People v. Miles

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNNY DUANE MILES,

Defendant and Appellant.

S086234

San Bernardino County Superior Court

FSB09438

May 28, 2020

Justice Groban authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Chin, Corrigan,

Cuéllar, and Kruger concurred.

Justice Liu filed a dissenting opinion.

PEOPLE v. MILES

S086234

Opinion of the Court by Groban, J.

On March 17, 1999, a jury in San Bernardino County

convicted defendant Johnny Duane Miles of burglary and first

degree murder, first degree forcible rape, second degree robbery,

and false imprisonment by violence of Nancy Willem. The jury

found true the special circumstances that Willem was killed

during the commission of the burglary, rape, and robbery (Pen.

Code, § 190.2, subd. (a)(17))1 and that the murder was

intentional and involved the infliction of torture (§ 190.2,

subd. (a)(18)). The jury also convicted defendant of 10

additional counts related to two separate incidents and found

true the enhancement allegations relating to those counts.

Following the penalty phase, the jury reached a verdict of death.

After denying defendant’s motion to modify the verdicts

(§ 190.4, subd. (e)), the trial court sentenced defendant to death.

This appeal is automatic. (§ 1239, subd. (b).) We affirm the

judgment.

I. FACTUAL BACKGROUND

A. Guilt Phase

1. Prosecution Case

This case arises from three separate incidents occurring in

February 1992: (1) the murder, rape, robbery, and false

1

All further statutory references are to the Penal Code

unless otherwise indicated.

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imprisonment by violence of Nancy Willem and the burglary

preceding her death; (2) the rape, robbery, false imprisonment

by violence, and penetration by a foreign object of Christine C.;

and (3) the robbery and false imprisonment by violence of

Melvin Osburn and the rape, robbery, false imprisonment by

violence, and penetration by a foreign object of Carole D.

a. Nancy Willem

On February 4, 1992, Nancy Willem did not come home

from work at the Behavioral Health Services Clinic in Rialto.

That evening, her roommate, Kristen Schutz, started calling the

clinic, but the clinic’s phone lines were busy. When Schutz was

not able to reach Willem, Schutz drove to the clinic. After

entering the building through an unlocked back door, she found

the door to the clinic ajar.

As she entered the clinic, she saw the reception area had

been ransacked. She followed the blood on the floor from the

reception area into one of the offices. There, she found Willem’s

naked body between a couch and a coffee table. There was a

telephone cord tied to her wrist and a sweater wrapped around

her neck. There was also a handwritten note found on top of her

abdomen that read: “Feed the poor. Down with the

goverenment [sic].”

Schutz tried to call the police but realized that the

telephone cords were missing. Once she reconnected one of the

cords, she called 911. The police arrived and pronounced Willem

dead on the scene. After securing the area and obtaining

consent to search the clinic, the police collected blood and other

bodily fluids from the reception area and office where Willem’s

body was found. The police also recorded a video depicting the

crime scene, which was played for the jury.

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Dr. Nenita Duazo subsequently performed the autopsy on

Willem’s body. Willem’s injuries were extensive. She had

multiple lacerations of her scalp and forehead, a fractured jaw,

a missing tooth, redness in her vagina, and a circular area that

appeared to be a cigarette burn on her chest. She had bruising

of her face, chest, back, arms, and legs, which, according to Dr.

Duazo, indicated that Willem was alive when her injuries were

inflicted. Internally, Willem had eight broken ribs, a tear in her

left lung, two lacerations of her liver, and hemorrhage in her

brain. These injuries were likely caused by the application of

substantial and multiple instances of force while Willem was

still alive. Willem also had hemorrhage in her eyes and neck, as

well as a broken bone and broken cartilage in her neck, all of

which indicated that she was manually strangled before her

death. Dr. Duazo testified that Willem was killed by a

combination of blunt force injuries and manual strangulation.

i. Physical evidence

Several witnesses testified regarding the collection and

analysis of blood and other bodily fluids found at the crime

scene. In particular, two criminalists from the San Bernardino

County Sheriff’s Crime Laboratory, David Stockwell and Donald

Jones, testified concerning their analysis.

Stockwell testified that he conducted a serological analysis

on items recovered from the crime scene. He concluded that the

nonvictim blood and semen from the crime scene came from an

individual who was likely African-American and a type AB

secretor, which he defined as someone whose blood type is

secreted into other bodily fluids. He testified that the genetic

markers found in the nonvictim blood and semen would be

expected in approximately one in 333 million African-American

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men. Following this analysis, he received a blood sample from

defendant, who is African-American. Stockwell testified that

defendant is a secretor and his genetic markers matched the

genetic markers found in the nonvictim blood and semen

recovered from the crime scene.

Next, Jones testified that he conducted a DNA analysis on

the samples recovered from the crime scene. He concluded that

defendant’s DNA profile matched the DNA profile from the

crime scene. He testified that the DNA profile from the crime

scene would be expected in approximately one in 180 million

African-Americans (or one in 280 million African-Americans

using his lab’s updated match criteria from around the time of

the trial).

ii. Other evidence

On the night of Willem’s death, her ATM card was used to

withdraw $1,160 from an ATM in Pomona and another $300

from an ATM in Glendora. An employee from the bank’s

investigations unit testified that ATM surveillance photographs

showed an individual wearing glasses and a “Red Dragon” hat

at the time of the transaction in Glendora. The individual’s

features could not be discerned from the photographs.

A couple of months after Willem’s death, the police briefly

stopped an individual who identified himself as defendant and

was walking no more than half of a mile from Willem’s office.

During the stop, the police documented that defendant was an

African-American man who was 25 years old, six feet, six inches

tall, and 210 pounds.

As to the handwritten note found at the crime scene, the

prosecution offered testimony by expert Glen Owens. He

examined the note found on Willem’s body and certain inmate

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forms written by defendant. He concluded that there were some

indications that the writer of the inmate forms may have written

the crime scene note but it was not definitive. An investigator

testified that when defendant was served with a court order

requiring him to provide a handwriting exemplar, he refused to

comply.

An officer at the Rialto Police Department testified that

during a search of defendant’s car, the police found a note in it.

That note read in part: “We’ll be wiped out by the governement

[sic].” The note contained a misspelling of the word government,

which was similar to the misspelling in the note found on

Willem’s body.

b. Christine C.

Christine C. was working alone at the Desert

Communities United Way office in Victorville on the evening of

February 25, 1992 when a man forced his way into the office.

Christine C. described the man as African-American, over six

feet tall, in his twenties, and of “slim build.”2

The man was wearing a ski-type mask and holding a silver

handgun. Pointing the gun at her, he demanded money. She

gave him cash from her purse and said that the office had no

other money. He then ordered her to lie down on the floor while

he searched the office. Once he returned, he directed her into a

conference room, tied her arms behind her back with a telephone

cord, and took her jewelry. When she looked at him, he told her,

“Don’t look at me.” He also took an ATM card from her purse

and asked her for the PIN, to which she said she did not know

it.

2

Christine C. did not identify defendant in her testimony.

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After rummaging through the office, he returned to the

conference room. He proceeded to pull up Christine C.’s skirt

and pull down her pantyhose, while she was lying on her

stomach with her hands tied behind her back. He penetrated

her vagina from behind, initially with his fingers and then with

his penis. He ejaculated on her thighs and wiped her off with a

tissue. He then tied her feet and hands together and tied her to

the conference table with telephone cords, and he left the office.

She untied herself and called 911. The police arrived on the

scene, and she was taken to the hospital for a medical

examination.

The San Bernardino County Sheriff’s Crime Laboratory

analyzed semen on tissues left at the crime scene. Criminalist

Stockwell testified that based on his serological analysis, the

semen profile from the Christine C. crime scene matched the

profile from the Willem crime scene and additionally matched

defendant’s genetic markers. Criminalist Jones testified that

the DNA found on the tissues also matched defendant’s DNA

profile and would be expected in approximately one in 180

million African-Americans.

c. Melvin Osburn & Carole D.

Therapist Melvin Osburn was in his office in San

Bernardino on the evening of February 26, 1992 when a man

later determined by the jury to be defendant entered the office

wearing a ski mask and holding a silver handgun.3 Defendant

demanded Osburn’s wallet, threatening, “Don’t look at me or I’ll

kill you.” After taking money from his wallet, defendant ordered

3

Osburn did not identify defendant in his testimony, but he

described the perpetrator as a Black man who was at least six

feet, one inch tall and in his twenties.

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Osburn to lie down on the floor. Defendant then tied Osburn’s

hands and feet with telephone cords and proceeded to rummage

around the office, repeatedly asking whether there was a safe.

Defendant also forced Osburn’s ring off his finger and asked

Osburn about his ATM card, to which Osburn told him that

there was no money on it. When it appeared defendant was

getting ready to leave, Osburn’s next client, Carole D., walked

into the office.

She was met by defendant pointing a silver gun at her.4

He directed her into Osburn’s office, where he ordered her to lie

down and not look at him. He asked whether she had any money

or an ATM card, to which she replied that she did not. He took

her wedding ring and tied her up with her purse strap and

telephone cords. Next, he pulled her pants and underwear down

and penetrated her vagina from behind, initially with his fingers

and then with his penis.

Taking Osburn’s keys, defendant left the office and drove

away in Osburn’s car, with his cellphone. Osburn freed himself

and Carole D., and because the telephone cords were torn, he

triggered the burglar alarm and eventually used his next client’s

phone to call the police. The police arrived, and Carole D. was

taken to the hospital for a medical examination. The examining

nurse testified that Carole D. showed signs of sexual assault.

The police later found Osburn’s car abandoned in a nearby

parking lot. His cellphone bill showed calls that he had not

made.

4

She did not identify defendant in her testimony, but she

described the perpetrator as a Black man over six feet tall and

in his twenties.

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The San Bernardino County Sheriff’s Crime Laboratory

analyzed semen found on Carole D.’s underwear. Criminalist

Stockwell testified that this sample contained less serological

information than the samples obtained from the other two crime

scenes, but that the detectable genetic markers from the sample

matched the semen profiles from the Willem and Christine C.

crime scenes. He testified that the detectable genetic markers

from the sample also matched defendant’s genetic markers. As

to the DNA, criminalist Jones was able to form only a partial

DNA profile based on the sample, but he testified that the

partial DNA profile matched defendant’s DNA and would be

expected in approximately one in 920 African-Americans.

2. Defense Case

The defense called three witnesses. First, the defense

called Dr. Thomas Rogers, a pathology expert, who testified that

it was not possible to determine whether Willem’s injuries were

inflicted when she was conscious or unconscious or to determine

from any autopsy whether a deceased individual was tortured.

Second, the defense called Dr. Jonathan Koehler, a research

methodology expert, who testified regarding errors and

probability statistics in DNA analysis. For the third witness,

the defense called one of the investigating detectives, Detective

Chester Lore. He testified that the police did not recover stolen

property, bloody clothing, or a “Red Dragon” hat (which the

individual who used Willem’s ATM card in Glendora appeared

to be wearing) when they searched defendant’s residences and

vehicle. Nor did the police recover any fingerprints from the

crime scenes that matched defendant’s fingerprints. Detective

Lore also testified that the police previously investigated

someone other than defendant in connection with a “Red

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Dragon” hat, but that individual was eventually cleared as a

suspect.

B. Penalty Phase

After the jury returned its guilt phase verdicts, the trial

court declared a doubt as to defendant’s competency, suspended

proceedings, and commenced a competency trial before a

separate jury. (The evidence presented in the competency trial

is described further below [see pt. IV., post].) Once defendant

was found competent to stand trial, the trial proceeded to the

penalty phase.

1. Prosecution Evidence

a. Defendant’s criminal activity and prior

convictions

The prosecution presented evidence in aggravation

concerning defendant’s unadjudicated criminal activity and

prior criminal convictions.

i. January 6, 1992 incident

Paula Yenerall testified that she was working alone at an

accounting firm in Rialto on the evening of January 6, 1992

when defendant broke the window and forced his way into the

office. He was wearing a stocking cap, jacket, and gloves and

appeared “very calm.” He pointed a chrome, semi-automatic

gun at her and demanded money. When she told him that she

had some money in her purse at her desk, he held the gun to her

head and pulled her to her desk to retrieve the money. He

repeatedly said, “Don’t look at me, bitch,” and at one point said,

“I’m a murderer and I’ll kill you, too.” After taking $1,200 from

her, as well as two rings and a gold necklace, he tied her hands

behind her back with a telephone cord. He then instructed her

to stay put and left.

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ii. January 21, 1992 incident

Janet Heynen testified regarding a January 21, 1992

incident in a psychologist’s office in Upland. While she was

working that evening, defendant appeared at the reception

window. She described him as calm and wearing a brown

beanie, jacket, and gloves. He pointed a chrome handgun at her

face and demanded money. He told her not to look at him and

appeared to be “pulling the [telephone] cords out.” After she

gave him some cash, he briefly went into a back office for a

couple of minutes and, once he returned, told her to not call the

police and left.

iii. February 19, 1992 incident

John Kendrick testified about a February 19, 1992

incident in Ontario. That evening, he was working in his

accounting office with his clients Paul and Mary Crawford,

when defendant entered the office. Defendant appeared “[v]ery

calm” and was wearing a gray stocking cap on his head.

Pointing a small chrome handgun at Kendrick, defendant

demanded money. Kendrick and the Crawfords gave defendant

several hundred dollars in cash, while defendant repeatedly

said, “Don’t look at me, man.” Defendant then instructed them

not to call the police for 30 minutes, and he left.

iv. February 21, 1992 incident

Arnold and Sharyn Andersen testified that they were

working together in their insurance and investment office in

San Bernardino on the evening of February 21, 1992.5 After

they heard crashing and shattering sounds, defendant appeared

5

For clarity, we will refer to Arnold and Sharyn Andersen

by their first names.

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in the office, pointing a small chrome, automatic gun at them.

Defendant appeared calm and was wearing a beanie. He

demanded money and told the Andersens to lie down on the

floor, repeatedly telling them not to look at him. He then took

some cash from Arnold’s wallet and Sharyn’s purse and, after

Arnold went into his office to look for more money, defendant

took a money clip with approximately $1,200 from him. As he

was leaving the office, defendant grabbed a bunch of Kleenex

and dabbed his hands where he had cut them from breaking one

of the windows to enter the office.

v. June 16, 1992 crimes

Bridget E. testified about defendant’s June 16, 1992

crimes in Torrance. She was working at an appraisal office that

evening with her boss, Steve H., when defendant entered the

office and pointed a gun at them. Defendant was wearing a red

bandana over his lower face. He demanded money, so Bridget

E. gave him some money from her purse. He proceeded to search

the office, asking for the location of a safe. He repeatedly said,

“Don’t look at me, man. Don’t look at me, man.”

Next, defendant tied Steve H. with telephone cords and

computer cords, unzipped Bridget E.’s pants, and kicked Steve

H. in the ribs a few times. Pointing the gun at Bridget E.’s head,

defendant ordered Bridget E. to orally copulate Steve H. She

told him that she was pregnant and asked him not to hurt her,

so “[h]e said, just do what I say and you won’t get hurt — if you

don’t want to get hurt.” Bridget E. proceeded to orally copulate

Steve H. She could not recall whether she was tied up at that

time. Defendant then penetrated Bridget E.’s vagina, initially

with his fingers and then with his penis. Once he stopped, he

told her to continue copulating Steve H. She recounted that her

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hands and feet were tied up with cords at that time. After

defendant eventually left the office, Steve H. and Bridget E.

untied themselves and called the police.

vi. Defendant’s other criminal convictions

At the prosecution’s request, the trial court took judicial

notice of 14 prior convictions, of which 13 were for first degree

residential burglary and one was for second degree robbery.

b. Victim impact testimony

The prosecution’s penalty phase evidence also included

victim impact testimony from Nancy Willem’s father, mother,

and younger sister. The family members described Nancy’s

personality and interests, including her interest in singing and

playing guitar. During her mother’s testimony, the prosecution

played a videotape for the jury depicting Nancy singing at her

youngest sister’s wedding a couple of years before her death.

