The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN VILLA RAMIREZ,
Defendant and Appellant.
S099844
Kern County Superior Court
SC076259A
August 25, 2022
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Liu, Kruger,
Groban, Jenkins, and Guerrero concurred.
Justice Groban filed a concurring opinion, in which Justice Liu
concurred.
PEOPLE v. RAMIREZ
S099844
Opinion of the Court by Corrigan, J.
Juan Villa Ramirez1 was convicted of a variety of crimes
on three separate occasions. Those sets of convictions were as
follows: 1. Robbery of Leonel Paredes, kidnapping during the
commission of carjacking and for purposes of ransom, during
which Paredes was exposed to a substantial likelihood of death,
and three enhancements for personal firearm use;2 2. Robbery
and kidnapping during the commission of carjacking of Juan
Carlos Ramirez;3 3. Carjacking, kidnapping with intent to
commit robbery, and first degree murder of Chad Yarbrough,
with special circumstances for killing during kidnapping and
carjacking, and three personal firearm use enhancements. 4
1
We adopt defendant’s name as it appears in the trial court
below and in defendant’s briefing before us. We note, however,
that defendant’s name appears as Juan de Dios Ramírez Villa
in litigation before the International Court of Justice. (Case
Concerning Avena and Other Mexican Nationals (Mexico v. U.S.)
2004 Judgment, I.C.J. 12, 25 (Mar. 31) [litigant #20].) We mean
no disrespect by adopting the name used in his briefing.
2
Penal Code sections 212.5, subdivision (c), 209.5, 209,
subdivision (a), and 12022.5, subdivision (a). All statutory
references are to the Penal Code unless otherwise stated.
3
Sections 212.5, subdivision (c) and 209.5. Defendant was
acquitted of a separate count of carjacking. (§ 215, subd. (a).)
4
Sections 215, subdivision (a), 209, subdivision (b)(1), 187,
subdivision (a), 190.2, subdivision (a)(17)(B) and (L), 12022.5,
subdivision (a).
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In addition to these offenses, separate counts charging
methamphetamine possession and possession of a firearm under
the influence of that drug5 were bifurcated. Following the
capital trial a separate jury convicted defendant of the drug
offenses, but acquitted him on the weapons allegation. The jury
returned a verdict of death for the murder and that sentence
was imposed. In addition, the court imposed consecutive
sentences of life without the possibility of parole for the Paredes
kidnapping for ransom; two terms of life with the possibility of
parole for the kidnappings of Ramirez and Yarbrough; and a
total consecutive determinate term of 21 years. Additional
determinate terms and orders were imposed and are not
challenged in this appeal. Sentences on all counts except the
murder were stayed pending appeal.
We affirm the judgment.
I. FACTS
A. Guilt Phase
1. Prosecution Evidence
a. Crimes Against Paredes
Late on October 4, 1997, Paredes parked his car near his
apartment in Lamont and was approached by three men.
Defendant placed a shotgun on his chest, Efrain Garza pointed
a revolver, and the third man held a knife below his ear.
Defendant demanded Paredes’s car keys, saying he would be
hurt if he did not cooperate. Duct tape was placed over his eyes
and mouth, and used to secure his hands and feet. Garza took
5
Health and Safety Code sections 11370.1, subdivision (a),
11550, subdivision (e).
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his keys and wallet.6 Paredes was ordered to lie in the back seat
of his car and was held at knifepoint as the car drove off.
Paredes could tell from the voices around him that defendant
was the driver.
After driving for about 15 minutes, Paredes was moved to
the trunk. After another 10 or 15 minutes, the car was parked
in a garage. Paredes remained locked in the trunk for four to
five hours while the men tried to negotiate a $500 ransom from
Paredes’s cousin and uncle. During that time, the trunk was
occasionally opened. Paredes was hit in the face, held with a
shotgun to his neck, and forced to talk to his uncle on the phone.
