Juror G.P.

Prospective juror G.P. had a slight proprosecution leaning,

but said he would try to avoid any prejudice and could follow the

court’s instructions. He felt the death penalty “is an appropriate

punishment in certain cases” and favored California having the

penalty because “in some cases it is called for,” such as cases

involving “plan[ned], premeditated” murder. In addition to

supporting the death penalty, G.P. could vote for it, though he

would not automatically do so. Neither death nor life should be

mandatory in all murder cases; instead punishment should

“depend[] on the circumstances.” G.P. had no philosophical or

religious convictions that would affect his ability to impose

death, but sitting on a capital jury would be difficult because

“[i]t is a very serious thing to have someone’s life in my hands.”

Still, G.P. could vote for death “[i]f the facts meet the criteria,”

such as when a defendant had “without any thought taken

another’s life to gain money [or] property, or hunted down

another to kill them.” Both death and life without possibility of

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parole were severe sentences to G.P. He stated in one part of

his questionnaire that life without parole was worse, but

reported in another that he was “torn” as to which was worse.

When asked by the court whether, based on personal

views, he would refuse to vote for the death penalty without

considering aggravating and mitigating factors, G.P. replied,

“No, I don’t think so.” G.P. would not begin by immediately

favoring life or death; rather, “either defense or prosecution

would [have to] convince me that [the case] called for the death

penalty, I’d have to listen to the different circumstances. And

hopefully keep an open mind . . . .”

When asked by the prosecutor how he could impose death

even though he was not sure it was a more severe sentence than

life in prison, G.P. explained: “I go back to what takes place

during the trial, during the penalty phase. I would listen to all

the evidence . . . [¶] [I]f the circumstances surrounding the

crime and all the factors leading up to it called for the death

penalty, then I think[] I could do that too.” The prosecutor asked

again, “[H]ow will we know you are able to impose the

appropriate punishment?” G.P. replied, “Well, I don’t know how

you would know. I really don’t. Again, you have to take my word

that I would listen to all the evidence and make the decision that

I think is right. And since you are the prosecution side, you

would have to convince me — not maybe convince me like I’m

resisting it, but show me that this man deserves the death

penalty in this case.” Pressed on what the prosecutor would

have to show him to get a death verdict, G.P. would not agree

that any single factor would be necessary or sufficient: “[U]ntil

I hear the evidence, I don’t know [what you would have to show

me].” The prosecutor then went through each special

circumstance one by one and asked whether, if she proved only

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first degree murder and that one special circumstance, G.P.

could vote for death. G.P. replied in each case some variation of

“probably” or “I’m not sure, I think I could,” but “might be

reluctant” if the only special circumstance was murder in the

course of a kidnapping.

G.P. had written on his questionnaire that he thought life

without possibility of parole might serve as a replacement for

the death penalty. He explained that “a lot of so-called

industrial countries feel that life [in prison] is good enough

punishment for somebody,” but he still believed in execution

when “the circumstances surrounding the crime call for the

death penalty.” When asked for circumstances that might call

for death, he offered, “[M]aybe in [a] case like this case, possibly,

. . . the way the charges were read with torture and things like

that[,] rape with using the foreign object, the cruelty of this

crime, possibly, assuming that this all took place, and the

defendant committed these crimes, then it could call for the

death penalty.”

After G.P. agreed he wasn’t sure how he felt about the

death penalty, the prosecutor asked, “And since you don’t know

how you feel about the death penalty, how am I able to

determine whether or not you could impose the death penalty, if

the circumstances warrant it?” G.P. replied, “If the

circumstances warrant it, I would be able to impose it.” The

prosecutor described G.P.’s frame of mind as being “torn

between life without the possibility of parole and between the

death penalty”; G.P. disagreed, saying, “No, I think my frame of

mind [is], I’m willing to listen to all the circumstances from both

sides and make up my mind then about whether to impose the

death penalty on someone or life in prison.” If the aggravating

circumstances outweighed any mitigating circumstances, G.P.

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could impose death. When asked to consider the beating

hypothetical and assume the aggravating circumstances

substantially outweighed the mitigating, G.P. affirmed that he

had “[n]o doubt” he could impose death on the aider and abettor.

G.P. acknowledged that, as he had written in his

questionnaire, he did not think the death penalty was an

effective deterrent. He rejected the prosecutor’s suggestion that

he therefore would be incapable of imposing death: “Well, I don’t

think that just because my idea is that [the] death penalty is not

a deterrent doesn’t keep me from imposing the death penalty [¶]

. . . [¶] [I]f the circumstances surrounding the crime call for the

death penalty, then I can make that decision.”

The prosecutor turned to the bank robbery hypothetical.

G.P. thought all three “equally guilty of murder,” but “probably

wouldn’t impose the death penalty” on the getaway driver who,

as the prosecutor described it, “didn’t go inside[,] he didn’t

shoot[,] he wasn’t the actual killer.”

The prosecutor moved to excuse G.P. for cause, and the

court granted the challenge. The court highlighted two aspects

of G.P.’s views it was troubled by: G.P.’s belief that life in prison

without possibility of parole might substitute for the death

penalty, given that other industrial countries got by without

capital punishment, and his belief that the death penalty was

not a deterrent. The first view the court saw as a way many

“smart” prospective jurors discussed the death penalty,

discussions the court characterized as “some kind of intellectual

sophistry.” The second view, that the death penalty was not a

deterrent, the court saw as a basis for “infer[ring] that he could

not impose [the death penalty, and] that’s the inference that has

to be drawn based on the state of mind.”

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The inference that, simply because one has doubts about

the efficacy of the death penalty, one would refuse ever to impose

it and may be excused for cause has long been forbidden. That

a prospective juror may “voice[] general objections to the death

penalty or express[] conscientious or religious scruples against

its infliction” is an insufficient basis for excusal. (Witherspoon

v. Illinois, supra, 391 U.S. at p. 522.) The high court has

clarified that the prosecution “must demonstrate, through

questioning, that the potential juror lacks impartiality,” i.e.,

that the candidate’s views would substantially impair his or her

ability to follow the court’s instructions and vote for death in

appropriate cases. (Wainwright v. Witt, supra, 469 U.S. at

p. 423.) A trial court cannot simply assume that, because a

candidate doubts the death penalty is a deterrent, he or she

could never impose it. Here, G.P. directly rejected the

assumption: “Well, I don’t think that just because my idea is

that [the] death penalty is not a deterrent, [it] doesn’t keep me

from imposing the death penalty [¶] . . . [¶] [I]f the

circumstances surrounding the crime call for the death penalty,

then I can make that decision.”

The court also referenced several of G.P.’s specific

responses to questioning about whether he could impose the

death penalty. The court noted that when asked whether he

could give the death penalty based on each of the special

circumstances charged in the case, G.P. wavered before saying

he thought he could, or probably could. The court further noted

that G.P. “flat out said he could not [impose death on a getaway

driver]. And, if the theory of the People in this case is an aider

and abettor theory[,] that would preclude consideration of a

potential penalty.”

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On the second point, the record is to the contrary. When

asked, “What penalty would you impose on the person in the car,

who didn’t go inside? He didn’t shoot. He wasn’t the actual

killer,” G.P. responded, “I probably wouldn’t impose the death

penalty.” That a juror “probably wouldn’t impose the death

penalty” on a hypothetical getaway driver is not evidence the

same juror could not impose the death penalty in an appropriate

case. Some getaway drivers, although guilty of first degree

felony murder, may not even be death eligible. (See People v.

Banks, supra, 61 Cal.4th 788.) Even those legally eligible might

rationally be seen by competent jurors as less deserving of death

than another who pulls the trigger. In contrast, G.P. affirmed

that he could cast a vote for death in other aiding and abetting

scenarios and pointed to the facts of this case as circumstances

that might justify a death sentence.

The People agree that G.P.’s answers show he could vote

for death in a range of circumstances, but contend that because

he “probably wouldn’t” in others, he was impaired. The law does

not entitle the People to a jury composed only of those who would

impose death in every factual scenario, but instead to a jury that

can follow the court’s instructions and conscientiously consider

the appropriate penalty based on the proven aggravating and

mitigating circumstances. (See People v. Stewart, supra, 33

Cal.4th at p. 447.)

The court’s remaining point, that G.P. hesitated before

affirming he probably could vote for death in various single

special circumstance hypotheticals, presents a closer question.

Only the trial court could observe G.P.’s demeanor and “the way

he answers the questions.” However, even accepting the court’s

view of G.P.’s demeanor, as we must, the record does not contain

substantial evidence that G.P. held views that would

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“substantially impair” his ability to follow the law and the

court’s instructions. G.P.’s responses uniformly indicate he

could maintain an open mind as to either life or death. Indeed,

G.P. offered the facts of this case as precisely the sort of case in

which he might be able to consider a death sentence.

“[U]nder applicable law, even a juror who ‘might find it

very difficult to vote to impose the death penalty’ is not

necessarily substantially impaired unless he or she was

unwilling or unable to follow the court’s instructions in

determining the appropriate penalty.” (People v. Merriman

(2014) 60 Cal.4th 1, 53.) The prosecution, as the party seeking

G.P.’s removal, had the burden of establishing he lacked

impartiality and could not follow the court’s instructions.

(Wainwright v. Witt, supra, 469 U.S. at p. 423; People v. Stewart,

supra, 33 Cal.4th at p. 445.) Here, nothing in the record

suggests G.P. held inalterable anti-death penalty views or would

find it difficult to vote for death when appropriate, nor does

anything in the record give reason to doubt G.P. could act in

accordance with the law and the court’s instructions, as he

repeatedly and without reservation indicated he would do. The

court erred in excusing G.P. for cause.

f. Harmless Error

In a capital case, the erroneous excusal of even one

prospective juror for cause requires automatic reversal of the

death sentence, although not the preceding guilt

determinations. (Witherspoon v. Illinois, supra, 391 U.S. at

pp. 516–518, 521–523; People v. Riccardi (2012) 54 Cal.4th 758,

783; People v. Pearson, supra, 53 Cal.4th at p. 333; People v.

Heard, supra, 31 Cal.4th at p. 966.)

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The People ask us to revisit this rule and hold any error

harmless. The rule is not ours to revisit. It has been established

in United States Supreme Court case law. (Gray v. Mississippi

(1987) 481 U.S. 648, 659–668 (plur. opn. of Blackmun, J.); id. at

p. 672 (conc. opn. of Powell, J.); see People v. Riccardi, supra, 54

Cal.4th at p. 783.) Even if a harmless error standard were to

apply, the People fail to explain how the erroneous exclusion of

at least four jurors could be deemed harmless. (See Riccardi, at

p. 845 & fn. 6 (conc. opn. of Cantil-Sakauye, C. J.) [whatever

doubt there might be about the impact of a single erroneous

excusal for cause, the erroneous exclusion of numerous jurors

inevitably will have an “appreciable impact on the final

composition of the jury”].)

2. Wheeler/Batson Motions

We turn now to a different aspect of jury selection. The

foregoing Witherspoon/Witt analysis involved the court’s excusal

of prospective jurors for cause. In this section we consider the

prosecution’s exercise of peremptory challenges against jurors

not excused for cause. As we explain, the questions involve

different principles.

