People v. Battle

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

THOMAS LEE BATTLE,

Defendant and Appellant.

S119296

San Bernardino County Superior Court

FVI012605

July 1, 2021

Justice Cuéllar authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Corrigan, Kruger,

Groban, and Jenkins concurred.

Justice Liu filed a dissenting opinion.

PEOPLE v. BATTLE

S119296

Opinion of the Court by Cuéllar, J.

Defendant Thomas Lee Battle was convicted of

kidnapping and killing Shirley and Andrew Demko after

burglarizing and robbing their home. The jury returned a death

verdict, and the trial court sentenced Battle to death. This

appeal is automatic. (Pen. Code, § 1239, subd. (b).)1 Battle

contends that the trial court made several errors during the

guilt and penalty phases of his trial. We find no error and affirm

the trial court judgment.

I. BACKGROUND

In November 2001, the San Bernardino District Attorney

filed an information charging Battle with two counts of murder

(§ 187, subd. (a)), one count of first degree residential burglary

(§ 459), one count of first degree residential robbery (§ 211), and

two counts of kidnapping (§ 207). The information also alleged

the following: All the offenses were serious felonies (§ 1192.7,

subd. (c)) and violent felonies (§ 667.5, subd. (c)); during the

commission and attempted commission of these offenses Battle

personally used a knife, a deadly and dangerous weapon (§

12022, subd. (b)(1)), causing the offenses to be serious felonies (§

1192.7, subd. (c)(23)); in 1995 Battle suffered a prior conviction

for burglary (§ 459), a serious or violent felony (§§ 667, subd. (b),

1 All statutory references are to the Penal Code unless

otherwise noted.

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1170.12); and in 1997 he suffered a prior conviction for forgery

(§ 470) that resulted in a prison term (§ 667.5, subd. (b)). The

information also alleged the following special circumstances:

Battle committed the murders during the commission of

robbery, burglary, and kidnappings (§ 190.2, subd. (a)(17)(A),

(G), (M)); and Battle committed multiple murders (§ 190). The

jury found Battle guilty on all counts and found true all the

special allegations and special circumstances. (The defense and

prosecution agreed to stipulate that the prior offense allegations

were true.) The jury returned a death verdict. The trial court

sentenced Battle to death on the murder counts, to a

determinate term for the remaining counts and accompanying

enhancements (all of which were ordered to run consecutive to

the sentence on the kidnapping count related to the kidnapping

of Mr. Demko), and it ordered Battle to pay $10,000 in victim

restitution.

A. Guilt Phase

1. The Prosecution’s Case

The victims were Andrew Demko and Shirley Demko.

They were 77 and 72 years old respectively at the time of their

deaths. They had been married for 22 years. Both used a cane

and walker; Andrew’s hearing was almost gone. Andrew had

two adult children from a previous marriage, Denise Goodman

and Richard Demko. On or about November 14, 2000, the

mailperson noticed that the Demkos had not collected the

previous day’s mail. As the week went on, mail continued to pile

up uncollected. Because Thanksgiving was fast approaching

and Denise had not heard from Andrew or Shirley, she tried to

call them several times but received no response. She called the

police to ask them to check on her parents. The police reported

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that the Demkos’ car wasn’t there and that their dogs were

locked in a room, but that everything looked fine. But her

parents’ neighbor told her that day that he had noticed

newspapers stacking up in the Demkos’ yard. Concerned,

Denise called the police back and once again asked them for

another check on her parents.

Meanwhile, on November 18, a man and his son were

hunting in the San Bernardino desert when they found a man

lying dead on the ground. Police officers with the San

Bernardino County Sheriff’s Office responded to the scene and,

with the assistance of a highway patrol aircraft, they also found

a dead woman about 200 yards away from the man. The bodies

were later identified as Andrew and Shirley Demko. (One of the

officers who was present at the desert heard radio traffic

concerning the second welfare check at the Demko residence,

and he thought there might be a connection between that and

the bodies found. He then went to the residence, and he

recognized a picture on the wall of Mr. Demko as the same man

he had seen dead in the desert.)

Mr. Demko was found lying face up. He was wearing blue

pajamas, a blue bathrobe, and a single blue slipper. There was

blood on the chest area of his shirt. His other slipper was found

nearby on disheveled ground that showed signs of scuffing and

dragging. An autopsy revealed he died from strangulation and

a stab wound to the neck. The stab wound was four and a half

inches deep on the right side of the neck, and it was consistent

with a wound from a single-edged knife. He had abrasions and

bruising on his forehead, which were caused by blunt force, and

on his chin and neck, which were caused by strangulation. He

also had injuries to his hands, wrists, arms, knees, and feet.

Some of these injuries were consistent with defensive wounds,

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some with his having been bound, and others with his having

been dragged.

Mrs. Demko was found lying face down. She was also

wearing pajamas, which had blood on them. Much of the upper

half of her body had been eaten by wild animals, so only a small

number of internal organs remained. The autopsy revealed that

her cause of death was homicidal violence of undetermined

etiology. Because significant portions of her body were missing,

the specific mechanism of death could not be determined. Her

hands were duct-taped together, and they had signs of blunt-

force trauma and cuts. Injuries to her feet and ankles were

consistent with her having been restrained with bindings or zip

ties. Police later found zip ties and bloodstained duct tape in the

area.

After being contacted by the police, Denise and Richard

accompanied officers to the Demkos’ home. The TV, VCR, and

stereo speakers were missing. On the dining room table, they

found a cup of coffee, a burned cigarette, reading glasses, and an

open newspaper dated November 13. Denise explained that

ever since she was a child, her father would wake up early each

morning and read the paper while drinking coffee. Police also

found six unwrapped Los Angeles Times newspapers (dated

November 14–19) and one Desert Times newspaper (dated

November 14) stacked in a corner of the dining room. In the

kitchen trash can, police found two FedEx delivery slips. One

was dated November 21 — three days after the Demkos’ bodies

were found — which indicated that someone had been in the

house after the murders. Finally, the Demkos’ car, a blue

Mercury Sable, was still missing.

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On the evening of November 25, police pulled over a

woman driving the Demkos’ car. A later inspection of the car

revealed blood stains on the inside of the trunk lid, as well as

items including the Demkos’ credit cards and boxes of checks.

The woman told police that she had borrowed the car from

Battle, who was a close friend of her roommate, Jenica McCune,

and who was at their apartment. According to McCune, she had

not been in contact with Battle for about a year before he

unexpectedly showed up to her apartment on around November

13, or perhaps November 15 or 16. She said he had a blue Ford

Taurus (which an insurance agent testified looked like a

Mercury Sable), and that he told her he had bought the car but

had not yet registered it.

Police went to McCune’s apartment and arrested Battle.

Detectives Michael Gilliam and Derek Pacifico took Battle to the

police station and interrogated him in the early morning hours

of November 26. In total, Battle had four taped interviews with

officers: two with Detectives Gilliam and Pacifico, on November

26 and the morning of November 27; a subsequent one with

special investigator Robert Heard as part of a polygraph

examination on November 27; and a final one on November 27,

again with Detectives Gilliam and Pacifico. Battle was advised

of and waived his Miranda rights at the beginning of the

November 26 interview and again at the beginning of the first

interview on November 27. Over the course of the four

interviews, Battle told several different versions of events

regarding his involvement in the Demkos’ murder. At trial, the

officers testified about, and the prosecution played redacted

audiotapes of, Battle’s custodial statements. The recordings

were admitted into evidence. The transcripts of the recordings

the jury heard were given to the jury for reference and admitted

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into evidence with the understanding that they would be sent

back to the jury room only if the jury requested them.

In the first interview, beginning at 1:13 a.m. on November

26, Detective Gilliam informed Battle that he wanted to talk

about the car that Battle had lent to McCune’s roommate.

Battle said that his friend Neal2 had lent him the car when they

ran into each other and Neal heard that he had been laid off and

didn’t have transportation. Battle borrowed the car several

times prior to being arrested. Neal apparently showed Battle

some boxes in the car’s trunk, which contained checks, credit

cards, and ID cards with male and female names. He asked if

Battle wanted to make some money, but Battle declined and

explained he was trying to “fly straight.” Battle knew Neal was

doing “some real foul things.” He also told officers that “Left

Eye,” a woman he had not known for very long, had asked him

to store a TV and VCR for her while she moved. Battle said he

stored the TV and VCR at his home for a couple of days and then

returned them to her. (Battle was living at the time in the

Christian Living Home on Rancherias Road, less than two miles

from the Demkos. The home was a group residence primarily

for parolees, run by a Christian outreach group.)

The officers told Battle that the owners of the car Battle

had been driving had been found dead in the desert, their home

had been broken into and their TV and VCR were missing, and

someone knew Battle had the car on November 13, the day the

2 The name “Neal” is spelled in two ways in the record (also

as “Neil”). We adopt the version used by the parties, who have

chosen the spelling that first appears in the interrogation

transcript.

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owners went missing. Battle denied involvement and said he

didn’t kill anyone. He said he didn’t know if Neal and Neal’s

friends were involved, but he knew another person in his house,

Perry Washington, was involved “[w]ith the credit cards and

stuff.” He also said Washington asked him if he wanted to make

some quick cash by pawning a TV, VCR, and speakers. Since he

was already pawning some of his own possessions, including his

sword collection, he picked up the TV, VCR, and speakers from

Neal on November 17 or 18 and pawned the TV and VCR at the

Bear Valley Pawn Shop. (He did not pawn the speakers because

they were needed for an upcoming church service.) He insisted

that the only thing he was asked to do, and only thing he did,

was pawn the items.

At this point in the first interview, the tape recording of

the interrogation stopped, likely because of a technical failure.

When this interview resumed about 90 minutes later, Battle’s

version of events changed dramatically. He told officers that he

and four others — Neal, Left Eye, Neal’s brother, and a man

named Steve — had for months planned to break into the

Demkos’ home, steal everything, and take over their credit.

Battle had been told the people in the house would be away on

vacation. But he saw them at home when he walked by on the

afternoon before the crimes, and so he assumed they’d be home

during the burglary.

According to Battle, the group met up shortly after 4:00

a.m. the next day, and they arrived at the Demkos’ home when

it was still dark outside. Neal’s brother entered the front door

and Mr. Demko screamed. Steve struggled with and tried to

choke Mr. Demko. Neal’s brother tackled Mrs. Demko, who was

saying she was unarmed and helpless. Battle described to

officers that Mr. Demko was wearing a dark blue bathrobe and

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light blue pajamas. As he recounted, his job was to go to each

room and take valuables, which he did. While in the bedroom,

he could hear Mrs. Demko saying, “don’t hurt us, just take what

you want . . . we don’t have anything, but whatever you see just

take and please, you know, don’t hurt us.” When he left the

bedroom, the couple was not in the house and he didn’t see them

being tied up. But he heard them being tied up. The group left

the house in the Demkos’ car as the sun was coming up. Left

Eye was driving. Battle knew the Demkos were in the trunk

because he heard pounding coming from there. At some point,

Battle became nauseated. He asked that they stop the car, and

upon getting out he started throwing up. The others called him

names and Left Eye tried to force him to get up, but he could not

move. The group left him on the side of the road. Battle had an

idea about what the group was going to do with the Demkos.

The group returned in less than an hour, at which point Battle

started throwing up again. The others once again ridiculed him

and drove off without him. Battle eventually returned home on

his own. Later that day, he saw Neal, who apologized for calling

him names and offered him use of the Demkos’ car, credit cards,

and checks. Neal told him that they “ain’t around no more to

report [the car] stolen so you can hold onto it for a while.” From

this comment, Battle understood the couple was dead. Around

two nights later, he went back to the Demkos’ home and took

their TV, VCR, boom box, and speakers, and he then pawned the

first three items. When he went to the house, he took a FedEx

notice off the front door. Either on this trip to the house, or

during another visit, he moved newspapers from the front of the

house to the corner of the patio walkway.

Battle’s story remained the same during his second

interview, which lasted less than 25 minutes on the morning of

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November 27. He told Detectives Gilliam and Pacifico further

details about the locations of everyone in the group when they

approached the Demkos’ home and how he knew everyone in the

group. And he identified photographs of some of the

participants.

The detectives then took Battle to investigator Heard for

a polygraph examination. The pretest interview for the

examination, the examination itself, and the postexamination

interview took between three and three and a half hours. All

references to a polygraph examination were redacted at trial.

The prosecution presented the November 27 pretest interview,

polygraph examination, and postexamination interview by

investigator Heard as simply another interrogation. During the

pretest interview, Battle initially told investigator Heard a

version of the crimes that was similar to what he had told

Detectives Gilliam and Pacifico. He initially said he didn’t know

of the full extent of the burglary plan, including whether there

was a plan to kill the Demkos. But he eventually admitted that

he knew back in August that the plan was to kill the couple:

Steve was to kill Mr. Demko, and Neal’s brother was to kill Mrs.

Demko. He maintained, however, that he got out of the car

before Neal and the others drove the Demkos to the desert, that

the Demkos were still alive when he got out of the car, and that

he wasn’t present at the murder scene.

Based on the pretest interview, investigator Heard then

began the polygraph examination itself. He asked Battle

various questions about the details of the crimes, including

whether Battle was present when the Demkos were killed and

whether Battle killed them himself. Battle denied both. When

investigator Heard told Battle that, based on the polygraph test

results, he knew Battle was lying about not being present at the

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killings, Battle again changed his story. He admitted that he

was present when the Demkos were killed, but that he was

brought along at gunpoint and Steve killed the couple. Battle

explained that he tried to get out of the car after the group left

the Demkos’ home, but that Steve pulled a gun on him and

threatened to hurt his godson, Marquis. As the group got to the

desert, Steve pulled Mrs. Demko from the trunk, and he and

Neal’s brother cut the zip ties off her ankles and wrists and then

duct-taped her mouth, and also potentially her arms and legs.

According to Battle, the group left Mrs. Demko with Steve while

the rest of them drove further into the desert. He did not know

how Mrs. Demko died, but he saw Steve running back toward

their car with a bloody knife. He also couldn’t say how exactly

Mr. Demko died. But he last saw Mr. Demko with Steve, who

still had the knife and had choked Mr. Demko while his ankles

and wrists were bound with zip ties. Everyone eventually ran

in different directions to throw the zip ties and duct tape around

the desert. After the crimes, Washington apparently took some

of the Demkos’ credit cards and knew they were stolen.

Investigator Heard wasn’t satisfied with Battle’s account,

and he accused Battle of having killed the Demkos himself.

Battle then admitted to stabbing them. He said he took the zip

ties off the Demkos and duct-taped them both. Steve choked Mr.

Demko until he was unconscious or dead, and then handed

Battle a knife. Steve held a gun to Battle’s back and threatened

to hurt Marquis, so Battle stabbed Mr. Demko on the left side of

his neck. Steve and Neal’s brother also forced Battle to stab

Mrs. Demko in the back. Battle did not think he killed either

victim, because he believed Mr. Demko was already dead when

he stabbed him and Mrs. Demko was still alive after being

stabbed.

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During his final interview, an approximately four-hour

interrogation that began almost immediately after the interview

with investigator Heard ended, Battle first told Detectives

Gilliam and Pacifico roughly the same version of events as he

had earlier told investigator Heard. But the officers doubted

aspects of his story. Detective Gilliam pointed out that it

seemed odd that Battle ended up with most of the Demkos’

property if, by his account, he was only a minor player in the

five-person operation. He also told Battle that Left Eye could

not have participated in the crimes because she had been

arrested and jailed on the night of November 12, and he and

Detective Pacifico questioned Battle about how only Battle’s

footprints were found at the scene of the murders; but neither of

these statements were actually true.

Battle then changed his story once again. He claimed he

never went out to the desert, and that he had lied to protect his

friend, Washington. In this new version of events, he stated that

he alone went to the Demkos’ home after spontaneously deciding

to burglarize it and pawn off some of their possessions. He

explained that he had just been fired from his job and needed

money for rent and other bills. He didn’t think anyone would be

at the home, and that if they were, they would be asleep. When

he entered the home through the unlocked back door, he was

surprised by Mr. Demko and got scared. So, he tied the couple

up with a rope from the garage, fled the home without taking

any property, and returned to the Christian Living Home, where

he told Washington what had happened. Washington told

Battle to take off his clothes, which he would destroy for him.