The family members further described how Nancy’s death

affected them as a family and as individuals. The prosecution

also offered a photograph of Nancy, which, according to her

father, resembled how she looked around the time of her death.

The prosecution additionally offered victim impact

testimony from Bridget E. She testified that after the June 16,

1992 crimes, she was tested “right away” for any diseases, and

she was diagnosed with and treated for chlamydia. She also

stopped working and by the time of the trial, had not had the

opportunity to “get back into” the appraisal business. She

suffered from nightmares for “a long time” and became “more

suspicious of people” and a “more serious person.”

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2. Defense Evidence

a. Defendant’s testimony

Against the advice of counsel, defendant testified during

the penalty phase, largely in a narrative form. He began by

describing a time when he approached two people who had

supposedly killed his cousin and his neighbor. He explained

that the man who had killed his neighbor told him to testify

about “Wilhelmena’s murder.” Defendant testified that by

“Wilhelmena,” he meant Nancy Willem, and that Wilhelmena

was “able to reveal the things that happened at the time of the

crime.”

He then testified that ever since undergoing foot surgery

when he was a teenager, he suffered from hallucinations and “ill

angels,” which controlled his actions. He said that he suffered

from these “ill angels” at the time of Willem’s death. As to her

death, he said that “[t]here was one rape” and a beating of her

head with an object, but there was no strangulation. He said

that after he took her money and bank information, he raped

her because the voices in his head told him that she wanted it.

He described that the voices then grew louder and, in order to

stop them, he beat, kicked, and stomped her. The voices next

took over the left side of his body, causing him to write the note,

saying, “Wake up goverenment [sic].” He testified that since

that night, “Wilhelmena” helped him to control the “ill angels”

and intervened to “save the lives of other females that were

involved in this case.”6

6

On cross-examination, defendant testified that the voices

told him to rape Christine C. and Carole D. as well. He said that

the voices “were there continuously through the robberies,” and

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b. Evidence regarding defendant’s mental health

Much of the defense’s penalty phase evidence concerned

defendant’s mental health. Clinical psychologist Dr. Joseph

Lantz testified that defendant’s intelligence fell within the

borderline range, between mental deficiency and low-average,

and in his opinion, defendant suffered from schizophrenia.

Psychiatrist Dr. Richard Dudley testified that in his opinion,

defendant suffered from schizo-affective disorder, which he

defined as a combination of schizophrenia and a mood disorder.

He further testified that defendant suffered from cognitive

deficits and problems related to an invasive mass, which was

near his brain and removed after his arrest. A social worker

also testified about defendant visiting a psychiatric clinic in

1992.

In addition, Dr. Joseph Wu testified regarding a positron

emission tomography (PET) scan of defendant’s brain, of which

photographs and a video were displayed to the jury. Dr. Wu

testified that while a PET scan cannot alone lead to a diagnosis,

defendant’s brain exhibited abnormalities consistent with a

schizophrenia diagnosis. Dr. Ernie Meth testified regarding a

SPECT (single-photon emission computed tomography) scan of

defendant’s brain, of which photographs and a video were

likewise displayed to the jury. Dr. Meth testified that based on

this scan, defendant’s brain exhibited abnormalities that were

consistent with the results of Dr. Wu’s PET scan.

when asked by the prosecutor about specific robberies,

defendant recalled raping Bridget E., robbing Yenerall, and

robbing the Andersens, although he denied robbing Heynen

(and was not asked specifically about robbing Kendrick or the

Crawfords).

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c. Other testimony

One of defendant’s childhood friends, Dwayne

Washington, described defendant as a “great kid” with a tough

home life and a love for basketball. He testified that defendant

became depressed during his teenage years after he underwent

foot surgery and was no longer able to play basketball. He

testified that on a few occasions around 1984 or 1985, defendant

acted strangely and appeared to believe that people were trying

to get him. Washington’s mother, Sharon Mitchell, described

defendant as a good kid with an “extremely negative” home life.

She, too, recalled that defendant began suffering from

headaches and memory lapses during his teenage years and

recounted a few incidents in which defendant tried to hide under

the table to prevent people from getting him. Washington’s

aunt, Serette Mitchell-Hughes, testified about one of those

incidents as well. These witnesses also testified about

defendant later getting married and having a daughter.

Defendant’s former girlfriend, Terry Sylvester, testified

that defendant lived with her and her three children around the

late 1980’s in Atlanta. She said that during that time,

defendant worked and participated in family activities, but one

day, he left for work and never returned. He later told her that

he went back to California.

A retired correctional officer testified that should

defendant be sentenced to life imprisonment, he could function

within the constraints of the prison facilities and be safely

imprisoned.

3. Prosecution’s Rebuttal

In rebuttal, the prosecution offered testimony from two

additional witnesses. First, Deputy Jonathan Billings testified

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about a videotape that he said reflected defendant’s “normal”

behavior in jail. The videotape, a portion of which was played

for the jury, showed defendant watching television and playing

chess with other inmates. Second, psychiatrist Dr. Rajesh Patel

testified that when defendant claimed to be suicidal in jail, Dr.

Patel examined him and concluded that he was malingering

mental illness.

II. PRETRIAL ISSUES

A. Prosecutor’s Use of Peremptory Challenges

Defendant contends that the prosecutor improperly

exercised peremptory challenges to excuse two prospective

jurors, who were African-American, in violation of Batson v.

Kentucky (1986) 476 U.S. 79, 89 (Batson) and People v. Wheeler

(1978) 22 Cal.3d 258, 276–277 (Wheeler). The prosecutor’s

exercise of these peremptory challenges, defendant argues,

warrants close scrutiny because there are heightened concerns

about racial discrimination in this case given that he was

charged with raping and murdering a White woman. We will

examine the prosecutor’s exercise of the peremptory challenges

in light of these and all other relevant circumstances.

1. Background

Jury selection for defendant’s trial began on November 18,

1998. Following hardships and other dismissals, the remaining

prospective jurors filled out a 31-page questionnaire. Based on

the completed questionnaires, the parties questioned some of

the prospective jurors on their views regarding the death

penalty pursuant to People v. Hovey (1988) 44 Cal.3d 543. Once

Hovey questioning concluded, and the trial court excused

prospective jurors for cause or by stipulation, 72 prospective

jurors remained. The trial court called the first 12 prospective

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jurors to the main panel. They included three African-American

jurors, three Hispanic jurors, five White jurors, and one

“American Indian / Caucasian” juror.

The parties then commenced general voir dire. After the

defense challenged an African-American prospective juror for

cause and that prospective juror was replaced, the prosecutor

proceeded to exercise peremptory strikes against Malinda M. (a

Hispanic woman), Kevin C. (an African-American man),

Michelle G. (a White woman), Simeon G. (an African-American

man), and Ronald W. (a White man). After the prosecutor twice

passed on exercising any peremptory strikes and the defense

exercised three peremptory strikes, the prosecutor next struck

Isabella B. (an African-American woman).

At this time, the defense raised a Batson/Wheeler

objection and moved to quash the panel. The defense noted that

the prosecutor had used three of his six strikes up to that point

on African-American prospective jurors. The trial court found

that a prima facie case had been established. The court stated

that it understood the basis for striking Isabella B. based on her

answers during Hovey questioning, but asked the prosecutor to

explain the basis for striking Kevin C. and Simeon G. After

hearing the prosecutor’s reasons, the court found, “As to [Kevin

C.] and [Simeon G.], I think it’s certainly not as obvious, but I

cannot say it is not legitimate. [¶] So, at this point in time, I will

make a finding that there have been valid reasons to justify

excusing those three prospective jurors pursuant to a

peremptory challenge.”

After the court denied the motion, the 12 prospective

jurors seated in the jury box included nine White jurors, two

Hispanic jurors, and one “American Indian / Caucasian” juror.

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The prosecutor twice passed on exercising any peremptory

strikes, and the defense exercised four peremptory strikes. The

prosecutor then exercised a peremptory strike against Mary B.

(an African-American woman). At this time, the defense

renewed its Batson/Wheeler objection and motion to quash the

panel, arguing that, although Mary B. expressed reservations

about the death penalty, the prosecutor had exercised his

peremptory strikes to compose an all-White jury panel. The

trial court denied the motion, finding that Mary B.’s

reservations about the death penalty justified the strike.

After the prosecutor peremptorily struck Richard L. (a

Hispanic man), and the defense exercised one more peremptory

strike, the parties accepted the main jury panel. The panel

included 10 White jurors, one Hispanic juror, and one “American

Indian / Caucasian” juror. The trial court then proceeded to the

selection of six alternate jurors. The prosecutor repeatedly

declined to exercise any peremptory strikes, except to strike

Lynia B. (a White woman). The sworn alternate jurors included

one African-American and five White individuals. Before the

penalty phase of the trial, the African-American alternate juror

replaced an excused juror and served on the jury.

On appeal, defendant renews his challenge to the

prosecutor’s peremptory strikes of Kevin C. and Simeon G. from

the main jury panel. Defendant states that he “is not

challenging” the peremptory strikes of Isabella B. or Mary B. As

we examine defendant’s Batson/Wheeler arguments with

regard to Kevin C. and Simeon G., we bear the above record in

mind.

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a. Prospective Juror Kevin C.

Kevin C., who was African-American, was 32 years old at

the time of jury selection. He was divorced with three children

and worked as a coach operator. He had previously served in

the military and had previously applied, but had not been

selected, for other law enforcement positions. His former spouse

was a correctional officer.

In his questionnaire, he revealed a degree of skepticism

regarding the criminal justice system. He believed that people

accused of crimes were treated “leniently if you rich harshly if

poor.” He previously served as an alternate juror in a criminal

case involving murder charges, and when asked how his jury

service experience affected his views on the court system, he

said, “It let me know that no matter the crime or defendant the

community selected [as jurors] is both white and blue collar

workers.” He believed the biggest problem with the system was

“racial coded prison[s] keep racism alive and create even larger

bias.” And when asked whether he, any relative, or any close

friend had ever been mistreated by a law enforcement officer, he

checked “yes” and said, “pull[ed] over several times no good

reason given no ticket given.”

Asked whether he was upset by the O.J. Simpson verdict,

he checked “no” and commented, “To [sic] hard to believe one

man did it all, I believe biases created a lot of the circumstance

[sic] evidence.” Also regarding the Simpson case, he said,

“watch[ed] several days of the O.J. Simpson trial taught me [a

lot] about law” in response to whether he had read about,

watched, or listened to any testimony regarding DNA evidence.

Asked about his opinion on using DNA evidence in criminal

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cases, he said, “I think it’s like a polygraph not a for sure

certain.”

His questionnaire responses also suggested some

hesitancy about the death penalty. Asked his opinion on it, he

said, “there are members of society who do bad things and don[’t]

deserve to be here, can I kill them? unknown at this time.”

Asked whether he had a moral, philosophical, or religious

objection to the death penalty, he checked “yes,” commenting,

“God should decide life or death, but some don’t deserve[] life.”

He identified himself as Christian and described his religion’s

view as “thou should not kill.” He said that he agreed with that

view, although he added, “but if my child was being attack[ed]

someone might die[].” As to whether he would vote to keep or

abolish the death penalty, he said that he would not vote and

remarked, “I like to decide who could stay in society but not

decide who stays on earth (I’d like to sleep).” He believed that

the death penalty was unfair but admitted, “mainly because I

don’t know it completely.”

In spite of this, he said that his views on the death penalty

had changed in the last 10 years, commenting, “at first against

but now feel it is needed in special circumstances.” He identified

himself as belonging to Group 3, which was defined as “I neither

favor nor oppose the death penalty.” He said that his views on

the death penalty were not such that he would never be able to

personally vote for the death of the defendant under any

circumstance. Nor would he be reluctant to vote for a sentence

of death. But he said that he would be reluctant to sign the

verdict form or state the verdict in court, commenting, “to look

at someone not knowing why he did it would be hard.”

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During Hovey questioning, the prosecutor asked Kevin C.

about his moral, philosophical, or religious objections to the

death penalty. Kevin C. responded, “I feel where I live I should

decide. Where I’m a Christian. I go to church, so I think, you

know, I can’t. I think God should decide. But, you know, I think

I should decide if I live in the community.” Following up on this

response, the prosecutor asked, “Then you made a comment,

though, on the next page. ‘I’d like to decide who could stay in

society, but not decide who stays on earth.’ That means you feel

comfortable [with] making a decision if somebody should be

maybe incarcerated, but you feel less comfortable making a

decision as far as life or death on an individual?” Kevin C.

responded, “Well, of course I feel uncomfortable about life or

death, but incarcerated for the rest of their life, if they don’t

believe, I would probably go that way, you know. Just an

assumption. But, again, I don’t think I’d have a big problem,

depending on evidence of what is in front of me. If someone

killed my daughter, then I could see it.” The prosecutor clarified

that “of course we have a victim that you weren’t acquainted

with” and “[y]ou don’t know her at all.” Kevin C. said, “Right,

I’m just saying —”

The prosecutor then defined aggravating and mitigating

evidence and asked, “But you’re going to hear, like you may hear

some bad evidence, and you may hear some good evidence. But

basically, if the bad outweighs the good — ” Kevin C. responded,

“If the bad outweighs the good, then I don’t have a problem doing

my job.” Asked “[w]hich means you could, you could vote for a

death verdict,” Kevin C. responded, “Yeah.”

When the trial court subsequently called the first 12

prospective jurors, including Kevin C., to the jury box, the court

and the parties asked a series of questions to the jurors as a

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group. Neither the prosecutor nor the defense asked Kevin C.

any individual questions during general voir dire.

Following defendant’s Batson/Wheeler objection, the

prosecutor stated his reasons for striking Kevin C.: “[Kevin C.]

in his questionnaire compared DNA to a polygraph. That it

wasn’t a for sure thing. His answers on the questionnaire

regarding the death penalty were much more tentative. He

indicated questions like he wants to decide who is in society, but

not [who’s] on earth. He was very skeptical of the O.J. Simpson

case. He stated biases created the circumstantial evidence in

the O.J. Simpson case. This is a DNA case very much like that.

It’s a circumstantial case. It’s a DNA case. Those, those are the

main concerns that I had.” The prosecutor added, “I think that

in person his, his statements about the death penalty didn’t rise

to a level for cause; but, however, I think when you take the

totality of his responses, I think, I mean those are essentially

the reasons that I’m stating.” The court found that the

prosecutor’s reasons for striking Kevin C. were legitimate and

valid.

b. Prospective Juror Simeon G.

Simeon G. was an unmarried, 24-year-old

African-American man with no children at the time of jury

selection for defendant’s trial. He worked as a forklift driver.

He had previously considered working in law enforcement to

help others, and his father worked for the DEA.

In his questionnaire, he described himself as a leader

rather than a follower and remarked, “I like my opinion over

other peoples [sic].” He said that he had not previously worked

with a group of people to make a decision, although he believed

“it would be very interesting” to work with other jurors to reach

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a verdict. He had not previously served on a jury. Asked

whether he believed the jury system to be a fair method to judge

a defendant charged with a crime, he replied affirmatively,

commenting, “12 people have to come together to accuse

someone. That[’]s 12 different opinions. Pretty impressive.”

He considered the biggest problems with the criminal

justice system to be “A. The Court Backlog. B. Better ways of

getting people through the judicial system.” He believed he

could be a fair and impartial juror, stating, “I’m open to

objectively listening to evidence from both sides to decide a fair

verdict.” He did not believe that testimony by law enforcement

officers would be more truthful or accurate than testimony by

civilians; he would not automatically accept the opinion of a

psychiatrist or psychologist; and he could follow an instruction

that if a defendant does not testify, jurors are not supposed to

draw any conclusions from that fact.