Penny Sigler was a White woman. Armstrong, like

Pearson and Hardy, is an African-American man. During jury

selection, the prosecution exercised four peremptory challenges

against African-American male prospective jurors. Armstrong

objected to the first two peremptories as racially discriminatory.

The court denied these motions, ruling no prima facie case of

discrimination had yet been established. After the third

peremptory, the court found a prima facie case, but after

considering the prosecutor’s proffered explanation, concluded

the peremptory was being exercised for racially neutral reasons.

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PEOPLE v. ARMSTRONG

Opinion of the Court by Corrigan, J.

The court also revisited the two earlier challenges and asked the

prosecutor to justify these peremptories. In light of the reasons

given, the court ruled these excusals likewise were not based on

race.

The court initially granted a fourth motion, but after a

recess reversed itself and denied the motion. With the last

African-American male eliminated from the pool, Armstrong

moved for a mistrial. The court denied the motion, noting that

both African-Americans and males were represented on the

jury. The jury as seated included one African-American woman

and five Caucasian men, but no African-American men.

Armstrong renews his objections on appeal, arguing that

he was deprived of the right to equal protection and trial by a

representative jury. (U.S. Const., 6th, 8th & 14th Amends.; Cal.

Const., art. I, §§ 7, 16.) We conclude there was no error.

a. Legal Principles

Peremptory challenges are “designed to be used ‘for any

reason, or no reason at all.’ ” (People v. Scott, supra, 61 Cal.4th

at p. 387, quoting Hernandez v. New York (1991) 500 U.S. 352,

374 (conc. opn. of O’Connor, J.).) But there are limits:

Peremptory challenges may not be used to exclude prospective

jurors based on group membership such as race or gender.

(J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 129; Batson

v. Kentucky (1986) 476 U.S. 79, 97; People v. Wheeler (1978) 22

Cal.3d 258, 276; Code Civ. Proc., § 231.5.) Such use of

peremptory challenges violates both a defendant’s right to a jury

drawn from a representative cross-section of the community

under article I, section 16 of the California Constitution, and his

right to equal protection under the Fourteenth Amendment to

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PEOPLE v. ARMSTRONG

Opinion of the Court by Corrigan, J.

the United States Constitution. (People v. Parker (2017) 2

Cal.5th 1184, 1211.)

“[T]here ‘is a rebuttable presumption that a peremptory

challenge is being exercised properly, and the burden is on the

opposing party to demonstrate impermissible discrimination.’ ”

(People v. Hensley (2014) 59 Cal.4th 788, 802; see Purkett v.

Elem (1995) 514 U.S. 765, 768.) Under a now familiar three-

step process, a defendant must first “make out a prima facie case

‘by showing that the totality of the relevant facts gives rise to an

inference of discriminatory purpose.’ [Citation.] Second, once

the defendant has made out a prima facie case, the ‘burden

shifts to the State to explain adequately the racial exclusion’ by

offering permissible race-neutral justifications for the strikes.

[Citations.] Third, ‘[i]f a race-neutral explanation is tendered,

the trial court must then decide . . . whether the opponent of the

strike has proved purposeful racial discrimination.’ ” (Johnson

v. California (2005) 545 U.S. 162, 168, fn. omitted; see People v.

Scott, supra, 61 Cal.4th at p. 383.) The defendant’s ultimate

burden is to demonstrate that “it was more likely than not that

the challenge was improperly motivated.” (Johnson, at p. 170.)

The same rules apply to state constitutional claims. (People v.

Chism (2014) 58 Cal.4th 1266, 1313.)

Different standards apply to the review of first-stage and

third-stage rulings. (Compare People v. Sánchez (2016) 63

Cal.4th 411, 434–435 [first-stage standard] with People v.

Winbush (2017) 2 Cal.5th 402, 434–435 [third-stage standard].)

Armstrong and the People agree that the third-stage standard

applies to Armstrong’s final two motions, but disagree as to the

standard applicable to Armstrong’s first two motions.

Armstrong is correct that the third-stage standard applies to all

four rulings.

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PEOPLE v. ARMSTRONG

Opinion of the Court by Corrigan, J.

In response to Armstrong’s first two motions, following

challenges to prospective jurors S.L. and R.C., the court

originally found no prima facie case. However, after finding a

prima facie case in connection with Armstrong’s third motion,

the court chose to revisit its earlier rulings and asked the

prosecutor for a statement of reasons as to each. Upon

reconsideration, the court reaffirmed its determination that

these peremptories rested on race-neutral grounds. The court’s

actions were consistent with the law as it stood at the time of

trial, which required courts finding a prima facie case to solicit

and consider the prosecution’s reasons for every other challenge

against a member of the same group. (People v. McGee (2002)

104 Cal.App.4th 559, 570, disapproved by People v. Avila (2006)

38 Cal.4th 491, 549–550.)

Trial courts are no longer obligated to revisit their rulings

on earlier Wheeler/Batson motions when they conclude the

defendant has made out a prima facie case in connection with a

later motion. (People v. Hamilton (2009) 45 Cal.4th 863, 899, fn.

10; People v. Williams (2006) 40 Cal.4th 287, 311; People v.

Avila, supra, 38 Cal.4th at p. 549.) However, they have the

power to do so in cases when a subsequent challenge places an

earlier challenge in a new light. (Avila, at p. 552.) When a trial

court revisits an earlier ruling, determines a prima facie case

has been made, solicits reasons from the prosecutor, and rules

on those reasons, its ruling is reviewed in the same fashion as

any other third-stage ruling.

The court’s reconsidered rulings on prospective jurors S.L.

and R.C. based on reasons solicited from the prosecutor must be

reviewed under the standards applicable to third-stage rulings.

The record does not reveal whether the court reconsidered its

earlier determination that no prima facie case had been made,

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PEOPLE v. ARMSTRONG

Opinion of the Court by Corrigan, J.

but when a trial court solicits reasons for earlier strikes it had

previously found did not support a prima facie case, we will

assume the court has reversed its earlier determination unless

the record affirmatively demonstrates otherwise. Moreover,

when the sincerity of the reasons given for excusing one juror

bears on the sincerity of the reasons given for excusing a later

juror, those reasons may be considered in evaluating the

peremptory strike against the original juror. (People v. Scott,

supra, 61 Cal.4th at p. 392; People v. Riccardi, supra, 54 Cal.4th

at pp. 786–787.) There is some overlap in the reasons given for

striking S.L. and R.C., and for later striking E.W. and R.P.

Accordingly, we will review all four strikes as third-stage

rulings.

At the third stage, the genuineness of the justification

offered, not its objective reasonableness, is decisive. (Purkett v.

Elem, supra, 514 U.S. at p. 769; People v. Gutierrez (2017) 2

Cal.5th 1150, 1158.) “[T]he issue comes down to whether the

trial court finds the prosecutor’s race-neutral explanations to be

credible. Credibility can be measured by, among other factors,

the prosecutor’s demeanor; by how reasonable, or how

improbable, the explanations are; and by whether the proffered

rationale has some basis in accepted trial strategy.” (Miller-El

v. Cockrell (2003) 537 U.S. 322, 339; accord, People v. Winbush,

supra, 2 Cal.5th at p. 434.) Because the trial court’s credibility

determination may rest in part on contemporaneous

observations unavailable to the appellate court, we review that

determination “ ‘ “with great restraint” ’ ” and will accord it

deference “[s]o long as the trial court makes a sincere and

reasoned effort to evaluate the nondiscriminatory justifications

offered,” affirming when substantial evidence supports the

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PEOPLE v. ARMSTRONG

Opinion of the Court by Corrigan, J.

ruling. (People v. Burgener (2003) 29 Cal.4th 833, 864; accord,

People v. Lenix (2008) 44 Cal.4th 602, 613–614.)

Armstrong contends no deference is due the trial court’s

determinations. We cannot cast aside these findings so lightly.

The record shows that over the course of Armstrong’s four

motions, the prosecutor made a comprehensive record of her

reasons for every strike, whether challenged or not. The trial

judge took the opportunity to debate at length with counsel and

consider thoughtfully the genuineness of the proffered reasons

in light of his own observations. Discussion of the final

Wheeler/Batson challenge alone consumed more than 80 pages

of transcript. In the trial court, Armstrong bore the burden only

of showing by a preponderance of the evidence that purposeful

discrimination was behind the prosecutor’s use of strikes. (See

Johnson v. California, supra, 545 U.S. at p. 170; People v.

Woodruff (2018) 5 Cal.5th 697, 753.) Once the trial court

engaged in a reasoned examination of Armstrong’s showing in

light of the record and determined he had not proven

discrimination, its findings became entitled to “ ‘ “great

deference on appeal” and will not be overturned unless clearly

erroneous.’ ” (People v. Riccardi, supra, 54 Cal.4th at p. 787,

quoting Miller-El v. Cockrell, supra, 537 U.S. at p. 340.)

b. African-American Men Are a Cognizable Class

In the trial court, Armstrong argued the use of

peremptories on S.L., R.C., E.W., and R.P. was motivated by

race. Once all four had been excused and his motions denied,

Armstrong sought a mistrial on the ground that all African-

American men had been removed from the jury panel. The court

denied the motion. In this court, Armstrong contends the

prosecutor’s peremptories were exercised to discriminate

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PEOPLE v. ARMSTRONG

Opinion of the Court by Corrigan, J.

against African-American men specifically, rather than all

African Americans.

Motions under Wheeler and Batson protect against the

systematic exclusion of distinctive and protected groups from

the jury pool. Armstrong, as the moving party, has the burden

of establishing the challenged jurors are members of a

cognizable class. (People v. Jones (2013) 57 Cal.4th 899, 916.)

The record confirms that the four excluded jurors were African-

American men, and this court’s precedent establishes that, in

addition to groups defined by either race or gender, groups lying

at the intersection of race and gender are cognizable under

Wheeler. (People v. Cleveland (2004) 32 Cal.4th 704, 734; People

v. Boyette (2002) 29 Cal.4th 381, 422; People v. Clair (1992) 2

Cal.4th 629, 652; People v. Motton (1985) 39 Cal.3d 596, 605.) In

line with that precedent, the Court of Appeal has held African-

American men a cognizable class for Wheeler purposes. (People

v. Gray (2001) 87 Cal.App.4th 781, 788–790.) The People

contend that African-American men should not be considered a

cognizable group, pointing to federal cases and to a concurring

opinion disagreeing with the approach this court has taken.

(People v. Young (2005) 34 Cal.4th 1149, 1235–1238 (conc. opn.

of Brown, J.).) Settled law dictates otherwise.

c. Prospective Juror S.L.

After Hovey voir dire, the prosecutor moved to excuse S.L.

for cause. She expressed concern that S.L. “hesitated on quite a

few of his decisions, especially those asking whether or not he

could impose the death penalty.” S.L favored rehabilitation, and

the prosecutor was unsure whether S.L. was for or against the

death penalty. Based on these and other views, the prosecutor

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PEOPLE v. ARMSTRONG

Opinion of the Court by Corrigan, J.

was of the “opinion that [S.L.] would be unable to impose the

death penalty.” The court denied the motion.