Battle then showered; when he got back to his room,

Washington was gone. But Washington returned later that

morning. He told Battle that he had used zip ties and duct tape

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to bind the Demkos, taken them to the desert, stabbed Mrs.

Demko in the back and the neck, and choked and stabbed Mr.

Demko in the neck. Washington had, among other things, the

couple’s driver’s licenses, and he said their credit cards and

checks were in their car. Washington said Battle could drive the

car because the couple would not be found. Battle said he went

back to the Demkos’ house at some point for their TV and VCR,

and on another occasion he drove to the desert area but turned

back. He said he knew nearly all the details about the desert

crime scene based on what Washington had told him.

The detectives doubted Battle’s newest version of events.

For example, they both pressed the fact that Battle knew too

much about the murders not to have been present. At this point,

Battle changed his story one final time. His final version of

events diverged from his prior account at the point when he

returned home and told Washington what had happened. He

still claimed he initially went to the Demkos’ house alone

(though now he stated he had brought zip ties with him and used

them to tie up the couple). But now Battle claimed that when

he returned home, Washington brought Battle back to the

Demko residence. The two men took the couple’s TV and VCR,

as well as other items. Washington then told Battle to help him

pick up the couple, and Battle put Mrs. Demko into the trunk of

the couple’s car. When he asked Washington what they were

doing, Washington pulled a gun on him and threatened to kill

Battle’s godson. Battle then put Mr. Demko in the trunk. Mrs.

Demko asked if they were going to kill her, and Battle said they

were not. Washington directed Battle to drive to the desert, and,

once they arrived, he told Battle to get Mrs. Demko out of the

trunk. Washington kept the gun on Battle and told him to kill

the couple. At Washington’s direction, Battle duct-taped Mrs.

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Demko’s mouth (though he did so loosely), her arms behind her

back, and her feet. She said, “I thought you wasn’t gonna kill

us,” and Battle started crying. Washington said, “come on T,

your son’s what, counting on you, don’t fuck it up.”

Battle stabbed Mrs. Demko in the back and the neck.

When they drove away, she was still alive. Battle then exited

the car again and got Mr. Demko out of the trunk. Washington

told Battle, “just remember about your boy and worry about

what I tell you to do now” and directed him to choke Mr. Demko.

Battle did so, and then on Washington’s orders, he stabbed Mr.

Demko in the neck.

Despite all the variations and apparent lies in Battle’s

different accounts, the prosecution argued that the details he

recounted across his custodial statements matched other

evidence of how the crimes took place. According to the

prosecution, Battle accurately described the location of the

Demkos’ home, details of its interior layout, and items that the

Demkos possessed there. He also said that when he arrived at

the home in the early morning, Mr. Demko was sitting at the

kitchen table, which was consistent with Denise’s description of

her father’s routine, and with the open newspaper, reading

glasses, and coffee found at the kitchen table. He correctly

noted Mr. Demko was hard of hearing. He admitted that he

returned to the Demkos’ home at least once and moved a FedEx

slip from the front of their home, which was consistent with the

slips found in a trash can in the home. And the prosecution

argued that key details Battle gave about the killings matched

evidence, including the autopsy and forensic reports, in at least

five ways: As Battle described, Mr. Demko was wearing blue

pajamas and a darker blue robe, and Mrs. Demko was also

wearing pajamas and zebra-print slippers. His statements that

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the Demkos were bound with zip ties and duct tape were

consistent with the abrasions on their bodies and the evidence

of both restraints found in the desert. His statements that the

Demkos were wounded and shoved inside the trunk of their car

were consistent with the blood found on the lid of the trunk. He

accurately described multiple details about the route to the

desert. And the autopsy findings on the Demkos’ causes of death

corroborated Battle’s particular description of how Mr. Demko

was strangled and stabbed with a knife.

In addition to the custodial statements, the prosecution

presented testimony from witnesses that corroborated the

statements and also linked Battle to the crimes.

Matthew Hunter, a friend of Battle’s from the Christian

Living Home, testified that sometime before November, Battle

told him he was going to acquire a car and that the people “he

got the car from . . . would come up missing” in the desert.

Battle said he could bury a body in the desert, and nobody would

ever find it.

According to Neal, whose real name was Anthony Bennett,

Battle said he could get cars “real cheap.”

McCune testified that Battle called her on the day of his

arraignment, and she recounted their conversation. He told her

that the crime was a robbery that went bad. He, Washington,

and some other guys broke into a house, and when an old man

appeared in the hallway, Battle got scared and turned to leave.

But, as Battle told McCune, Washington pulled a gun on him

and said, “We’re not gonna get out of this now, they’ve seen us.

We’re parolees, we’ll have to pay for this.” Washington

mentioned he was a three-striker. Washington said he would

kill Battle’s nieces and nephews (an apparent reference to

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McCune’s children) and hurt Marquis if Battle didn’t do as he

was told. Washington then had Battle tie up the elderly couple,

put them in the trunk, and drive to the desert; Washington

apparently sat behind Battle in the car and pointed a gun at

Battle’s head. Battle didn’t tell McCune what happened to the

people. And she didn’t remember Battle specifically mentioning

any particular people besides Washington being involved.

William Kryger technically shared a room with Battle at

the Christian Living Home but didn’t sleep in the room. Kryger

testified that he saw Battle in the living room sometime around

November 16 or 17, between 12:00 a.m. and 1:00 a.m. Battle

was wearing a black sweatsuit and holding silver duct tape and

zip ties. When Kryger asked Battle what he was doing, Battle

responded, “Don’t worry about it,” and left. The next morning

or the morning after that, Kryger saw Battle bringing cleaning

supplies, video tapes, and a big TV into their bedroom. He

assumed these items were being unloaded from a car Battle had

recently acquired. Kryger’s description of the car matched the

Demkos’ car. Kryger also testified he saw Washington removing

items from the car, but he admitted that he previously had said

Washington was at his girlfriend’s home at the time.

The prosecution also introduced other testimony about

physical evidence that tied Battle to the crimes. First, the day

after Battle’s arrest, detectives searched the room Battle shared

with Kryger. They found, among other things, a Nordic Track

box and accompanying VCR cassette in Mrs. Demko’s name, and

a Capital One credit card sheet, also in her name, hidden under

Kryger’s bed. They also found two stereo speakers with

dimensions matching the indentations in the carpet of the

Demkos’ home. A few days later, detectives searched

Washington’s room at the Christian Living Home. They didn’t

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find any items obviously connected to the Demkos. But in the

patio area outside of the home, they found a pillowcase

containing the Demkos’ checks, credit cards, and wallets.

Additionally, officers recovered the Demkos’ TV, VCR, and

videos from Bear Valley Pawn. The pawn slips for the videos,

dated November 15, and the TV and VCR, dated November 17,

had Battle’s name and fingerprints on them. McCune

discovered additional evidence underneath her bathroom sink

as she was packing to move: most critically, a calling card and

gas cards, all with the name “Demko” on them.

Finally, anticipating Battle’s third party culpability

defense, the prosecution presented evidence that Washington

was at work at the time Battle said the killings took place.

2. The Defense’s Case

The defense argued that Perry Washington killed the

Demkos, that Battle had no involvement in the murders, and

that Battle became involved in this situation only because he

took, used, and got rid of the Demkos’ property after their

deaths. Defense counsel argued that Battle made up the

confessions to officers because Battle knew about the murders

but was afraid of and wanted to protect Washington. Battle

feared Washington would kill Marquis. The defense presented

a range of evidence to support its theory.

On cross-examination during the prosecution’s case-in-

chief, the defense elicited testimony from Kryger about

Washington’s involvement in a residential burglary a little more

than a week before the Demkos’ murder. According to Kryger,

he was with Washington when Washington took a man home

from the hospital as part of an illegal taxi service, and then hid

in the man’s home and stole his property, including a TV and

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VCR. Kryger picked up Washington after the burglary, and

Washington brought the TV and VCR back home.

The defense also introduced evidence that Washington

had a motive to kill the Demkos after burglarizing their home

and committing robbery: He had prior convictions. The defense

sought and was granted judicial notice of Washington’s two

prior felony convictions for robbery. A lawyer testified that,

under California’s “Three Strikes” law, Washington would have

faced a sentence of 25 years to life in prison if caught and

convicted of another felony for the burglary of the Demkos’

home.

Moreover, the defense elicited testimony from Battle’s

friends and acquaintances that Battle had peculiar interactions

with Washington around the time of the murders. On cross-

examination, McCune testified that on the day of Battle’s arrest,

Washington appeared to have called Battle about 15 times. She

said it seemed like Washington was directing Battle’s behavior,

and that Battle was afraid. Marquis’s mother testified that

whenever Battle was in the Demkos’ car, Washington was also

there. She also testified that Battle acted like a father to

Marquis and would take any threat against him very seriously.

The reverend who ran the Christian Living Home testified that

Battle seemed withdrawn and preoccupied during the two

weeks before being arrested. He also noticed two suspicious

things relating to Washington during this time period. First, a

couple of weeks before the arrest, he saw Washington and Battle

together in the house. As he approached them, Washington

intercepted him as Battle slipped by in the hallway; Battle then

went into his bedroom, came out with a pillowcase, went outside

through the back door, and then came back into the house.

Second, at Thanksgiving dinner Washington came in, went over

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Opinion of the Court by Cuéllar, J.

to Battle and Hunter, had a conversation with them, and then

all three men left.

The defense also presented evidence that Washington and

others in his life had used some of the property stolen from the

Demkos’ home: namely, credit cards and a check. Washington

was ultimately arrested for a parole violation, credit card fraud,

theft, and embezzlement.

Furthermore, the defense called Johnney Prowse, who had

been confined at the West Valley Detention Center with

Washington. Prowse testified that sometime between late 2000

and April 2001, he overheard Washington tell two other inmates

that he “got away with a couple of hot ones” for which “Battle

Cat,” as Battle was known, was being charged with. Prowse

later met Battle in jail, asked him if he was “Battle Cat,” and

told him what he had heard. Prowse did not receive any benefit

for his testimony in this case.

Finally, the defense challenged the adequacy of the

investigation of the crimes. For example, police didn’t interview

Washington or search his room until multiple days after Battle

made custodial statements implicating him; their questioning of

Washington focused mainly on the stolen credit cards, and they

did not investigate Battle’s claims that Washington had entered

the Demkos’ house or driven their car; and they didn’t attempt

to match the latent prints developed in the case to Washington. 3

3 In addition to advancing its third party culpability

argument, the defense challenged the strength of the evidence

against Battle. For example, the defense pointed to

inconsistencies between Battle’s custodial statements and the

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Opinion of the Court by Cuéllar, J.

3. Rebuttal

The prosecution called five law enforcement officers, each

of whom Prowse claimed he told about Washington’s

admissions. They testified Prowse never told them about an

inmate having confessed to a crime for which someone else was

being framed.

B. Penalty Phase

1. The Prosecution’s Case in Aggravation

The prosecution presented a stipulation that Battle had

two prior felony convictions: one in 1995 for first degree

residential burglary, and one in 1997 for forgery. The

prosecution also presented evidence of two unadjudicated

offenses. First, while serving time in 1999 for the forgery

conviction, Battle participated in a prison riot. Battle admitted

that he hit an inmate in self-defense, and because of his

involvement he was temporarily placed in administrative

segregation. Second, the prosecution called Matthew Hunter

and Anthony Bennett, both of whom testified that Battle had

attacked Hunter in the summer of 2000, when the three were

living together in another Christian Living Home. Battle and

Hunter went out drinking one night, and Battle became jealous

when Hunter talked to a woman. Battle asked Hunter to go

outside, and he then twice struck Hunter on the back of the head

with a brandy bottle, knocking him to the ground and causing

lacerations. According to Bennett, right after the assault Battle

said he had beaten Hunter because Hunter had disrespected

physical evidence, including that Battle said he stabbed Mr.

Demko on the left side of his neck, but the stab wound was

actually on the right side.

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him by “hitting on his girlfriend.” Battle also said he tried to

kill Hunter and he should have killed him, though Bennett

admitted he had not mentioned these statements to the officers

investigating the Demko murders. According to Hunter, Battle

later explained that he had gotten drunk and “tripped out.”

Finally, the prosecution presented victim impact evidence

through the testimony of Denise Goodman and Richard Demko.

The two testified about their father and stepmother, shedding

light on their humble upbringings and wonderful marriage of 22

years. The two also testified about how difficult their parents’

deaths and the trial had been on them. Denise described to the

jury how she was a “daddy’s girl,” and had great memories of

her father, including how he taught her to accomplish anything

she could set her mind to. She recounted the horror of learning

her father and stepmother were killed, having to identify them

from a photograph, and having to learn at trial about the

gruesome way they were killed. And she described how she felt

following the murders: She became cynical and distrusting,

scared of shadows, constantly locked doors behind her, and

suffered nightmares. Richard described how his father had been

his mentor and how his teenage daughter adored the Demkos.

He said the murders took away his sense of security and made

him afraid to let his daughter ride her bike out on her own. And

he testified about how hard it was to learn at the trial that his

parents had been put in the trunk of a car and taken out to the

desert to be butchered.

2. The Defense’s Case in Mitigation

The defense presented testimony from family members

about Battle’s background and upbringing, a psychologist about

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Opinion of the Court by Cuéllar, J.

the impact of Battle’s childhood on his personality and behavior,

and an expert regarding prison conditions.

The court heard testimony from Battle’s biological father,

three of his biological aunts, his biological grandmother, and two

biological half sisters. Their testimony revealed how the

extended family was plagued by poverty, violence, and racism,

and that Battle experienced these issues during his early

childhood. Battle’s biological mother, a White woman, left his

biological father, a Black man, when Battle was three months

old. She eventually moved with Battle to West Virginia, where

her parents lived. Her family was poor; sometimes they put

coffee and water in Battle’s baby bottle because they could not

afford milk. At times, Battle was sent to live in a foster home.

His foster family in West Virginia, a White family, made racial

comments and spanked him with a wooden board. The town

where he lived in West Virginia was also apparently racist, and

because Battle was not White the community shunned the

entire family. When the older children walked with Battle,

people threw rocks and eggs at them. His grandmother made

racist comments and refused to pick him up. One night,

someone burned a cross in the yard, and Battle’s mother

suspected it might have been her own parents. Eventually, this

all proved too much for her. Just before his fifth birthday, she

gave him up to the Battles for a private adoption.

Battle’s adoptive mother, Laura Battle, testified (in a

videotaped deposition) about raising Battle with her husband.

She testified that Battle had a normal childhood with no major

psychological or behavioral problems. But she testified that he

experienced “racial issues” as a child and was treated differently

because of his race. She said he had a hard time adjusting to

being the only minority child in karate class, which he did for 12

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Opinion of the Court by Cuéllar, J.

years; and at age 10, he asked what color he was after being

teased at school because his complexion was lighter than some

of the other (presumably Black or minority) children.

The psychologist testified that Battle’s childhood marred

him in ways that interfered with his ability to bond with others

and develop a sense of interconnectedness. He described how

Battle was, as a young child, an outsider in a deeply racist

environment, and Battle would have appreciated that he was

not accepted but was instead viewed as a problem. He also

testified that Battle being abruptly abandoned by his mother

was especially traumatic. He explained that her lack of a

consistent presence early in Battle’s life — including Battle’s

time in foster care — hampered Battle’s ability to develop any

“trust or predictability in the world,” and that the “epitome” of

this was when he was given up for adoption and taken away

from everything and everyone he knew. He opined that even

though Battle’s adoptive mother testified that Battle had no

problems after being adopted, internally, Battle would have had

massive problems given the circumstances but simply learned

not to show them. For example, in the sixth and seventh grades,

Battle was sexually abused by a teacher. But Battle’s adoptive

mother got angry and didn’t believe him; and even though the

teacher was later arrested, the topic still was never discussed

again. In the psychologist’s view, Battle’s childhood was not the

reason why he was involved in the crimes in this case. But it

put him at risk because he never had the opportunity to develop

the ability, personality, and emotional stability to form

relationships and a life that may have prevented this tragedy.