Asked whether he could follow an instruction “that a

defendant is presumed innocent unless proven guilty beyond a

reasonable doubt,” he checked “yes” but commented, “If I have

any feeling that he might not have done it, hes [sic] innocent.”

In that response, it appears that he crossed out the word “doubt”

and replaced it with the word “feeling.” Elsewhere, he indicated

that he was not upset by the O.J. Simpson verdict (without

providing any explanation); that people accused of crimes are

treated fairly; and that he “really [didn’t] know anything about”

DNA evidence in criminal cases. He also favored the death

penalty and said that he could vote for a death sentence.

During general voir dire, Simeon G. and two other

prospective jurors did not arrive at the courthouse that morning,

possibly due to a miscommunication. The defense insisted on

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trying to locate these missing prospective jurors. The prosecutor

objected to doing so, arguing that other prospective jurors in

their group were present in court and thus inferring that the

missing prospective jurors “voluntarily absented themselves.”

It appears that the trial judge, seeing from Simeon G.’s

questionnaire that he worked for Kmart Corporation, “called

information and got the numbers of two Kmart stores in the

Ontario area and [called] to try to locate Simeon [G.].” Simeon

G. then called and spoke to the bailiff, and at the bailiff’s

request, Simeon G. came to court that afternoon.

That afternoon, the prosecutor explained to the

prospective jurors who were seated in the jury box, including

Simeon G.: “[O]ne of the instructions you’re going to get in the

case has to do with, essentially, reasonable doubt. There will be

a definition that you’re going to get at the end of the case. It’s

basically a doubt based on reason. And the duty is that if the

case has been proved by the prosecution beyond a reasonable

doubt, your duty is to return a guilty verdict. There’s [sic] also

other principles that are, I don’t know how deeply we touched

on them in the questionnaire, but the presumption of innocence.

Of course, everybody who is charged with a crime is entitled to

the presumption of innocence, and that is in existence right now.

[¶] The question is, is if it [sic] at the conclusion of the case if the

case has been proved beyond a reasonable doubt whether we can

expect everybody to come back with a guilty verdict.”

Immediately following this explanation, the prosecutor

asked Simeon G., “[I]n your questionnaire you mentioned

something — and keep in mind I’m not intending to, you know,

embarrass anybody or anything like that. It’s just, like I said,

this is the only way we can get information quickly is to kind of

be in a group at this point. [¶] You mentioned that if — [Simeon

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G.], you mention in your questionnaire that if you had any

feeling that maybe the defendant was [not] involved, then he’d

be not guilty.”7 Simeon G. replied, “I’m sorry?” The prosecutor

explained, “In your questionnaire, you used the phrase that if

you have a feeling that the defendant was [not] involved, that

you’d find him not guilty. And you used the word ‘feeling’

instead of the word ‘doubt.’ You’d written ‘doubt’ and crossed

out and written the word ‘feeling.’ Do you remember that?”

Simeon G. replied, “I don’t quite remember it, but I’m trying to

understand your question. You’re saying if I had a reasonable

doubt?”

The prosecutor responded, “Well, I’m not sure. I’m trying

to understand what you meant by that. You indicated that if

you had a feeling that he might not be involved, then he would

be not guilty?” Simeon G. replied, “Well, I think what I was

trying to say, if I’m correct, is that if the evidence showed that

there wasn’t — that there was some reasonable doubt, then I

probably would not accuse him, because of the fact that, myself

being in the same situation or anybody, I think that if the

evidence didn’t totally prove that I did it, then there is some

doubt. You know what I’m saying?” The prosecutor said,

“Okay.” Simeon G. added, “So it wasn’t so much a feeling as it

was if the evidence didn’t show.” When the prosecutor sought to

clarify the answer, asking, “Okay. So you would base it on

evidence?” Simeon G. replied, “Basically, yes. I’m sorry.” The

prosecutor commented, “I wanted to make sure,” and Simeon G.

7

It appears that the prosecutor initially misspoke and

meant to say “if you had any feeling that maybe the defendant

was [not] involved, then he’d be not guilty.” The prosecutor

subsequently clarified his question.

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Opinion of the Court by Groban, J.

added, “I couldn’t tell you, tell you what I said, because I don’t

have the paper to look at what I actually meant totally.” The

prosecutor concluded, “Okay. Thank you.”

Following defendant’s Batson/Wheeler objection, the

prosecutor stated his reasons for striking Simeon G.: “[Simeon

G.] made statements on his questionnaire how he likes his

opinions over others. He did make a statement, although he

explained it differently in court, he made a statement on his

questionnaire basically saying if I have a feeling he didn’t do it,

he’s not guilty. And he had crossed out the word doubt, which

led me to believe that he certainly wasn’t going to base it on

evidence. [¶] And I, also, would note that this is an individual

who the Court personally tracked down this morning. He didn’t

have — he, unlike others in his group, didn’t show up for court

this morning. I would be concerned about his responses in light

of the fact that he was, he was single-handedly hunted down to

be here this afternoon. So, I’m not sure that his responses in

court should prevail over the answers he gave on his

questionnaire. But certainly those statements on his

questionnaire cause me some significant concerns.”

Seeking clarification, the court asked, “His answer being

that if he had a feeling the defendant was not guilty, that was

the answer that bothered you?” The prosecutor responded, “Yes,

based on — and he had crossed out the word doubt. And to me

that made it sound like he was going to be basically basing it on

a hunch, or a feeling, which was, as the presenter of evidence,

I’m powerless to overcome. And that was the main concern on

that.” The prosecutor then added, “Also, he was not upset by

the O.J. Simpson verdict. If you’ll notice across the board, I’ve

excused jurors I believe of Hispanic origin and Caucasian origin,

and the common denominator, essentially, is that they were not,

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were not upset by the O.J. Simpson verdict, which was a DNA,

circumstantial case. And I think those, those raise significant

concerns in my mind as a guilt phase juror and the type of case

that I’m dealing with.”

Following the prosecutor’s reasons, defense counsel stated

that Simeon G. misunderstood whether “he was supposed to be

here today or tomorrow” and, once it was clarified, he appeared.

Defense counsel continued, “[Simeon G.] checked on his

questionnaire with regard to the death penalty that he’s a Group

2, that he favors the death penalty, but would weigh and

consider aggravating circumstances. [¶] He really doesn’t give

any answers that suggest that he couldn’t be fair and impartial.

He indicates that his father was a D.E.A. agent. [¶] With regard

to DNA, he said he didn’t know anything about it.”

The court responded, “Well, I understand that there’s

certainly not enough there to excuse him for cause, but that’s

not the test that I have to utilize in this situation. I have to

determine whether or not there are valid, legitimate reasons for

the District Attorney dismissing three of the four Blacks that

were called to the box. [¶] As I indicated, as to [Isabella B.], I

understand his concern there. As to [Kevin C.] and [Simeon G.],

I think it’s certainly not as obvious, but I cannot say it is not

legitimate. [¶] So, at this point in time, I will make a finding

that there have been valid reasons to justify excusing those

three prospective jurors pursuant to a peremptory challenge.

But I don’t need to remind counsel that we’re treading on thin

ice in this area, and the consequences of falling through means

we start all over again.”

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2. Discussion

a. Applicable law

The United States and California Constitutions prohibit

the discriminatory use of peremptory challenges. (Batson,

supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276–

277.) A three-step inquiry governs the analysis of

Batson/Wheeler claims. “First, the defendant must make out a

prima facie case ‘by showing that the totality of the relevant

facts gives rise to an inference of discriminatory purpose.’

[Citation.] Second, once the defendant has made out a prima

facie case, the ‘burden shifts to the State to explain adequately

the racial exclusion’ by offering permissible race-neutral

justifications for the strikes. [Citations.] Third, ‘[i]f a

race-neutral explanation is tendered, the trial court must then

decide . . . whether the opponent of the strike has proved

purposeful racial discrimination.’ ” (Johnson v. California

(2005) 545 U.S. 162, 168, fn. omitted.)

“ ‘The proper focus of a Batson/Wheeler inquiry, of course,

is on the subjective genuineness of the race-neutral reasons

given for the peremptory challenge, not on the objective

reasonableness of those reasons. . . . All that matters is that the

prosecutor’s reason for exercising the peremptory challenge is

sincere and legitimate, legitimate in the sense of being

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

975 (O’Malley).) “ ‘At the third stage of the Wheeler/Batson

inquiry, “the issue comes down to whether the trial court finds

the prosecutor’s race-neutral explanations to be credible.

Credibility can be measured by, among other factors, the

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

the explanations are; and by whether the proffered rationale has

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some basis in accepted trial strategy.” ’ ” (People v. Jones (2011)

51 Cal.4th 346, 360 (Jones).)

“ ‘ “ ‘[T]he trial court is not required to make specific or

detailed comments for the record to justify every instance in

which a prosecutor’s race-neutral reason for exercising a

peremptory challenge is being accepted by the court as

genuine.’ ” ’ ” (People v. Vines (2011) 51 Cal.4th 830, 848

(Vines).) However, “ ‘[w]hen the prosecutor’s stated reasons are

either unsupported by the record, inherently implausible, or

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

that the reasons appear sufficient.’ ” (People v. Gutierrez (2017)

2 Cal.5th 1150, 1171 (Gutierrez).)

Where, as here, the trial court ruled pursuant to the third

stage of the analysis, we skip to that stage to examine whether

the trial court properly credited the prosecutor’s reasons for the

challenges. “Review of a trial court’s denial of a Wheeler/Batson

motion is deferential, examining only whether substantial

evidence supports its conclusions. [Citation.] ‘We review a trial

court’s determination regarding the sufficiency of a prosecutor’s

justifications for exercising peremptory challenges “ ‘with great

restraint.’ ” [Citation.] We presume that a prosecutor uses

peremptory challenges in a constitutional manner and give

great deference to the trial court’s ability to distinguish bona

fide reasons from sham excuses. [Citation.] So long as the trial

court makes a sincere and reasoned effort to evaluate the

nondiscriminatory justifications offered, its conclusions are

entitled to deference on appeal.’ ” (People v. Lenix (2008)

44 Cal.4th 602, 613–614 (Lenix); accord, People v. Winbush

(2017) 2 Cal.5th 402, 435 (Winbush).)

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Defendant, however, argues that the trial court’s findings

are not entitled to deference here because the prosecutor’s

reasons were “suspicious” and, after hearing them, the court

credited them without much discussion on the record. We

disagree. The trial court found that a prima facie case had been

established and asked the prosecutor to explain the basis for

striking Kevin C. and Simeon G. The prosecutor’s stated

reasons were largely self-evident: It requires “little additional

explication” (Gutierrez, supra, 2 Cal.5th at p. 1171) to

understand why an advocate would harbor a concern about a

prospective juror’s stated preference for his own opinion over

others’ or a prospective juror’s opinion on DNA evidence, the

death penalty, or the O.J. Simpson verdict. Moreover, the

prosecutor articulated why, specifically, some of the prospective

jurors’ responses concerned him. The court also asked the

prosecutor a question about one of his stated reasons for striking

Simeon G. (See ante, at p. 26 [“His answer being that if he had

a feeling the defendant was not guilty, that was the answer that

bothered you?”].) And the court listened to defense counsel’s

comments on the prosecutor’s striking of Simeon G.8 The trial

8

Disagreeing, the dissent argues that the prosecutor’s

reasons were not self-evident and, in turn, that the trial court

was required to do more than what it did here. The dissent

relies on Gutierrez, supra, 2 Cal.5th 1150. (Dis. opn., post, at

pp. 2–3.) In Gutierrez, we found that it was not self-evident why

a prospective juror’s mere unawareness of gang activity in a

specific city would indicate a bias against a witness who was a

gang member in the city. (Gutierrez, at p. 1169.)

The dissent asserts that the trial court here “expressly

acknowledged that the prosecutor’s proffered reasons for

striking Kevin C. and Simeon G. were not self-evident.” (Dis.

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court acknowledged that “there’s certainly not enough there to

excuse [Simeon G.] for cause,” but the trial court accurately

explained that “that’s not the test” and instead it must

determine whether there were “valid, legitimate” reasons to

justify the prosecutor’s peremptory challenges.

The court then acknowledged that the prosecutor’s stated

reasons for striking Kevin C. and Simeon G. were not as

“obvious” (as the reasons for striking another prospective juror,

Isabella B.). The court, however, concluded that the prosecutor’s

reasons for striking Kevin C. and Simeon G. were legitimate and

valid. The court added, “I don’t need to remind counsel that

we’re treading on thin ice in this area, and the consequences of

falling through means we start all over again.” While the

discussion was brief, and while the trial court could have done

more to make a fuller record and itself acknowledged it was

making a somewhat close call, the record shows that the court

considered the prosecutor’s reasons and, as discussed below,

those reasons were plausible and supported by the record. In

these circumstances, while a more detailed colloquy may well

have been helpful, the prosecutor and the trial court adequately

developed the record, and on this record, we conclude that the

trial court’s findings are entitled to deference. (See People v.

opn., post, at p. 2.) We disagree. The fact that the trial court

did not “understand” the strikes as to Kevin C. and Simeon G.

— before the prosecutor provided his reasons for them — and

asked the prosecutor to explain those strikes does not mean that

the prosecutor’s reasons, once provided, were not self-evident.

Nor do we require that the prosecutor’s reasons be “obvious.”

Rather, the prosecutor’s reasons, once provided, “were either

self-explanatory or were explained at the hearing.” (People v.

Smith (2018) 4 Cal.5th 1134, 1162 (Smith).) For this reason,

Gutierrez’s reasoning is “inapplicable here.” (Ibid.)

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Hardy (2018) 5 Cal.5th 56, 76 (Hardy) [“ ‘ “When the

prosecutor’s stated reasons are both inherently plausible and

supported by the record, the trial court need not question the

prosecutor or make detailed findings” ’ ”].)

i. Comparative juror analysis

“Also relevant here, in light of defendant’s appellate

arguments, are principles pertaining to comparative juror

analysis, which, on a claim of race-based peremptory challenges,

compares the voir dire responses of the challenged prospective

jurors with those of similar jurors who were not members of the

challenged jurors’ racial group, whom the prosecutor did not

challenge. [Citation.] ‘[C]omparative juror analysis is but one

form of circumstantial evidence that is relevant, but not

necessarily dispositive, on the issue of intentional

discrimination.’ ” (O’Malley, supra, 62 Cal.4th at pp. 975–976.)

Comparative juror analysis is appropriately confined to the

jurors defendant has specifically discussed in his appellate

briefing. (Winbush, supra, 2 Cal.5th at pp. 442–443.)

“Where, as here, the comparative analysis was not made

at trial, ‘the prosecutor generally has not provided, and was not

asked to provide, an explanation for nonchallenges.’ [Citation.]

Therefore, ‘an appellate court must be mindful that an

exploration of the alleged similarities at the time of trial might

have shown that the jurors in question were not really

comparable.’ [Citation.] When a defendant asks for

comparative juror analysis for the first time on appeal, we have

held that ‘such evidence will be considered in view of the

deference accorded the trial court’s ultimate finding of no

discriminatory intent.’ ” (O’Malley, supra, 62 Cal.4th at p. 976.)

We have also held that under these circumstances, “ ‘a

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reviewing court need not, indeed, must not turn a blind eye to

reasons the record discloses for not challenging other jurors even

if those other jurors are similar in some respects to excused

jurors.’ ” (Id. at p. 977.)

In supplemental briefing, defendant takes issue with our

approach to conducting comparative juror analysis for the first

time on appeal. He argues that we should ignore some of the

Attorney General’s efforts to distinguish challenged prospective

jurors from those purportedly similar jurors whom the

prosecutor did not challenge. Considering such distinctions,

defendant argues, is inconsistent with recent decisions by the

high court and “increases the risk that racial discrimination will

persist in the criminal justice system.”