At some point, the abductors drove to another location with
Paredes still in the trunk. The abductors left in a second car,
warning Paredes not to call the police or his family would be
harmed. Paredes managed to remove the tape, open the trunk,
call his uncle, and report the incident to police.7 One latent
fingerprint was lifted from the trunk lid of Paredes’s car. It did
not match defendant.
b. Crimes Against Juan Carlos Ramirez
On October 14, 1997, defendant was at Efrain Garza’s
house in Lamont, along with Garza, Hector Valenzuela, Freddy
De La Rosa, Daniel Quintana, and defendant’s cousin, Carlos
Rosales. Juan Carlos8 arrived at the house next door to
6
Garza was initially a codefendant, but his case was
severed from that of the defendant.
7
Evidence concerning Paredes’s identification of defendant
is discussed in further detail post at part II.B.5.
8
Defendant and the victim Ramirez are, apparently, not
related but share the same last name. To avoid confusion, we
refer to the victim by his given name.
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purchase drugs from someone named “Shannon.” Valenzuela
and De La Rosa approached him and Valenzuela demanded a
ride at gunpoint. Valenzuela got into the cab of Juan Carlos’s
truck while De La Rosa got in the back. Juan Carlos drove about
a half mile to a field, where Valenzuela and De La Rosa took
personal belongings, including his watch, necklace, and a charm
with “Juan” engraved on it.
The three men got back in the truck and De La Rosa drove.
Near Shannon’s house, De La Rosa hit a parked car and told
Juan Carlos to drive. The other four individuals who had been
at Garza’s house were walking down the street, and De La Rosa
called out to them to get in the truck. Those men were
defendant, Garza, Quintana, and Rosales.
Valenzuela pointed a pistol at Juan Carlos and told him to
drive to an orchard. Upon arrival Valenzuela then ordered Juan
Carlos out of the truck. Defendant, Valenzuela, De La Rosa, and
Garza got out also. They demanded money, but Juan Carlos
denied having any. When a search of his wallet proved
otherwise, the men beat him. Defendant asked for the gun so
he could kill him. Defendant said he was the devil, and that if
Juan Carlos said anything, defendant would cut off parts of his
body and shove them in his mouth. Defendant took the victim’s
belt and struck him on the back with it. The beating continued,
after which defendant bound the victim with rope. After the
men left in his truck, Juan Carlos untied himself, walked to a
friend’s house, and called the police.
Rosales was called by the prosecution and corroborated
much of the victim’s testimony. He admitted that he and the
others got into the truck at De La Rosa’s invitation. Valenzuela
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had a gun.9 At the orchard, Rosales stayed in the truck with
Quintana, while the others got out. Garza pulled out a pistol-
grip 12-gauge firearm. Valenzuela took some money, a belt, and
jewelry. Valenzuela was angry because Juan Carlos had lied
about having no money. Valenzuela and Garza both hit Juan
Carlos with their guns, and defendant, along with De La Rosa
and Garza, beat him. Juan Carlos was then dragged toward the
orchard and tied up. At the time of trial Rosales’s memory for
detail was unclear. He had testified at the preliminary hearing
that defendant beat Juan Carolos with a belt and later bound
the victim with rope defendant took from the truck.
Quintana also testified for the prosecution. He said that
everyone who got out of the truck at the orchard beat Juan
Carlos. Although Quintana had said in an interview that
defendant was the first to hit the victim, his recollection at trial
was that they all assaulted him at the same time. After the
beating, defendant got a rope from the truck and bound the
victim. Quintana believed that defendant was the oldest of the
six perpetrators, and that he and Garza were the leaders of the
group.
The attackers left Juan Carlos in the orchard then drove
to a park where Valenzuela divided the stolen money. Each man
received about $10. Valenzuela kept the necklace, but gave the
charm with “Juan” engraved on it to defendant.