Finally, a former associate warden of San Quentin State

Prison testified about conditions for prisoners serving life

without parole.

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Opinion of the Court by Cuéllar, J.

II. BATSON/WHEELER MOTION

Battle is a Black male. He contends the prosecutor

violated his right to equal protection and to a jury drawn from a

fair cross-section of the community by using a peremptory

challenge on a Black prospective juror. (Batson v.

Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978)

22 Cal.3d 258 (Wheeler).) The trial court denied Battle’s

Batson/Wheeler motion, finding he did not make a prima facie

showing that the prosecutor exercised the single peremptory

challenge at issue in a discriminatory manner. We find no error.

A. Background

The trial court began the jury selection process on

February 10, 2003, when it swore in the first panel of

prospective jurors and began to address hardship excusals.

After the initial hardship excusals, 187 prospective jurors

remained. The court had these prospective jurors fill out a 20-

page questionnaire. It requested that the parties compile a list

of prospective jurors for which, based on their questionnaire

answers, excusals for cause would be stipulated to prior to voir

dire. The parties agreed to stipulate to 71 prospective jurors.

The prosecutor stated he and defense counsel agreed to “pretty

much eliminate[] everybody that said they were A and E [in

response to question 2A on page 15 of the questionnaire].” 4

On March 4, the trial court excused additional prospective

jurors for hardship, leaving 88 prospective jurors. Seven (8

4 Question 2A asked prospective jurors to “check the one

that best describes your feelings or attitude: [¶] A. I strongly

favor the death penalty. . . . [¶] B. I favor the death penalty . . . .

[¶] C. I neither favor nor oppose the death penalty. . . . [¶] D. I

have some doubts or reservations about the death penalty . . . .

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percent) were Black. The voir dire process then proceeded under

a “ ‘jury box’ method.” (People v. Avila (2006) 38 Cal.4th 491,

537 (Avila).) The court called 12 prospective jurors into the box

for questioning by the attorneys. After questioning the jurors,

the attorneys could make for-cause challenges. The attorneys

could also use alternating peremptory challenges or accept the

jury as constituted. When the court excused a prospective juror,

it called a new prospective juror into the box for questioning.

Two of the 12 prospective jurors first seated in the box,

S.W. and E.F., were Black. The prosecutor used his fifth

peremptory challenge to excuse S.W. after moving

unsuccessfully to challenge her for cause.5 After defense counsel

exercised his next peremptory challenge, the court called J.B., a

Black woman, into the box. The prosecutor questioned J.B. at

length about her death penalty views but passed for cause.

Upon the resumption of voir dire the following day, the court

excused two Black jurors seated in the jury box: The court

excused J.K. on its own finding of hardship. And it excused

M.N., who had mixed up her dates and therefore was not present

on the previous day, for cause (by stipulation of the parties).

Soon thereafter, the prosecutor used his ninth peremptory

challenge to excuse J.B. The prosecution exercised two

[¶] E. I strongly oppose the death penalty. . . .” (Underscoring

omitted.)

5 The record does not indicate that the trial court expressly

denied the for-cause challenge. That seems quite irregular. But

defense counsel did not raise this issue or specifically object to

the excusal of S.W., and on appeal Battle does not base his

Batson/Wheeler claim on S.W.’s dismissal.

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Opinion of the Court by Cuéllar, J.

additional peremptory challenges, and defense counsel then

raised a Batson/Wheeler motion. He asserted that he was

concerned about the prosecutor’s use of peremptory challenges

against Black prospective jurors, “most specifically” J.B. He

first observed that the prosecutor had struck two of the three

Black prospective jurors that had entered the box. He argued

this figure was “glaring,” even though the number of strikes

“may not seem like a large number” because of the small number

of Black individuals in the venire. He also pointed out that the

prosecutor had used two of his 11 peremptory challenges (18

percent) on Black prospective jurors, even though they

comprised only 8.13 percent of the prospective jurors overall.

Defense counsel did not object to S.W.’s removal, and S.W.’s

removal is not at issue on appeal. What’s at issue here is,

ultimately, the removal of one juror out of the prosecutor’s first

11 peremptory challenges (9.09 percent). Counsel appears to

have calculated the representation of Black prospective jurors

by dividing the number of those jurors present on the first day

of voir dire (7) by the number of prospective jurors present on

that day, excluding two excused by the court at the outset (86).

Defense counsel argued that striking J.B. was “especially

concern[ing],” because J.B. had indicated during questioning

that she could be fair. Furthermore, he contended that the

prosecutor’s questioning of J.B. lasted longer than the

prosecutor’s questioning of other jurors, even after J.B. said she

could be fair and could impose the death penalty. He also

explained that the prosecutor had asked to stipulate to J.B.’s

dismissal in the initial list of proposed stipulations, but that

there was no basis in her questionnaire responses to justify such

a stipulation. Defense counsel then asserted that the prosecutor

had proposed to stipulate the dismissal of other Black

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Opinion of the Court by Cuéllar, J.

prospective jurors without justification. As an example, he

noted that the prosecution had proposed to stipulate to A.H.,

even though her questionnaire was “completely unbiased. She

said she could be completely fair, she neither favored nor

opposed the death penalty, and yet [the prosecutor] put [A.H.]

on his list of stipulations.” Defense counsel concluded by urging

the court to find he had established a prima facie case of racial

discrimination, noting that there were very few Black

prospective jurors and that Battle was Black.

The trial court found that Battle failed to establish a

prima facie case. The court believed that it had to “make a

finding that there has been a systematic exclusion of a

protect[ed] class” and explained it was “not in a position to say

[the prosecutor] . . . has a racially motivated motive.” It further

explained that the proposed stipulations indicated the

prosecutor thought the identified jurors weren’t qualified for a

capital case, and that it “didn’t know at this juncture that the

reason for [any of the proposed stipulations] was racially

motivated. Absent that . . . [the court] can’t find, and [it] won’t

find, that there is a prima facie showing at this point.” The court

indicated that if defense counsel could show that “the only ones

[the prosecutor] wanted excluded by stipulation were

minorities” then “maybe” there is “something to talk about.”

The trial court told defense counsel “You’re close” and denied the

Batson/Wheeler motion.

The court asked the prosecutor if he would like to say

anything for the record. The prosecutor said, “I don’t feel I need

to justify my reasons,” but he noted that a different Black

prospective juror he had proposed for stipulated dismissal,

M.N., had expressed clear death penalty reservations. The court

added that M.N.’s son had been murdered, and it was surprised

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Opinion of the Court by Cuéllar, J.

she had not been stipulated to. The prosecutor agreed, stating,

“[T]hat’s one of the people I proposed to stipulate to. And that

goes far beyond racial reasons.”

Before the regular jury was sworn, the prosecution struck

eight additional prospective jurors. None was Black.

Nonetheless, none of the remaining Black prospective jurors

made it onto the regular jury. E.F. remained in the box for

several rounds — and the prosecution twice accepted panels

including him — but defense counsel eventually struck him.

During alternate juror selection, the court excused A.H. and

B.A., two Black prospective jurors, by stipulation of the parties.

The final Black prospective juror, Juror No. 360, was selected as

an alternate, after the prosecutor passed him for cause and the

parties accepted a panel of four alternates that included him.

The resulting regular jury was comprised of 12 White

jurors. Although one alternate juror ended up being selected as

a replacement during the penalty phase, and a second alternate

was selected when the first alternate also had to be excused,

Juror No. 360 was not selected. The selected alternates were

White, so the jury that sentenced Battle to death was also all

White.

B. Analysis

Both the United States and California Constitutions

prohibit the exercise of peremptory strikes on the basis of race

or ethnicity. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra,

22 Cal.3d at pp. 276–277.) We follow a familiar three-step

process in evaluating a defendant’s Batson/Wheeler motion.

First, the defendant must make a prima facie case by showing

facts sufficient to support an inference of discriminatory

purpose. (Johnson v. California (2005) 545 U.S. 162, 168

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Opinion of the Court by Cuéllar, J.

(Johnson).) Second, if the defendant makes a prima facie

showing, the burden shifts to the prosecutor to offer a

permissible, nondiscriminatory explanation for the strike.

(Ibid.) Third, if the prosecutor offers a nondiscriminatory

explanation, the trial court must decide whether that

explanation is genuine, or whether impermissible

discrimination in fact motivated the strike. (Ibid.)

The trial court denied Battle’s Batson/Wheeler motion at

the first step. Ordinarily, we review such a denial deferentially,

considering only whether substantial evidence supports the trial

court’s conclusion. (People v. Bonilla (2007) 41 Cal.4th 313, 341

(Bonilla).) But Battle’s trial occurred before the United States

Supreme Court announced in Johnson, supra, 545 U.S. at page

168, that Batson’s step one requires only a reasonable inference

of discrimination, as opposed to the “ ‘strong likelihood’ ”

standard that California courts had been applying at the time.

(People v. Clark (2016) 63 Cal.4th 522, 566 (Clark).) Because

Battle’s trial predated Johnson and we cannot be sure from the

record that the trial court applied the appropriate standard, we

conduct our own independent review: We apply the Johnson

standard de novo to determine whether the record supports an

inference that the prosecutor excused a juror on an

impermissible basis. (Bonilla, supra, 41 Cal.4th at p. 342.)

In conducting our review, we remain mindful of the “low

threshold” showing required for Batson’s first step. (People v.

Scott (2015) 61 Cal.4th 363, 384 (Scott).) This step should not

“be so onerous that a defendant would have to persuade the

judge—on the basis of all the facts, some of which are impossible

for the defendant to know with certainty—that the challenge

was more likely than not the product of purposeful

discrimination.” (Johnson, supra, 545 U.S. at p. 170.) It is

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Opinion of the Court by Cuéllar, J.

satisfied simply by evidence sufficient to permit us to draw an

inference that discrimination may have occurred. (See id. at

pp. 168, 171–172.)

Battle argues that racial discrimination motivated the

prosecutor’s peremptory strike of J.B. He explicitly indicates

that his Batson/Wheeler argument does not concern S.W., the

other Black prospective juror struck by the prosecution. Our

inquiry therefore focuses on J.B.’s excusal.

We consider whether “ ‘the totality of relevant facts’ ”

surrounding J.B.’s excusal “ ‘gives rise to an inference of

discriminatory purpose.’ ” (Johnson, supra, 545 U.S. at p. 168.)

This does not — contrary to the trial court’s assertion — require

that Battle show a “systematic exclusion of a protect[ed] class.”6

The ultimate issue is not whether there is a pattern of

systematic exclusion, but instead “ ‘ “whether a particular

prospective juror has been challenged because of group bias.” ’ ”

(Clark, supra, 63 Cal.4th at p. 567.)

We examine the entire record before the trial court to

determine whether it supports an inference of such group bias.

(People v. Reed (2018) 4 Cal.5th 989, 999 (Reed).) Certain types

of evidence are especially relevant to this inquiry, including

whether the prosecutor has struck most or all of the members of

the venire from an identified group, whether a party has used a

disproportionate number of strikes against members of that

6 Battle argues that the trial court’s misstatement, and the

pre-Johnson case law that governed his trial, indicates we must

remand. But he fails to explain why we can’t, as our precedent

instructs, conduct a de novo review under these circumstances.

(See, e.g., Avila, supra, 38 Cal.4th at pp. 553–554.)

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group, whether the party has engaged prospective jurors of that

group in only desultory voir dire, whether the defendant is a

member of that group, and whether the victim is a member of

the group in which the majority of the remaining jurors belong.

(Scott, supra, 61 Cal.4th at p. 384.) We may also consider

nondiscriminatory reasons for the challenged strikes that are

“apparent from and ‘clearly established’ in the record.” (Ibid.)

Yet we may do so only when these reasons “necessarily dispel

any inference of bias,” such that “ ‘there is no longer any

suspicion . . . of discrimination in those strikes.’ ” (Ibid.)

Engaging as we must in an independent review of this

record, we first note that the presence of salient racial issues in

the case raises concerns that warrant careful consideration.

To begin with, Battle is Black, and his victims were White.

This provided the prosecutor with a plausible motive to strike

Black prospective jurors on the impermissible “assumption or

belief that” they “would favor” Battle solely because of their

shared race. (Flowers v. Mississippi (2019) ___ U.S. ___, ___ [139

S.Ct. 2228, 2241].) As a result, the racial identities at play

“ ‘raise[] heightened concerns about whether the prosecutor’s

challenge’ ” of J.B. was “ ‘racially motivated.’ ” (People v.

Rhoades (2019) 8 Cal.5th 393, 430 (Rhoades); see Powers v. Ohio

(1991) 499 U.S. 400, 416 (Powers).)

Also raising heightened concerns is the fact that Battle

was ultimately convicted and sentenced to death for killing

White victims by an all-White jury. (Rhoades, supra, 8 Cal.5th

at p. 430 [racial identity between the victim and the majority of

remaining jurors raises heightened concerns]; see Wheeler,

supra, 22 Cal.3d at p. 281.) Of course, the ultimate composition

of the jury serves as standalone evidence to inform our step-one

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analysis. (See, e.g., Bonilla, supra, 41 Cal.4th at p. 346.) But

it’s particularly germane where the case was racially charged.

(Rhoades, supra, 8 Cal.5th at p. 435.) Here, Battle broke into

an elderly White couple’s home, forced them into the trunk of

their own car, drove them out into the desert, and strangled the

man and stabbed both victims to death. Moreover, part of the

defense’s mitigation case involved evidence that Battle had been

the victim of racial discrimination during his childhood. Given

this racially fraught context, that the prosecutor’s strikes led in

large part to an all-White regular jury is “obviously highly

relevant to whether a prima facie case existed.” (People v.

Johnson (2003) 30 Cal.4th 1302, 1326; cf. People v. Hardy (2018)

5 Cal.5th 56, 78 (Hardy) [similar principle at step three].)7

Together, the salient racial issues at play are

significant — a Black defendant, the excusal of Black

prospective jurors, White victims of violent interracial crimes,

and a conviction and sentence imposed by an all-White jury. As

Battle argues, these are important factors when determining

whether J.B.’s excusal may have occurred because of

discrimination in the jury selection process. (See Powers, supra,

499 U.S. at p. 416.) And they distinguish this case from our

recent decisions in Rhoades, supra, 8 Cal.5th at pages 435–436,

and Reed, supra, 4 Cal.5th at pages 998–1003. But standing

alone, these factors are not dispositive. (See, e.g., Hardy, supra,

5 Cal.5th at p. 78.) Rather, we must carefully scrutinize the

7 Battle also argues the trial involved a key cross-racial

credibility issue: The all-White jury had to assess the credibility

of his confessions to officers, which the defense asserted were

fabricated. But the record does not reveal the officers’ races.

(Cf. U.S. v. Stephens (7th Cir. 2005) 421 F.3d 503, 515; Holloway

v. Horn (3d Cir. 2004) 355 F.3d 707, 723.)

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remaining evidence “with these and all other relevant

circumstances in mind.” (Ibid.; see ibid. [racial overtones and

prosecutor’s excusal of all Black jurors were “troubling”

circumstances “warrant[ing] close scrutiny”]; Smith v. U.S.

(D.C. 2009) 966 A.2d 367, 377 [similar]; People v. Johnson,

supra, 30 Cal.4th at p. 1326 [similar].)

Scrutinizing the record through this lens, we conclude that

Battle’s showing doesn’t suffice to give rise to an inference that

discriminatory intent motivated J.B.’s excusal.