Defendant’s argument rests primarily on Miller-El v.

Dretke (2005) 545 U.S. 231 (Miller-El). There, the high court

made clear that “a prosecutor simply has got to state his reasons

[for a peremptory challenge] as best he can and stand or fall on

the plausibility of the reasons he gives.” (Id. at p. 252.) The

high court also cited this portion of its opinion in a footnote

criticizing the dissent for “focus[ing] on reasons the prosecution

itself did not offer” when the dissent explained why the

nonchallenged jurors “were otherwise more acceptable to the

prosecution than [the challenged prospective juror].” (Id. at

p. 245, fn. 4.) Relying on these two excerpts, defendant observes

that, in response to his comparative juror analysis, the Attorney

General offers “new reasons for why the white jurors were not

discharged” and argues that this “approach is barred by Miller-

El’s stand or fall principle because it is simply the flip side of the

same coin of offering new reasons for the discharge of the black

jurors” and, moreover, is explicitly rejected by Miller-El’s

footnote four. Defendant further argues that this approach is

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inconsistent with Snyder v. Louisiana (2008) 552 U.S. 472

(Snyder) and Foster v. Chatman (2016) 578 U.S. ___

[136 S.Ct. 1737] (Foster) because the state in those cases offered

new reasons for why the White jurors were not discharged and,

without discussing those reasons, the high court concluded that,

for a multitude of reasons, the peremptory strikes were

motivated in substantial part by discriminatory intent.

We have recognized that “in judging why a prosecutor

exercised a particular challenge, the trial court and reviewing

court must examine only the reasons actually given. ‘If the

stated reason does not hold up, its pretextual significance does

not fade because a trial judge, or an appeals court, can imagine

a reason that might not have been shown up as false.’ ” (Jones,

supra, 51 Cal.4th at p. 365, quoting Miller-El, supra, 545 U.S.

at p. 252.) However, we have rejected the further argument that

in conducting comparative juror analysis for the first time on

appeal, “we may not consider reasons not stated on the record

for accepting other jurors.” (Jones, at p. 365.) In rejecting that

argument, we have observed that “no authority has imposed the

additional burden [on the prosecution] of anticipating all

possible unmade claims of comparative juror analysis and

explaining why other jurors were not challenged.” (Ibid.)

Absent further explanation from the high court, we do not

read Miller-El to require us when conducting comparative juror

analysis for the first time on appeal, to turn a blind eye to

reasons the record discloses for not challenging other jurors even

if those jurors are similar in some respects to excused jurors.

Reading Miller-El to restrict our review of the record in this

manner would seem inconsistent with the high court’s

subsequent statement that the high court in Miller-El “made it

clear that in considering a Batson objection, or in reviewing a

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ruling claimed to be Batson error, all of the circumstances that

bear upon the issue of racial animosity must be consulted.”

(Snyder, supra, 552 U.S. at p. 478.) Nor do we read Snyder and

Foster, supra, 578 U.S. ___ [136 S.Ct. 1737] to expressly prohibit

us from considering such reasons the record discloses for not

challenging other jurors in these circumstances.

That said, we take the opportunity to clarify and to

emphasize the following two points about our approach to

comparative juror analysis.

First, comparative juror analysis is a form of

circumstantial evidence that is relevant on the issue of

purposeful discrimination. “If a prosecutor’s proffered reason

for striking a black panelist applies just as well to an otherwise-

similar nonblack who is permitted to serve, that is evidence

tending to prove purposeful discrimination to be considered at

Batson’s third step.” (Miller-El, supra, 545 U.S. at p. 241.)

When a prosecutor states multiple reasons for challenging a

juror, a comparison between the challenged juror and a similar

nonchallenged juror in regard to any one of the prosecutor’s

stated reasons is relevant, but not necessarily dispositive, on the

issue of purposeful discrimination. (See id. at p. 247, fn. 6 [“The

dissent contends that there are no white panelists similarly

situated to [the challenged jurors] because ‘ “ ‘[s]imilarly

situated’ does not mean matching any one of several reasons the

prosecution gave for striking a potential juror — it means

matching all of them.” ’ [Citation.] None of our cases announces

a rule that no comparison is probative unless the situation of the

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individuals compared is identical in all respects, and there is no

reason to accept one”].)9

Second, when conducting comparative juror analysis for

the first time on appeal, we need not turn a blind eye to reasons

the record discloses for not challenging other jurors. “This is so

because a party legitimately may challenge one prospective

juror but not another to whom the same particular concern

applies. [Citation.] ‘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. Chism

9

The dissent emphasizes that recent decisions by the high

court found “single-issue comparisons among jurors to be highly

probative of discrimination.” (Dis. opn., post, at p. 16.) As

stated, we agree that a single-issue comparison among jurors is

a form of circumstantial evidence that is relevant. However,

such comparisons are not necessarily dispositive on the issue of

purposeful discrimination but rather, must be considered within

all of the relevant circumstances. (See Flowers v. Mississippi

(2019) 588 U.S. __, __ [139 S.Ct. 2228, 2250] [“[i]n a different

context, the [challenged juror’s] strike might be deemed

permissible,” but “we must examine the whole picture” and the

comparisons between the challenged and nonchallenged jurors

“cannot be considered in isolation”].) The fact that the high

court found single-issue comparisons to be highly probative of

discrimination within the circumstances of a particular case is

not inconsistent with our analysis here, which, as discussed

below, recognizes that such comparisons are relevant but

ultimately concludes, within all of the relevant circumstances,

that substantial evidence supports the trial court’s denial of

defendant’s Batson/Wheeler motion.

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(2014) 58 Cal.4th 1266, 1319 (Chism); accord, People v. Krebs

(2019) 8 Cal.5th 265, 293–294.)

However, “we bear in mind that comparative juror

analysis is not simply an exercise in identifying any conceivable

distinctions among prospective jurors. ‘A per se rule that a

defendant cannot win a Batson claim unless there is an exactly

identical white juror would leave Batson inoperable; potential

jurors are not products of a set of cookie cutters.’ [Citation.]

Rather, because the ultimate question before us concerns the

prosecutor’s motivations in exercising the challenge in question,

we must ask whether there were any material differences

among the jurors — that is, differences, other than race, that we

can reasonably infer motivated the prosecutor’s pattern of

challenges.” (O’Malley, supra, 62 Cal.4th at p. 977.) In

determining whether there were any material differences

among the jurors, we note that differences among the jurors

generally will be more probative if they closely relate to reasons

the prosecutor has stated for a peremptory challenge. Because

in this case we rely on differences among the jurors that closely

relate to reasons the prosecutor has stated for a peremptory

challenge, we need not opine on whether differences among the

jurors can be material even if they are wholly unrelated to

reasons the prosecutor has stated for a peremptory challenge.

b. Prospective Juror Kevin C.

As a preliminary matter, defendant accurately points out

that the prosecutor questioned Kevin C. regarding the death

penalty but did not question Kevin C. regarding DNA evidence

or the O.J. Simpson verdict. (See Smith, supra, 4 Cal.5th at

p. 1152 [“an attorney’s failure to meaningfully examine a

prospective juror about a subject about which the attorney

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claims to be concerned can constitute evidence of pretext”].) The

prosecutor’s failure to question Kevin C. about “each and every

area of articulated concern,” however, does not necessarily

demonstrate that those concerns were pretextual. (People v.

Cowan (2010) 50 Cal.4th 401, 451 (Cowan).) That the

prosecutor failed to engage Kevin C. in voir dire is also less

significant where, as here, the prosecutor received before voir

dire, Kevin C.’s responses to the 31-page written questionnaire

containing 130 questions. (See People v. Melendez (2016)

2 Cal.5th 1, 19 (Melendez) [“ ‘plac[ing] little weight on the

prosecutor’s failure to individually or more thoroughly question

a prospective juror before exercising a peremptory challenge’ ”

where the prosecutor reviewed a “detailed” jury questionnaire

and heard defense counsel question the prospective juror];

Jones, supra, 51 Cal.4th at p. 363.) Indeed, the prosecutor’s

concerns about Kevin C.’s views regarding DNA evidence and

the O.J. Simpson verdict “arose from a pair of questionnaire

responses that spoke for themselves; no additional clarification

was needed to ascertain [Kevin C.’s] meaning.” (Smith, supra,

4 Cal.5th at p. 1152; cf. People v. Lewis and Oliver (2006)

39 Cal.4th 970, 1018, fn. 14 [“One inference that may be drawn

from any such decision to ask few or no questions is that the

prosecutor had already properly determined that a challenge

was warranted based on the questionnaire or existing voir dire

answers, and that further questioning was unnecessary”].)

Defendant also accurately points out that the prosecutor

did not question other prospective jurors regarding DNA

evidence or the O.J. Simpson verdict during voir dire.

Defendant argues that this circumstance suggests that the

prosecutor was not sincerely concerned about jurors’ views

regarding these topics. Our review of the record confirms that

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both the prosecutor and the defense asked very few questions

during voir dire.10

However, our review of the record also indicates that,

contrary to defendant’s argument, the prosecutor appeared

interested in jurors’ views regarding DNA evidence and the O.J.

Simpson verdict. For the questionnaire, the prosecutor

proposed various questions regarding scientific evidence, even

leading defense counsel to request modifications to those

10

This may have been in part due to the circumstances

leading up to voir dire. Before jury selection, defense counsel

proposed that the parties should ask any questions of the

prospective jurors — even questions that did not pertain to the

death penalty — during Hovey questioning. Defense counsel

and the prosecutor had “some confusion or disagreement” in this

regard because the prosecutor anticipated asking questions

pertaining only to the death penalty or to confidential matters

during Hovey questioning and thus was “only selecting

[prospective jurors] for possible Hovey voir dire who have

questionable answers that need further questioning as to [the]

death penalty.” The trial court ultimately agreed to follow the

prosecutor’s approach for Hovey questioning and to provide the

opportunity for the parties to question the prospective jurors

regarding other matters during voir dire. The court, however,

expected that “there’s not going to be a lot of questions” during

voir dire since the parties had received “most of the information

from the questionnaire.” Then, during Hovey questioning, the

parties primarily questioned the prospective jurors regarding

the death penalty but, at times, questioned the prospective

jurors regarding other matters. After Hovey questioning, the

court said, “I’m gathering that there’s not going to be a whole lot

of individual questioning of these jurors, that you’ve pretty

much covered those that you — the questions that you had from

the questionnaires.” Defense counsel responded that he did not

“have a need to ask any further questions at all,” but if the

prosecutor planned to ask any further questions, defense

counsel might “do a couple things.”

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questions because defense counsel “really [didn’t] like having

blood and semen, DNA, and all that stuff repeated over, and over

again in the questions as though it’s an important thing for [the

prospective jurors] to be worried about in the case before they

even hear what the evidence is.” During voir dire, the

prosecutor also asked the prospective jurors as a group whether

they would “have a problem applying basically the law, and

finding circumstantial evidence is every bit as important as

direct evidence.” The prosecutor later explained that he

considered O.J. Simpson’s case to be similar to defendant’s case

given that both relied on DNA evidence and circumstantial

evidence. Keeping these and all relevant circumstances in

mind, we proceed to examine each of the prosecutor’s stated

reasons for striking Kevin C.

Regarding the prosecutor’s first reason, the prosecutor

stated, “[Kevin C.] in his questionnaire compared DNA to a

polygraph. That it wasn’t a for sure thing.” The prosecutor’s

case relied heavily on DNA evidence. The prosecutor’s reason

for striking Kevin C. is plausible, supported by the record, and

race neutral. However, defendant argues that five other jurors

(Jurors Nos. 10 and 11 and Alternate Jurors Nos. 1, 4, and 5)

expressed similar reservations about DNA evidence yet were

neither questioned nor excused by the prosecutor. Not so.

Unlike Kevin C., these other jurors did not express a

negative opinion on DNA evidence. Rather, when asked about

DNA evidence, Juror No. 10 replied, “should be admitted if can

show + prove accuracy;” Alternate Juror No. 1 replied, “All

evidence if more conclusive than not should be considered;” and

Alternate Juror No. 4 replied, “No opinion.” In addition,

although Alternate Juror No. 5 replied, “It[’]s ok but shouldn’t

be only evidence used” and stated elsewhere, “seems it could be

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accurate,” this response merely emphasized his preference to

consider all evidence, a concept that he repeated elsewhere in

his questionnaire. Lastly, Juror No. 11 responded, “OK if it[’]s

true evidence.” This response might suggest that some DNA

evidence may not be “true” evidence, but even if so, this response

was less negative than Kevin C.’s response, which characterized

all DNA evidence as “like a polygraph not a for sure certain.”

Thus, the prosecutor “could plausibly have distinguished”

among these views regarding DNA evidence in deciding to strike

only Kevin C. (People v. Mills (2010) 48 Cal.4th 158, 183 (Mills)

[comparative juror analysis unpersuasive where prosecutor

distinguished among prospective jurors’ views on scientific

evidence]; see also People v. Wilkinson (2004) 33 Cal.4th 821,

850 [discussing “the deep division in the scientific and legal

communities regarding the reliability of polygraph evidence”].)

As to the second reason, the prosecutor accurately

characterized Kevin C.’s questionnaire responses regarding the

death penalty as “tentative.” “A prospective juror’s views about

the death penalty are a permissible race- and group-neutral

basis for exercising a peremptory challenge in a capital case.”

(People v. McDermott (2002) 28 Cal.4th 946, 970–971; see e.g.,

Winbush, supra, 2 Cal.5th at p. 436 [a juror’s religious

reservations about the death penalty can justify a peremptory

challenge]; People v. Garcia (2011) 52 Cal.4th 706, 749 [a juror’s

“mixed and vague” views about the death penalty can justify a

peremptory challenge]; People v. Lomax (2010) 49 Cal.4th 530,

572 (Lomax) [a juror’s reluctance to impose the death penalty

can justify a peremptory challenge].)

Kevin C.’s questionnaire responses indicated that he was

uncertain whether he could vote for a death sentence and that

he had religious reservations about the death penalty. He

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wrote, “there are members of society who do bad things and

don[’]t deserve to be here, can I kill them? unknown at this

time.” He believed that the death penalty was unfair and said

that he would be reluctant to sign a verdict form for a sentence

of death or state the verdict in court. He identified himself as a

Christian who generally agreed with his religion’s view that

“thou should not kill.” Asked whether he had a moral,

philosophical, or religious objection to the death penalty, he

checked “yes,” commenting, “God should decide life or death, but

some don’t deserve[] life.” He also wrote, “I like to decide who

could stay in society but not decide who stays on earth (I’d like

to sleep).”

It is true that Kevin C. said during Hovey questioning that

he could vote for a death sentence, and when asked about his

religious objection to the death penalty, he explained, “I feel

where I live I should decide. Where I’m a Christian. I go to

church, so I think, you know, I can’t. I think God should decide.

But, you know, I think I should decide if I live in the

community.” But the prosecutor acknowledged this, stating, “I

think that in person his, his statements about the death penalty

didn’t rise to a level for cause; but, however, I think when you

take the totality of his responses, I think, I mean those are

essentially the reasons that I’m stating.” Given “[t]he totality

of” Kevin C.’s responses regarding the death penalty, the record

amply supports the prosecutor’s stated concern. (See Lomax,

supra, 49 Cal.4th at p. 572 [“[If] statements or attitudes of the

juror suggest that the juror has ‘reservations or scruples’ about

imposing the death penalty, this demonstrated reluctance is a

race-neutral reason that can justify a peremptory challenge,

even if it would not be sufficient to support a challenge for

cause”].)