Following regular voir dire, the prosecutor used a

peremptory on S.L. When initially denying Armstrong’s

Wheeler/Batson motion, the court referenced its earlier denial of

excusal for cause, which it described as “a very close challenge,”

and concluded based on courtroom observations that the strike

rested on S.L.’s reluctance to impose death: “I can understand

why [the prosecutor] would want to excuse this juror, because at

the Hovey challenge, even though this court did not grant the

challenge for cause, this juror had some reservations about

imposing the penalty of death, based on his demeanor, [and] my

belief is based upon the earlier challenge for cause during the

Hovey process, that the motive to excuse this juror is not based

on race, but because of [the prosecutor’s] perceived perception of

this juror’s inability to be able to impose death at the penalty

phase.” When denying the challenge for cause, the court had

anticipated the juror later would be the subject of a peremptory:

“In making that ruling at that time I realized that there is an

issue that this juror may, as the prosecutor [had] perceived at

the time, may not be suitable, because that person waffled on

whether they could impose death or not, believing in a

rehabilitation system, and [that the defendant] has to commit a

hateful crime.”

As noted, the parties and court returned to the strike of

S.L. when the court found a prima facie case in response to a

subsequent Wheeler/Batson motion in connection with a

different juror. Defending the strike, the prosecutor highlighted

numerous answers S.L. had given that might suggest reluctance

to impose the death penalty. The court credited this reason,

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PEOPLE v. ARMSTRONG

Opinion of the Court by Corrigan, J.

again noting that in its view S.L. nearly could have been excused

for cause based on his death penalty views.

Initially, we note rulings made in response to assertions

that “the juror did hesitate for [a] very long time before finally

indicating that he could impose the death penalty” and based in

part on observations of a juror’s “demeanor” are particularly

difficult to second guess. Only the trial court is in a position to

observe these matters. The court can hear the juror’s tone and

inflection and see whether a juror hesitates or struggles with

particular answers in a way the record may never reveal. (See

People v. Lenix, supra, 44 Cal.4th at pp. 626–627.) Because the

“trial court is best situated to evaluate both the words and the

demeanor of jurors who are peremptorily challenged, as well as

the credibility of the prosecutor who exercised those strikes[,]

. . . ‘these determinations of credibility and demeanor lie

peculiarly within a trial judge's province,’ and ‘in the absence of

exceptional circumstances, we [will] defer to the trial court.’ ”

(Davis v. Ayala (2015) 576 U.S. ___, ___ [135 S.Ct. 2187, 2201].)

What can be discerned from the record supports the

prosecutor’s and trial court’s assessments of S.L. As the

prosecutor recited, S.L. thought rehabilitation “important” and

said, “[I]f there is anything about [a defendant’s] background

that I would feel maybe he could be rehabilitated, then I would

vote for life imprisonment.” For a first time offender without a

prior history of “hateful decisions,” S.L. thought “maybe life in

prison would be better” and thus would lean toward voting for

life. He gave conflicting answers as to whether he would require

the People to prove just one, multiple, or all special

circumstances before voting for death. S.L. would require proof

of an intent to kill. S.L. “probably would” vote for life without

the possibility of parole absent evidence the defendant would

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PEOPLE v. ARMSTRONG

Opinion of the Court by Corrigan, J.

reoffend in prison. S.L. thought life in prison was a more severe

punishment than death because “the person would have the rest

of their lives to think about what they had done.”6 S.L. was

unsure whether California should abolish the death penalty.

A juror’s reservations about imposing the death penalty

are an acceptable race-neutral basis for exercising a

peremptory. (E.g., People v. Winbush, supra, 2 Cal.5th at p. 436;

People v. Lomax (2010) 49 Cal.4th 530, 572; People v. Taylor

(2010) 48 Cal.4th 574, 603; People v. Burgener, supra, 29 Cal.4th

at 864.) The view that life without possibility of parole is a more

severe punishment than death is also an “obvious race-neutral

ground[]” for challenging a prospective juror. (People v. Davis

(2009) 46 Cal.4th 539, 584.)

Armstrong models his claim after Miller-El v. Dretke

(2005) 545 U.S. 231. Two factors the Supreme Court weighed

heavily there, the apparently discriminatory use of a Texas

procedure called “jury shuffling” and direct evidence of a

systemic, historical policy of excluding African-Americans from

juries in the county, are absent here. (Miller-El, at pp. 253–255,

263–265.) Armstrong points to two other factors: the argument

that similar White jurors were not challenged, and that the

prosecutor engaged in disparate questioning. Neither of these

factors is demonstrated in the record.

Armstrong identifies four jurors and an alternate who, in

response to one of the two questions on the juror questionnaire

6

In his questionnaire, S.L. also said life without possibility

of parole meant a defendant would “have to live with [his crime]

for the rest of [his] life” and “you have the rest of your life to be

punished.”

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PEOPLE v. ARMSTRONG

Opinion of the Court by Corrigan, J.

comparing death and life without possibility of parole, indicated

life was, or were unsure whether it might be, a worse

punishment for a defendant.7 That these jurors were allowed to

serve does not refute the trial court’s determination that the

prosecutor’s concern was sincere. Examining the voir dire as a

whole, the prosecutor showed by word and deed that she

afforded significance to whether prospective jurors thought life

in prison without parole a more severe penalty than death. She

routinely questioned White jurors of both genders about the

respective severity of death and life without parole. She

challenged for cause or used peremptories against many White

jurors who did not clearly view death as more severe. The

prosecutor’s concern extended even to jurors who considered the

question in terms of how they themselves would compare the

punishments if each were imposed on them.

In response to Armstrong’s Wheeler/Batson motions, the

prosecutor articulated her thinking about this consideration: “I

don’t believe that somebody . . . who believe[s] that life without

the possibility of parole is a more severe punishment than death

can actually impose the death penalty, because they believe that

spending the rest of their life in prison would be the more severe

punishment that could be imposed. [¶] I have exercised my

peremptory challenges with respect to those jurors who have

indicated” they hold that belief. Whether the prosecutor was

7

The jury questionnaire asked: “Overall, in considering

general issues of punishment, which do you think is worse for

a defendant,” death or life in prison without the possibility of

parole? A second question asked, “Which do you believe is a

more severe punishment,” death or life without parole? In

response to the second question, these jurors and the alternate,

unlike S.L., indicated death was the more severe punishment.

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Opinion of the Court by Corrigan, J.

right in her thinking, or whether we would share her concerns,

is irrelevant. What matters is the genuineness of this view and

its use as a criterion to distinguish among jurors. Exercising a

peremptory to strike a juror who thinks death is a less severe

punishment than life in prison without possibility of parole can

be a “reasonable,” race-neutral basis (Miller-El v. Dretke, supra,

545 U.S. at p. 248) if not used in a racially discriminatory way.

This is not a case like Miller-El where the prosecutor displayed

only selective concern. Instead, the issue was a frequent part of

the prosecutor’s questioning of both White and African-

American jurors throughout the Hovey voir dire.8

That the prosecutor did not eliminate every juror who had

even some doubt as to the relative severity of the penalties does

not demonstrate that the trial court committed clear error in

finding the concern genuine. The jury questionnaire asked both

generally whether a death or life sentence was more severe and

specifically which penalty was worse for the defendant. (See

ante, fn. 7.) More than 30 percent of the jury pool indicated that

life was the harsher penalty in response to both questions, and

nearly half indicated as much on at least one of the two

questions.9 Based on this representation in the jury pool, one

would have expected six of the 18 jurors and alternates to think

8

In addition to her use of peremptories, the prosecutor

successfully moved to excuse for cause a juror who believed life

without possibility of parole was the more severe penalty and

for that reason would vote for life when the aggravating

circumstances outweighed the mitigating circumstances.

9

By our count, of the 406 prospective jurors who answered,

fully 190 indicated life was a harsher penalty than death in

response to one question or the other, and 133 so indicated in

response to both.

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PEOPLE v. ARMSTRONG

Opinion of the Court by Corrigan, J.

a life sentence was harsher both in general and specifically, and

eight to have answered that way on at least one of the two

questions. The prosecutor’s focus on the issue produced a jury

that contained no one in the first category, and only four jurors

in the second.

The prosecutor focused on these questions because she

believed they indicated a reluctance to impose death, but they

were not the only ones that might reveal reluctance. The

prosecutor was entitled to consider the full set of each juror’s

responses in deciding whether they could be persuaded to vote

for death if appropriate. Each of the jurors who sat had other

answers that might temper concern. For example, in contrast

to S.L., each rejected the idea that the death penalty should be

abolished.

Armstrong also identifies two jurors and an alternate who

indicated rehabilitation or redemption might play a role in their

thinking. Juror No. 4 believed that life might be appropriate for

a remorseful first time offender who still had something to

contribute to society, but did not think she could identify

whether someone was remorseful, and was unequivocal about

her ability to vote for death for a first time offender; S.L. would

lean toward life for all first offenders. Juror No. 11 thought of

death as an acceptable way to punish the unredeemable and

would consider whether there was “hope for [the defendant] in

our society” when weighing life and death. But unlike S.L.,

Juror No. 11 believed death was a more severe punishment.

Unlike S.L., Juror No. 11 was clear that the death penalty

should not be abolished. Her collective answers suggest

openness to the death penalty in a wider range of

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PEOPLE v. ARMSTRONG

Opinion of the Court by Corrigan, J.

circumstances.10 Finally, Alternate Juror No. 6 endorsed life in

prison for those who are “truly sorry and can be rehabilitated to

some usefulness and good.” But nothing else in her

questionnaire or voir dire suggested hesitation about imposing

the death penalty.

Armstrong objects that the prosecutor used differential

questioning for S.L. and other prospective jurors, who were not

asked whether they could impose the death penalty under

specific special circumstances and whether they would require

that more than one special circumstance be proven. The record

refutes this contention. The prosecutor employed the same

general line of questioning with numerous prospective jurors

who were not African-American men.

Finally, Armstrong argues that S.L.’s answers in his

questionnaire and on voir dire gave no suggestion he could not

follow the law. While this may be true, the argument misses the

point. Unlike a for-cause challenge under Witherspoon and Witt,

the issue here is not whether a juror held views that would

impair his or her ability to follow the law. Unimpaired jurors

may still be the subject of valid peremptory strikes. The issue

instead is whether the prosecutor held a genuine race-neutral

reason for exercising a strike.

“In a capital case, it is not surprising for prospective jurors

to express varying degrees of hesitancy about voting for a death

verdict. Few are likely to have experienced a need to make a

comparable decision at any prior time in their lives. As a result,

both the prosecution and the defense may be required to make

10

S.L. described the death penalty’s only purpose as a tool to

punish “people [who] murder and can’t or won’t stop even if they

were in prison for life.”

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Opinion of the Court by Corrigan, J.

fine judgment calls about which jurors are more or less willing

to vote for the ultimate punishment. These judgment calls may

involve a comparison of responses that differ in only nuanced

respects, as well as a sensitive assessment of jurors’ demeanor.”

(Davis v. Ayala, supra, 576 U.S. at p. ___ [135 S.Ct. at p. 2201].)

The trial court determined the use of a peremptory to excuse

S.L. was the product of just such a judgment call. Its

determination was supported by substantial evidence and thus

not clear error.11

d. Prospective Juror R.C.