Battle contends that the prosecutor’s disproportionate

strike rate against Black prospective jurors supports a prima

facie case. (See People v. Bell (2007) 40 Cal.4th 582, 598, fn. 4

(Bell).) We disagree. At the time of the Batson/Wheeler motion,

the prosecutor had used approximately 18 percent (2/11) of his

strikes to remove Black prospective jurors; at the close of voir

dire, he had used over 10 percent (2/19) of his strikes against

such jurors. Although these figures exceed 8 percent

(7/88) — the proportion of Black prospective jurors in the pool of

jurors subject to peremptory challenge — we can glean only

limited insight from the discrepancies. The small sample size

introduces uncertainty into the analysis and severely limits the

value of the data. (See, e.g., People v. Parker (2017) 2 Cal.5th

1184, 1212, fn. 12.) For example, if the prosecution had

succeeded in removing S.W. for cause and therefore used just

one strike against a Black prospective juror, both strike rate

disparities become negligible. (Cf. People v. Banks (2014) 59

Cal.4th 1113, 1147 (Banks); People v. Jones (2011) 51 Cal.4th

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346, 362 (Jones).)8 That is essentialy the situation in this case,

since Battle challenges only J.B.’s excusal.

Battle acknowledges these sample size concerns, and he

offers three reasons why these concerns should not be

dispositive. Each is minimally persuasive.

Battle first argues that we should draw insight from the

trial court’s comment that the Batson/Wheeler motion was a

“close” call. But it’s not clear that Battle is right in his

description of the trial court’s comment. The trial court said,

“You’re close.” We cannot resolve whether the trial court meant

that its ruling had been close (Johnson, supra, 545 U.S. at p.

173), or that the defense might be able to point to additional

developments, regarding future strikes, that would shift the

scales in its favor (see Rhoades, supra, 8 Cal.5th at p. 437). In

any event, even if we accept Battle’s interpretation, we find it

difficult to square with his earlier concession — made in his

initial explanation for why we must remand the case — that our

precedent “provides no indication” that the strike rate statistics

made this a close case. We agree with his assessment on our de

novo review. (See Rhoades, supra, at p. 437 [on de novo review,

we don’t have to parse trial court’s “commentary” on

“suspicious[ness]” of “prior strikes”]; but see id. at p. 461 (dis.

8 Under this scenario, the prosecutor would have used 9

percent (1/11) of his strikes to remove Black prospective jurors

by the time of the Batson/Wheeler motion, and 5 percent (1/19)

of all his strikes against such jurors. The former barely exceeds

Black representation in the pool of jurors subject to challenge (8

percent), and the latter is less than this figure and Black

representation on the regular/alternate jury (6 percent (1/16)).

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Opinion of the Court by Cuéllar, J.

opn. of Liu, J.) [such commentary, even if not binding on us, can

have relevance in our (totality-of-the-circumstances) analysis].)

Battle also contends that the high exclusion rate of Black

prospective jurors — e.g., the prosecutor struck two of the first

three Black prospective jurors to enter the jury box — suggests

we should draw an inference of discrimination from the small

sample size of strikes. But Battle admits that this argument

can’t easily be reconciled with our precedent. As we have

frequently stated: “Although circumstances may be imagined in

which a prima facie case could be shown on the basis of a single

excusal, in the ordinary case . . . to make a prima facie case after

the excusal of only one or two members of a group is very

difficult.” (Bell, supra, 40 Cal.4th at p. 598, fn. 3.)9

Battle’s final sample-size argument also fails to persuade.

Battle argues that the prosecutor disproportionately struck not

just Black prospective jurors, but also Hispanic prospective

jurors. Battle did not make this argument at the trial court; the

prosecutor was not given an opportunity to address it, nor was

9 To the extent Battle asks us to overturn this

precedent — including because of the recent passage of

Assembly Bill No. 3070 (2019–2020 Reg. Sess.) — we decline the

invitation. Assembly Bill No. 3070 has not yet taken effect

(Code of Civ. Proc., § 231.7, subd. (i)), so it offers us no occasion

to revisit Bell, or other aspects of our Batson/Wheeler

jurisprudence more broadly. We note, however, that a small

sample size is not automatically a death knell for an argument

of a prima facie case at step one. (See, e.g., Johnson, supra, 545

U.S. at p. 164 [prima facie showing where all three Black

prospective jurors struck].)

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Opinion of the Court by Cuéllar, J.

the court called upon to rule on the question. Even if we decided

such an analysis was relevant in these circumstances, Battle

marshals nothing from the record to permit us to sufficiently

evaluate the propriety of the other excusals. Without additional

indicia of discriminatory purpose — showing the prosecutor

improperly targeted these jurors to achieve an all-White jury —

we cannot conclude that the bare statistics Battle identifies

establish any inference that racial bias motivated J.B.’s excusal.

(Cf. People v. Johnson (2018) 8 Cal.5th 475, 509 & fn. 9.)

Nor is Battle’s argument bolstered by other evidence of the

prosecution’s conduct of jury selection. To begin with, the

prosecutor did not strike J.B. right away, but instead passed on

her for several rounds before striking her using his ninth

challenge. This fact tends to suggest that J.B.’s later challenge

was not based on race. (See, e.g., People v. Clark (2011) 52

Cal.4th 856, 906.) Of course, “the prosecutor’s passes” do not

“themselves wholly preclude a finding that a panelist is struck

on account of bias . . . .” (People v. Gutierrez (2017) 2 Cal.5th

1150, 1170–1171.) A delay in striking these jurors could also

align with a strategy to avoid detection of race-conscious strikes.

(See People v. Motton (1985) 39 Cal.3d 596, 607–608 (Motton).)

Yet Battle offers nothing to indicate such a strategy existed

here.

Moreover, the prosecutor repeatedly passed on E.F., a

Black prospective juror who was in the jury box from the very

beginning. In fact, the prosecutor twice accepted a jury panel

containing E.F. before defense counsel eventually struck him.

This fact tends to suggest that race was not a motive behind

J.B.’s challenge. (See People v. Streeter (2012) 54 Cal.4th 205,

225.) True: In many cases where we apply this principle, some

or all of the passed Black jurors went on to actually serve on the

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juries, unlike here. (People v. Clark, supra, 52 Cal.4th at p. 906;

People v. Blacksher (2011) 52 Cal.4th 769, 802.) It’s also true

that we can’t blindly apply this principle, without any

consideration of “ ‘the practical realities of jury selection.’ ”

(Motton, supra, 39 Cal.3d at p. 607.) Battle points to two factors:

(1) undesirable jurors remained on the panels the prosecution

accepted; and (2) the prosecutor’s acceptances occurred after the

court, in ruling on the Batson/Wheeler motion, said “[y]ou’re

close.” Yet nothing about these factors indicates that the

prosecutor was exercising peremptory challenges based on race,

as opposed to an individualized analysis of each juror. Battle

ignores the reality that the defense struck E.F., and that by all

indications E.F. was a potentially favorable juror to the

prosecution. (Cf. People v. Lenix (2008) 44 Cal.4th 602, 610,

629.)

The prosecutor’s acceptance of a jury with a Black

prospective juror (Juror No. 360) as an alternate, and this juror

ultimately being seated as an alternate, further lessens any

inference of discrimination. We have often underscored that

“ultimate inclusion on the jury of members of the group

allegedly targeted by discrimination indicates ‘ “good faith ” ’ in

the use of peremptory challenges, and may show under all the

circumstances that no Wheeler/Batson violation occurred.”

(People v. Garcia (2011) 52 Cal.4th 706, 747–748; see also Reed,

supra, 4 Cal.5th at p. 1000.) Our cases have applied this

principle when some or all the Black jurors in question were, as

in this case, seated as alternates, instead of on the 12-member

jury. (See, e.g., Jones, supra, 51 Cal.4th at p. 363; People v. Kelly

(2007) 42 Cal.4th 763, 780 (Kelly).) We do so here as well. We

are mindful, though, of Battle’s observation that parties’

strategies for selecting alternates can be markedly different

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from their strategies for selecting the actual jury. (See People v.

Lewis (2006) 39 Cal.4th 970, 1018, fn. 13.)

It is against this backdrop that we consider the

circumstances relevant to the strike of J.B. Although Battle

argued in the trial court that the strike of J.B. was “concerning”

because J.B. indicated during questioning that she could be fair,

the Attorney General identifies a race-neutral reason for J.B.’s

excusal that was “apparent from and ‘clearly established’ in the

record.” (Scott, supra, 61 Cal.4th at p. 384; see Rhoades, supra,

8 Cal.5th at pp. 430–431.) Considering both positions, we agree

with the Attorney General that the record “dispel[s] any

inference of bias” that might be thought to arise from the strike

of this particular juror. (Scott, at p. 384.)10 The remainder of

Battle’s argument, by contrast, fails to cast any doubt on the

prosecutor’s motives for striking J.B. We turn first to what the

record reveals about the race-neutral basis justifying J.B.’s

strike.

J.B. was a 52-year-old Black woman. She was married

with two sons, had a master’s degree in school administration

and school psychology, and had been an elementary school

10 As noted, Battle does not challenge S.W.’s excusal. During

voir dire, S.W. expressed serious concerns about her ability to

vote for the death penalty, and she ultimately stated that she

didn’t think she could impose the death penalty for any reason.

Therefore, even if Battle had raised a Batson/Wheeler claim

regarding her excusal, her strong reservations dispel any

inference of discrimination (see, e.g., Scott, supra, 61 Cal.4th at

p. 385), and the trial court could justifiably have even excused

S.W. for cause (see Wainwright v. Witt (1985) 469 U.S. 412, 424).

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teacher since 1974. She had previously served on a jury, which

reached a verdict. And she had two arguably pro-prosecution

attributes: She herself had been the victim of a violent robbery

in her home, and one of her sisters had previously been in local

law enforcement. (People v. Turner (1986) 42 Cal.3d 711, 719.)

During voir dire, she even stated that she assumed the

prosecutor had a compelling case, saying the case “must be

pretty strong. We’re all sitting here.” By all accounts, J.B. also

generally appeared to be an impartial prospective juror on

issues pertaining to guilt. In her questionnaire, she answered

that Battle’s race would not impact her evaluation of the

evidence in the case. She stated that she had no sentiments on

racial issues, that she didn’t judge anyone based on race, and

that her concern was only that the defendant be given a fair

trial. She stated, “I believe in the system: court/criminal

system.” And throughout her questionnaire and voir dire, she

emphasized she intended to listen to all the facts, and that her

judgment would be based on the evidence.

J.B. also appeared at first blush to be unbiased in her

views on the death penalty. J.B. explained during voir dire that

she could consider both the death penalty and a life sentence.

She stated she wouldn’t have a problem voting for death “as long

as all the facts were proven.” After J.B. explained she expected

expert witnesses to be well-prepared, given someone’s life was

on the line, the prosecutor asked if she could impose the death

penalty in light of this concern. She responded: “I could if he’s

guilty.” The prosecutor also asked if J.B. would be able to look

at the defendant and tell him death is the appropriate sentence.

She said, “I don’t have a problem with that. I’m my own person.

I don’t let anyone sway me right or left. I have to go by what I

feel.” J.B.’s questionnaire responses are largely in line with

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Opinion of the Court by Cuéllar, J.

these statements. She indicated she neither favored nor

opposed the death penalty and would consider both possible

penalties, and that she had no moral, philosophical, or religious

objections to the death penalty. She thought Texas used the

death penalty too frequently, but California used it “about

right.” And she indicated she would consider all mitigating and

aggravating circumstances in reaching a penalty determination.

But just because the record reveals that J.B. had much to

commend her (dis. opn., post, at pp. 2–3, 5) doesn’t mean Battle

has made a prima facie case. So long as prosecutors are not

motivated by discriminatory intent, they can strike prospective

jurors for any reason — including for reasons that don’t

necessarily justify a challenge for cause. (Rhoades, supra, 8

Cal.5th at p. 435.) They don’t have to accept a prospective juror

simply because the juror may be pro-prosecution in some

respects. (See, e.g., People v. Miles (2020) 9 Cal.5th 513, 562;

People v. Thomas (2012) 53 Cal.4th 771, 794.) That defense

counsel saw no reason for the prosecutor to challenge J.B. “does

not raise an inference that the prosecutor’s reason for doing so

was improper group bias.” (Clark, supra, 63 Cal.4th at p. 567.)

And most importantly, even when a prospective juror has

expressed neutrality or a favorable opinion on the death penalty,

the prosecutor is not required to take that juror’s answers “ ‘ “at

face value” ’ ” when “ ‘other statements or attitudes of the juror

suggest that the juror has “reservations or scruples” about

imposing the death penalty . . . .’ ” (Banks, supra, 59 Cal.4th at

p. 1149; see People v. Zaragoza (2016) 1 Cal.5th 21, 44.) Such

statements or attitudes are race-neutral reasons that can justify

a peremptory strike. (Rhoades, supra, 8 Cal.5th at pp. 431–432;

Scott, supra, 61 Cal.4th at p. 385.)

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What the record reveals here are assertions by J.B. that,

considered together and in context, justifiably would have raised

significant concerns about her willingness to impose the death

penalty.

In response to the jury questionnaire’s prompt asking

what a sentence of “death by lethal injection or death in the gas

chamber” would “mean to you,” she answered: “Curel [sic].

Inhumane. Why?” This strongly worded answer suggests she

had general misgivings about the death penalty, even in spite of

her other answers.

During voir dire, the prosecutor followed up on the

misgivings J.B. expressed in her questionnaire answer. J.B.

responded, “I feel that way when I’ve read articles about — I

would say, for instance, the inmates in Texas. And a lot of them

have been proven innocent based on the DNA and then they

were given the death penalty. I feel that part was — I didn’t

like that part because they were found guilty, they went — you

know, they were facing death and 20 years later they found out

they didn’t do it. And I just felt that that was so inhumane to

execute someone for something that they didn’t do.” The

prosecutor then asked if the innocent Texans would be on her

mind if the case reached the penalty phase or if — to avoid

condemning an innocent person — she’d consider voting for life

to make it easier. J.B. responded “No.” Although her responses

may have helped contextualize her questionnaire answer, they

would not have fully dispelled legitimate concerns regarding her

death penalty views. “Cruel” and “inhumane” are powerful

words — suggesting J.B. had concerns about whether the death

penalty should be imposed at all, and her clarification did not

entirely get at these concerns. She prefaced her clarification

with “for instance,” signaling she may have had more than one

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Opinion of the Court by Cuéllar, J.

reason for her concerns. And her reference to Texas cases

introduced a new dimension to her misgivings: By explaining

that “a lot of” inmates in Texas “have been proven innocent” and

that someone could be sentenced to death and then “20 years

later” be proven innocent, J.B. clearly conveyed that she worried

about being involved in a capital trial involving an innocent

defendant. Though J.B. denied she had this concern here, no

reasonable prosecutor would have taken her denial at face value

given her ensuing response.

In her ensuing response, J.B. explained: “Because I have

to live with myself, and I go with my first feeling and I go with

basically facts. And if — it’s unfortunate that if it’s proven that

he’s guilty I have to go along with the law. There’s — I can’t go

by, [t]his is what [J.B.] feels. I have to go by, [t]his is the law,

this is what he did, this is what was proven. And without a

reasonable doubt, I have to. I have to vote on it.” (Italics added.)

This response, taken together with her “cruel” and “inhumane”

questionnaire answer and her insufficient clarification

referencing Texas cases, indicates that J.B.’s death penalty

reservations were serious. Particularly in light of her other

answers expressing reservations, saying it was “unfortunate”

that she had “to go along with the law” would reasonably have

conveyed that she had an inherent discomfort with the death

penalty — i.e., she generally thought it was a verdict to avoid,

despite being required to consider it and be able to render it

when appropriate. In other words, she viewed it as

“unfortunate” that she could be in the position of serving as a

capital juror and potentially imposing the death penalty. Even

though this view may not have justified J.B.’s excusal for cause,

we focus our inquiry on the reasons that readily appear for the

prosecution’s exercise of a discretionary strike. (See Rhoades,

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supra, 8 Cal.5th at p. 435 [“ ‘Unlike a for-cause challenge . . . ,

the issue here is not whether a juror held views that would

impair his or her ability to follow the law. Unimpaired jurors

may still be the subject of valid peremptory strikes,’ ” so long as

the strikes have not been undertaken for a discriminatory

purpose].) Any reasonable prosecutor would logically wish to

avoid a juror who, over the course of multiple responses,

expressed such hesitation to impose the death penalty. (See,

e.g., Rhoades, supra, 8 Cal.5th at pp. 431–432.)

