# People v. Armstrong > California Supreme Court · February 4, 2019 · 243 Cal. Rptr. 3d 105 URL: https://www.frixlaw.com/law-library/cases/4364370 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. Jamelle Edward ARMSTRONG, Defendant and Appellant. - **Court:** California Supreme Court - **Decided:** February 4, 2019 - **Citations:** 243 Cal. Rptr. 3d 105; 6 Cal. 5th 735; 433 P.3d 987 - **Precedential status:** Published - **Opinion:** Opinion by Corrigan - **Judges:** Corrigan - **Cited by:** 124 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4364370 ## Opinion text 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. 1 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 2 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 3 PEOPLE v. ARMSTRONG 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. 4 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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, 5 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 6 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 7 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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.) 8 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 9 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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.’ ” 10 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. (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 11 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 12 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 13 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 14 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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.).) 15 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 16 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 17 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 18 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. (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 19 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 20 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 21 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 22 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 23 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 24 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 25 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 26 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 27 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 28 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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.” 29 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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.” 30 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 31 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. “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.) 32 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 33 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 34 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. 35 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, 36 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 37 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 38 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 39 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, 40 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 41 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.” 42 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. 43 PEOPLE v. ARMSTRONG 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. 44 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 45 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.” 46 PEOPLE v. ARMSTRONG 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. 47 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 48 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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.” 49 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 50 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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] 51 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 52 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 53 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 54 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 55 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 56 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 57 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 58 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 59 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 60 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 61 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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. 62 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 63 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 64 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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., 65 PEOPLE v. ARMSTRONG Opinion of the Court by Corrigan, J. 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 gl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4364370. Public record. Not legal advice.