Armstrong challenged the prosecution’s use of its eleventh

peremptory on R.C. The court initially found no prima facie

case. It noted both R.C.’s failure to give direct answers and a

developing friction between R.C. and the prosecutor as

providing neutral reasons for the peremptory. When the court

retroactively solicited a statement of reasons following use of a

peremptory to strike a third African-American male, the

prosecutor explained she struck R.C. because he had memory

issues, expressed an unwillingness to set aside his belief system,

repeatedly gave nonanswers or revealed no opinions about the

death penalty, and clashed with the prosecutor during voir dire.

11

Armstrong relies on People v. Silva (2001) 25 Cal.4th 345,

385 to argue that no deference is due the trial court’s

determinations and we should consider de novo the validity of

this strike. In Silva, we carved out an exception to the usual

rule of deference because the record contained no support for the

prosecutor’s stated reasons and the trial court did not inquire

into those reasons. (Id. at pp. 376–377, 385–386.) No similar

justification for applying the exception appears here where, as

discussed, the record supports the prosecutor’s reasons and the

trial court correctly recalled and considered the Hovey voir dire

that bore on those reasons.

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After hearing the prosecutor’s explanations, which aligned with

the reasons identified in the earlier ruling, the court accepted

them.

The record supports the court’s determination. R.C.’s

questionnaire revealed little to nothing about his death penalty

views. In voir dire, the prosecutor had an equally difficult time

discovering his feelings on the subject. R.C. acknowledged he

had memory difficulties. He also wrote on his questionnaire

that he would not set aside his religious, social, and

philosophical beliefs, although he later indicated he had

misunderstood the question. Finally, review of the voir dire

transcript confirms that exchanges between the prosecutor and

R.C. became so combative that counsel and the court needed a

sidebar to discuss whether the prosecutor could ask ancillary

questions about why R.C. was resisting her inquiries.12 The

12

Sample exchanges:

Q: . . . what subjects did you teach?

A: You’re amazing. You’re amazing. . . .

Q: You said I was amazing. Did you mean that

sarcastically?

A: I don’t think I was laughing.

Q: Okay. So why did you say I’m amazing?

A: I think you are. It’s simple to me.

Q: . . . would you say that you are for or against the death

penalty?

A: Lady, I keep telling you the same thing. I don’t

understand why you keep asking me the same thing.

Q: Can you —

A: I do not know your name, that’s why I called you lady.

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Q: That’s nice. At least you didn’t call me something else.

A: I don’t have any of that other in my heart or in my mind.

I just want some clear questions, so I can get some clear answers

and get out of here.

Q: Okay. The question I have in my mind is based on your

answers. Are you for or against the death penalty?

A: My opinion is the same as it was when we started this.

Q: So you have no opinion one way or the other?

A: No.

Q: Based on what you just said, it sounds like, to me, that

you believe in the death penalty. Is that an accurate statement?

A: Whatever you want to believe is fine with me.

Q: But I’ve asked you what your opinion is about the death

penalty, and you say you have no opinion. So that doesn’t make

sense to me that you can impose it, but you don’t have an opinion

about it.

A: I’m pretty clear, and it’s okay with me. . . . Where I’m

coming from is that I’m very clear about what I’m saying to you.

And what you believe is personal, you know, I don’t — I don’t

even — I’m not even willing to help you, but that’s personal, I

think.

Q: Can you come out here, look him in the eye and say

“Death”?

A: Why are you asking me that?

Q: Because that’s what you have to do at the end, if you

come back with a death verdict. The court is going to poll you,

he’s going to ask what your verdict is, and the defendant is going

to be sitting right there looking you in the eye. Can you look

him back in the eye and say “Death”?

A: If you were the defendant, I could look you in your eye

and say “Death.”

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prosecutor “felt that my client would not be best served by a

juror who has a personality conflict with me as the lawyer,

because I think that would get in the way of being able to

evaluate the evidence . . . and would cause him to sway towards

the defense.” She was entitled to exercise a peremptory on these

bases, and the court had ample basis for viewing the reason as

genuine.

Armstrong concedes a conflict developed between the

prosecutor and R.C., but lays blame for that conflict solely on

the prosecutor for allegedly provocative, confrontational, and

insulting questions. Our review of the voir dire does not support

this interpretation. More fundamentally, the trial judge

observed the questioning and concluded the personality conflict

was genuine rather than manufactured by the prosecutor. In

later explaining its ruling, the court said: “This juror . . . was,

in this court’s observation, a belligerent and hostile juror toward

the prosecutor during her questioning. He refused to answer

many of the same reasonable questions posed to the other jurors,

specifically whether he could impose death . . . . The sum and

substance of his answers were that You’ll have to find out later.”

Armstrong dismisses that determination, but it appears to be a

legitimate conclusion based explicitly on the court’s

observations.

Armstrong also contends that comparative juror analysis

shows the reasons for R.C.’s excusal were pretextual, identifying

a handful of other jurors who he asserts had similarly ill-formed

views of the death penalty. That other prospective jurors may

have been similar in one or two regards is not decisive. (People

v. Winbush, supra, 2 Cal.5th at p. 443.) No other juror engaged

the prosecutor in pointed verbal sparring in the way R.C. did.

What occurred here was unique. Consequently, no other juror’s

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combination of questionnaire and voir dire responses is

comparable to R.C.’s. The court did not abuse its discretion in

determining that the prosecutor’s race-neutral reasons for

excusing R.C., including his nonresponsiveness and the tenor of

the exchanges during voir dire, were genuine.

e. Prospective Juror E.W.

When Armstrong challenged the use of a peremptory on

prospective juror E.W., the court found a prima facie case and

solicited the prosecution’s reasons. After discussing a number

of responses from E.W. that gave her pause, the prosecutor

identified two as dispositive: “The two things that really bother

me [are] that he believes that life without the possibility of

parole is the most severe sentence and he also believes that since

if the death penalty is imposed it cause[s] so much additional

litigation, he doesn’t believe it should be, just let it go, is what

he says. To me that is indicative of what his verdict is going to

be.” Later, she reiterated that E.W.’s view of life without

possibility of parole as the more severe sentence was her

“primary motivation for exercising the peremptory challenge,”

and she had exercised peremptories against Whites who held

the same view. The trial court evaluated these concerns and

concluded they were genuine. Because the prosecutor’s “concern

has nothing to do with race[,] it has to do with whether or not

[E.W.] could impose the death penalty,” the court denied the

motion.

The record substantiates that E.W. held the views the

prosecutor ascribed to him. He wrote that the death penalty in

its “current form is so slow that it’s really useless. Justice

delayed.” He was “OK [with the death penalty] in principle, but

if it creates so much additional litigation, maybe [the state]

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should just let it go.” He circled that life in prison without

possibility of parole was a more severe punishment than death

and added, “To me, I’d rather die.” E.W. confirmed this view in

voir dire. E.W. also thought “the appeals process so long that it

tends to be life in prison.”

Armstrong stresses that in E.W.’s questionnaire and voir

dire, E.W. said his views would not affect his verdict. So does

the dissenting opinion. (Dis. opn., post, at pp. 18–20.) They are

correct about the record, but incorrect about its significance.

E.W. was not excused for cause. Instead, the prosecution was

entitled to use a peremptory if, as an advocate, she was

concerned he would resist her view of the case. The ultimate

issue in a Wheeler/Batson motion is not whether E.W.’s views

would substantially impair his ability to vote for execution. The

question instead is whether the prosecutor genuinely believed

those views would incline E.W. to vote for life, and whether that

belief was the true basis for the exercise of a peremptory. The

trial court accepted this reason after voir dire. Armstrong and

the dissent must do more than argue that the prosecutor’s

concerns might have been unfounded. The “inquiry is focused

on whether the proffered neutral reasons are subjectively

genuine, not on how objectively reasonable they are.” (People v.

Melendez (2016) 2 Cal.5th 1, 15.) The reasons must be sincere

and nondiscriminatory, but they need not be universally shared.

The dissenting opinion accepts that “ ‘we exercise great

restraint in reviewing a prosecutor’s explanations and typically

afford deference to a trial court’s Batson/Wheeler rulings.’ ”

(Dis. opn., post, at p. 23, quoting People v. Gutierrez, supra, 2

Cal.5th at p. 1172; see People v. Melendez, supra, 2 Cal.5th at

p. 15 [“We review the trial court’s determination with restraint,

presume the prosecutor has exercised the challenges in a

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constitutional manner, and defer to the trial court’s ability to

distinguish genuine reasons from sham excuses.”].) We

departed from that stance of deference in Gutierrez, but only

because the proffered reasons lacked inherent plausibility or

were contradicted by the record, and the trial court did not ask

the prosecutor to elaborate. (Gutierrez, at pp. 1169–1172; see

People v. Silva, supra, 25 Cal.4th at p. 386.) Here, in contrast,

the reasons the prosecutor relied upon could well make a juror

less desirable for a prosecution seeking the death penalty and

were borne out by the record.

The dissenting opinion nevertheless offers two reasons for

according the trial court’s finding no deference. First, it

suggests the court failed to challenge the prosecutor’s assertion

that she was striking all prospective jurors who believed life

without parole was a more severe sentence than death. The

dissenting opinion accepts that E.W. indicated he thought life

without parole a more severe penalty than death, and that the

prosecutor was correct in stating every seated juror had

answered differently. But, according to the dissent, the trial

court should have noticed that four other jurors or alternates

indicated in response to a different question that life without

possibility of parole was worse for defendants, and these

answers should have spurred further inquiry from the court.

(Dis. opn., post, at p. 16.)

However, when the prosecutor struck E.W. and the trial

court considered the Wheeler/Batson challenge, only one of the

four supposedly comparable jurors (Juror No. 5) was in the

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box.13 That is, no juror in the box save E.W. had indicated life

was the more severe punishment, and only one other thought

life worse for a defendant. That the trial court failed to observe

one juror had answered one of the two questions on the

questionnaire asking about the two penalties’ relative

harshness (see ante, fn. 7) in a manner that could have

concerned the prosecutor does not show that the court’s inquiry

was insufficiently “ ‘sincere and reasoned.’ ” (People v. Lenix,

supra, 44 Cal.4th at p. 614.)

The meager representation of these views on the panel,

notwithstanding that nearly half the prospective jurors held

such views, was the product of weeks the prosecutor spent

pressing, challenging for cause, and striking jurors who did not

consider death more severe than life in prison without parole.

(See ante, pp. 42–45.)14 The trial court, unlike this one, observed

13

The prospective jurors who ultimately served as Jurors

No. 4 and No. 9 were drawn randomly late in the process, after

E.W. had been struck, when both sides were low on strikes and

had to weigh carefully the pros and cons of the provisional panel

against the characteristics of the dwindling pool of potential

replacements. Alternate Juror No. 5 was chosen much later as

part of a separate process.

14

Two examples illustrate the prosecutor’s approach.

Prospective Juror No. 255, a White female, indicated in her

questionnaire that life and death were equally severe penalties.

The prosecutor questioned her about this and got her to agree

that death was actually more severe. Unsatisfied, the

prosecutor later exercised a peremptory against the woman, and

explained on the record that her sole reason was because she

thought the juror still felt life was as severe a punishment as

death.

Prospective Juror No. 9803, a White male, indicated on his

questionnaire that life was more severe than death. The

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those weeks of questioning directed at jurors of all races and

genders. Its observations informed its judgments about whether

the prosecutor’s stated concern was genuine. If the deference

we are required to accord the trial court’s finding (Davis v.