Battle’s argument regarding the “unfortunate” voir dire

response does not persuade. He contends that all J.B. was

saying was it would be “unfortunate” for Battle — not herself —

that she may have to vote for his death. Battle’s interpretation

rests on a strained reading of the colloquy, in which the

prosecutor clearly asks J.B. to express views about how she felt

about serving on a capital jury and potentially voting for a death

sentence. (“Is that something that’s going to be on your mind,

what happened in Texas, that’s going to cause you or give you

some concern if you reach the penalty phase in this case where

you say, Well, I know about perhaps there have been some

innocent people that have been put on death row. I don’t want

to make that mistake; I’m not going to vote for death. It’s just

easier. I will give him life without parole?”) (Italics added.)

We acknowledge that some of J.B.’s statements regarding

her willingness to impose the death penalty can certainly be

individually dissected and shown to have some ambiguity when

considered in isolation. For instance, J.B. did provide some

helpful clarity to her troubling questionnaire answer. (See dis.

opn., post, at pp. 3–4.) Moreover, her “unfortunate” comment

can, in some sense, naturally be understood as her candidly

acknowledging the serious responsibility and practical realities

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Opinion of the Court by Cuéllar, J.

involved in serving on a capital jury and choosing between life

without parole and a death verdict. (Cf. People v. Fudge (1994)

7 Cal.4th 1075, 1094 [a juror’s equivocation on the death penalty

is understandable given the “stress and anxiety” of serving on a

jury].) Similarly, as the dissent observes, one could potentially

understand J.B.’s “unfortunate” comment as indicating “she

thought the task of deciding whether a person should live or die

is more difficult than simply voting for life imprisonment

without parole.” (Dis. opn., post, at p. 5.) And J.B. did give other

answers indicating she could vote for the death penalty.

But here, even if we could accept alternative

interpretations of J.B.’s “unfortunate” comment, or of any of the

other individual comments we have identified, considered in

isolation, those alternative interpretations would not alter our

conclusion. The prosecutor certainly was not obligated to

interpret each of J.B.’s responses in the light most favorable to

Battle. (See People v. Panah (2005) 35 Cal.4th 395, 441.) And

here, taken together and considered in context, the combination

of J.B.’s responses revealed significant reservations about the

death penalty. J.B.’s misgivings may not have justified excusing

her for cause, but they nonetheless establish a reason why the

prosecution would not have wanted her on the jury, separate

and apart from her race. (See Rhoades, supra, 8 Cal.5th at p.

431 [noting that unwillingness to impose the death penalty is a

characteristic any reasonable prosecutor would “logically avoid”

in a death penalty case]; cf. Reed, supra, 4 Cal.5th at p. 1002

[“[T]he declaration of opposition to the death penalty, even when

combined with some subsequent equivocation, reasonably

dispels any inference of discrimination”]; Panah, supra, 35

Cal.4th at p. 441 [even if reservations insufficient for for-cause

excusal, they justified a peremptory challenge].) The colloquy

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Opinion of the Court by Cuéllar, J.

thus dispels whatever inference of discrimination might

otherwise be thought to arise from the sole challenged strike in

this case.

Nothing in Battle’s showing calls into question our

conclusion that J.B.’s death penalty misgivings, under the

circumstances, necessarily dispel any inference that

discrimination motivated her excusal.

First, Battle does not offer any comparative juror analysis

relevant to J.B.’s misgivings. Although such analysis is not

required at the prima facie stage, we have explained that it can

sometimes “aid in determining whether the reasons we are able

to identify on the record are ones that help to dispel any

inference that the prosecution exercised its strikes in a biased

manner.” (Rhoades, supra, 8 Cal.5th at p. 432, fn. 17; see Reed,

supra, 4 Cal.5th at p. 1002 [comparing struck jurors and seated

jurors to assess the argument that race-neutral “rationales

could not have motivated the prosecutor’s strikes”].)

The strike circumstances that Battle does identify fail,

like his initial statistical arguments, to offer us any insight.

Each lacks record support.

Most prominently, Battle argues the prosecutor used

stipulations for cause prior to voir dire to strategically eliminate

Black prospective jurors. As proof, he calculates that Black (and

Hispanic) prospective jurors were stipulated to for cause at a

disproportionate rate compared to their representation in the

jury pool, even though they weren’t any more likely than their

White counterparts to have disqualifying death penalty

questionnaire answers. Specious for-cause challenges “might in

some circumstances support an inference of bias.” (People v.

Sánchez (2016) 63 Cal.4th 411, 437 (Sánchez); see Crittenden v.

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Opinion of the Court by Cuéllar, J.

Ayers (9th Cir. 2010) 624 F.3d 943, 956–957.) But Battle’s

argument falls well short of this standard: He agreed to the pre-

voir dire excusals by stipulation. He can’t now argue that the

stipulated dismissals his counsel agreed to, through a process

counsel agreed to, resulted in the discriminatory removal of

Black prospective jurors or shed light on later discrimination in

J.B.’s removal by peremptory challenge. (See Clark, supra, 63

Cal.4th at p. 567; People v. Duff (2014) 58 Cal.4th 527, 540 [“[A]

stipulation to the excusal of jurors forfeits any subsequent

objection to their omission from the jury pool”].)

For similar reasons, Battle can’t rely on the fact that the

prosecution unsuccessfully offered to stipulate to four Black

prospective jurors prior to voir dire. With the exception of J.B.,

defense counsel ultimately accepted the stipulated excusals of

the other three Black jurors during voir dire. In fact, counsel

proposed the stipulated dismissal of one of these jurors, B.A.,

and acquiesced to the dismissal of another of these jurors, A.H.

This certainly cuts against his argument. (See Kelly, supra, 42

Cal.4th at p. 780.) In any event, Battle’s argument also fails

because he cannot show that any of these proposed stipulations

was “specious.” (Sánchez, supra, 63 Cal.4th at p. 437.)

Battle also alleges the prosecutor unjustifiably questioned

Black prospective jurors, including J.B., for much longer than

any of the seated jurors or non-Black prospective jurors the

prosecutor struck. He also asserts that the prosecutor

disproportionately directed rhetorical flourishes to his pattern

death-qualification questions — which often asked whether the

prospective jurors would be able to directly tell the defendant of

a death verdict — at Black prospective jurors. But the record

doesn’t support Battle’s characterizations of voir dire. The

thoroughness of the prosecutor’s probing of J.B. or other Black

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prospective jurors didn’t involve a noticeably disproportionate

number of questions and was not outside the norm of typical

questioning. (Cf. People v. Cunningham (2015) 61 Cal.4th 609,

665.) Similarly, nothing suggests that the prosecutor’s subtle

phrasing variations resulted in Black prospective jurors

experiencing more intense examinations. These variations pale

in comparison to the graphic and irrelevant questions the

Supreme Court disapproved of in Miller-El v. Cockrell (2003)

537 U.S. 322, 344 (prosecutor disproportionately gave Black

jurors “an explicit account of the execution process”).

Battle’s argument that the prosecutor eagerly and

unjustifiably urged the court to excuse for hardship J.K.,

another Black prospective juror, also lacks record support.

Although a prosecutor’s selective solicitude for minority jurors’

hardship concerns can support a prima facie case (see Snyder v.

Louisiana (2008) 552 U.S. 472, 483–484), the prosecutor

displayed no such solicitude here. J.K was a full-time nurse

seeking a master’s degree in nursing. According to her, serving

on the jury would have made it nearly impossible for her to fulfill

her work and school obligations — particularly attending

workplace meetings required for her master’s program — and

could have resulted in the loss of the $1,800 she paid for that

semester. She repeatedly raised these concerns. In discussions

at the bench, the trial court brought up to the attorneys that

J.K. was going to lose $1,800 and began to suggest that J.K was

a good candidate for excusal. The prosecutor agreed. But

defense counsel disagreed, requesting that the court first ask

J.K. to contact her employer to see if it was possible to rearrange

the workplace meetings. Ultimately, the meetings couldn’t be

rearranged, and the court excused J.K. for hardship on its own

accord. Under these circumstances, we can’t say the prosecutor

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eagerly or unjustifiably advocated for J.K.’s excusal. The

prosecutor simply agreed with the court’s assessment — clearly

supported by the record — that J.K. faced a great hardship. Nor

does Battle identify any non-Black prospective jurors where, as

in Snyder, supra, 552 U.S. at pages 483–484, the prosecutor

failed to show similar sympathy for their hardship concerns.

Finally, the prosecutor’s justification for his peremptory

strikes doesn’t support an inference of discrimination. In

response to the court’s inquiry whether, after it denied the

Batson/Wheeler motion, he wanted to put anything on the

record, the prosecutor stated he felt he didn’t need to justify his

reasons. But he then stated that one of the Black jurors he had

proposed stipulating to prior to voir dire, M.N., had clear death

penalty reservations. After the court stated it was surprised

M.N. had not previously been stipulated to since she had a son

who had been murdered, the prosecutor stated M.N. was “one of

the people I proposed to stipulate to. And that goes far beyond

racial reasons.” To the extent the “that” refers to M.N.’s son

being murdered, Battle correctly points out that the prosecutor

couldn’t have been aware of this fact when he proposed to

stipulate to M.N., as it came out during voir dire. And, as Battle

observes, this strike justification didn’t address the focus of

defense counsel’s Batson/Wheeler motion: J.B.’s excusal.

Ultimately, though, we can’t glean insight from these

discrepancies. Because the trial court rejected the

Batson/Wheeler motion at step one, the prosecutor wasn’t

obligated to state his reasons for challenging any prospective

juror. (See Banks, supra, 59 Cal.4th at p. 1147.) So, there is

nothing suspect about the prosecutor’s failure to state his

reasons for striking J.B. (See id. at p. 1148.)

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Furthermore, “prosecutors may be reluctant to state their

reasons for the record if doing so would jeopardize or nullify a

ruling in their favor . . . .” (Scott, supra, 61 Cal.4th at p. 388.)

To avoid this outcome, we must be careful at step one to consider

only whether the prosecutor’s stated rationale was facially

insincere. (See Kelly, supra, 42 Cal.4th at p. 781; Scott, supra,

61 Cal.4th at pp. 390–391.) Here, the prosecutor’s rationale was

not facially insincere. To the extent the prosecutor partially

misspoke about M.N.’s dismissal, Battle offers no reason why

the prosecutor would have intentionally misstated the matter,

as opposed to simply making an honest mistake. Such a mistake

doesn’t give rise to an inference of discrimination, particularly

given the prosecutor’s otherwise accurate statement that M.N.

showed clear bias against the death penalty. (Jones, supra, 51

Cal.4th at p. 366.)

In short, Battle fails to demonstrate the trial court erred

in denying his Batson/Wheeler motion. Although the racial

context of the case raises some initial concerns, Battle’s showing

fails to establish a basis for inferring that the prosecution may

have struck a particular Black juror because of her race. The

small sample size of strikes against Black prospective jurors,

and the fact that Battle challenges the excusal of only one such

juror, severely undercuts any inference we can draw from the

statistical evidence he presents. None of the remaining strike

circumstances he identifies find any support in the record.

Ultimately Battle’s challenge rests on the strike of a single juror,

after that juror had expressed misgivings about the death

penalty. The circumstances surrounding the strike dispel any

inference of discriminatory intent.

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Opinion of the Court by Cuéllar, J.

III. GUILT PHASE ISSUES

A. Admission of Statements to Special Investigator

Robert Heard

Battle contends one of his admissions to special

investigator Robert Heard — that he knew there was a plan to

kill the Demkos and that he participated in their

murders — was involuntary and therefore inadmissible. He

argues that this involuntary statement tainted his subsequent,

more incriminating admissions that he participated in the

Demkos’ murders. We find no error.

1. Background

Battle focuses on three portions of the pretest interview

that investigator Heard conducted.

First, after Heard took Battle through the version of

events that Battle had told Detectives Gilliam and Pacifico the

previous day, Heard pressed Battle for more details about the

plan for the burglary. Battle eventually explained that Neal and

Left Eye told him he could take whatever was lying around the

house as long as he “didn’t bother with what their intentions

were.” He explained that he didn’t know about their full

intentions — i.e., the full plan of the operation. But he then said

Neal told him they weren’t really interested in much of what

was inside the house, since they were going to try to take the

victims’ identities. Left Eye also told him about “trying to take”

the victims’ house. This colloquy ensued:

“HEARD: You mean take their house lift it up and

take it somewhere?

“BATTLE: No.

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“HEARD: How?

“BATTLE: Basically, like just . . .

“HEARD: Get rid of them and just take the house?

“BATTLE: Well, something like that. I didn’t know

...

“HEARD: Look at me. Does anything on my face say

that I’m shy or anything?

“BATTLE: No. I’m just . . .

“HEARD: I’ve been doing this for thirty years.

“BATTLE: I’m just nervous.

“HEARD: And I don’t blame you for being nervous

and you know what, I’m sitting in this chair. I’m not

sitting in that chair. If I’m sitting in that chair, I’d

be nervous too. Because you know there’s something

you need to understand Tommie is you’re in a hole

right now.

“BATTLE: I know.

“HEARD: And you know what Tommie you got to

stop digging. Don’t dig no more, okay? This will

because once I write my report, I can’t promise to do

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anything for you because if my boss found out that I

promised you something that was untrue, I’d be in

trouble. Tommie I’ve been doing this too long okay?

Now I worked the burglary detail for many, many

years. I worked the homicide detail for three and a

half and you are fortunate enough that in this

department these homicide detectives they’re

working homicide. Why? Because they’re the best of

the best. They are not stupid. You can’t see stupid

written across their forehead, okay? So, let’s go back.

Their intentions?

“BATTLE: Their intentions was to take their credit.

“HEARD: Take their house?

“BATTLE: Yeah, Neil had mentioned a couple of

times that he had hookup at DMV where he’d be able

to use like the people’s credit cards.”

Following this exchange, investigator Heard asked Battle what

the plan was for the victims; Battle responded that he had

nothing to do with that. He explained that he had concerns that

something bad would happen to the victims, but that he didn’t

know what.

Investigator Heard then shifted interview tactics. Using

a mock polygraph question, he asked whether Battle had

suspected before November that Neal planned on killing the

victims. Battle denied having any suspicions, and this exchange

followed:

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“HEARD: No. No. But you have to understand,

okay? You’re in the hole. My job is just to verify that

you tell me the truth.

“BATTLE: Okay.

“HEARD: I don’t care if they said something and you

thought oh my God is that what they’re going to do

because as long as you’re not involved in that, that’s

all that’s important but the problem is that if I was

to ask you on the polygraph exam see we’re going to

run with November thirteenth but the polygraph

question is before you arrived at that house the day

that this thing went down okay?

“BATTLE: Uh huh.”

Finally, as investigator Heard pressed further on Battle’s

knowledge about a plan to kill the victims, Battle admitted he

knew the victims would go “missing for a while.” In the

exchange that ensued, investigator Heard brought up Battle’s

godson several times:

“HEARD: Missing for a while? What does that

mean?

“BATTLE: That’s all [Neal] said.

“HEARD: I don’t understand that. See now, see I’ve

worked the homicide detail for three and a half

years. You are, you are no dummy, okay? You’re no

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dummy. Are you telling me back in August when

you had this conversation that you became

concerned at that time that those people were going

to be killed by someone else? Is that a yes, or no?

“BATTLE: Yes, sir.

“HEARD: Okay. Got it. Now . . .

“BATTLE: It’s not like I could back out though at

that time.

“HEARD: I understand.

“BATTLE: Because if, if they tell me you know in

so many words that they’re basically going to do

that if they can do that to them you know.