After dividing up Juan Carlos’s property, the group
stopped at a food truck. Afterward, defendant, along with
Rosales and Quintana, went first to Rosales’s house then on to
9
On cross-examination, Rosales testified that the first time
he saw the gun in Valenzuela’s hand was when Valenzuela got
out of the truck at the orchard.
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Quintana’s, where Garza and Willie Santiago met them.
Defendant had been using methamphetamine all day and began
drinking at Quintana’s.
c. Murder of Chad Yarbrough10
The murder occurred on the same day as the Juan Carlos
crimes. It arose against the backdrop of conflict between groups
who lived in two communities outside Bakersfield: the city of
Arvin and unincorporated Lamont. While defendant and his
associates were at Quintana’s, defendant cleaned a Tec-9
handgun, loaded it, and wrapped it in a shirt.11 About two hours
later, Garza said he saw Chad’s truck. As described more fully
below, there had been animosity between defendant’s family
and Chad. Defendant and Garza went outside and approached
the truck. Rosales testified he heard the sound of a gun cocking
and saw Chad’s younger brother get out of the truck. After
Garza got in on the passenger side and defendant got behind the
wheel, the truck drove off.
In October 1997, Chad and Brent went to Arvin High
School. Chad was a senior and Brent a freshman. Chad would
drive them to and from school in his white truck. On October
14, the brothers went to football practice, and visited Chad’s
girlfriend, Carolina Castro. Brent described what transpired as
Chad drove away from Castro’s home. Two Hispanic men
confronted them in the middle of the road. When they waived
Chad down he stopped and rolled down his window. The men
10
Chad and his younger brother, Brent, share a last name.
To avoid confusion, we will refer to them by their given names.
11
Rosales had seen defendant with the gun before and had
seen Garza shoot it. When he fired it once or twice, the gun
jammed.
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talked like they knew each other, but Brent did not hear what
they said.
Defendant said his name was Loco. The other man pulled
out a gun and ordered both brothers to get out of the truck, but
defendant told Chad to stay put. Chad said, “I’m Cool,” or words
to the effect that everything was okay. The other man told Brent
to sit on the curb. Both men got in the truck with Chad between
them. Defendant was driving. A large man approached and told
Brent to stay on the curb and say nothing. A second man stood
nearby. Brent sat on the curb for 30 to 45 minutes, until the
men left. He then ran to Castro’s house and told her to call the
police because his brother had been kidnapped.
The same evening, the Yarbrough family searched for
Chad. At around 1:30 a.m., his uncle found Chad’s body in a
field. He wore only his underwear. Black electrical tape covered
his eyes and part of his nose; shoelaces bound his hands behind
his back. Autopsy surgeon Donna Brown discovered three fatal
gunshot wounds to the head. Dr. Brown opined that if the
weapon had been fully automatic, the entry wounds would have
been closer together and all on the same side of the head. The
absence of stippling meant the weapon was at least two feet
away when it was fired. Chad’s body had scratches and
irritation on his knees, chest, right arm, and lower leg. One of
his fingers was swollen. The imprint of gravel indicated he had
collapsed to his knees at some point.
Investigators found three spent bullets, three cartridge
casings, and three live rounds at the crime scene. The casings
and the spent bullets had been fired from the same gun, and the
three live rounds had been ejected from that gun as well. Based
on the location of the spent bullets and casings, criminalist
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Gregory Laskowski opined that (1) the shooter was moving
while firing, and (2) the shooting was inconsistent with fire from
a fully automatic weapon.
Evidence about defendant’s activities before and after the
murder was presented. Rosales recounted how defendant and
Garza approached the truck, ordered Brent out, and drove off
with Chad sitting between them. Defendant’s cousin, Isabel
Garcia, initially told police that she saw defendant and Gabriel
Flores in Chad’s truck that night. Her attention was drawn to
the truck because defendant waved and yelled to her from the
passenger seat. She drew investigators a diagram to show
where the encounter happened. At trial, she disavowed her
statement. Thirteen-year-old Joamy Garza was staying at a
house of someone called Chepa, where runaway girls stayed and
young men visited. At trial, she recalled that two people she
knew as Baby and Loco came to the house in a white truck. She
told police that she went cruising with the two men. She
subsequently identified defendant in a photographic lineup, but
would not sign it.