Ayala, supra, 576 U.S. at p. ___ [135 S.Ct. at p. 2199]) means

anything, it means that first-hand experience merits some

weight. Given a justification that (1) was inherently plausible,

(2) was largely supported by the record of the prosecutor’s

behavior, and (3) appeared to the trial court to be subjectively

genuine, the trial court was not legally obligated to inquire

further.

The record offers factual and statistical support for the

genuineness of the prosecutor’s concern about jurors who, like

E.W., thought life without parole a more severe penalty. Unable

to contest that the prosecutor winnowed out all jurors who

thought life the more severe penalty, and nearly all who thought

it a fate worse than death for the defendant, the dissent would

shift the focus from whether the prosecutor’s concern was

genuine to whether specific statements she made in illustrating

that concern were not just substantially accurate but

universally true. This misstates the nature of the trial court’s

inquiry, and ours. That the prosecutor may have succeeded in

eliminating only nearly all, rather than all, the jurors the

prosecutor asked him whether this answer meant he would vote

for life. The juror said it did not. Again unsatisfied, the

prosecutor struck him and gave as her sole reason that the juror

felt life a more severe punishment than death.

These and other instances also reflect the prosecutor’s

consistent reluctance, for prospective jurors of all races and

genders, to put faith in voir dire answers that hedged on views

expressed in the jurors’ questionnaires.

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dissent deems comparable does not call into question the

sincerity of her concern.

Second, the dissenting opinion concludes that, on its view

of the cold record, the prosecutor should have been no more

concerned by E.W.’s death penalty views than those of several

jurors the prosecutor did not strike. (Dis. opn., post, at pp. 18–

20.) The conclusion fails because the jurors are not comparable.

E.W. thought life without possibility of parole the more severe

penalty; Juror No. 5, the only one of the comparison jurors on

the panel when E.W. was struck, did not, explaining that

“[d]eath is the end forever — prison for life is still life.” Where

E.W. described the death penalty as “useless” and a candidate

for abandonment, Juror No. 5 saw the death penalty as a

“needed though sad way to punish someone.” The same is true

of other jurors later added to the panel and now compared to

E.W. with the benefit of hindsight. Juror No. 4 thought death

more severe (“Death is final”) and wrote: “The punishment has

to fit the crime and I think that some[]times [the death penalty]

is warranted.” Juror No. 9 believed death the more severe

penalty and wrote “I have no problem with this law” and “In

some cases[,] it is justice.” Finally, Alternate Juror No. 5

thought the death penalty more severe and wrote of the penalty,

“There may be times when it is necessary.” A prosecutor could

rationally distinguish between prospective jurors who thought

death a more severe and necessary penalty and one who thought

it less severe and useless. The record supports the prosecutor’s

assertion that she had more reason to be concerned about E.W.’s

potential verdict than a verdict from jurors the dissent and

Armstrong posit as comparable.

Armstrong also identifies jurors who indicated they had

not thought about their support or opposition for the death

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penalty before. But the proffered explanation was not that E.W.

had never thought about the death penalty. The prosecutor was

concerned instead about the views he had actually developed:

E.W. could not say he was affirmatively in favor of the death

penalty, and he thought perhaps it should be abandoned.

Finally, Armstrong points out other jurors who, like E.W.,

indicated that they thought the death penalty was imposed too

seldom or too randomly. But the prosecutor never identified this

as a basis for striking E.W. Her concern was that E.W. thought

a life sentence more severe than the death penalty, which should

perhaps be discontinued. Seated jurors and alternates did not

share these views.

Armstrong and the dissenting opinion also highlight that

the prosecutor mentioned E.W.’s profession, engineering, as an

area of concern, explaining she feared he might put her to a

higher standard of proof. (Dis. opn., post, at p. 8.) The

prosecutor did not identify this as one of the “two things that

really bother me” about E.W., and the trial court did not

originally consider the prosecutor to have proffered it as a

justification. We may infer that in the prosecutor’s eyes the

juror’s profession alone was an insufficient reason to exercise a

strike.15

The fact another engineer, Juror No. 11, remained on the

jury does not demonstrate the expressed doubt about engineers,

as part of the overall calculus, was insincere. The seated juror

15

Later in voir dire, the prosecutor described her general

approach to strikes and listed five areas of principal concern,

none of which focused on a juror’s profession: (1) belief that life

in prison was as or more severe a punishment than death; (2)

belief in rehabilitation; (3) bad experiences with the police; (4)

reluctance to judge others; and (5) prior service on a hung jury.

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differed from E.W. on each of the two grounds the prosecutor

gave as her principal reasons for exercising a strike. Unlike

E.W., Juror No. 11 indicated death was a more severe

punishment than life in prison. Unlike E.W., Juror No. 11 did

not think the state should consider abandoning the death

penalty. An engineer with these views might be acceptable,

even if not ideal, while an engineer with views like E.W.’s was

deemed too big a risk to take in selecting the jury. Comparative

juror analysis has force “when the compared jurors have

expressed ‘a substantially similar combination of responses,’ in

all material respects, to the jurors excused.” (People v. Winbush,

supra, 2 Cal.5th at p. 443.) No such combination appears here.

The dissenting opinion is unclear how other

considerations, such as more prosecution-friendly views at the

penalty phase, might outweigh concerns that a prospective juror

would be harder to persuade at the guilt phase. (Dis. opn., post,

at p. 9.) This is not a conundrum. A prosecutor with an

exceptionally strong guilt phase case but a weaker penalty

phase case might be willing to trade some small risk of an

unfavorable guilt phase verdict for better odds of a desired

penalty phase verdict. A prosecutor need not strike every single

juror with a particular trait, even those with other redeeming

qualities, to demonstrate that concerns about the trait are

genuine.16

16

Alternatively, it is possible that in the course of reviewing

50-page questionnaires, each containing responses to 237

questions, from more than 400 jurors — more than 20,000 pages

in all — the prosecutor, defense counsel, and trial court all

overlooked Juror No. 11’s profession. Neither at the time nor in

a later new trial motion rearguing the Wheeler/Batson motions

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This court and the United States Supreme Court have

previously recognized that comparative juror analysis can be a

useful tool, but also one that has some “inherent limitations.”

(People v. Lenix, supra, 44 Cal.4th at p. 622; see Snyder v.

Louisiana (2008) 552 U.S. 472, 483.) “Moreover, the selection of

a jury is a fluid process, with challenges for cause and

peremptory strikes continually changing the composition of the

jury before it is finally empanelled. As we noted in People v.

Johnson (1989) 47 Cal.3d 1194: ‘[T]he particular combination

or mix of jurors which a lawyer seeks may, and often does,

change as certain jurors are removed or seated in the jury box.

It may be acceptable, for example, to have one juror with a

particular point of view but unacceptable to have more than one

with that view. If the panel as seated appears to contain a

sufficient number of jurors who appear strong-willed and

favorable to a lawyer’s position, the lawyer might be satisfied

with a jury that includes one or more passive or timid appearing

jurors. However, if one or more of the supposed favorable or

strong jurors is excused either for cause or [by] peremptory

challenge and the replacement jurors appear to be passive or

timid types, it would not be unusual or unreasonable for the

lawyer to peremptorily challenge one of these apparently less

favorable jurors even though other similar types remain. These

same considerations apply when considering the age, education,

training, employment, prior jury service, and experience of the

prospective jurors.’ (Id. at p. 1220.)” (Lenix, at p. 623.)

“Each juror becomes, to a certain degree, a risk taken.

Voir dire is a process of risk assessment. As the Supreme Court

did defense counsel argue the challenge to E.W. and the failure

to strike Juror No. 11 were inconsistent.

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observed, ‘potential jurors are not products of a set of cookie

cutters.’ (Miller-El [v. Dretke], supra, 545 U.S. at p. 247, fn. 6.)

Two panelists might give a similar answer on a given point. Yet

the risk posed by one panelist might be offset by other answers,

behavior, attitudes or experiences that make one juror, on

balance, more or less desirable. These realities, and the

complexity of human nature, make a formulaic comparison of

isolated responses an exceptionally poor medium to overturn a

trial court’s factual finding.” (People v. Lenix, supra, 44 Cal.4th

at p. 624.)

Four months later, when denying Armstrong’s motion for

a new trial, the court determined E.W.’s profession was an

additional genuine race-neutral basis for the strike. In opposing

the new trial motion, the People did not identify E.W.’s

profession as the principal reason for the strike. The court

compared E.W. to Prospective Juror No. 5128, a White male

engineer. As with E.W., the prosecutor questioned No. 5128

about whether his training would lead him to speculate about

every conceivable possibility. Like E.W. and unlike seated Juror

No. 11, this prospective juror also gave other answers reflecting

views on the criminal justice system that concerned the

prosecutor. She unsuccessfully moved to excuse him for cause,

and then was able to excuse him by stipulation.17 The

prosecutor’s approach to No. 5128 is consistent with the

subjective view that while an engineering background alone

17

The prosecution and defense settled on the final set of

alternate jurors by mutual agreement, rather than by exercising

alternating peremptory challenges. Prospective Juror No. 5128

was not on the agreed-upon list.

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may not warrant a peremptory, in combination with other

factors it may make the juror less desirable.18

The prosecutor also mentioned a handful of reasons she

deemed less significant, which the trial court did not rule on.

We have cautioned against a trial court “tak[ing] a shortcut in

its determination of the prosecutor’s credibility, picking one

plausible item from [a] list and summarily accepting it without

considering whether the prosecutor’s explanation as a whole”

suggests pretext. (People v. Smith (2018) 4 Cal.5th 1134, 1157.)

No cherry-picking was involved here. The prosecutor herself

highlighted the considerations that concerned her most. The

trial court took her at her word and evaluated those reasons for

their genuineness and neutrality. Once they passed muster, it

was not error to omit express consideration of secondary factors.

Nor, in any event, do these lesser factors undermine the

trial court’s credibility finding. The voir dire transcript and

E.W.’s questionnaire show that E.W. indicated prosecutors

“tend to be overzealous to convict,” and had had negative

experiences with the police. He believed misconduct by police

and lawyers was inadequately punished and that failure was

one of the most important problems with the criminal justice

system. In addition, E.W. was neither firmly for nor against the

18

The trial court specifically relied on the prosecution’s

approach to No. 5128 in finding the prosecution’s concerns about

E.W.’s profession genuine. The dissenting opinion would

consider the prosecution’s questioning of that prospective juror

de novo and conclude it demonstrates the prosecution actually

sought to rehabilitate other engineers. (Dis. opn., post, at

pp. 12–14.) We do not read the cold record as revealing any

significant disparity. We should be most hesitant to substitute

our judgment, long after the fact, for the trial court’s comparison

of the examinations it observed.

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death penalty, thought the system needed reform, and was

familiar with legal terminology. These are factors that,

considered with all other circumstances, could fairly give an

advocate pause. They provide no basis for us to substitute our

judgment for that of the trial court’s and conclude the prosecutor

acted with racial bias. (See People v. Lenix, supra, 44 Cal.4th at

p. 613.)