“HEARD: They can do it to you?

“BATTLE: Yeah.

“HEARD: And your godson? Let me make sure

because I don’t want to put words in your mouth

because I’d like to write something down if you'll

allow me. In August of this year, two, thousand?

“BATTLE: Yes, sir.

“HEARD: You became aware of this plan to go hit

this house, is that correct?

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“BATTLE: Yes, sir.

“HEARD: Take the car. Is that a yes?

“BATTLE: Yes, sir.

“HEARD: Take their credit?

“BATTLE: Yes, sir.

“HEARD: Their identity?

“BATTLE: Yes, sir.

“HEARD: Their house?

“BATTLE: Yes, sir.

“HEARD: And kill them?

“BATTLE: Yes, sir.

“HEARD: Is that a yes, sir?

“BATTLE: Yes, sir.

“HEARD: Okay. Got it. Now what happens if you

would have backed out at that point once you found

out in August they were going to kill them?

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“BATTLE: I didn’t know what was going to happen.

I swear. I’m telling the truth.

“HEARD: You got a godson. You got a godson to

worry about. Now I’m glad that's out. That’s a

question I don't have to ask. I can just tell them you

told me the truth about that. Can I write that down?

“BATTLE: Yes, sir.

“HEARD: Okay. Eleven, twenty knew I want you

to see what I’m writing knew in August two,

thousand the plan okay and that was the plan.

Number one?

“BATTLE: Yes, sir.

“HEARD: Take ID, Number two take car. Number

three take home. Number four they said you could

take whatever was in the house?

“BATTLE: Yes, sir.

“HEARD: Valuables. And number five kill the

residents. I won’t put anything down. I won’t put

words in your mouth. You knew in August of two,

thousand the plan, five things take their ID, take

their car, take their home, take their valuables, and

kill the two residents is that correct?

“BATTLE: Yes, sir.”

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A little later in the interview, investigator Heard had Battle

reiterate his admission that, as early as August, he knew there

was a plan to kill the Demkos.

At trial, the prosecutor argued Battle’s statements to

investigator Heard, as well the statements to Detectives Gilliam

and Pacifico, were voluntary and moved to admit them. The

court conducted an evidentiary hearing where the three officers

and Battle testified, and it listened to the audio recordings of the

custodial interviews. After the hearing, Battle filed a response

to the prosecution’s motion, requesting that the court exclude

his custodial statements from trial because they were

involuntary. The trial court held that all of Battle’s statements

to law enforcement were voluntary and thus admissible. It

reached this holding after concluding, among other things, that

officers did not threaten Battle or promise him anything, and

instead merely urged Battle to tell the truth.

2. Analysis

Both the federal and state Constitutions bar prosecutors

from introducing into evidence a defendant’s involuntary

statement to government officials. (People v. Holloway (2004)

33 Cal.4th 96, 114 (Holloway).) This prohibition bars the

admission of an involuntary confession, as well as an

involuntary admission. (People v. Haydel (1974) 12 Cal.3d 190,

197.) In determining whether a statement is involuntary, “we

consider the totality of the circumstances to see if a defendant’s

choice to confess was not ‘ “ ‘ “essentially free” ’ ” ’ because his

will was overborne by the coercive practices of his interrogator.”

(People v. Spencer (2018) 5 Cal.5th 642, 672 (Spencer).) Coercive

police conduct includes physical violence, threats, direct or

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implied promises, or any other exertion of improper influence by

officers to extract a statement. (People v. Linton (2013) 56

Cal.4th 1146, 1176 (Linton).) The presence of coercion is a

necessary, but not always sufficient, predicate to finding a

confession was involuntary. (People v. Caro (2019) 7 Cal.5th

463, 492.) We also consider other surrounding circumstances

apparent from the record, including both the details of the

interrogation and the characteristics of the accused. (Ibid.)

When a defendant challenges the admission of a

statement on the grounds that it was involuntarily made, the

state bears the burden of showing by a preponderance of the

evidence that a defendant’s statement was, in fact, voluntary.

(See Linton, supra, 56 Cal.4th at p. 1176.) On appeal, we accept

the trial court’s factual findings as to the circumstances

surrounding the confession, provided they are supported by

substantial evidence, but we review de novo the ultimate legal

question of voluntariness. (See People v. Scott (2011) 52 Cal.4th

452, 480.) On de novo review, we conclude that Battle’s

admission was voluntary.

We begin by noting that Battle’s testimony at the

suppression hearing undercuts his claim on appeal. On direct

examination, investigator Heard came up only once, and only

incidentally (i.e., as part of a discussion of how much sleep

Battle had gotten prior to the polygraph examination). On

cross-examination, Battle testified that he’d done the polygraph

examination voluntarily, and that he never told investigator

Heard at any point that he wanted to stop. By contrast, Battle

testified extensively about Detectives Gilliam and Pacifico and

their apparently coercive interview tactics. The absence of

comparable testimony regarding investigator Heard gives us

confidence that none of the officer’s interrogation tactics coerced

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Battle into admitting anything. (See People v. Rundle (2008) 43

Cal.4th 76, 120 [defendant’s own testimony at suppression

hearing established that his decision to confess was “completely

separate from any representations made by the officers”]; People

v. Belmontes (1988) 45 Cal.3d 744, 774 [similar].)

Also undercutting Battle’s claim are the various indicia of

voluntariness that he doesn’t dispute, and in fact largely admits

on appeal. Battle makes no allegation that he suffered any

physical abuse. The court found that Battle — who was 26 years

old at the time of the interviews — was “a very articulate,

intelligent man.” Investigator Heard didn’t physically restrain

Battle. Battle didn’t request an attorney or express an

unwillingness to speak with investigator Heard. He knew he

could stop the examination “at any time.” The entire process

was not particularly long, totaling between three and three and

a half hours. There were breaks during the interview and Battle

was given water. And the trial court found that Battle was not

exhausted during the interviews, but instead was “cogent” and

“maintain[ed] a very, very consistent tone of voice, manner of

talking, [and] coherency through[out] the interviews.” These

circumstances of the interview and the accused buttress the

trial court’s conclusion that Battle’s statements to investigator

Heard were voluntary. (See, e.g., People v. Mendez (2019) 7

Cal.5th 680, 698–699 (Mendez); Spencer, supra, 5 Cal.5th at pp.

672–674.) And they readily distinguish this case from those

cases where we have found coercion. (See, e.g., People v. Neal

(2003) 31 Cal.4th 63, 84.)

Battle nonetheless argues that his admissions to

investigator Heard — particularly that he knew there was a

plan to kill the Demkos — were involuntary because of what

investigator Heard said to him. It’s true that, as Battle

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generally argues, investigator Heard repeatedly questioned

whether he was telling the truth and insistently probed whether

he knew there was a plan to kill the Demkos. But “[t]he

business of police detectives is investigation, and they may elicit

incriminating information from a suspect by any legal means.”

(People v. Jones (1998) 17 Cal.4th 279, 297.) Therefore, officers

can, as investigator Heard did, exhort a suspect to tell the truth

and repeatedly express that they believe a suspect is lying. (See,

e.g., Spencer, supra, 5 Cal.5th at p. 674; Linton, supra, 56

Cal.4th at p. 1178.) And, just as investigator Heard did, officers

can engage in “vigorous,” repetitive questioning of suspects

(People v. Williams (2010) 49 Cal.4th 405, 444 (Williams)) meant

to ascertain a defendant’s involvement in crimes (see Linton,

supra, 56 Cal.4th at p. 1178). Given Battle’s explanations that

Neal and Left Eye had told him in advance about the burglary

plan and that he could “get basically whatever was lying around

the house as long as [he] didn’t bother with what their intentions

were,” it was natural that investigator Heard then doggedly

asked if Battle knew the plan was to kill the Demkos (see

Linton, supra, 56 Cal.4th at p. 1178; Williams, supra, 49 Cal.4th

at p. 447) — particularly as Battle was evasive.

Moreover, investigator Heard’s exhortations and

persistent questions were relatively “low key.” (Linton, supra,

56 Cal.4th at p. 1178; see Spencer, supra, 5 Cal.5th at p. 673.)

Nothing in Battle’s responses indicate he was unable to parry

the “ ‘various thrusts and efforts . . . to . . . catch him in what

[Heard] perceived as untruths or lies.’ ” (People v. McWhorter

(2009) 47 Cal.4th 318, 358.) Battle was evasive on whether he

knew details of the burglary plan. This evasion “suggests . . . a

still operative ability to calculate his self-interest in choosing

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whether to disclose or withhold information.” (People v.

Coffman and Marlow (2004) 34 Cal.4th 1, 58 (Coffman).)

We see no basis to conclude the interrogation overbore

Battle’s will. Battle ultimately did admit to investigator Heard

that he learned in August that the plan involved killing the

Demkos. But as the Attorney General suggests, Battle’s

admission also potentially reflects a desire to cooperate for the

purposes of exculpating himself. Indeed, through the limited

admission that he knew of the plan sometime in advance, Battle

continued to tell a version of events that minimized his

involvement: He immediately told investigator Heard that,

despite his knowledge, there’s no way he could have backed out,

because Neal and Left Eye could have killed him. (Cf. Holloway,

supra, 33 Cal.4th at p. 116.) This is consistent with the

narratives Battle gave to the detectives prior to his interview

with investigator Heard. “[He] had the wherewithal to

articulate — time and again — a version of events that

minimized his involvement. Along the way, he changed his

story from one emphasizing that he knew nothing about the

offense[s], to one admitting he was at the [burglary with a group

of coconspirators] but maintaining he had not participated in

the killing[s]” and had no knowledge of a plan to kill the victims.

(Spencer, supra, 5 Cal.5th at p. 673.) And it’s consistent with

Battle’s repeated minimizations after he made the admission he

now complains of: He changed his story from one denying being

present at the murder scene to one admitting he was at the

murder scene but accusing another participant of committing

the murders, to one admitting he stabbed the victims but while

being forced at gunpoint by one of his coconspirators, to one

admitting that he burglarized the victims’ home but accusing a

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housemate of his — a completely different perpetrator than the

one he had initially described — of committing the murders.

Given these circumstances, we may readily reject Battle’s

specific claims regarding the three interrogation tactics that he

identifies as improper.

Battle first argues investigator Heard made an implied,

time-sensitive promise of lenity by telling him he should “stop

digging” and stating that “once I write my report, I can’t promise

to do anything for you because if my boss found out that I

promised you something that was untrue, I’d be in trouble.” He

contends investigator Heard’s later, repeated references to

“writ[ing]” down Battle’s recitations of the burglary plan

indicate the officer was, in the moment, communicating his

intent to carry out his end of the bargain. But no suspect would

have reasonably understood investigator Heard’s statements as

promising “any particular benefit.” (Holloway, supra, 33

Cal.4th at p. 116.) Although it’s not entirely clear what exactly

investigator Heard meant when he briefly mentioned

“promis[ing]” something, it’s certainly clear that investigator

Heard wasn’t making a specific promise of leniency. (See

Coffman, supra, 34 Cal.4th p. 61.) He gave no indication that

he or anyone else would grant Battle anything if Battle gave

more details about the burglary plan. (See Holloway, supra, 33

Cal.4th at p. 116 [similar]; People v. Carrington (2009) 47

Cal.4th 145, 174 (Carrington) [similar].) And, in any event, “I

can’t promise to do anything for you” after I write my report, is

not, as Battle asserts, the same as affirmatively stating, “I

promise to do something for you if you do provide further

information before I write my report.” Warning arrestees that

the possibility of help disappears if they do not act is not the

same as promising to help if they do act.

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At most investigator Heard was, during the broader

exchange in which he made the “promise” statement, simply

informing Battle of the obvious: Cooperating and being honest

would generally be beneficial to Battle, whereas “digging”

deeper into a lie and being caught in it down the line would be

detrimental. Our cases make clear that such an interrogation

strategy “did not cross the line from proper exhortations to tell

the truth into . . . promises of leniency.” (Holloway, supra, 33

Cal.4th at p. 115.) Officers may comment on the “ ‘realities’ ” of

a suspect’s position and the choices available to him (id. at p.

116), including by informing him that “full cooperation might be

beneficial in an unspecified way” (Carrington, supra, 47 Cal.4th

at p. 174; see id. at p. 171).

We likewise easily dispose of Battle’s second complaint:

that investigator Heard seriously misled him regarding his

potential criminal liability. Battle focuses on investigator

Heard’s statement that “I don’t care if they said something and

you thought oh my God is that what they’re going to do because

as long as you’re not involved in that, that’s all that’s important

. . . .” (Italics added.) According to Battle, this statement

communicated that Battle could acknowledge knowing of the

murder plan without getting in bigger trouble, so long as he

hadn’t participated in the actual killings. Yet, as he observes,

any experienced homicide investigator would have known that

such an admission could be highly incriminating: It could

implicate Battle as an accomplice in premeditated and

deliberate murder and serve as proof to support special

circumstances for felony murder, multiple murder, and

aggravating personal culpability.

Battle’s argument fails, though, because he takes

investigator Heard’s statement out of context. Immediately

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before the quote Battle relies on, investigator Heard stated his

job was just to verify that Battle was telling the truth.

Immediately after the quote, investigator Heard stated, “but the

problem is that if I was to ask you on the polygraph exam see

we’re going to run with November thirteenth, but the polygraph

question is before you arrived at that house the day that this

thing went down, okay?” It’s clear from this context that

investigator Heard was merely informing Battle that, if Battle

had known in advance about the murder plan but denied this

when asked during the polygraph, he’d fail the question.

“[T]hat’s all that’s important” fits naturally into this exchange.

In other words, he simply told Battle it was no use to lie about

his prior knowledge, not that admitting such knowledge had

minimal legal consequences. (Cf. Carrington, supra, 47 Cal.4th

at p. 172 [not coercive that officer told defendant admitting to

the murder “ ‘wouldn’t make any difference’ ” since, in context,

the statement reflected the overwhelming evidence].)

Even assuming investigator Heard’s statement did refer

to legal consequences, it had no proximate causal connection to

Battle’s subsequent admission. (People v. Musselwhite (1998) 17

Cal.4th 1216, 1240.) That readily distinguishes this case from

People v. Cahill (1994) 22 Cal.App.4th 296, the chief case upon

which Battle relies. Cahill also concerned a burglary-murder.

There, a homicide investigator provided a detailed discussion of

California law and unmistakably conveyed a clear, false

message: The defendant could avoid being “tried for first degree

murder” if “he admitted that he was inside the house and denied

that he had premeditated the killing.” (Id. at p. 314; see id. at

p. 315 [such an admission would amount to a confession of felony

murder].) The court explained that the investigator’s false

statement proximately caused the confession of the young

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defendant — who up until this point had, in the face of vigorous

questioning and confrontation with damning facts, resisted

conceding his presence in the home — because it might have

offered him a false hope he could be cleared of the most serious

charges against him. (Id. at p. 317.)

Yet here, investigator Heard’s vague, passing comment

communicated “no such misleading assurances” (Holloway,

supra, 33 Cal.4th at p. 117), and plainly had no effect on Battle.

Immediately after investigator Heard’s apparently misleading

statement, Battle did not change the story he was then

telling — i.e., that he had exited the car on the way to the desert,

with the Demkos still alive and in the trunk. And as the

Attorney General observes, if investigator Heard’s comments

somehow caused Battle to admit knowing about the murder

plan, they would have also prevented him from admitting

further involvement — since they allegedly indicated that

Battle would not be in bigger trouble as long as he hadn’t

participated in the murders. But Battle eventually admitted

not only that he knew of the murder plan, but also that he was

present at the murder scene and stabbed the victims himself.

Finally, Battle argues that investigator Heard

inappropriately played on Battle’s fears for the safety of himself

and his godson Marquis by misleadingly suggesting those fears

justified Battle’s participation in the burglary plan, even if he

knew the victims would be murdered. He also argues, in

passing, that the statements about Marquis could be perceived

as an indirect threat that others might harm Marquis if Battle

continued to implicate coconspirators and didn’t take full

responsibility for the crimes.