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Defendant nevertheless contends that the prosecutor’s

reason was pretextual because Kevin C.’s reservations about the

death penalty mirrored those of Jurors Nos. 2, 5, 6, 8, and 9 and

Alternate Jurors Nos. 1 and 4, whom the prosecutor did not

strike. Unlike Kevin C., none of the jurors identified by

defendant expressed a religious objection to the death penalty.

(Cf. Winbush, supra, 2 Cal.5th at p. 436 [upheld peremptory

challenge where “[t]he trial court observed [the prospective

juror’s] statement that only God can take a life expressed a

‘startling and dramatic’ reservation about the death penalty

based on what appeared to be the juror’s strongly held religious

beliefs [and] [t]he court observed that no other juror had

expressed such a strongly held view”].)

Instead, most of these jurors merely expressed a degree of

unfamiliarity or slight discomfort with the death penalty. For

example, Alternate Juror No. 4 appeared unfamiliar with the

death penalty, indicating that she did not know whether the

death penalty was used too often or too seldom or whether it was

fair or unfair, and stating, “I would have to decide based on the

evidence + the judge[’]s instructions regarding [the] death

penalty.” Juror No. 5 had “mixed emotions” about the death

penalty, but she believed the death penalty was fair, she would

vote to keep it “[j]ust in case,” and she would not be reluctant to

vote for a sentence of death, sign the verdict form, or state the

verdict in court. Juror No. 9 stated, “I have mixed emotions. I

must know that someone is actually guilty, I feel the death

penalty is fair.” She also would vote to keep the death penalty,

believed it was used too seldom, and would not be reluctant to

vote for a sentence of death, sign the verdict form, or state the

verdict in court. And, while Alternate Juror No. 1 made clear

that her opinion on the death penalty “depend[ed] on the crime,”

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she also confirmed that she believed the death penalty was fair

and would not be reluctant to vote for a death sentence, sign the

verdict form, or state the verdict in court.

Some of the jurors identified by defendant, however,

expressed more significant reservations about the death

penalty. Juror No. 6 commented, “insecure about my feelings. I

do believe in the death penalty but do not know how I feel about

administering it.” But, she, too, said that she would vote to keep

the death penalty, that it was fair and used too seldom, and that

she would not be reluctant to personally vote for a death

sentence, sign the verdict form, or state the verdict in court. She

also identified with Group 2, which was defined as “I favor the

death penalty, but will not always vote for death in every case

of murder with special circumstances.” During Hovey

questioning, she said that she might be reluctant to sentence

somebody to death, but asked whether “feeling guilty” in her

“heart” might “affect the way [she] act[s] on the way [she] feel[s]

in [her] head,” she confirmed, “No, I can truthfully say, no, I

would not. No. It’s just my own feelings, I should say.” She

confirmed that she could follow the law, she could sign a verdict

form for a death sentence, and although she “wouldn’t feel good

about it,” she could state the verdict for a death sentence in

court.

In addition, Juror No. 8 identified with Group 4, which

was defined as “I have doubts about the death penalty, but I

would not vote against it in every case.” He believed the death

penalty was used too often and said that the death penalty

“should be reserved for only the most heinous of crimes.” But he

characterized the death penalty as fair and would vote to keep

it because it is a “necessary evil.” He said that his views were

not such that he could never vote for a death sentence,

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explaining, “if the situation proved to warrant such a

punishment, I would vote for it.” He also said that he would not

be reluctant to personally vote for a death sentence, sign the

verdict form, or state the verdict in court, although he “would

not automatically seek the highest punishment.” During Hovey

questioning, Juror No. 8 said, “I used to really be for the death

penalty, but since then I’ve changed my views to I’m not totally

against it, but I’m not totally for it either.” He acknowledged

that he viewed life imprisonment as a more suitable

punishment. But, asked whether this view might cause him to

favor that sentence regardless of the evidence, he replied, “Not

necessarily. That’s my personal view, you know, depending on

the evidence, you know. I would choose what I thought was

right.” He confirmed that he could follow the law and could vote

for a death sentence.

We find that Juror No. 6’s responses and Juror No. 8’s

responses were not so similar to Kevin C.’s responses regarding

the death penalty as to cast doubt on the trial court’s acceptance

of the prosecutor’s reason for striking Kevin C. While Juror No.

6 expressed some discomfort and reluctance with voting for a

death sentence, she made clear that she supported the death

penalty and she ultimately confirmed that she could vote for a

death sentence. And while Juror No. 8 believed that the death

penalty should be reserved for “only the most heinous of crimes,”

he made clear that he supported the death penalty and could

vote for it in those circumstances. By contrast, among Kevin

C.’s tentative and vacillating responses about both his view on

the death penalty and his ability to vote for a death sentence,

Kevin C. indicated that he had a religious objection to the death

penalty and agreed with his religion’s view that “thou should not

kill.” These responses called into question the fundamental

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propriety of the death penalty and differed from Juror No. 6’s

belief in the death penalty and Juror No. 8’s opinion that the

death penalty was a “necessary evil” for the “most heinous of

crimes.”

Lastly, Juror No. 2 stated, “I am not in favor of the death

penalty,” and believed that it was not fair and was used too

often. He believed the purpose of the death penalty was

“supposedly to deter crime.” Asked whether he had a moral,

philosophical, or religious objection to the death penalty, he

checked “yes” and elaborated, “I do not believe it deters crime.”

He did not refer to any religious beliefs, and he subsequently

said that he did not have a religious preference or affiliation.

Although he initially said that he “[w]ould not vote” to decide

whether or not to keep the death penalty, he subsequently said

that he probably would vote to keep the death penalty. In

addition, he said that his views were not such that he could

never vote for a death sentence, explaining, “I would and could

follow the law.” He said that he would not be reluctant to

personally vote for a death sentence or personally sign a verdict

form for a death sentence, although he would be reluctant to

stand up in court, facing the defendant, and state the verdict for

a death sentence. He identified himself as belonging to Group

4, which was defined as “I have doubts about the death penalty,

but I would not vote against it in every case.” During Hovey

questioning, the prosecutor asked, “I think one of your concerns

is you were kind of skeptical that maybe it doesn’t deter crime,

if that’s the purpose of it . . . . [W]ould you be able to return,

personally vote for a death verdict if you felt it was, if it felt [sic]

the evidence supported, and the law supported it?” Juror No. 2

replied, “Yes.”

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We find that Juror No. 2 made clear that he did not

support the death penalty, and that Juror No. 2’s responses

regarding the death penalty were similar in some respects to

Kevin C.’s responses regarding the death penalty. We agree

with defendant that the comparison between Juror No. 2 and

Kevin C. has some probative value. That said, we also find that,

unlike Kevin C., who gave tentative and vacillating responses

about his view on the death penalty and his ability to impose it,

Juror No. 2 was more clear and consistent in both respects:

Juror No. 2 more clearly and consistently said that he did not

support the death penalty, but Juror No. 2 also more clearly and

consistently said that he could impose it. When the prosecutor

asked Juror No. 2 whether he would be able to personally vote

for a death verdict even though he was “kind of skeptical that

maybe it doesn’t deter crime,” Juror No. 2 replied, “Yes.” Juror

No. 2’s responses differed from Kevin C.’s more tentative and

conflicted responses: “there are members of society who do bad

things and don[’]t deserve to be here, can I kill them? unknown

at this time” and “I like to decide who could stay in society but

not decide who stays on earth (I’d like to sleep).” In addition,

unlike Kevin C., Juror No. 2 did not invoke a religious objection

to the death penalty. Thus, comparing the totality of their

respective responses regarding the death penalty, we find some

similarities as well as some differences, and we conclude that

the comparison has probative value within our inquiry as to

whether the prosecutor’s stated reason for striking Kevin C. was

pretextual.

We additionally note that, in stark contrast to Kevin C.,

who believed DNA evidence was “like a polygraph not a for sure

certain” and who was not upset by the O.J. Simpson verdict

because he found it “hard to believe” Simpson was solely

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responsible for the crimes and suggested “biases” created much

of the evidence, Juror No. 2 believed that DNA evidence was

“accurate” and was upset by the O.J. Simpson verdict because

“[Juror No. 2] believe[d] it was proven beyond a reasonable

doubt that [Simpson] was guilty.” By noting these differences

between Juror No. 2 and Kevin C., we do not intend to suggest

that the similarities between Juror No. 2 and Kevin C. in regard

to the death penalty are irrelevant within our analysis or that

defendant must identify an exactly identical juror to prove

purposeful discrimination. (See ante, at pp. 35–37.) Rather,

“because the ultimate question before us concerns the

prosecutor’s motivations in [striking Kevin C.], we must ask

whether there were any material differences [between Kevin C.

and Juror No. 2] — that is, differences, other than race, that we

can reasonably infer motivated the prosecutor’s pattern of

challenges.” (O’Malley, supra, 62 Cal.4th at p. 977.)

Considering these and all relevant circumstances, we ultimately

find no adequate basis to overturn the trial court’s ruling.

As to the prosecutor’s final reason, Kevin C. checked “no”

when asked whether he was upset by the O.J. Simpson verdict

and said, “To [sic] hard to believe one man did it all, I believe

biases created a lot of the circumstance [sic] evidence.” We have

previously held that a prospective juror’s opinion of the O.J.

Simpson trial is a nonbiased ground for a peremptory strike.

(See Smith, supra, 4 Cal.5th at p. 1153; Vines, supra,

51 Cal.4th at pp. 851–852; Mills, supra, 48 Cal.4th at p. 184.)

The NAACP Legal Defense & Educational Fund, Inc.

(LDF), however, has filed an amicus curiae brief arguing that

asking about a prospective juror’s opinion of the O.J. Simpson

verdict is a proxy for race because most Black people support the

verdict and most White people do not. LDF refers to studies

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finding, in 1995, that approximately 22 percent of Black people

and 79 percent of White people believed Simpson was guilty. In

response, the Attorney General argues, inter alia, that public

opinion regarding the Simpson verdict is less clear than LDF

suggests. The Attorney General refers to studies finding that

“the number of Blacks who believe Simpson was guilty more

than doubled to 45% by 2007 and became a majority view of 57%

by 2015,” and thus “selection of Miles’s jury occurred at a time

when the percentage of Whites who believed Simpson guilty was

decreasing and the percentage of Blacks who believed him guilty

was increasing.”

LDF’s argument that more Blacks than Whites support

the Simpson verdict, “even if factually correct, does not establish

that the criterion is not race neutral.” (Melendez, supra,

2 Cal.5th at p. 18.) As we discussed in Melendez, the plurality

opinion in Hernandez v. New York (1991) 500 U.S. 352

concluded that “ ‘[w]hile the prosecutor’s criterion might well

result in the disproportionate removal of [prospective jurors of a

specific ethnicity], that disproportionate impact does not turn

the prosecutor’s actions into a per se violation of the Equal

Protection Clause.’ ” (Melendez, at p. 17, quoting Hernandez,

supra, 500 U.S. at p. 361.) But “the plurality [in Hernandez] did

find that a disparate impact would be relevant to the overall

inquiry.” (Melendez, at p. 17.) Thus, if LDF’s argument that

more Blacks than Whites support the Simpson verdict is

factually correct, “this circumstance is relevant to the inquiry as

to whether the reasons were sincere and not merely pretextual.”

(Id. at p. 18.)

We assume that LDF’s argument is factually correct, and

we consider this circumstance to be relevant to our inquiry as to

whether the prosecutor’s reason was sincere and not merely

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pretextual. However, the record here does not show that the

prosecutor’s reason was pretextual. The voir dire in this case

began in Southern California approximately three years after

the Simpson trial in Los Angeles, making it likely that the

prospective jurors were familiar with and had formed opinions

about that case. The prosecutor specifically expressed concern

about the prospective jurors’ opinions of the Simpson verdict

because the prosecutor considered Simpson’s case to be similar

to defendant’s case given that both cases relied on DNA evidence

and circumstantial evidence. And it appears that the prosecutor

was not alone in considering Simpson’s case to be similar in

some respects to defendant’s case. For example, while

discussing the draft jury questionnaire regarding scientific

evidence, the court commented, “I’m assuming part of [the

prosecutor’s] concern is whether there’s a juror that just says, I

absolutely would not believe anything that involved DNA

evidence based on my daily watching of the O.J. Simpson trial

or something of that nature.” For another example, while

questioning the prospective jurors about DNA evidence during

voir dire, defense counsel twice referred to the O.J. Simpson

case, including to comment that “there’s been a lot of publicity

about [DNA] [and] most people are familiar, to some degree or

another, with the O.J. Simpson case.”

In addition, the prosecutor struck several non-African-

American prospective jurors who were not upset by the verdict,

suggesting that the prosecutor’s concern was sincere and not

merely a pretext for excusing African-American prospective

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jurors. (Cf. People v. Woodruff (2018) 5 Cal.5th 697, 755.)11 The

prosecutor struck, in total, five non-African-American

prospective jurors. Four of these five prospective jurors were

not upset by the O.J. Simpson verdict: Malinda M. (a Hispanic

woman) was not upset with the O.J. Simpson verdict because “I

think there was doubt in the case and some things were done

improper that [led] to the not guilty verdict;” Ronald W. (a White

man) was not upset with the O.J. Simpson verdict because

“evidently they had weighed all the evidence and come to

agreement;” Richard L. (a Hispanic man) was not upset with the

O.J. Simpson verdict because “the D.A. did not prove beyond a

reasonable doubt;” and Lynia B. (a White woman) was not upset

with the O.J. Simpson verdict because “to[o] many unanswered

questions was neither convinced of guilt nor innocence.” After

striking Malinda M. (a Hispanic woman) and Ronald W. (a

White man), the prosecutor specifically said that he had excused

jurors “of Hispanic origin and Caucasian origin, and the

common denominator, essentially, is that they were not, were

not upset by the O.J. Simpson verdict.”

11

Also, the prosecutor did not strike Alternate Juror No. 2,

who was African-American and was not upset by the O.J.

Simpson verdict. The Attorney General argues that this fact

tends to show that “the prosecutor was motivated by the jurors’

individual views instead of their race.” Alternate Juror No. 2

indeed checked “no” when asked whether she was upset by the

Simpson verdict, but she explained, “The evidence was there

which told me he was guilty.” In light of Alternate Juror No. 2’s

explanation, it appears possible that she simply checked the

wrong box when asked whether she was upset by the Simpson

verdict. Because Alternate Juror No. 2’s answer could be

interpreted in any number of ways on the cold appellate record,

we find that it is of little help in analyzing the sincerity of the

prosecutor’s reason.

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Finally, contrary to defendant’s argument, comparing

Kevin C.’s response to other jurors’ responses does not

undermine the credibility of this reason. Unlike Kevin C., who

was not upset by the O.J. Simpson verdict because he found it

“hard to believe” that Simpson was solely responsible for the

crimes, and suggested that “biases” created much of the

circumstantial evidence, Alternate Juror No. 5 simply checked

“no” when asked whether he was upset by the verdict and

expressed no further thoughts regarding it. Similarly, while

Juror No. 6 checked “no” to the same question but commented,

“evidence not clear,” Juror No. 6’s response was more measured

than and dissimilar to Kevin C.’s response. (See Vines, supra,

51 Cal.4th at p. 851 [responses by two prospective jurors

“dissimilar” where one said, “the Simpson trial ‘restored’ his

‘faith’ ” and the other said, “ ‘It raised my concerns on jury

selection and impact of televising a trial’ ”].) Neither Alternate

Juror No. 5’s response nor Juror No. 6’s response resembled

Kevin C.’s harsh rebuke of the prosecution’s evidence in the O.J.

Simpson case, nor did they inject the concept of “biases” into the

result.

In short, each of the prosecutor’s reasons is supported by

the record, and considered together, they provide ample,

nonbiased grounds for striking Kevin C. Substantial evidence

therefore supports the trial court’s conclusion that the

prosecutor struck Kevin C. for reasons other than his race.

c. Prospective Juror Simeon G.