An advocate who chooses jurors based on racial bias

commits grievous misconduct, for “the very integrity of the

courts is jeopardized when a prosecutor’s discrimination ‘invites

cynicism respecting the jury’s neutrality,’ [citation], and

undermines public confidence in adjudication.” (Miller-El v.

Dretke, supra, 545 U.S. at p. 238.) In guarding against such

corrosive impropriety, judges on the trial court, and on appellate

panels, must be vigilant. The first line of vigilance rests with

those in the trial court, who see and hear the questions,

responses and nuances of the interaction.

The rules of review also require vigilance, and humility.

Appellate courts must surely call out misconduct. But we are

aided in this endeavor by the trial judge who ruled in the first

instance. In the face of a trial court’s supported factual findings

regarding the genuineness of the prosecutor’s racially neutral

reasons for exercising a strike, we should be hesitant to draw a

contrary conclusion unless well-founded on fair inference,

rather than surmise.

The trial court in this case determined that the strike of

E.W. was made on genuine, race-neutral bases. Reviewing that

ruling with the deference precedent requires, the record

supports the trial court’s conclusion.

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f. Prospective Juror R.P.

R.P. was the last African-American man in the jury pool.

Before seeking to excuse him, the prosecutor requested a sidebar

and offered the reasoning behind every peremptory she had

exercised. The prosecutor then gave detailed reasons for

striking R.P. As with S.L. and E.W., she struck him in part

because he thought life in prison a more severe sentence than

death. He also believed that the death penalty was overused,

especially against African-Americans, and that African-

Americans in general were overincarcerated. Third, R.P. had

sat on two prior murder cases, and his service had troubled him.

Finally, one of R.P.’s sons had had a negative experience with

the Long Beach Police Department. A second son had recently

been robbed at gunpoint in Long Beach, and the investigation

was ongoing. The prosecutor feared any future negative

interactions with the Long Beach police could impair R.P.’s

impartiality.

The court concluded that the prosecutor’s peremptory was

based on her belief R.P. would not impose the death penalty, and

that reason was race-neutral. Nonetheless, it initially granted

the Wheeler/Batson motion because it believed R.P. could impose

a death verdict. Because the prosecutor’s race-neutral reason

was “mistaken,” the court rejected the prosecutor’s exercise of a

peremptory.

The prosecutor pointed out that the court was applying the

wrong standard. Whether R.P. was unable to vote for death was

a consideration in a for-cause challenge. A Wheeler/Batson

motion, by contrast, examines whether the prosecutor genuinely

believes a juror will be resistant to her side of the case and is

striking him for that race-neutral reason. After asking the

prosecutor to restate her reasons, the court reversed itself and

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denied the Wheeler/Batson motion. The court specifically

concluded that three of the prosecutor’s reasons were genuine

and race-neutral: R.P. found judging others disturbing; thought

the death penalty was overused, especially against African-

Americans; and was concerned about the overincarceration of

African-Americans in general.

The record supports the court’s determination. R.P. had

served as a juror in two noncapital murder trials. He wrote that

“the aftermath is always disturbing.” Asked about this answer,

R.P. explained: “I carry it with me. I go back over it, I guess —

I don’t want to say second guess, but it’s disturbing. It’s

disturbing to a certain degree when you do judge your fellow

man — for me it is.” Twice more in follow-up questioning he

described the process of jury service as disturbing. In later

questioning, R.P. described his jury experience as “unsettling.”

R.P. thought the death penalty was “[s]ometimes

overused,” especially on “certain segments of our society.” His

views were informed by other states that imposed moratoriums

on executions and reports of prisoners released based on DNA

evidence. In light of this, R.P. believed the death penalty was “a

serious thing, and we . . . shouldn’t take it lightly. [¶] [M]y

bottom line is, it’s a very serious thing and . . . we shouldn’t rush

to anything. I think we should look at all the facts.” Sometimes

death could be the correct punishment, but “[i]n other instances,

as we’ve seen — in some instances there have been mistakes

made, so I think we should be very careful about what we do.”

R.P. later clarified that his concerns extended to

incarceration in general: “[T]here are people being released

across the country, where either evidence was not

substantiated, DNA, a lot of different avenues, and my thought

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behind that was we have to look at things beyond just face value,

we have to make certain that things are true.” R.P. was

concerned as well that, in his view, the African-American

community was substantially overrepresented both generally in

prison, and on death row in particular. This disparity suggested

something was “fundamentally wrong” with the criminal justice

system.

R.P.’s expressed concerns are held by many. Yet they also

provide a legitimate reason why a prosecutor, tasked with

securing the conviction of an African-American defendant for a

crime heavy with racial overtones, might view R.P. as a

problematic juror. The court’s determination that the reason

was genuine and race-neutral finds support in the record. The

concerns R.P. had about the criminal justice system are not

unique to African-Americans: A prospective juror of any

ethnicity might equally share them. In exercising peremptory

challenges, advocates may excuse jurors who have such

concerns, so long as their reasoning does not rest on

impermissible group bias. (See People v. Smith, supra, 4 Cal.5th

at p. 1153; People v. Winbush, supra, 2 Cal.5th at p. 439.)

Further, given R.P.’s responses about jury service in

noncapital cases, the prosecutor might be legitimately

concerned that he might lean toward a verdict that would be

emotionally less taxing. The record supports the court’s

acceptance of that reason. No other juror gave such answers.

Armstrong relies on comparative juror analysis to argue

that the prosecutor’s reasons were pretextual. He contends

seated White Juror Nos. 2, 4, 5, 10, and 11, and Alternate Juror

Nos. 5 and 6 were likewise apprehensive in varying degrees

about the prospect of imposing a death verdict. But unlike R.P.,

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none of these jurors had had the visceral experience of serving

on two murder juries and dealing with the emotional aftermath.

Moreover, the court did not rely on a single concern expressed

by the prosecutor, but on three. None of the jurors Armstrong

identifies also expressed concern about overuse of the death

penalty or bias in the criminal justice system. Overlap on one

concern will seldom be sufficient: “Two panelists might give a

similar answer on a given point. Yet the risk posed by one

panelist might be offset by other answers, behavior, attitudes or

experiences that make one juror, on balance, more or less

desirable.” (People v. Lenix, supra, 44 Cal.4th at p. 624.)

The Constitution makes clear that group bias is

unacceptable. Cases decided over decades have condemned it.

Prospective jurors must be evaluated as individuals, in light of

all the information gleaned during voir dire. What matters is

the full range of responses and whether, because of widespread

similarities aside from race or gender, a reasonable comparison

casts doubt on the honesty of the neutral reasons offered.

Armstrong has not identified jurors with such similarities as to

cast doubt on the trial court’s acceptance of the prosecutor’s

reasons as genuine. Accordingly, he has failed to carry his

burden.

B. Guilt Phase Evidentiary Issues

1. Refusal to Admit Out-of-court Evidence of Racial

Slurs

Before trial, the prosecutor advised that she intended to

introduce the statement defendant gave to detectives after his

arrest. She offered it as a statement of a party opponent (Evid.

Code, § 1220), but sought to redact parts of it as “self-serving

hearsay.” Armstrong had related that as he, Hardy, and

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Pearson were walking toward the bus stop, “some racial slurs

were said by somebody that was on the opposite side. [¶] . . . [¶]

They was like ‘I hope—like I hope you all die niggers.’ ‘Niggers

I hope you all die.’ ” In response to further questioning,

Armstrong said he heard: “Like, ‘Fuck you niggers’ or ‘the

niggers are gonna die.’ ” After the statements were made,

Hardy started walking across the street and encountered a

woman, later identified as Sigler. Pearson and Armstrong

followed him. Over defense objection, the court ordered the

quoted statements redacted. Armstrong contends his

statements as to what he heard should have been admitted. He

is correct; the ruling was error.

The interview Armstrong gave to detectives was an out-of-

court statement offered against him by the prosecution, thus

falling within the hearsay exception for statements of a party.

(Evid. Code, § 1220 [“Evidence of a statement is not made

inadmissible by the hearsay rule when offered against the

declarant in an action to which he is a party”].)19 The prosecutor

argued, in essence, that the words Armstrong attributed to

19

The text of Evidence Code section 1220 defines the

exception as embracing “a statement” made by a party offered

by an opposing party. The exception is listed in Division 10,

Chapter 2, Article I of the Code, titled “Confessions and

Admissions,” and section 1220 is titled “Admission of party.”

However, Evidence Code section 5 provides: “Division, chapter,

article, and section headings do not in any manner affect the

scope, meaning, or intent of the provisions of this code.” As a

result, and as a general rule, any otherwise relevant “statement”

of a party is admissible against him, regardless of whether the

statement would meet the narrower definition of a confession or

admission. (People v. Rodriguez (2014) 58 Cal.4th 587, 637;

People v. Carpenter (1999) 21 Cal.4th 1016, 1049; Simons, Cal.

Evid. Manual (2018) § 2:28, p. 105.)

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Sigler were a second level of hearsay. They were not

Armstrong’s statements but those of Sigler, who was not a party

to the litigation. As a result, Sigler’s statements, recounted by

Armstrong, did not fall within the exception. If Sigler’s

statements had been offered for their truth, the prosecutor

would have been correct. Sigler’s words were nonetheless

admissible for two reasons: (1) they were not hearsay, and (2)

they were admissible under Evidence Code section 356.

In arguing that the redacted statements should remain,

the defense was not seeking to prove that all members of

Armstrong’s race, which Sigler rudely maligned, would die, or

even that Sigler hoped for such an outcome. Accordingly, the

defense did not seek to offer Sigler’s words for the truth of their

content. Instead, the defense urged the victim’s statements

were relevant to explain the subsequent conduct of Armstrong

and his companions and to support a conclusion that when they

assaulted Sigler, their motive was revenge, rather than robbery

or rape. “When evidence that certain words were spoken . . . is

admitted to prove that the words were uttered and not to prove

their truth, the evidence is not hearsay. (People v. Smith

[(2009)] 179 Cal.App.4th 986, 1003 . . . .)” (Simons, Cal. Evid.

Manual, supra, § 2:5, p. 84.)

To the extent the prosecution argued Sigler’s slurs fell

outside Evidence Code section 1220, because the prosecution

was not seeking to introduce them, they nevertheless were

admissible under section 356, often called the rule of

completeness. That rule provides: “Where part of an act,

declaration, conversation, or writing is given in evidence by one

party, the whole on the same subject may be inquired into by an

adverse party; when a letter is read, the answer may be given;

and when a detached act, declaration, conversation, or writing

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is given in evidence, any other act, declaration, conversation, or

writing which is necessary to make it understood may also be

given in evidence.” (Evid. Code, § 356.)

“The purpose of [Evidence Code section 356] is to prevent

the use of selected aspects of a conversation, act, declaration, or

writing, so as to create a misleading impression on the subjects

addressed. [Citation.] Thus, if a party’s oral admissions have

been introduced in evidence, he may show other portions of the

same interview or conversation, even if they are self-serving,

which ‘have some bearing upon, or connection with, the

admission . . . in evidence.’ ” (People v. Arias (1996) 13 Cal.4th

92, 156.) The rule reflects the “ ‘ “equitable notion” ’ ” that a

party seeking introduction of one part of a statement cannot

selectively object to introduction of other parts necessary to give

context. (People v. Melendez, supra, 2 Cal.5th at p. 26.)