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Neither contention withstands scrutiny. Nothing in

investigator Heard’s reference to Marquis could be interpreted

as a threat. And nothing about investigator Heard’s discussion

of Marquis was inappropriate. Investigator Heard could have

discussed Marquis in order to build a “rapport” with Battle and

communicate he was trying to better understand Battle’s

motivation for participating in the crimes. (Williams, supra, 49

Cal.4th at p. 447; see Carrington, supra, 47 Cal.4th at pp. 171,

174.) He also could have referenced Marquis as a permissible

followup to Battle’s own discussion of Marquis. (See Spencer,

supra, 5 Cal.5th at p. 675.) Earlier in the interview, Battle

brought up Marquis several times. Right before investigator

Heard referenced him, Battle explained that he couldn’t back

out once he learned from Neal and Left Eye about the murder

plan, because “if they tell me you know in so many words that

they’re basically going to do that[,] if they can do that to them[,]

you know.” Investigator Heard understandably interjected by

articulating what Battle implied: If his coconspirators could

murder the victims, they could murder him and Marquis. (See

Linton, supra, 56 Cal.4th at p. 1178.)

B. Admission of Statements to Detectives Gilliam

and Pacifico

Battle argues that the trial court erred by declining to

order the redaction of statements he made during his custodial

interviews with Detectives Gilliam and Pacifico. We conclude

that Battle identifies no reversible error.

1. Background

After the trial court ruled the tapes and transcripts of

Battle’s custodial interrogations were admissible, it held that

certain statements had to be redacted before the evidence could

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be presented to the jury: namely, all mention of Battle’s “being

in prison, being on parole, having priors for burglary, shooting

other people, stabbing other people, [and] being an ex-con.” The

prosecution redacted the tapes and transcripts accordingly. But

defense counsel moved for the court to order further redaction of

two remaining sets of statements from Battle’s custodial

interviews with police detectives.

First, defense counsel sought to redact several comments

that, according to counsel, indicated Battle had previously

committed burglary. At a hearing on March 17, 2003, defense

counsel pointed the trial court to the following exchange

between Battle and Detective Gilliam during the initial

custodial interview. The exchange took place after the detective

asked Battle why the burglary group approached the Demkos’

home from different directions:

“BATTLE: Ah, me, I don’t know he, Neil was

basically trying to tell me that, that, that I looked

stressed out.

“GILLIAM: Ah huh.

“BATTLE: And um that I should, I’ve done it before

ah I, I shouldn’t sweat it cause he said I was looking

all clammy and stuff. I didn’t really pay that much

attention.

“GILLIAM: Did you guys ah . . .

“BATTLE: Because I always look kind of shaky . . .

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“GILLIAM: Ah huh.

“BATTLE: Before I do something.”

Defense counsel argued that Battle’s statement that he always

looked shaky before doing something “created a definite

inference that there’s been a prior,” but the court rejected this

argument without comment. The trial court did, however, say

that defense counsel had a point about Battle’s comment “I’ve

done it before.” The prosecutor explained that this comment

could be interpreted as Battle recounting how Neal told him he

didn’t have to worry because Neal had committed burglary

before, and therefore didn’t necessarily refer to Battle being the

one who had “done it before.” After reading the transcript and

considering the context of the comment, the trial court agreed

with the prosecutor and further noted that Battle didn’t say

what he had “done.” On this basis, the court found that nothing

was “improper” about Battle’s comment. Given the opportunity

to respond for the record, defense counsel argued that the

comment, taken in context, indicated Neal said Battle shouldn’t

be stressed because Battle had done burglary before; then,

Battle said he didn’t pay “much attention” to this advice because

he always looked “shaky” before doing something. Defense

counsel urged that this provided an inference that Battle was an

experienced criminal. The trial court stated this was “one

interpretation” and declined to strike the comment.

At the hearing on March 18, defense counsel sought to

redact additional statements made by Battle during his

November 27 interrogation by detectives, claiming these

statements also implicated prior burglaries. Counsel first

objected to the admission of Battle’s response to Detective

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Pacifico’s question about why Battle had been asked to go back

into the victims’ house after the crimes. Battle responded saying

that he didn’t know because, as he had explained, “I never did

anything I never did anything like this, especially with people.

I never did anything with anybody.” The trial court refused to

strike the statement, finding the probative value outweighed

the prejudice.

Counsel next objected to Battle’s statement a little later in

the interrogation where, responding to Detective Pacifico’s

question asking why Battle hadn’t covered his face with

pantyhose or worn a beanie (like his fellow coconspirators)

during the burglary, Battle stated, “Huh, like I said, I’d never

uh, worked with a team or anything like that before. . . . I, I was

just used to having gloves.” Counsel argued this statement,

together with the prior identified comment, implied that Battle

had done burglaries in the past while using gloves. The court

disagreed. It questioned whether, given the prosecution’s

position that Battle lied during this confession, it made any

difference that this statement was being admitted. It ultimately

concluded there was nothing particularly damning about the

statement — observing that if Battle had said “ ‘When I did my

other burglaries, I did it this way,’ well, then maybe that’s

something to talk about” — and allowed the statement because

its probative value outweighed its prejudicial effect.

Finally, counsel objected to three statements Battle made

while describing the burglary and its aftermath. In describing

his entry into the Demkos’ home, Battle said, “The man was

awake, and I had never break, broken into a house with

somebody that was there”; in describing how he gained access to

the house, he said, “I mean old couples, they usually leave the

back door unlocked, if they have a fenced in area and have dogs

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. . . I’m just, I’m just used to that”; and, in describing what

happened when he got back to the Christian Living Home, he

said, “I’m practically in tears when I get back to the house, cause

I guess that I’ve never did anything with people in the house

before.” Defense counsel argued these statements clearly

implied not only that Battle had previously committed

burglaries, but also that he had previously burglarized elderly

people’s homes — an implication counsel asserted was

irrelevant and highly prejudicial. The court reasoned that it

was a stretch to interpret these statements as Battle saying, “I

did a prior burglary,” and it admitted the statements after

determining their probative value outweighed their prejudicial

effect.

In addition to the custodial statements potentially

implicating prior burglaries, defense counsel also sought to

redact Battle’s brief discussion of his sword collection during the

November 26 interrogation. The relevant exchange began after

Battle denied participating in the burglary and stated he had

simply been asked to get rid of the TV and VCR:

“BATTLE: So, and I was already, because I needed

some money, I was already taking my movies to the

pawn shop cause I had a lot of movies to pawn or, or

sell. I even had some, I had started, ah, a blade

collection again but I had to get rid of them, so I

pawned those as well.

“GILLIAM: What’s a blade collection?

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“BATTLE: Well, I had ah, ah Dragon like a knife

type of sword and I had ah, ah, ah antique like ah, ah

Irish sword.

“GILLIAM: Just two?

“BATTLE: Yeah, just two.

“GILLIAM: Where did you pawn those at?

“BATTLE: Um I don’t know the name of it, but it’s

on 7th St. . . .

“GILLIAM: Did you pawn it in your name?

“BATTLE: Yes.”

Defense counsel first objected to the admission of the

sword collection evidence on the ground that it was completely

irrelevant to the case. The trial court responded that “[t]here’s

a lot of stuff in this interview that was irrelevant.” Counsel then

argued the evidence should be excluded under Evidence Code

section 352 because it created an inference Battle was an

experienced user of knives with a large blade collection, making

it more likely (in the eyes of the jury) that he perpetrated the

stabbings of the Demkos. The court rejected this argument,

finding that the probative value of the sword statement evidence

outweighed its prejudicial effect.

2. Analysis

Under Evidence Code section 350, only relevant evidence

is admissible. Relevance is a low threshold. (See Evid. Code, §

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210 [“ ‘Relevant evidence’ means evidence, including evidence

relevant to the credibility of a witness or hearsay declarant,

having any tendency in reason to prove or disprove any disputed

fact that is of consequence to the determination of the action”].)

Under Evidence Code section 352, though, even relevant

evidence is inadmissible “if its probative value is substantially

outweighed by the probability that its admission will . . . create

substantial danger of undue prejudice, of confusing the issues,

or of misleading the jury.” And under Evidence Code section

1101, subdivision (a), “evidence of a person’s character or a trait

of his or her character (whether in the form of an opinion,

evidence of reputation, or evidence of specific instances of his or

her conduct) is inadmissible when offered to prove his or her

conduct on a specified occasion.” We review the trial court’s

rulings on relevance and the admission of evidence under

Evidence Code sections 352 and 1101 for abuse of discretion.

(People v. Cole (2004) 33 Cal.4th 1158, 1195.)

Battle argues the trial court abused its discretion because,

as defense counsel urged at trial, the statements concerning the

sword collection and potentially implicating prior burglaries

were irrelevant and unduly prejudicial. He also argues the court

abused its discretion because these statements violated

Evidence Code section 1101, subdivision (a)’s prohibition

against propensity character evidence, and he further contends

that the admission of these statements deprived him of his right

to a fair trial under the due process clause of the Fourteenth

Amendment. There is no dispute that Battle’s Evidence Code

section 352 objection preserved his federal due process claim for

appeal, even though he didn’t raise the specific claim below.

(People v. Partida (2005) 37 Cal.4th 428, 433–439.) But the

parties disagree whether Battle preserved any character-

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evidence objection. We assume that Battle preserved the

objection. But we conclude the trial court’s decision to admit the

statements concerning the sword was not erroneous, and that

any error in its decision to admit the statements implicating

prior burglaries was harmless.

a. Sword Collection Statements

The sword collection statements that Battle challenges

clearly met the minimal threshold Evidence Code section 351

sets for relevance. Admittedly, neither the prosecution nor the

trial court offered any particular rationale for the statements’

relevance. In fact, the trial court twice responded to Battle’s

objection to the statements by remarking that “a lot of” things

in the interviews were “irrelevant.” But we don’t take that to

mean that the court stated that the evidence was wholly

irrelevant. The trial court’s phrasing, although certainly not

model language, is better understood in context as an

observation that the sword statements, like much of what Battle

had discussed in the interviews, was irrelevant to the actual

burglary and murders. In any event, our task is to “review the

[trial court’s] ruling, not [its] reasoning” or the arguments

below; “if the ruling was correct on any ground, we affirm.”

(People v. Geier (2007) 41 Cal.4th 555, 582.) Here, a major part

of the jury’s task at trial was to evaluate Battle’s shifting

statements, and to decide what, if anything, was true. It

therefore was not an abuse of discretion for the court to decide

that all of the things Battle said were relevant to the jury’s

determination of what to believe.

More specifically, the sword statements were relevant to

Battle’s early versions of events minimizing his involvement in

the burglary — versions the prosecutor argued were dishonest

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and showed Battle was engaged in a coverup in the custodial

interviews.11 Battle’s mention of his sword collection related to

his initial discussion of how he “innocently” ended up with the

Demkos’ TV and VCR. In other words, Battle brought up the

swords in the context of his exculpatory statements for why he

had the Demkos’ property, which in turn formed a key piece of

Battle’s slowly unfolding story regarding his involvement in the

crimes. For these reasons, we find readily distinguishable the

two knife-evidence cases Battle relies on. Neither involved

evidence that related in any way to the defendants’ discussion

of their involvement in the crimes. (See Alcala v. Woodford (9th

Cir. 2003) 334 F.3d 862, 886–888; McKinney v. Rees (9th Cir.

1993) 993 F.2d 1378, 1383 (McKinney).)

Additionally, the admission of the sword statements did

not create undue prejudice under Evidence Code section

352 — certainly not to the extent that their admission

amounted to an abuse of discretion. (See People v. Jones, supra,

17 Cal.4th at p. 304 [“We will not disturb a trial court’s exercise

of discretion under Evidence Code section 352 ‘ “except on a

showing that the court exercised its discretion in an arbitrary,

capricious or patently absurd manner that resulted in

a manifest miscarriage of justice” ’ ”].) Battle mentioned his

sword collection very briefly — during only a few seconds out of

the many hours of the custodial interviews — and in passing.

11 In some sense, we can understand the prosecution’s

strategy of showing Battle’s false statements as suggesting

consciousness of guilt. Battle’s later explanation for why he

lied — fear of and desire to protect Washington — does not

change this fact. (People v. Hughes (2002) 27 Cal.4th 287, 335.)

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These considerations, and that Battle referred to the swords

merely as part of his initial exculpatory version of events,

strongly indicates the jury was unlikely to draw any inference

that Battle had a special interest in using blades that made it

more likely he was the one who killed the Demkos with a knife.

And since the murder weapon was a knife and not a sword, there

is no reason to believe, as Battle briefly suggests, the jury might

have considered Battle’s decision to pawn the swords as showing

he used them in the crimes and his consciousness of guilt. The

context of the sword statement easily distinguishes this case

from the chief authority Battle relies on, McKinney, where the

prosecution featured the knife evidence prominently and with

the overt, prejudicial intent of casting the defendant in a bad

light. (McKinney, supra, 993 F.2d at pp. 1385–1386 & fn. 10.)

Assuming Battle has preserved for appeal an objection to

the statements under Evidence Code section 1101, subdivision

(a), that argument fails on the same grounds. It’s clear from

context that the sword statements were not admitted to

establish conduct in conformity with a character trait or prior

act. (See People v. Bryant, Smith & Wheeler (2014) 60 Cal.4th

335, 413 [similar].)

Many of the considerations described above lead us to

reject Battle’s claim that the admission of the sword statements

“so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” (Donnelly v. DeChristoforo

(1974) 416 U.S. 637, 643.) Nothing in the record indicates the

admission of the statements was “so inflammatory as to prevent

a fair trial.” (Duncan v. Henry (1995) 513 U.S. 364, 366.)

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b. Statements Implicating Prior Burglaries

We assume, without deciding, that the trial court erred

under Evidence Code section 352 in admitting the statements

that Battle identifies as implicating prior burglaries. But we

hold that any such error was harmless as a state law matter

(People v. Watson (1956) 46 Cal.2d 818, 836) and constitutional

matter (Chapman v. California (1967) 386 U.S. 18, 24). Battle

fails to show that there was any probability he would have

received a more favorable result had the court redacted these

statements.

The evidence presented of Battle’s guilt was strong. His

stories of what happened shifted dramatically during each

custodial interview — and the prosecution was able to use these

shifts to show Battle lied to officers and was attempting to

falsely exculpate himself. And although his story kept shifting,

key facts he revealed along the way matched or were

corroborated by other evidence presented, including particular

details of the burglary scene, the autopsy findings, and forensic

reports of the murder scene; testimony from his friends and

acquaintances; and items from the burglary scene that were

either found in Battle’s possession or linked to him.

Battle fails to show that, in the face of this strong

evidence, the statements implicating prior burglaries prejudiced

him. Common sense dictates that any risk of prejudice was

marginal at best, particularly given (a) Battle’s admission,

contemporaneous with the statements allegedly implicating

prior burglaries, that he had in fact burglarized the Demkos’

home; and (b) Battle’s later admission that he was the one who

stabbed the Demkos.

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IV. PENALTY PHASE ISSUES

A. Denial of Defendant’s Request for a Lingering

Doubt Instruction

Battle argues that the trial court erred in refusing to

instruct the jury at the penalty phase on lingering doubt. (See

People v. Gay (2008) 42 Cal.4th 1195, 1218 [“ ‘The lingering

doubts of jurors in the guilt phase may well cast their shadows

into the penalty phase and in some measure affect the nature of

the punishment’ ”].) Battle requested the following instruction:

“It is appropriate for the jury to consider in mitigation any

lingering doubt it may have concerning defendant's guilt.

Lingering or residual doubt is defined as that state of mind

between beyond a reasonable doubt and beyond all possible

doubt.” The trial court refused to give the instruction but

acknowledged defense counsel was permitted to argue lingering

doubt to the jury. And defense counsel’s penalty phase opening

argument highlighted lingering doubt as one of the “three

themes for life.” Although conceding this court has previously

held otherwise, Battle argues he was entitled to a lingering

doubt instruction, violating his constitutional rights.