The first reason offered by the prosecutor was that Simeon

G. liked his own opinion over other people’s opinions. In his

questionnaire, Simeon G. described himself as a leader, rather

than a follower, because he liked his opinion over other people’s

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opinions. Although Simeon G. did not assert in this or other

questionnaire responses that he would be unwilling or unable to

deliberate with fellow jurors, the prosecutor reasonably could be

concerned that Simeon G. might have difficulty considering

other opinions and deliberating with fellow jurors —

particularly given that Simeon G. had not worked with a group

of people to make a decision before. (Cf. Lenix, supra, 44 Cal.4th

at p. 623 [“[a]n advocate is entitled to consider a panelist’s

willingness to consider competing views [and] openness to

different opinions”]; People v. Gutierrez (2002) 28 Cal.4th 1083,

1125 [a prosecutor could feel concerned about a prospective

juror’s comment that “he would not be influenced by anyone’s

opinion but his own”].)

The dissent does not attach any import to Simeon G.’s

response, positing that “[e]veryone likes his or her opinion over

other people’s.” (Dis. opn., post, at p. 5.) But the prosecutor was

not required to interpret the response as the dissent does. It is

not only that Simeon G. said he liked his opinion over other

people’s; it is also that he made this statement in order to

explain why he would describe himself as a “leader” rather than

a “follower.” The prosecutor could reasonably have understood

this response, in context, to suggest that if another person had

a different opinion, Simeon G.’s view of leadership would cause

him to prefer his own opinion “over” the opinion of the other

person. It was not unreasonable for the prosecutor to ascribe

some significance to Simeon G.’s response.

That said, we recognize that the prosecutor did not ask

Simeon G. during voir dire about his stated preference for his

own opinion over other people’s opinions. The prosecutor’s

failure to engage Simeon G. on each concern, however, is not

conclusive in determining whether the prosecutor’s reasons

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were pretextual. (See, e.g., Cowan, supra, 50 Cal.4th at p. 451

[although a prosecutor’s failure to engage in meaningful voir

dire can suggest the prosecutor’s stated reasons are pretextual,

the prosecutor’s failure to question the prospective jurors “about

each and every area of articulated concern does not undermine

the conclusion that her stated race-neutral reasons for excusing

these prospective jurors were genuine and not pretextual”];

Jones, supra, 51 Cal.4th at p. 363.) We are mindful that lawyers

may refrain from asking questions for a variety of reasons. (Cf.

People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1018, fn. 14

[recognizing that “lawyers must use their voir dire time

judiciously”].) Here, asking Simeon G. during voir dire — in

front of the other prospective jurors — to elaborate on his

questionnaire response would have forced him to explain why

he believes that his opinion is preferable to the opinions of other

people, such as those seated around him. Considering these and

all relevant circumstances, we find that the prosecutor’s first

reason for striking Simeon G. is race neutral, plausible, and

supported by the record.

Despite this, defendant contends that a comparative juror

analysis between Simeon G. and Juror No. 1 discredits the

prosecutor’s reason. It does not. Juror No. 1 identified herself

as a leader, rather than a follower, and elaborated, “I like to

make my own decisions.” Although Juror No. 1’s response was

similar in some respects to Simeon G.’s response, the prosecutor

could reasonably have found Juror No. 1’s response to be less

concerning in context than Simeon G.’s response. Jurors are

expected to make their own decisions after deliberating with

fellow jurors — which Juror No. 1 previously had done to reach

a verdict in a separate case. The prosecutor thus could have

concluded that Juror No. 1’s statement that she liked to make

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her “own decisions” did not call into question her openness to

considering other opinions before returning a verdict. Simeon

G.’s response, by contrast, could reasonably cause concern about

his openness to considering other opinions, and unlike Juror No.

1, he had not previously served on a jury or worked with a group

of people to make a decision. (See Chism, supra, 58 Cal.4th at

p. 1321 [where a juror, similar to two challenged prospective

jurors, lacked supervisory work experience, the fact that the

juror had previously served on a separate jury in a capital case

“substantially distinguishe[d] him from [the two challenged

prospective jurors]”]; Vines, supra, 51 Cal.4th at pp. 851, 852

[comparative juror analysis rejected where answers were

“dissimilar” and “significant differences in life experiences”

existed between jurors].)12

Thus, we find some similarities as well as some differences

between Simeon G. and Juror No. 1 in regard to the prosecutor’s

first reason for striking Simeon G., but we ultimately conclude

that their respective responses were not so similar as to cast

doubt on the trial court’s acceptance of the prosecutor’s reason

for striking Simeon G. We additionally note that Juror No. 1 did

not raise any of the other concerns the prosecutor raised in

explaining his reasons for the strike. Unlike Simeon G., Juror

12

In his reply brief, defendant engages in an attenuated

analysis concerning Juror No. 3 and Juror No. 4’s respective

responses to the related question, “Have you ever worked with

a group of people to make a decision?” But defendant’s attempt

to parse that question from the related question concerning

whether a prospective juror is a leader, and why, misses the

point. Juror No. 3 and Juror No. 4 did not declare a preference

for their opinion over other people’s opinions, making their

responses fundamentally distinguishable from Simeon G.’s

response.

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No. 1 expressed that she was upset with the O.J. Simpson

verdict because she “believe[d] he was guilty,” and she did not

suggest that she might rely on her feelings in reaching a verdict

in the guilt phase.

As to the second reason for striking Simeon G., the

prosecutor expressed concern that Simeon G. might rely on

hunches or feelings, rather than evidence, in reaching a verdict

in the guilt phase since he replaced the word “doubt” with the

word “feeling” and said in his questionnaire that if he had a

feeling the defendant did not do it, the defendant was not guilty.

The record shows that when asked whether he could follow an

instruction that a defendant is presumed innocent unless

proven guilty beyond a reasonable doubt, Simeon G. checked

“yes;” commented, “If I have any feeling that he might not have

done it, hes [sic] innocent;” and in this comment, replaced the

word “doubt” with the word “feeling.”

When asked about this response, Simeon G. did not “quite

remember” replacing the word “doubt” with the word “feeling.”

The dissent posits that Simeon G. “most likely” recognized a

double negative in his original comment and replaced the word

“doubt” with the word “feeling” in an effort to correct it. (Dis.

opn., post, at p. 8.) This is a possible explanation. But Simeon

G. did not provide this explanation. And had he intended to

correct the double negative, he could have revised his comment

in multiple ways, including, for example, by crossing out the

word “not” or by replacing the word “doubt” with the word

“belief.”

But Simeon G. replaced the word “doubt” with the word

“feeling,” and as revised, his statement read that if he had “any

feeling” that the defendant “might” not have done it, the

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defendant was innocent. The word “feeling” is ordinarily used

to mean “[a]n idea, belief, or sense (especially a vague or

irrational one) that a particular thing is true; an impression that

something is about to happen or is the case; an intuition about

something” or “[t]hat which a person feels in regard to

something; attitude, esp. emotional attitude, sentiment; opinion

or belief based on emotion or intuition and not solely on reason.”

(Oxford English Dict. Online (3d ed. 2015)

<https://oed.com/view/Entry/68981?rskey=QkM9MC&result=2

&isAdvanced=false#eid> [as of May 22, 2020].)13 To the

prosecutor, Simeon G.’s response that if he had “any feeling”

that the defendant “might” not have done it, the defendant was

innocent “made it sound like [Simeon G.] was going to be

basically basing it on a hunch, or a feeling, which was, as the

presenter of evidence, [the prosecutor was] powerless to

overcome.”

The prosecutor’s concern was plausible and supported by

the record. We acknowledge that Simeon G.’s questionnaire

response may be interpreted in multiple ways and that his other

questionnaire responses did not indicate that he would rely on

his feelings in reaching a verdict in the guilt phase. However,

the prosecutor was not obliged to accept the most innocuous

interpretation of Simeon G.’s questionnaire response and could

be legitimately concerned about his response for the reasons the

prosecutor specifically articulated. (See People v. Mai (2013)

57 Cal.4th 986, 1050, 1051 [where the prospective juror’s

remarks “might be taken more than one way,” the prosecutor

13

All Internet citations in this opinion are archived by year,

docket number, and case name at

<http://www.courts.ca.gov/38324.htm>.

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“was not obliged to accept [the defendant’s] precise

interpretation of [the juror’s] ambiguous remarks, and [the

prosecutor] could reasonably be concerned about [these

remarks]”].)

It is true, however, that Simeon G. explained his

questionnaire response differently during voir dire. During voir

dire, the prosecutor explained to the prospective jurors,

including Simeon G., that “if the case has been proved by the

prosecution beyond a reasonable doubt, your duty is to return a

guilty verdict” and the question is if “at the conclusion of the

case if the case has been proved beyond a reasonable doubt

whether we can expect everybody to come back with a guilty

verdict.” Immediately after this, the prosecutor asked Simeon

G. about his questionnaire response. Simeon G. did not “quite

remember” his questionnaire response, but when asked what he

meant by it, Simeon G. explained, “Well, I think what I was

trying to say, if I’m correct, is that if the evidence showed that

there wasn’t — that there was some reasonable doubt, then I

probably would not accuse him, because of the fact that, myself

being in the same situation or anybody, I think that if the

evidence didn’t totally prove that I did it, then there is some

doubt. You know what I’m saying?” Simeon G. added, “So it

wasn’t so much a feeling as it was if the evidence didn’t show.”

Asked whether he “would base it on evidence,” Simeon G.

responded, “Basically, yes. I’m sorry.” He added, “I couldn’t tell

you, tell you what I said, because I don’t have the paper to look

at what I actually meant totally.”

Reviewing this colloquy in the appellate record, the

dissent views Simeon G.’s responses to have “left no ambiguity

about the issue.” (Dis. opn., post, at p. 9.) To be sure, Simeon

G. gave answers during voir dire that, from the prosecutor’s

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perspective, were less concerning than Simeon G.’s

questionnaire response and helped to explain his questionnaire

response. However, in this colloquy, Simeon G. also said that he

did not “quite remember” his questionnaire response, and

because he did not have a copy of the questionnaire, he could not

tell the prosecutor “what [he] actually meant totally” by it.

Simeon G. referenced that if the evidence “didn’t totally prove”

that the defendant did it, “then there is some doubt.” And when

asked whether he “would base [the verdict] on evidence,” he

responded, “[b]asically,” yes. These portions of Simeon G.’s

answers may not have been entirely reassuring to the

prosecutor, who was concerned that Simeon G. would rely “on a

hunch, or a feeling, which was, as the presenter of evidence, [the

prosecutor] was powerless to overcome.” Thus, reviewing this

colloquy in the appellate record — unaided by Simeon G.’s tone

or demeanor — we do not conclude that Simeon G.’s responses

“left no ambiguity” and necessarily mollified any prosecutorial

concern about his questionnaire response. (Dis. opn., post, at

p. 9.)

Moreover, when providing his reasons for striking Simeon

G., the prosecutor acknowledged that Simeon G. explained his

questionnaire response “differently in court.” Nevertheless, the

prosecutor told the trial court that Simeon G.’s explanation

during voir dire did not eliminate the prosecutor’s concern about

Simeon G.’s questionnaire response. The prosecutor explained

that he was still concerned about Simeon G.’s responses “in light

of the fact that he was, he was single-handedly hunted down to

be here this afternoon. So [the prosecutor was] not sure that his

responses in court should prevail over the answers he gave on

his questionnaire.” The dissent seems to contend that the

prosecutor was obliged to abandon his concern about Simeon

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G.’s written response because Simeon G. explained that

response differently in court under oath and “left no ambiguity

about the issue.” (Dis. opn., post, at p. 9.) We disagree. Faced

with seemingly different responses, the prosecutor was not

obliged to abandon his concern about Simeon G.’s written

response, which was signed under penalty of perjury, in light of

Simeon G.’s oral response — and in fact, the prosecutor made

clear to the trial court that he did not. (Cf. Vines, supra,

51 Cal.4th at p. 850 [“That [the prospective juror] stated on voir

dire that he could consider both penalties, and thus

demonstrated he was not subject to removal for cause [citation],

did not preclude the prosecutor from exercising a peremptory

challenge when [the juror’s] questionnaire responses indicated

a degree of reluctance to impose the death penalty with which

the prosecutor was uncomfortable”].)

The trial court was “ ‘best situated’ ” to assess Simeon G.’s

responses in court and the prosecutor’s stated concern in light

of those responses. (People v. Armstrong (2019) 6 Cal.5th 735,

770 (Armstrong) [“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’ ”].) Having observed Simeon G. in court,

the trial court could assess Simeon G.’s oral responses, and it

was better positioned than our court to determine whether

Simeon G.’s oral responses should have completely assuaged

any potential concerns raised by his written response. The trial

court also could assess the credibility of the prosecutor’s stated

concern about Simeon G.’s questionnaire response, as well as

the prosecutor’s assessment that he was “not sure that [Simeon

G.’s] responses in court should prevail over the answers he gave

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on his questionnaire.”14 The trial court specifically asked a

question to the prosecutor about this concern, and after listening

to the prosecutor’s explanation and defense counsel’s comments,

the trial court accepted the prosecutor’s stated reasons for

striking Simeon G. (See Lenix, supra, 44 Cal.4th at p. 614 [we

give “ ‘great deference to the trial court’s ability to distinguish

bona fide reasons from sham excuses’ ”].)

It is by no means clear from the record that if he had been

selected, Simeon G. would have relied on his feelings in reaching

a verdict in the guilt phase. But “[o]ur task is not to determine

whether we would have shared the prosecutor’s concerns; the

only question before us is whether substantial evidence supports

the court’s ruling that the prosecutor described legitimate

reasons for the challenge and that he challenged [Simeon G.] for

those reasons, not because of [his] race.” (Smith, supra,

4 Cal.5th at p. 1161.)

We find that the prosecutor’s concern here is plausible,

supported by the record, and race neutral. Contrary to

defendant’s argument, his comparative juror analysis between

Simeon G. and Juror No. 5 does not undermine the sincerity of

the prosecutor’s concern. Asked whether she could follow a

14

The dissent states that “it is not clear why” the

circumstances surrounding Simeon G.’s attendance in court

would have caused the prosecutor to doubt Simeon G.’s

responses in court. (Dis. opn., post, at p. 11.) The record shows

that Simeon G. arrived in court only after the trial judge himself

called his employer to try to locate him. (See ante, at p. 24.) By

any measure, having a judge call your workplace to locate you

and have you come to court is unusual. Whether these unusual

circumstances affected Simeon G.’s responses in court — as the

prosecutor suggested they did — is an assessment that the trial

court was best positioned to make.

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presumption-of-innocence instruction, Juror No. 5 checked “yes”

and wrote, “Try to follow instructions.” Reading this statement

to suggest that she could not or would not follow the instruction

is strained, and we decline to do so. The record therefore

provides no adequate basis to overturn the trial court’s ruling.

For the final reason, the prosecutor said that Simeon G.

(like Kevin C.) was not upset by the O.J. Simpson verdict. As

discussed, a prospective juror’s opinion regarding the Simpson

case can be a nonbiased ground for a peremptory challenge.

Defendant and LDF, however, argue that this reason was a

proxy for race or, alternatively, pretextual. As discussed, we

assume that LDF’s argument that more Blacks than Whites

support the Simpson verdict is factually correct, and we consider

this circumstance to be relevant to our inquiry as to whether the

prosecutor’s reason was sincere and not merely pretextual. In

this particular case, however, it is plausible that the prosecutor

— tasked with securing a conviction in San Bernardino County

approximately three years after the Simpson trial took place in

the adjacent Los Angeles County — was sincerely concerned

about the prospective jurors’ opinions regarding the Simpson

verdict because the prosecutor considered Simpson’s case to be

similar to defendant’s case given that both cases relied on DNA

evidence and circumstantial evidence. Also as discussed, it

appears that the prosecutor was not alone in considering

Simpson’s case to be similar in some respects to defendant’s case

because both the trial court and defense counsel referred to

Simpson’s case at various points when discussing DNA

evidence. (See ante, at p. 50.) In addition, four of the five non-

African-American prospective jurors whom the prosecutor

struck were not upset by the O.J. Simpson verdict, suggesting

that the prosecutor’s concern was sincere and not merely a

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pretext for striking African-American prospective jurors. (See

ante, at pp. 50–51.)