“Although framed as an expansion of the concept of relevancy,

Evidence Code [section] 356 most often operates in the manner

of a hearsay exception.” (Simons, Cal. Evid. Manual, supra,

§ 1.16, p. 21.)

The redaction here allowed the prosecution to create a

misleading impression. As Armstrong originally recounted, the

men were walking toward a bus stop when someone shouted

racial slurs from across the street. The yelling prompted Hardy

to cross the street and confront the person who had shouted.

When he approached Sigler, Hardy asked if she would perform

an act of oral sex on all three men for $50. Sigler responded with

a grunted “no,” walked past Hardy and Pearson, and slapped

Armstrong as she passed him as well. Sigler then walked a

distance away, extended both middle fingers, and hurled

additional racial epithets. The full version recounts that the

men were unaware of Sigler’s presence and only approached her

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after she insulted them in a racially-charged manner. The

redacted version makes it appear that the men approached

Sigler because she was a woman walking alone at night and

began the encounter by asking her to engage in an act of

prostitution. If the prosecution wanted to introduce the

remainder of Armstrong’s statement under Evidence Code

section 1220, Armstrong was entitled to include the redacted

portion under section 356 to avoid mischaracterization.20

As we discuss in greater detail when addressing the claim

of prosecutorial misconduct, we conclude that the error does not

require reversal of the guilt judgments. (See post, pt. II.D.1.)

2. Refusal To Admit Victim’s Toxicology Report

Before trial, the prosecution moved to exclude a medical

examiner’s toxicology report showing Sigler was intoxicated on

the night she was killed. Defense counsel argued Sigler’s

intoxication was relevant to corroborate Armstrong’s testimony

about the racial epithets, and to support an argument that

Armstrong acted out of revenge rather than an intent to rob,

rape, or kill. The court granted the motion, ruling the relevance,

if any, of Sigler’s potential intoxication was substantially

outweighed by other considerations. (Evid. Code, § 352.)

20

A defendant may not use the prosecution’s introduction of

his out-of-court-statements as an opportunity to introduce

“extraneous statements contained in the recording” that might

favor him, without the burden of testifying and submitting to

cross-examination. (People v. Gurule (2002) 28 Cal.4th 557, 604;

see id. at p. 605.) But the rule is different when, as here, the

portions the prosecution seeks to redact are not extraneous but

integral to an understanding of the course of conduct the

admitted portions describe.

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The toxicology report is the same report we concluded was

properly excluded as irrelevant in People v. Hardy, supra, 5

Cal.5th at pages 86–87. In Hardy, as here, the defendant

argued the report tended to corroborate allegations that Sigler

had issued racial slurs before she was raped and killed. The

report was properly excluded there because “the prosecution

never argued that Sigler did not yell a racial slur; indeed, she

said during her opening statement that the jury would ‘hear

testimony or evidence that [Sigler] made some racial remarks,

and that [Hardy] and his companions approached her as a result

of these.’ ” (Id. at p. 87.) In Hardy’s trial, the prosecution

acknowledged Sigler’s shouted slurs. The fact she was

intoxicated at the time carried little to no relevance because the

content of her shouting was not a “disputed fact.” (Evid. Code,

§ 210.)

The calculus is somewhat different here. Unlike Hardy’s

trial, the prosecution successfully excluded portions of

Armstrong’s original statement to police about Sigler’s racial

slurs. It then contended no slurs were made. When the

prosecution chose to deny the slurs took place, its tactical

decision put the intoxication question in a different light. Given

alcohol’s effect on judgment and self-control, her intoxication

could have a “tendency in reason” (Evid. Code, § 210) to explain

why a diminutive woman, alone at night on a deserted street,

would start a confrontation with three larger strangers. That

explanation would have been consistent with the defense theory

and Armstrong’s testimony.

We need not decide whether exclusion of the toxicology

report was an abuse of discretion. Any error was harmless, as

explained in greater detail in connection with our discussion of

prosecutorial misconduct. (See post, pt. II.D.1.)

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3. Refusal To Admit Evidence of Alternate Theory

Concerning Semen Deposit

Armstrong sometimes stayed at his mother’s home, which

was searched pursuant to warrant. Police recovered a stained

cream-and-black shirt. Tests revealed the stain consisted of a

large amount of semen and small amount of blood. DNA in the

stain matched Armstrong.21 The prosecution argued that

Armstrong wore the shirt during the attack and the semen

deposit showed his direct participation in Sigler’s rape.

The People called Armstrong’s girlfriend, Jeanette Carter,

to testify. On cross-examination, Carter said she had never seen

the cream-and-black shirt before. Defense counsel then began

to ask about Armstrong’s practices after having intercourse.

The court sustained a relevance objection.

During a recess, defense counsel offered that he was trying

to find out whether Armstrong sometimes put his shirt back on

after intimacy with Carter. If he did, the presence of semen on

the shirt might be explained. The court adhered to its ruling.

Carter had never seen the shirt, so any response to such a

question would have been irrelevant.

Armstrong renews his evidentiary claim, but the court’s

ruling was correct. Carter twice said she had never seen the

shirt. Whether Carter had ever seen Armstrong put on a

different shirt after intercourse with her could have no bearing

on how semen found its way on to that shirt. Nor did Armstrong

21

The laboratory was unable to determine the source of the

blood.

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urge that the semen might have been deposited after a liaison

with a different partner.22

4. Admission of Kendrick’s Testimony

Keith Kendrick testified that on December 30 or 31, 1998,

he was watching the news with Pearson, Armstrong, and a third

man when a report about the Sigler murder came on the air.

Kendrick said, “Oh, I know who did that. [¶] . . . [¶] Killer Kev

[Kevin Pearson] did it.” Armstrong whispered to Pearson, “How

did [Kendrick] know?” Pearson then recounted details of the

crime, including that Hardy, Armstrong, and he had

encountered a woman, raped her in the bushes, and then beat

her with a stick. The People introduced a tape of Kendrick’s

January 1999 police interview, which included additional

specifics from Pearson and Kendrick’s conversation in

Armstrong’s presence. Armstrong sat silently throughout the

discussion.

Before Kendrick’s testimony, Armstrong objected that

Pearson’s statements were inadmissible hearsay and allowing

Kendrick to testify about them would violate his confrontation

clause and due process rights. The People argued that

Armstrong, by listening and saying nothing, had adopted

Pearson’s statements as his own admissions. The court agreed,

finding neither a hearsay bar nor a confrontation clause

problem. Armstrong renews his constitutional claims on appeal.

22

Armstrong did not offer this evidence as that of “habit or

custom” under Evidence Code section 1105. Thus, the record

contains no evidence he could have satisfied the foundational

requirements of that provision.

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The court was correct. “Evidence of a statement offered

against a party is not made inadmissible by the hearsay rule if

the statement is one of which the party, with knowledge of the

content thereof, has by words or other conduct manifested his

adoption or his belief in its truth.” (Evid. Code, § 1221.)

“ ‘Under this provision, “[i]f a person is accused of having

committed a crime, under circumstances which fairly afford him

an opportunity to hear, understand, and to reply, and which do

not lend themselves to an inference that he was relying on the

right of silence guaranteed by the Fifth Amendment to the

United States Constitution, and he fails to speak, or he makes

an evasive or equivocal reply, both the accusatory statement and

the fact of silence or equivocation may be offered as an implied

or adoptive admission of guilt.” ’ ” (People v. Chism, supra, 58

Cal.4th at p. 1297.) Armstrong implied that Kendrick’s

accusation of Pearson was true when he asked, “How did he

know?” Armstrong then did not challenge the recitation of

events, instead sitting silently as Pearson recounted

Armstrong’s participation in the crime. Kendrick’s recitation of

Pearson’s statements fell within the adoptive admission

exception to the hearsay rule.

Nor does introduction of this testimony raise

constitutional concerns. Adoptive admissions pose no problem

under the Sixth Amendment of the United States Constitution

and Crawford v. Washington (2004) 541 U.S. 36 because “ ‘[t]he

“witness” against the defendant is the defendant himself,’ ”

notwithstanding that the words the defendant adoptively

admitted were spoken by someone else. (People v. Jennings

(2010) 50 Cal.4th 616, 662; see People v. Cruz (2008) 44 Cal.4th

636, 672–673; People v. Roldan (2005) 35 Cal.4th 646, 711,

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fn. 25.) The high court has never suggested that the Crawford

rule bars admission of a defendant’s own statement.

Armstrong objects that Pearson was potentially

unavailable for cross-examination because he might choose to

invoke his right against self-incrimination. But Pearson’s

availability is immaterial. Through his silence, Armstrong

adopted Pearson’s statements as his own and bore witness

against himself. Armstrong cannot complain that he was

deprived of his confrontation clause rights by the introduction of

his own admissions.

Moreover, only testimonial hearsay falls under the

Crawford doctrine. (Ohio v. Clark (2015) 576 U.S. __, __ [135

S.Ct. 2173, 2179–2180]; People v. Rangel (2016) 62 Cal.4th 1192,

1214.) Whether a statement is testimonial turns on “ ‘whether,

in light of all the circumstances, viewed objectively, the

“primary purpose” of the conversation was to “creat[e] an out-of-

court substitute for trial testimony.” ’ ” (Rangel, at pp. 1214–

1215, quoting Clark, at p. 2180.) Determining whether a

statement is testimonial can often be challenging, but is

straightforward here: Pearson’s casual, conversational

statements to Kendrick, adopted by Armstrong, were not

intended to substitute for court testimony. Because the hearsay

was not testimonial, its admission did not give rise to a

Crawford violation.

5. Refusal To Admit Evidence of Pearson’s

Reputation

On direct examination, Armstrong described things he did

at Pearson’s direction. After Armstrong testified he was afraid

of Pearson, counsel asked why. The court overruled the

prosecutor’s relevance objection, but when Armstrong

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answered, “Because of his reputation —,” the court interrupted

and directed a sidebar. This exchange followed:

“The Court: The defendant was ready to testify about

Kevin Pearson’s reputation.

“[Defense Counsel]: I was not aware of that.

“The Court: It would be hearsay, obviously, because it

would be something that he heard from sources. There’s no

foundation for reputation evidence. We’re not going to have a

trial on Kevin Pearson’s reputation, are we?

“[Defense Counsel]: No.

“The Court: I just want to make sure it’s not an area that

I cut you off.

“[Defense Counsel]: No. [¶] . . . [¶]

“The Court: After the word ‘Yes,’ the rest of the answer is

stricken.

“[Defense Counsel]: Okay.”

Armstrong argues that his fear of Pearson and the reason

for it was improperly excluded. The argument fails. His

testimony that he was afraid of Pearson was allowed to stand.

As for evidence of Pearson’s reputation, counsel indicated he did

not intend to explore this subject and lodged no objection to its

exclusion. Accordingly, the claim is forfeited. (Evid. Code,

§ 354, subd. (a); People v. Capistrano (2014) 59 Cal.4th 830, 867.)

Nor, as Armstrong now argues, would an objection and offer of

proof have been futile. (See Evid. Code, § 354, subd. (b).)

Throughout the trial, the court showed a willingness to rethink

its rulings in light of arguments from counsel. If counsel had

wanted to explain what Armstrong would say and why it was

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either not based on hearsay or otherwise properly admissible,

he could have done so.