We reject Battle’s claim that the trial court erred in

refusing to instruct the jury on lingering doubt. We have

previously concluded that “the standard instructions on capital

sentencing factors, together with counsel’s closing argument,

are sufficient to convey the lingering doubt concept to the jury.”

(People v. Hartsch (2010) 49 Cal.4th 472, 513; see also People v.

Jackson (2016) 1 Cal.5th 269, 369–370 [“Neither state nor

federal law requires a trial court to instruct a penalty jury to

consider lingering doubt as a factor in mitigation”].) Battle does

not dispute that the trial court instructed the jury with the

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standard sentencing factors or that his attorney argued

lingering doubt extensively. 12

B. Restriction on Execution-impact Evidence as

Given in CALJIC No. 8.85

Battle argues that the trial court erred in instructing the

jury with the following language from CALJIC No. 8.85, factor

(k): “Sympathy for the family of the defendant is not a matter

that you can consider in mitigation. Evidence, if any, of the

impact of an execution on family members should be

disregarded unless it illuminates some positive quality of the

defendant’s background or character.”

Battle acknowledges that the instruction correctly states

the law under People v. Ochoa (1998) 19 Cal.4th 353 (upon which

CALJIC No. 8.85, factor (k) is based), and subsequent cases

(see, e.g., People v. Smith (2005) 35 Cal.4th 334, 367 [“[E]vidence

that a family member or friend wants the defendant to live is

admissible to the extent it relates to the defendant's character,

but not if it merely relates to the impact of the execution on the

witness”]). But he contends the instruction was faulty as

applied to the “unique circumstances of his case” because its

“ambiguous” language unconstitutionally restricted the jury

from giving effect to a significant part of the family impact

testimony he presented: the testimony from his biological

family, who had been estranged from him for nearly his entire

12 Based on our resolution of this claim, we deny Battle’s

motion requesting that we take judicial notice of various records

in People v. Edwards (2013) 57 Cal.4th 658, 765 (denying

lingering doubt instruction on similar grounds).

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life. Biological family members testified that they loved him,

had fond memories of him as a young child, and wanted to

reestablish a relationship with him. According to Battle, the

jury could have had difficulty giving weight to this

“constitutionally relevant” testimony under CALJIC No. 8.85,

factor (k), because no obvious link existed between the family’s

feelings — based on the Battle they knew as a very young

child — and positive aspects of Battle’s character.

Battle’s arguments lack merit. Contrary to his assertion,

there was nothing ambiguous about CALJIC No. 8.85, factor (k).

To the extent Battle rightly observes that the jury would have

struggled to give weight to the love and desire for reconnection

expressed by these family members, that doesn’t reflect a defect

in CALJIC No. 8.85, factor (k). Instead, it reflects how the

testimony did not represent appropriate mitigation evidence, as

it failed to provide any information about his positive qualities

beyond the age of four, and how CALJIC No. 8.85, factor (k)

thereby properly restricted its consideration by the jury.

Finally, we reject Battle’s alternative argument that

CALJIC No. 8.85, factor (k) is facially unconstitutional because,

by precluding the jury from considering sympathy for his family

as mitigation evidence, it violated the Eighth and Fourteenth

Amendments of the federal Constitution. As he acknowledges,

we have previously rejected similar claims (see, e.g., People v.

Williams (2013) 56 Cal.4th 165, 197–198), and we decline to

revisit our precedent.

C. Constitutionality of California’s Death Penalty

Law

Battle raises several constitutional challenges to

California’s death penalty scheme. We have rejected these

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claims in prior cases, and Battle does not persuade us to

reconsider those decisions here. We reject Battle’s claims on the

merits, as follows:

The special circumstances enumerated in section 190.2,

which render a defendant eligible for the death penalty, are not

unconstitutionally overbroad. (People v. Eubanks (2011) 53

Cal.4th 110, 153; see also People v. Bell (2019) 7 Cal.5th 70, 130

[“ ‘Section 190.2 adequately narrows the category of death-

eligible defendants and is not impermissibly overbroad under

the requirements of the Fifth, Sixth, Eighth and Fourteenth

Amendments to the United States Constitution’ ”].) The special

circumstances are not so numerous that they “fail to perform the

constitutionally required narrowing function.” (Williams,

supra, 49 Cal.4th at p. 469.)

Section 190.3, factor (a), which allows the jury to consider

the “circumstances of the crime,” does not result in the arbitrary

and capricious imposition of the death penalty. (People v.

Peoples (2016) 62 Cal.4th 718, 806.)

Battle also raises a host of arguments asserting that the

death penalty statute and its accompanying jury instructions

fail to set forth the appropriate burden of proof. These

arguments are unavailing, as we see no reason in this case to

revisit our previous decisions on this front. (Mendez, supra, 7

Cal.5th at p. 717 [a jury is not required to find death is an

appropriate punishment beyond a reasonable doubt; to find that

aggravating factors were proven beyond a reasonable doubt; or

to agree unanimously that a particular aggravating

circumstance exists]; People v. Boyce (2014) 59 Cal.4th 672, 724

[the trial court is not required to instruct that the prosecution

carries the burden of proof at the penalty phase, nor must it

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instruct that there is no burden of proof at the penalty phase; a

jury is not required to agree unanimously that unadjudicated

offenses were proven]; People v. Johnson, supra, 8 Cal.5th at p.

527 [the term “so substantial” does not make unconstitutionally

vague the instruction as to when jurors may impose the death

penalty; trial court is not required to instruct the jury to

presume that life is the appropriate penalty]; People v. Salazar

(2016) 63 Cal.4th 214, 256 [CALJIC No. 8.88’s instruction to

consider whether the death penalty is warranted under the

circumstances, rather than if it is the “appropriate” penalty,

does not violate the Eight and Fourteenth Amendments of the

federal Constitution]; Scott, supra, 61 Cal.4th at p. 407 [trial

court is not required to instruct the jury that it must return a

verdict of life without parole if the mitigating evidence

outweighs the aggravating evidence]; People v. Loy (2011) 52

Cal.4th 46, 78 [instructions don’t impermissibly fail to inform

jurors regarding the standard of proof and lack of need for

unanimity as to mitigating circumstances].)

Battle next argues that the trial court’s instructions on

mitigating and aggravating factors violated his constitutional

rights by using restrictive adjectives like “extreme” and

“substantial” in the list of mitigating factors, failing to omit

inapplicable sentencing factors, and failing to instruct that

mitigating factors are solely relevant as potential mitigators.

We have previously rejected these arguments. (Reed, supra, 4

Cal.5th at p. 1018 [using restrictive adjectives like “substantial”

and “extreme” to describe mitigating factors does not violate the

federal Constitution]; id. at p. 1017 [failing to omit inapplicable

sentencing factors does not violate the federal Constitution];

People v. Winbush (2017) 2 Cal.5th 402, 490 [trial court not

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Opinion of the Court by Cuéllar, J.

required to instruct jury that mitigating factors are relevant

solely as potential mitigators].)

Similarly unavailing are Battle’s contentions that a jury is

required to make written findings. (People v. Mendoza (2011)

52 Cal.4th 1056, 1097 [“Written findings by the jury during the

penalty phase are not constitutionally required, and their

absence does not deprive defendant of meaningful appellate

review”].)

We have also determined that the federal Constitution

does not require intercase proportionality review (People v.

Williams (2016) 1 Cal.5th 1166, 1205), and California’s death

penalty scheme does not deny capital defendants equal

protection (People v. Rivera (2019) 7 Cal.5th 306, 348). Existing

international law also does not prohibit imposition of the death

penalty in the United States. (People v. Capers (2019) 7 Cal.5th

989, 1017.)

D. Cumulative Error

Battle raises a cumulative error claim regarding the

penalty phase. Because we have found no penalty phase errors,

there is no cumulative prejudice to consider.

V. DISPOSITION

We affirm the judgment.

CUÉLLAR, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

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S119296

Dissenting Opinion by Justice Liu

In Johnson v. California (2005) 545 U.S. 162 (Johnson),

the United States Supreme Court determined that this court

had established an “inappropriate yardstick by which to

measure the sufficiency of a prima facie case” at the first step of

analyzing a claim of racial discrimination in the exercise of

peremptory challenges. (Id. at p. 168; see Batson v. Kentucky

(1986) 476 U.S. 79, 96–98 (Batson) [establishing three-step

framework for analyzing such claims].) Johnson rejected this

court’s rule requiring a defendant to show at the first step a

“ ‘strong likelihood’ ” (i.e., it was “ ‘more likely than not’ ”) that

the disputed strike was motivated by race, and instead held that

an inference that “discrimination may have occurred [is]

sufficient to establish a prima facie case under Batson.”

(Johnson, at pp. 166–167, 173, italics omitted.) We have

described this as a “low threshold.” (People v. Scott (2015) 61

Cal.4th 363, 384 (Scott).)

Today’s opinion strays from this standard, if not in word

then in deed, by “relying on judicial speculation to resolve [a]

plausible claim[] of discrimination.” (Johnson, supra, 545 U.S.

at p. 173.) This is a dubious practice: “The Batson framework

is designed to produce actual answers to suspicions and

inferences that discrimination may have infected the jury

selection process. [Citation.] The inherent uncertainty present

in inquiries of discriminatory purpose counsels against

engaging in needless and imperfect speculation when a direct

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Liu, J., dissenting

answer can be obtained by asking a simple question.” (Id. at

p. 172.) Because “the sum of the proffered facts” in this case

readily “gives ‘rise to an inference of discriminatory purpose’ ”

(id. at p. 169), I respectfully dissent from today’s contrary

holding and judgment.

I.

As today’s opinion acknowledges, the racially charged

nature of this case is “significant” and “ ‘highly relevant to

whether a prima facie case existed.’ ” (Maj. opn., ante, at p. 31.)

Defendant Thomas Battle, a Black man, was charged with

kidnapping and killing two White victims. He was tried,

convicted, and sentenced to death by an all-White jury in 2003.

Defense counsel planned to introduce, and did introduce,

evidence that Battle had been the victim of racial discrimination

during his childhood as a mitigating factor in the penalty

determination. When the prosecutor struck Prospective Juror

J.B., a Black woman, he was aware that the defense planned to

present evidence of racial discrimination because defense

counsel had asked one prospective juror, “Now, hypothetically,

if there was something — I’m not saying this is going to come

up, I just want to present you with a possibility — that I

presented something from Mr. Battle’s childhood that — in

which he might have been the victim of racism, would that —

that would be offensive to you if I argued that?”

J.B. was qualified to serve as a juror in Battle’s trial. She

was 52 years old, had a master’s degree in school administration

and school psychology, and worked as an elementary school

teacher. She had previously served on a jury that reached a

verdict. She had been the victim of a violent robbery in her

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PEOPLE v. BATTLE

Liu, J., dissenting

home, and one of her sisters had previously been in local law

enforcement.

J.B. expressed a willingness to impose the death penalty

and indicated she would make a penalty judgment based on the

facts and evidence. In her questionnaire, she indicated she

neither favored nor opposed the death penalty and had no moral,

philosophical, or religious objections to the death penalty. She

said she would not automatically vote either for life or for death

and would instead consider and weigh all mitigating and

aggravating factors in the case. She thought Texas used the

death penalty too frequently, but California used it “about

right.” During voir dire, J.B. explained she could consider both

the death penalty and a life sentence. She said she wouldn’t

have a problem voting for death “as long as all the facts were

proven.” When the prosecutor asked if she could look at the

defendant and tell him death is the appropriate sentence, J.B.

responded, “I don’t have a problem with that. I’m my own

person. I don’t let anyone sway me right or left. I have to go by

what I feel.”

The court points to two statements in the record that it

contends “necessarily dispel any inference that discrimination

motivated [J.B.’s] excusal.” (Maj. opn., ante, at p. 44.) First, in

response to the jury questionnaire’s prompt asking what a

sentence of “death by lethal injection or death in the gas

chamber” would “mean to you,” J.B. answered: “Curel [sic].

Inhumane. Why?” This answer, in isolation, could have

provided a rationale for J.B.’s excusal. But upon questioning by

the prosecutor at voir dire, J.B. clarified that her comment was

addressed to the possibility that innocent people had been

executed in Texas: “I just felt that that was so inhumane to

execute someone for something they didn’t do.” The prosecutor

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PEOPLE v. BATTLE

Liu, J., dissenting

responded, “Right. No. And I think everybody would agree with

you.” The prosecutor then asked J.B. whether “what happened

in Texas” would cause her to “say, Well, I know about perhaps

there have been some innocent people that have been put on

death row. I don’t want to make that mistake; I’m not going to

vote for death. It’s just easier. I will give him life without

parole?” J.B. said “No” and went on explain that she would

decide the matter based on “the law” and “what was proven.”

The prosecutor was not required to accept J.B.’s

statements at face value. But if the prosecutor had doubts about

J.B.’s explanation, those doubts are not part of the record. The

prosecutor had no obligation to give a reason for striking J.B.

after the trial court found no prima facie case, and the

prosecutor declined to do so. But this means we have no

indication of the prosecutor’s actual doubts, and J.B.’s “cruel”

and “inhumane” answer, in context, was hardly an obvious

reason for striking her.

Second, the court points to a statement J.B. made

immediately following the exchange above. (Maj. opn., ante, at

p. 41.) As noted, the prosecutor asked J.B. whether she would

“say, Well, I know about perhaps there have been some innocent

people that have been put on death row. I don’t want to make

that mistake; I’m not going to vote for death. It’s just easier. I

will give him life without parole?” In answering this question,

J.B. said: “And if — it’s unfortunate that if it’s proven that he’s

guilty I have to go along with the law.” The word “unfortunate”

could indicate that J.B. “generally thought [the death penalty]

was a verdict to avoid.” (Ibid.) But in the context of the

prosecutor’s question, it could also mean that J.B.’s commitment

to follow the facts and the law would deny her the “easier” option

to “give him life without parole.” In ordinary parlance, not

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Liu, J., dissenting

taking the “easier” option may be “unfortunate” in the sense that

it is unfortunate (i.e., unpleasant, onerous) to do what is more

difficult. J.B.’s statement is readily understood to mean that

she thought the task of deciding whether a person should live or

die is more difficult than simply voting for life imprisonment

without parole — a view that (one hopes) is held no less by

people who support the death penalty than by people who oppose

it. That a person finds it “unfortunate” to have to decide

between life and death does not necessarily mean the person has

“an inherent discomfort with the death penalty.” (Ibid.)

Ultimately, it is unclear what J.B. meant by this snippet of her

answer, and there is no indication that it raised any concern for

the prosecutor.

Moreover, it is understandable why J.B.’s comment raised

no concern. The comment is immediately followed by her

statement: “I can’t go by, This is what [J.B.] feels. I have to go

by, This is the law, this is what he did, this is what was proven.

And without a reasonable doubt I have to. I have to vote on it.”

This statement indicates that J.B. took her role as a juror

seriously and intended to follow the law and the facts as

presented in the case before her — exactly as we would expect a

conscientious juror to do.

Today’s opinion acknowledges that J.B.’s statements

“have some ambiguity” and were accompanied by “other

answers indicating [J.B.] could vote for the death penalty.”

(Maj. opn., ante, at pp. 42–43.) But it concludes that the

“combination” of these statements “dispels whatever inference

of discrimination might otherwise be thought to arise from”

J.B.’s strike. (Id. at p. 44.) I find this reasoning unpersuasive.

The fact that one “alternative interpretation[]” of J.B.’s

individual comments could have provided “a reason why the

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Liu, J., dissenting

prosecution would not have wanted her on the jury” is

insufficient to dispel an inference of discrimination. (Id. at p.

43.) In light of this, I do not see how the “combination” of J.B.’s

“cruel” and “inhumane” comment and her “unfortunate”

comment — each of which is ambiguous — could add up to an

expression of “significant” reservations about the death penalty

(ibid.), especially when the record contains no hint that either

comment posed a con

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