That said, we find that the credibility of the prosecutor’s

concern here is undermined to some degree by the prosecutor’s

failure to ask Simeon G. or other prospective jurors about the

O.J. Simpson verdict during voir dire. In his questionnaire,

Simeon G. indicated that he was not upset by the O.J. Simpson

verdict but left blank the follow-up request to “[p]lease explain

why or why not.” To be sure, we recognize that one might infer

from this response that Simeon G. was not upset by the O.J.

Simpson verdict because he simply agreed with the verdict,

requiring little explanation. But we also recognize that a

prospective juror may not be upset by the O.J. Simpson verdict

for a variety of reasons. While the prosecutor’s failure to

question Simeon G. or other prospective jurors about the O.J.

Simpson verdict does not necessarily demonstrate that the

prosecutor’s concern was pretextual, we consider this

circumstance to be relevant to our inquiry as to whether the

prosecutor’s concern was pretextual here. (See Smith, supra,

4 Cal.5th at p. 1152 [“an attorney’s failure to meaningfully

examine a prospective juror about a subject about which the

attorney claims to be concerned can constitute evidence of

pretext”].)

When the prosecutor gave this reason for striking Simeon

G., the prosecutor stated, “If you’ll notice across the board, I’ve

excused jurors I believe of Hispanic origin and Caucasian origin,

and the common denominator, essentially, is that they were not,

were not upset by the O.J. Simpson verdict, which was a DNA,

circumstantial case.” Defendant argues that the prosecutor’s

statement meant that “he had struck all prospective jurors who

were not upset with the O.J. Simpson verdict” and “this is not

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what the record shows at all” because the prosecutor did not

strike Juror No. 6 or Alternate Juror No. 5.15 Contrary to

defendant’s argument, the prosecutor’s statement is fairly read

to mean that the prosecutor had struck prospective jurors

“across” different races, including a Hispanic prospective juror

and a Caucasian prospective juror, who were not upset by the

O.J. Simpson verdict. And at the time of the statement, the

prosecutor indeed had struck three non-African-American

prospective jurors, two of whom — Malinda M. (a Hispanic

woman) and Ronald W. (a White man) — were not upset by the

Simpson verdict.

Nevertheless, defendant’s comparative juror analysis

between Simeon G. and Juror No. 6 and Alternate Juror No. 5

has some probative value and is more convincing than it was

with respect to Kevin C.16 As noted, Simeon G. checked “no” as

15

At the time of the prosecutor’s statement, Juror No. 6 was

seated in the jury box, but Alternate Juror No. 5 was not.

Although defendant does not discuss this additional fact in his

briefing, we note that at the time of the prosecutor’s statement,

others seated in the jury box had indicated that they were not

upset by the Simpson verdict but had provided varying

explanations that likely assuaged the prosecutor’s concern.

16

Although defendant does not raise these comparisons, the

dissent additionally compares Simeon G.’s response to the

responses by Juror No. 4, Juror No. 7, and Alternate Juror No.

4. (Dis. opn., post, at p. 14.) Juror No. 4 was not upset by the

O.J. Simpson verdict because “su[r]prised, based on media-given

facts, but did not follow trial closely.” Juror No. 7 was not upset

by the verdict “since I can only judge from T.V. I cannot give an

honest opinion.” And Alternate Juror No. 4 was not upset by

the verdict because “I did not hear the evidence.” While a

prospective juror’s response that he or she was not upset by the

O.J. Simpson verdict may suggest that the prospective juror

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to whether he was upset by the Simpson verdict but did not

explain why. His response was thus identical to Alternate Juror

No. 5’s response and less detailed than Juror No. 6’s response,

which noted, “evidence not clear.” We find that the credibility

of the prosecutor’s concern regarding Simeon G.’s opinion on the

O.J. Simpson verdict is undermined to some degree by

defendant’s comparative juror analysis. (See Miller-El, supra,

545 U.S. at p. 241 [“If a prosecutor’s proffered reason for striking

a black panelist applies just as well to an otherwise-similar

nonblack who is permitted to serve, that is evidence tending to

prove purposeful discrimination to be considered at Batson’s

third step”].)

We recognize that jurors need not be identical in all

respects for a comparison among them to be probative, and we

continue to consider defendant’s comparisons to be relevant and

probative on the issue of purposeful discrimination here. (See

ante, at pp. 35–37.) However, we additionally consider as part

of our inquiry into the prosecutor’s motivations for striking

Simeon G. that Juror No. 6 and Alternate Juror No. 5 were

dissimilar from Simeon G. in regard to the prosecutor’s other

two stated reasons for striking Simeon G. (See ibid.)

Neither Juror No. 6 nor Alternate Juror No. 5 indicated

that they might have difficulty considering the opinions of or

deliberating with others when asked whether they considered

themselves leaders or followers and why. Juror No. 6 considered

herself “[b]oth” a leader and a follower “depend[ing] on what

agreed with that verdict, Juror No. 4, Juror No. 7, and Alternate

Juror No. 4 explained that they were not upset by the verdict

because they had limited information about the case. These

explanations likely assuaged the prosecutor’s concern.

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interest” she had, and she had experience working with a group

of people to make a decision. Alternate Juror No. 5 considered

himself a leader because “like to learn, intelligent, people tend

to follow my lead.” While his response reflected some self-

assuredness, he also said in his response that he “like[d] to

learn,” and he had “daily” experience working with a group of

people to make a decision and “fe[lt] that there would be no

problem working with others.” Additionally, neither Juror No.

6 nor Alternate Juror No. 5 indicated that they might rely on

their feelings in reaching a verdict in the guilt phase when asked

whether they can follow an instruction that a defendant is

presumed innocent unless proven guilty beyond a reasonable

doubt. By contrast, Simeon G.’s opinion on the O.J. Simpson

verdict may have raised more concern about him as a guilt phase

juror in this case given that he liked his opinion over other

people’s opinions, had not previously worked with a group of

people to make a decision, and said that if he had “any feeling”

that the defendant “might” not have done it, the defendant was

innocent.

Considering these and all other relevant circumstances,

we view the issue to be close but ultimately find no adequate

basis to overturn the trial court’s ruling under the applicable

standard of review. We find that each of the prosecutor’s

reasons for striking Simeon G. is plausible, supported by the

record, and race neutral. Considering the prosecutor’s reasons

together and reviewing the trial court’s determination regarding

the sufficiency of those reasons with great restraint (see Lenix,

supra, 44 Cal.4th at p. 613), we conclude that substantial

evidence supports the trial court’s conclusion that the

prosecutor struck Simeon G. for reasons other than his race.

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In sum, we find substantial evidence supports the trial

court’s denial of defendant’s Batson/Wheeler motion. Although

defendant argues that Kevin C. and Simeon G. were favorable

prospective jurors for the prosecution, “the question is not

whether a prosecutor should or should not have excused a

prospective juror. It is whether this prosecutor excused [them]

for an improper reason. The record provides no sufficient reason

to so conclude or for this court to overturn the trial court’s

ruling” here. (Hardy, supra, 5 Cal.5th at p. 84.) Moreover, the

prosecutor’s acceptance of an alternate juror who was

African-American further supports the prosecutor’s good faith

in exercising the peremptory strikes. (See, e.g., Jones, supra,

51 Cal.4th at pp. 362–363.)

B. Excusal of Two Prospective Jurors for Cause

Defendant contends the trial court erroneously excused

two prospective jurors based on their views about the death

penalty. We disagree.

“Under Wainwright v. Witt (1985) 469 U.S. 412, 424

[83 L.Ed.2d 841, 105 S.Ct. 844] (Witt), we consider whether the

record fairly supports the trial court’s determination that [a

prospective juror’s] views on the death penalty would have

prevented or substantially impaired her performance as a

juror.” (People v. Thomas (2011) 52 Cal.4th 336, 357.)

“ ‘ “Generally, a trial court’s rulings on motions to exclude for

cause are afforded deference on appeal, for ‘appellate courts

recognize that a trial judge who observes and speaks with a

prospective juror and hears that person’s responses (noting,

among other things, the person’s tone of voice, apparent level of

confidence, and demeanor), gleans valuable information that

simply does not appear on the record.’ ” ’ ” (Id. at p. 358.)

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“ ‘When the prospective juror’s answers on voir dire are

conflicting or equivocal, the trial court’s findings as to the

prospective juror’s state of mind are binding on appellate courts

if supported by substantial evidence.’ ” (People v. Wall (2017)

3 Cal.5th 1048, 1062 (Wall).)

As a preliminary matter, defendant contends that

deferring to the trial court’s findings on jury selection issues is

improper for two reasons. First, he argues that such deference

is inappropriate on direct appeal in light of the high court’s

holding in Greene v. Georgia (1996) 519 U.S. 145, 146–147. But

Greene held that the Supreme Court of Georgia was mistaken

when it believed itself bound by Witt’s standard of review: It

was “free to adopt the rule laid down in Witt for review of trial

court findings in jury-selection cases, but it need not do so.”

(Greene, at p. 147.) In contrast, we have previously adopted

Witt’s standard of review and accordingly rejected this

argument because “[t]he law in California . . . is settled on the

point.” (People v. Farnam (2002) 28 Cal.4th 107, 132, fn. 6.)

Second, defendant argues that deferring to the trial court’s

resolution of inconsistencies or ambiguities is contrary to the

high court’s holdings in Adams v. Texas (1980) 448 U.S. 38

(Adams) and Gray v. Mississippi (1987) 481 U.S. 648 (Gray). We

have rejected the contention that Adams and Gray “ ‘made clear

that when a prospective capital case juror gives equivocal

responses, the state has not carried its burden of proving that

the juror’s views would “prevent or substantially impair the

performance of his duties as a juror.” ’ ” (People v. Schmeck

(2005) 37 Cal.4th 240, 263 (Schmeck).) We also have rejected

the contention that Gray “suggests the high court intended to

cast aside its view that ‘deference must be paid to the trial judge

who sees and hears the juror.’ ” (People v. Moon (2005)

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37 Cal.4th 1, 15 (Moon).) “ ‘Furthermore, the high court has

more recently reiterated its view that “[c]ourts reviewing claims

of Witherspoon-Witt error . . . owe deference to the trial court,

which is in a superior position to determine the demeanor and

qualifications of a potential juror.” ’ ” (People v. Bryant, Smith

and Wheeler (2014) 60 Cal.4th 335, 400.) These arguments

therefore are meritless.

1. Prospective Juror No. 44

Prospective Juror No. 44’s (Number 44) responses to the

approximately 31-page jury questionnaire signaled a degree of

uncertainty and discomfort regarding the death penalty. She

said, “I don’t feel one way or another” on whether the death

penalty is fair or unfair, and “I don’t have an opinion” on

whether the death penalty is used too often or too seldom. Asked

whether the sentence of death or life imprisonment without the

possibility of parole was more severe, she responded, “Depends

— for me Life w/o parole — for others — I don’t know.” But she

also said that she did not like the death penalty, that it made

her “uncomfortable,” and that she would vote to abolish it. She

identified herself as belonging to Group 4, which was defined as

“I have doubts about the death penalty, but I would not vote

against it in every case.”

She said that her feelings about the death penalty were

not such that she “would refuse to find the defendant guilty of

first degree murder and/or would refuse to find the special

circumstance true, solely to avoid having to make a decision on

the death penalty,” and that she was “willing to weigh and

consider all the aggravating and mitigating factors that will be

presented to [her] before deciding the penalty in this case.”

However, she indicated that she would be reluctant to vote for a

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death sentence, to sign the verdict form for a death sentence, or

to state that verdict in court before the defendant, commenting,

“The day I am not reluctant to look a person in the face and

sentence them to death will be the day I no longer belong to the

human — or should I say humane — race.” As to whether her

feelings about the death penalty were such that she “would

never be able to personally vote for the death of the defendant

under any circumstances” and “would always vote for a sentence

of life without [the] possibility of parole,” she declined to check

either the yes or no box. Instead, she commented, “I don’t know

— I’ve done a few things I thought I would never do.”

During Hovey questioning, the prosecutor asked whether

her identification as belonging to Group 4 (that she has doubts

about the death penalty but would not vote against it in every

case) was accurate “about the way [she] feel[s] on the death

penalty.” She responded, “You know, it’s really hard to say

exactly what you would do when you’re not in the situation. I

would have — I would never know exactly what I would do until

I’m put in that situation. So, yeah, I would have doubts.” The

prosecutor then explained that in the penalty phase, the court

will provide an instruction listing mitigating and aggravating

factors to consider and “essentially if you find the aggravating

factors outweigh the mitigating factors, then death is the

appropriate verdict, if you find that.” The prosecutor asked, “Do

you think that — can you say for sure, I guess is my question,

that if placed in that position with the aggravating factors

weighing more heavily, could you personally make the vote?”

She responded, “I know, I know what you’re looking for, and I’m

sorry. I can’t help you with it, because I don’t know, because

there have been too many — I’m 39, and there have been too

many times that I’ve said I’d never do this, or I’d always do that,

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and then I’ve done the other. So, I just cannot tell you, unless

I’m placed in that situation, unless I’ve gone through it. . . . I

just don’t make judgments until I’m in that situation. I just

don’t.” Seeking to clarify her answer, the prosecutor asked if she

found the aggravating factors weigh heavier than the mitigating

factors, “you can’t guarantee me that you could step up to the

plate, so to speak, and make a vote for death?” She repeated, “I

can’t guarantee anything. I don’t deal in hypotheticals, and I

just — no, I cannot guarantee you what I would do until I am in

that situation, no.”

Defense counsel subsequently explained, “[T]he Court at

the end always gives instructions to jurors about what the law

is, and how they’re supposed to carry out their duties. . . . And

in a death penalty case, there are certain things that the law

allows jurors to consider in deciding whether to select death or

life, assuming you were in that position. They’re called

aggravating factors, mitigating factors.” Defense counsel then

asked, “if you’re selected and sworn as a juror, could you commit

yourself under oath to follow what the Judge told you the law

was? Or do you think there’s something else that might

interfere with your ability to do that?” She responded, “I don’t

think there’s anything that would interfere with my ability. And

I can’t tell you, and I don’t know if I could follow the law. There’s

— I’m — there’s just a good chance that I would or I wouldn’t.

You’re going to have to pick me and have me sit here and see,

because I just don’t know.”

At the close of this questioning, the prosecutor challenged

her for cause. The trial court initially stated, “She technically

comes within the Wainwright [v.] Witt standard. She’s not

saying her views are such that it would substantially interfere

with her ability to follow the instructions and her duty, she just

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says she doesn’t know, because it’s such an emotional issue.”

Citing two cases, the prosecutor argued that jurors who insist

they do not know or cannot say if they could impose a death

sentence are properly excused. Defense counsel responded that

Number 44 did not say that she could not or would never impose

a death sentence; “[s]he just felt that she didn’t know under

what circumstances.” The trial court commented, “She was

probably an extremely honest juror who really couldn’t give us

a definite answer,” and took the challenge under submission.