Further, Armstrong fails to show how the omitted

testimony would have significantly altered the evidentiary

picture. The jury heard a great deal about Pearson’s callous

violence on the night of the crime and that Kendrick called him

“Killer Kev.” Nothing in this record undermines the conclusion

that Pearson was a man rightly to be feared.

6. Sufficiency of the Evidence To Support the

Torture-murder Special Circumstance

Armstrong contends there was insufficient evidence to

support the torture-murder special-circumstance finding. On

review, we examine the entire record in the light most favorable

to the prosecution to determine whether a rational jury could

have found the circumstance true beyond a reasonable doubt.

(People v. Hardy, supra, 5 Cal.5th at p. 89.)

To prove a torture-murder special circumstance, the

prosecution must show that the defendant intended both to kill

and “ ‘to cause extreme pain or suffering for the purpose of

revenge, extortion, persuasion, or another sadistic purpose.’ ”

(People v. Brooks (2017) 3 Cal.5th 1, 65.) Intent may be inferred

“ ‘from the circumstances of the crime, the nature of the killing,

and the condition of the victim’s body.’ ” (People v. Hajek and Vo

(2014) 58 Cal.4th 1144, 1187.)

Here, there was ample evidence that Armstrong intended

to cause extreme pain. Prosecution evidence showed Armstrong

assisted Pearson and Hardy in raping, stomping, and beating

Sigler, and repeatedly inserting a wooden stake into her vagina.

Armstrong himself kicked the victim several times. Armstrong

had reason to know Sigler was alive until the end of the assault

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and that she was in considerable pain. The autopsy showed 11

broken bones and more than 100 distinct injuries. Contrary to

Armstrong’s assertion, the jury was not limited to considering

only his self-serving statements that he thought Hardy’s and

Pearson’s actions were “wrong” and “scandalous.” Given the

extended duration of the encounter, the brutal escalation of the

attack, and Sigler’s extraordinary pre-mortem injuries, a

rational jury could conclude that Armstrong intended to inflict

extreme pain and suffering.

C. Instructional Issues

1. Circumstantial Evidence Instructions

The jury received four standard instructions on

circumstantial evidence, CALJIC Nos. 2.01, 2.02, 8.83, and

8.83.1. These instructions advised that if circumstantial

evidence supported two reasonable interpretations, the jury

“must” adopt the interpretation more favorable to the

defendant. If, instead, one interpretation appeared reasonable

and the other unreasonable, the jury “must” adopt the

reasonable interpretation. Armstrong argues that telling the

jury it must adopt a reasonable interpretation of the evidence if

the alternative was unreasonable deprived him of the right to

have a jury convict only upon proof beyond a reasonable doubt.

We have repeatedly rejected this contention. (E.g., People

v. Delgado (2017) 2 Cal.5th 544, 572–573; People v. Watkins

(2012) 55 Cal.4th 999, 1030; People v. Bonilla (2007) 41 Cal.4th

313, 338; People v. Koontz (2002) 27 Cal.4th 1041, 1084–1085.)

“[T]hese instructions properly direct the jury to accept an

interpretation of the evidence favorable to the prosecution and

unfavorable to the defense only if no other ‘reasonable’

interpretation can be drawn. Particularly when viewed in

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conjunction with other instructions correctly stating the

prosecution’s burden to prove defendant’s guilt beyond a

reasonable doubt, these circumstantial evidence instructions do

not reduce or weaken the prosecution’s constitutionally

mandated burden of proof or amount to an improper mandatory

presumption of guilt.” (People v. Kipp (1998) 18 Cal.4th 349,

375.) Armstrong offers no new authority that would support

reconsideration.

2. Instruction on Juror Unanimity Concerning the

Theory of Murder

The jury was instructed on three different theories:

deliberate and premeditated murder (CALJIC No. 8.20), felony

murder (CALJIC No. 8.21), and murder by torture (CALJIC No.

8.24). (See Pen. Code, § 189.) At the People’s request, the court

instructed the jury that it need not unanimously agree on which

theory was correct in order to find Armstrong guilty of murder

in the first degree.

Armstrong contends the court was required to instruct

that the jury must agree unanimously on which theory, if any,

supported a guilty finding, and the failure to do so violated the

state and federal Constitutions. He acknowledges that we have

repeatedly rejected this claim, but seeks to preserve the issue

for federal court review. Armstrong relies on People v. Dillon

(1983) 34 Cal.3th 441, which, he contends, establishes that

premeditated murder and felony murder have distinct elements

and must be distinct crimes. He then urges that under Schad v.

Arizona (1991) 501 U.S. 624, 636–637, due process required the

jury be instructed it must unanimously agree on one theory or

another.

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We have consistently stated this argument is a misreading

of Dillon. While it is true that under Dillon “ ‘the two forms of

murder have different elements[, nevertheless] there is but a

single statutory offense of murder.’ [Citations.] When, as here,

the evidence shows only a single discrete crime but leaves room

for disagreement as to exactly how that crime was committed,

the jury need not unanimously agree on the theory under which

the defendant is guilty.” (People v. Benavides (2005) 35 Cal.4th

69, 101; see People v. Sattiewhite (2014) 59 Cal.4th 446, 479.)

Schad v. Arizona, supra, 501 U.S. 624, does not require

otherwise. (People v. Grimes (2016) 1 Cal.5th 698, 727–728;

Benavides, at p. 101.)

3. Instructions on Conspiracy

Although no conspiracy was charged, the jury was

instructed on its elements. (CALJIC Nos. 6.10.5, 6.11, 6.12.)

Armstrong contends the instructions should not have been

given. The claim is forfeited for lack of objection. (People v.

Virgil (2011) 51 Cal.4th 1210, 1260.) Armstrong does not argue

that the forfeiture should be excused on the ground his

substantial rights were affected. (See Pen. Code, § 1259; People

v. Henriquez (2017) 4 Cal.5th 1, 33.)

The claim is also meritless. Armstrong’s undeveloped

assertion is unclear. To the extent he argues a conspiracy

charge is a prerequisite to these instructions, the law is to the

contrary. The prosecution may prove an uncharged conspiracy

as a means of establishing liability for the underlying

substantive crime. (People v. Hajek and Vo, supra, 58 Cal.4th

at pp. 1200–1201; People v. Valdez (2012) 55 Cal.4th 82, 150.)

Evidence of a conspiracy, whether charged or not, is sufficient to

support the giving of conspiracy instructions. (People v.

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Rodrigues (1994) 8 Cal.4th 1060, 1134.) To the extent

Armstrong argues “there was no evidence that such a conspiracy

ever existed,” he concedes otherwise in his briefing, complaining

that the court “permitted the jury to hear extensive evidence of

the uncharged conspiracy.”

Armstrong also urges that the instructions reduced the

prosecution’s burden of proof. We have rejected this argument

before and do so again. (People v. Hajek and Vo, supra, 58

Cal.4th at pp. 1201–1202; People v. Valdez, supra, 55 Cal.4th at

p. 150.) He contends the lack of a charged conspiracy deprived

him of notice and an opportunity to defend himself. He did not

make this argument below, and it is likewise without merit.

Armstrong had ample pretrial notice that the prosecution would

proceed in part on the theory that Armstrong, Pearson, and

Hardy conspired to rob and murder Sigler. The prosecutor’s voir

dire questioning and the preceding trials of Pearson and Hardy

demonstrated this theory was likely to be pursued. Given

Armstrong’s awareness of the prosecution’s theory, there was no

unfair surprise and no due process violation. (See Hajek and Vo,

at pp. 1201–1202.)

Finally, Armstrong argues that the conspiracy

instructions allowed the jury to find him death-eligible based on

a crime that cannot be subject to the death penalty. It is true

conspiracy to commit murder will not support a death sentence

in California. (People v. Hernandez (2003) 30 Cal.4th 835, 864–

870.) However, Armstrong was not found eligible for the death

penalty based on conspiracy, but on a jury determination that

he was guilty of first degree murder with special circumstances.

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D. Misconduct and Bias

1. Prosecutorial Misconduct

Armstrong contends that the prosecutor committed

misconduct in empaneling the jury, seeking to exclude

admissible evidence, and engaging in other improper conduct

throughout trial. Most challenges fail. One is well-founded but

did not prejudice Armstrong.

Prosecutorial misconduct requires reversal when it “so

infect[s] a trial with unfairness [as to] create a denial of due

process. [Citations.] Conduct by a prosecutor that does not

reach that level nevertheless constitutes misconduct under state

law, but only if it involves the use of deceptive or reprehensible

methods to persuade the court or jury.” (People v. Watkins,

supra, 55 Cal.4th at p. 1031.)

Armstrong’s first few claims derive from and duplicate his

other assignments of error. He objects that the prosecutor

improperly had qualified jurors excused. Several jurors were

erroneously excused for cause, an error requiring reversal of the

penalty verdict. He is obtaining relief on that basis. He

contends that the prosecutor based peremptory challenges on

race and gender. This argument has been rejected. (See ante,

pt. II.A.)

Most of the allegations of misconduct not tied to claims we

have already addressed are also without merit. Armstrong

contends that the prosecutor was aggressive and hostile toward

defense counsel and twice accused counsel of lying to the court.

Defense counsel responded in equal measure with his own

accusations of lying. Because it occurred outside the jury’s

presence, this acrimony could not have affected the verdict.

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Armstrong complains the prosecutor used “hypertechnical

and unnecessary objections” during his direct testimony. To the

extent these objections were meritorious, making them could not

have been misconduct. Evidentiary objections often are

technical and their “necessity” a question of tactics and

perspective. While a handful of objections were overruled, there

is no reason to conclude they would have injected unfairness into

the trial. Armstrong also takes issue with the cross-

examination, which he characterizes as hostile, repetitive, and

argumentative, with frequent accusations of lying. Even

accepting this characterization at face value, it supplies no basis

for a claim of misconduct. This was the cross-examination of the

defendant in a capital murder case. Effective and legitimate

cross-examination may involve assertive and even harsh

questioning. It is permissible to accuse a witness of being

untruthful. Simply because an examination is confrontational

does not make it argumentative.23 Armstrong identifies no line

of questioning, and the transcript reveals none, that crossed

over any boundaries of fair play or that would have led the jury

to decide this case on anything other than the facts and the law.

Armstrong objects that the prosecutor asked leading

questions of direct witnesses. He cites no question or questions,

simply pointing to the entire transcript for a half-dozen

witnesses. To the extent Armstrong failed to object, the claim is

forfeited. (People v. Pearson (2013) 56 Cal.4th 393, 426.) To the

23

“An argumentative question is a speech to the jury

masquerading as a question. . . . An argumentative question

that essentially talks past the witness, and makes an argument

to the jury, is improper because it does not seek to elicit relevant,

competent testimony . . . .” (People v. Chatman (2006) 38

Cal.4th 344, 384.)

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extent Armstrong objected and the court sustained the

objection, we discern no effect on the jury or its verdict. As for

the third possible category, leading questions and answers

erroneously allowed to stand, Armstrong identifies not a single

such question and does not explain how any such questions or

their answers could have engendered unfairness.

However, Armstrong is correct that the prosecutor misled

the jury during closing argument. She told the jury, as a matter

of fact, that in response to Arms

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