Later, after reviewing the record and the authority cited

by the prosecutor, the trial court found, “[M]y memory is

refreshed that her answers basically were that she could not say

whether she would be able to impose the death penalty, and it

was not just that she didn’t know whether in this case she could

impose the death penalty, because obviously she wouldn’t know

until she got — she heard the evidence and the law. But in any

situation, basically, she didn’t know until she was put in that

situation whether she could do it, or whether she could follow

the Court’s instructions in this area. . . . I would agree with [the

prosecutor] that that’s sufficiently equivocal. Her ‘I don’t know’

responses are sufficiently equivocal to warrant a challenge for

cause, so I will order that she be excused.”

The trial court did not err in excusing Number 44.

Number 44 said in her questionnaire and during Hovey

questioning that she did not know whether she could vote for a

death sentence. Certainly, a juror’s decision as to whether to

vote for a death sentence can be weighty and difficult. “[E]ven

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.

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Merriman (2014) 60 Cal.4th 1, 53 (Merriman).) Number 44,

however, did not merely express uncertainty as to “her own

views on the death penalty or the appropriateness of the death

penalty in any particular case, but as to her ability to impose a

death sentence.” (Wall, supra, 3 Cal.5th at p. 1063.) When

asked in her questionnaire whether her feelings about the death

penalty were such that she would never be able to vote for a

death sentence, she wrote, “I don’t know — I’ve done a few

things I thought I would never do.” She repeated during Hovey

questioning that she did not know whether she could vote for a

death sentence. (See Wall, supra, 3 Cal.5th at p. 1062

[upholding the excusal of a prospective juror who “expressed

hesitation about her ability to impose a death verdict” and “[i]n

response to repeated questions by the trial court and the

prosecutor as to whether she had the ability to impose the death

penalty . . . said she did not know if she did”].)

Number 44 further expressed uncertainty as to her ability

to follow the trial court’s instructions regarding the

consideration of aggravating and mitigating factors in deciding

whether to impose a death sentence. Although she said in her

questionnaire that she was willing to weigh and consider all the

aggravating and mitigating factors before deciding the penalty

in this case, she then responded to a similar question during

Hovey questioning by saying, “I don’t know if I could follow the

law. There’s — I’m — there’s just a good chance that I would or

I wouldn’t. You’re going to have to pick me and have me sit here

and see, because I just don’t know.” “Given the juror’s own

recognition that [she] did not know whether [she] could follow

the law or ever vote for the death sentence, the trial court did

not commit Witherspoon/Witt error when it found the juror was

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substantially impaired.” (People v. Spencer (2018)

5 Cal.5th 642, 659.)

Nevertheless, defendant compares Number 44 to Juror

White in the high court’s Adams opinion and argues that

Number 44’s responses were insufficient to justify her excusal.

“But using Adams as a reference point for evaluating the excusal

of [Number 44] is inapt because Adams concerned the particular

statutory scheme in Texas, whereby ‘ “[p]rospective jurors shall

be informed that a sentence of life imprisonment or death is

mandatory on conviction of a capital felony. A prospective juror

shall be disqualified from serving as a juror unless he states

under oath that the mandatory penalty of death or

imprisonment for life will not affect his deliberations on any

issue of fact.” ’ [Citation.] As the Adams court explained, the

statutory scheme is inconsistent with the standard demanded

by the federal Constitution because ‘neither nervousness,

emotional involvement, nor inability to deny or confirm any

effect whatsoever is equivalent to an unwillingness or an

inability on the part of the jurors to follow the court’s

instructions and obey their oaths, regardless of their feelings

about the death penalty.’ ” (People v. Thompson (2016)

1 Cal.5th 1043, 1068.) Moreover, unlike Juror White and others

who were improperly excluded under this statutory scheme

“only because they were unable positively to state whether or

not their deliberations would in any way be ‘affected’ ” (Adams,

supra, 448 U.S. at p. 50; id. at p. 50, fn. 8), Number 44 was not

merely “unable positively to state whether or not [her]

deliberations would in any way be ‘affected,’ ” (id. at p. 50) but

rather, she did not know whether she would be able to follow the

court’s instructions in a death penalty case or vote for a death

sentence.

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Defendant additionally compares Number 44 to Juror

Bounds in the high court’s Gray opinion. “Although the voir dire

of member Bounds was somewhat confused, she ultimately

stated that she could consider the death penalty in an

appropriate case and the judge concluded that Bounds was

capable of voting to impose it.” (Gray, supra, 481 U.S. at p. 653.)

After further discussion, the judge, however, excused Bounds for

cause. (Id. at p. 655.) The state court agreed that Bounds was

“ ‘clearly qualified to be seated as a juror’ ” but concluded that

excusing Bounds was harmless error. (Id. at p. 657.) The issue

subsequently addressed by the high court “was not the standard

for excusing a juror for cause, but whether the erroneous excusal

of a juror for cause was subject to a harmless error test.” (Moon,

supra, 37 Cal.4th at p. 14.) We find the comparison between

Juror Bounds and Number 44 to be inapposite. Unlike Juror

Bounds, Number 44 did not confirm “that she could consider the

death penalty in an appropriate case,” and the trial court did not

conclude that she “was capable of voting to impose it;” rather,

the trial court found that Number 44 “could not say whether she

would be able to impose the death penalty.”17

In short, we decline to find error in the trial court’s

decision to excuse Number 44 for cause.

2. Prospective Juror No. 63

Prospective Juror No. 63 (Number 63) did not reveal much

hesitation regarding the death penalty in his questionnaire

17

Defendant repeats these comparisons in arguing that

Prospective Juror No. 63’s responses were insufficient to justify

his excusal. Those comparisons fare no better.

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responses, but he neglected to answer several questions on the

topic.18 He said that he did not have any moral, philosophical,

or religious objection to the death penalty and that he believed

the death penalty was fair, noting in part, “If you kill you be

killed.” He said that his feelings about the death penalty were

not “such that [he] would refuse to find the defendant guilty of

first degree murder and/or would refuse to find the special

circumstance true, solely to avoid having to make a decision on

the death penalty;” that his feelings about the death penalty

were not “such that [he] would never be able to personally vote

for the death of the defendant under any circumstances” and

“would always vote for a sentence of life without [the] possibility

of parole;” and that he would not be reluctant to sign the verdict

form for a death sentence or state that verdict in court.

Inexplicably, however, he failed to respond to several other

questions, including, among others, what his general feelings

were about the death penalty, what he believed to be the

purpose of the death penalty, whether the death penalty was

used too often or too seldom, and whether he would vote to keep

or abolish the death penalty. Nor did he identify which one of

five defined groups most accurately described his opinion

regarding the death penalty.

Separately, and without explanation, he checked “no”

when asked whether he thought he could be a fair and impartial

juror in this case and when asked whether he was “willing to

18

Regarding the questionnaire’s introductory paragraphs

about the death penalty, he checked “no” when asked to

acknowledge that he read and understood those paragraphs. It

is not apparent from the record whether he indeed failed to read

or understand those paragraphs or simply checked “no” due to

inadvertence.

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weigh and consider all the aggravating and mitigating factors

that will be presented to [him] before deciding the penalty in

this case.”

During Hovey questioning, Number 63 said that he did not

have strong feelings about the death penalty, but that he would

not feel comfortable voting for a death sentence and that he

would be reluctant to do so. The prosecutor asked, “Do you think

your feelings about that might affect the way you judge the guilt

or innocence of the defendant?” He said, “It might.” The

prosecutor then asked, “Do you think that your feelings might

also affect the way you look at the Court’s instructions about the

death penalty?” He again said, “It might.” He also confirmed

that sitting on this type of case might be difficult for him based

on his feelings.

The defense subsequently asked, “[D]o your feelings about

the death penalty, are they based on a religious or ethical thing,

or is it just your own personal feelings about it?” Number 63

responded, “You could say both.” The defense then asked, “If

you were to be asked to judge which penalty to impose, and the

Court gave you what the rules are, here’s how you decide. You

look at all the aggravating factors, and they are 1, 2, 3, 4, 5. You

look at all the mitigating factors, 5, 6, 7, 8, 9. Whatever they

are. You decide whether the aggravating factors weigh more

than the mitigating factors. If they do, then you vote for death.

If they don’t, you vote for life without possibility of parole.

[¶] Would you be able to follow that instruction?” Number 63

responded, “I don’t know.” The defense asked, “What gives you

— what is your concern about following that instruction?”

Number 63 responded, “The way I feel.” To clarify, the defense

asked, “Which is that you wouldn’t want to vote for death?”

Number 63 responded, “Nope.” Again seeking to clarify, the

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defense asked, “No, you wouldn’t want to vote for death?”

Number 63 responded, “I don’t think so. I’m saying, no, I’m not,

but I don’t think so.”

The prosecutor challenged Number 63 for cause “based on

his answers,” and the defense said, “Submit it.” The trial court

excused Number 63 for cause.

“Jurors are not required to like the law, but they are

required to follow it.” (Armstrong, supra, 6 Cal.5th at p. 750.)

“[S]o 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.” (Ibid.) “A jury candidate who

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

to serve.” (Ibid.)

Here, Number 63 said in his questionnaire that he did not

have any moral, philosophical, or religious objection to the death

penalty, his feelings were not such that he “would never be able

to personally vote for the death of the defendant under any

circumstances,” and he would not be reluctant to sign the verdict

form for a death sentence or state that verdict in court. But he

said during Hovey questioning that his feelings about the death

penalty were based both on “a religious or ethical thing . . . and

[his] own personal feelings,” he “[didn’t] think” he wanted to vote

for a death sentence, and he would be reluctant and not feel

comfortable doing so.

As with Number 44, a generalized recognition that it

would be difficult to impose a death sentence does not mean that

a juror is necessarily substantially impaired. (See Merriman,

supra, 60 Cal.4th at p. 53.) But Number 63 said more. He

indicated in his questionnaire that he was not “willing to weigh

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and consider all the aggravating and mitigating factors that will

be presented to [him] before deciding the penalty in this case.”

And when asked during Hovey questioning whether he would be

able to follow the court’s instruction regarding considering and

weighing the aggravating and mitigating factors, he said that

he “[didn’t] know” due to “[t]he way [he] feel[s].”19

“ ‘[A prospective] juror’s inability to set aside his or her

personal views and follow the law, need not be demonstrated

with unmistakable clarity.’ ” (People v. Jones, supra, 3 Cal.5th

at p. 615.) Here, Number 63’s written and oral responses could

have left the trial court with “the definite impression that [he]

would be unable to faithfully and impartially apply the law.”

(Wainwright v. Witt, supra, 469 U.S. at p. 426.) That defense

counsel merely submitted the question to the trial court20

further “suggest[s] counsel concurred in the assessment that the

juror was excusable.” (People v. Cleveland, supra, 32 Cal.4th at

p. 735; cf. Witt, supra, 469 U.S. at p. 435 [where counsel did not

question the juror or object to the trial court’s excusing her for

cause, “it seems that at the time [the juror] was excused no one

19

Defendant notes that Number 63 was not directly “asked

if he would be willing to set aside whatever personal views he

had and follow the law given to him by the court.” “We agree

that the better practice is to ask such a question. But the focus

of our review is whether there is substantial evidence to support

a conclusion that the juror would not be able to set aside his or

her personal feelings and follow the trial court’s instructions

concerning the imposition of the death penalty.” (People v. Jones

(2017) 3 Cal.5th 583, 616.)

20

We have since held that similar statements do not suffice

to preserve this objection on appeal. (People v. McKinnon (2011)

52 Cal.4th 610, 643.) But this rule does not apply retroactively

here. (People v. Cleveland (2004) 32 Cal.4th 704, 734–735.)

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in the courtroom questioned the fact that her beliefs prevented

her from sitting. The reasons for this, although not crystal clear

from the printed record, may well have been readily apparent to

those viewing [the juror] as she answered the questions”].) After

giving appropriate deference to the trial court’s determination

regarding Number 63’s state of mind, we find substantial

evidence supports the trial court’s ruling and conclude that the

court did not err in excusing Number 63.

C. Standard for Excusing Prospective Jurors for

Cause

Defendant challenges the standard for excusing

prospective jurors based on their views of the death penalty.

“ ‘Under the applicable state and federal constitutional

provisions, prospective jurors may be excused for cause if their

views would prevent or substantially impair the performance of

their duties.’ ” (People v. Gonzalez (2012) 54 Cal.4th 1234,

1284–1285.) We recently declined an invitation to revisit this

standard and do so again here. (See People v. Rices (2017)

4 Cal.5th 49, 79–80 (Rices).)

III. GUILT PHASE ISSUES

A. Denial of Defendant’s Motion to Suppress

Pursuant to a search warrant, the police collected, among

other items, a sample of defendant’s blood and the note from his

truck. Before trial, defendant moved to suppress this evidence.

The trial court denied his motion. Defendant contends the court

erred because the search warrant affidavit contained

misrepresentations and omissions that were intentionally false

or made in reckless disregard for the truth. The trial court did

not err.

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1. Background

On June 16, 1992, the police received a report that a “black

male wearing a white T-shirt armed with a small handgun” had

just committed a robbery and rape at a nearby office building in

Torrance. (See ante, pt. I.B.1.a.v.) Within minutes of the report,

and in the general vicinity from which the suspect may have

attempted to flee, two officers spotted defendant in his truck,

appearing very nervous and matching the suspect’s general

description. The officers unsuccessfully attempted to stop

defendant, a chase ensued, and the officers shot and arrested

him. Once Detective Lore learned about the arrest, he sought a

warrant to search defendant, his residences, and his vehicle.

a. Detective Lore’s affidavit in support of the

search warrant

Detective Lore’s 11-page affidavit, dated June 18, 1992,

began by describing Willem’s death in Rialto and its apparent

connection to other, similar rapes and robberies committed

throughout San Bernardino and Riverside Counties. He

described two such similar incidents: the Christine C. incident

in Victorville and the Osburn and Carole D. incident in San

Bernardino. In both incidents, the suspect bound the victims

with telephone receiver cords. In the Christine C. incident, “a

suspect was described as a tall Black male adult, late 20’s to

early 30’s, armed with a small caliber handgun,” and in the

Osburn and Carole D. incident, the description of the suspect

“matched the description of the suspect in the Victorville crime.”

Forensic specialist David Stockwell performed a chemical

analysis for the three incidents and concluded that “the same

suspect that committed the homicide/rape in the Rialto [sic],

committed the rape in Victorville, [and] was also responsible for

the robbery/rape in the City of San Bernardino.” Based on

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Stockwell’s analysis, “the subject that was sought after in these

series of crimes, is believed to be a Black male that is an ABO

type, AB secretor.”

Detective Lore next summarized a series of similar

robberies. “The robberies included professional business suites

in the late evening hours on Mondays, Tuesdays and

Wednesdays, very similar to that of the time of the rapes

mentioned previously. The robberies also included a male Black

that matched the physical description of the one that was

described in two of the rape incidents. The subject was armed

with a small caliber semi-automatic handgun at the time of

these robberies. During some of the robberies, the victims were

bound with telephone receiver cords. During the follow-up

interviews with the victims in these cases, it was revealed that

in most of the cases the suspect had made some specific

comments. The most prevalent being, ‘Don’t look at me.’ ”

Elaborating with respect to a related robbery, Detective

Lore said that Arnold and Sharyn Andersen were working at

their business when they were “confronted by a tall Black male

adult, armed with a small caliber handgun.” “The suspect made

both victims lie on the floor. The subject robbed the victims of

approximately $1,600.00 in cash and fled out the same door

where he had forced entry.” Detective Lore continued, “The

investigation by San Bernardino Police Department revealed

that the suspect smashed out a small window over the locking

area of the door, which led into the rear portion of the business

suite. When doing this, the suspect cut himself on the glass and

had grabbed a box of Kleenex that was sitting on a counter near

the back door to stop some of the bleeding. The Kleenex box was

collected and linked to the suspect.”

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Detective Lore then noted that four robberies in Riverside

“had similar suspect descriptions.” The San Bernardino County

Sheriff’s Department also created a sketch o

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