Chad’s truck was found in a Bakersfield garage. It
appeared the stereo had been removed, and the truck bore red
primer paint. Salvador Saldivar, who pleaded guilty to
receiving a stolen truck, testified that he went to Chepa’s house
late on October 14 or early on October 15, 1997, to pick up a
white truck. He drove to a garage where he painted the truck
red. He did not recall talking to young men about the truck, and
did not recall identifying anyone. Deputy Moore testified that
Saldivar admitted to him that he saw a man named Baby with
the truck, and that Baby said the truck was stolen. Baby was
with another man named Loco. Saldivar identified defendant as
Loco when shown a photographic lineup.
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Ten months later on July 19, 1998, Kern County Sheriff’s
Sergeants Rosemary Wahl and Glenn Johnson interviewed
defendant in El Paso, Texas. Defendant claimed no involvement
in the abduction and murder and denied using drugs in October
1997. He admitted he joined a Lamont gang as a young teen,
but left the gang around 1995.
On July 24, 1998, defendant was interviewed again in
Bakersfield. He told Wahl and Johnson that when he was
partying at Quintana’s house, he was not waiting for Chad to
come by. He was planning to leave because he was “already on
the run for jumping bail.” He said he was using
methamphetamine and hashish at Quintana’s. He admitted
stopping Chad and asking if he knew who defendant was. Chad
repeatedly said he did not and finally started to get out of his
truck, but defendant pushed him back in. He and Garza made
Brent get out and defendant drove away. He first stopped near
a gas station where he “slapped the bitch.” Asked why he did
so, defendant said, “I was telling him it wasn’t a game to be
playing around with gangbangers . . . .”
Then they drove to the field and got out of the truck.
Garza told Chad to remove his shoes and bound his hands with
black tape. Planning to leave Chad in the field and take his
truck, they promised him he would not be harmed. They made
him disrobe, to embarrass him and force him to walk home in
that condition.
Defendant had the unloaded gun with him; Garza went to
the truck to get the clip. Defendant’s intent was to scare Chad
because of an incident involving defendant’s cousin, Rosales,
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and because Chad “was banging for Arvin.”12 Chad was sitting
on the ground as defendant inserted the clip. Defendant did not
know there was a round in the chamber, and as he was trying to
put the clip in, he pressed the trigger and discharged the
weapon. Because it was dark, he did not know where Chad had
been hit.
He and Garza drove off, throwing Chad’s clothes out the
window on the way. They gave the truck to “some guys” who
were at “some pad.” They partied there for two or three hours,
hitchhiked to Santa Clarita, and threw the gun away near
Pyramid Lake. They parted ways in Santa Clarita, and
defendant fled to Mexico. He did not learn that Chad had died
until five or six months later.
The officers also asked defendant about the crimes against
Juan Carlos. He said that “they had jumped me like a couple
[of] days before that.” He recounted, “we were at Baby’s
[Garza’s] house” when Juan Carlos parked across the street.
“He was in the pickup saying some shit I guess that’s what the
neighbors told us and then we took the truck from him and took
off and we dumped him out in the fields and left him.”
Deputy Sheriff Robert Contreras, a liaison officer with the
Gang Suppression Unit, identified two local street gangs:
Lamont 13 and Weedpatch 13. The Mexican Mafia uses the
number 13, which stands for the letter M, and is also associated
12
As described below, the defense presented evidence of a
conflict involving Carlos Rosales and an incident during which
brothers Jose and Freddy Gomez, along with Chad, threw
sandbags and other items at Rosales’s house and car. After
defendant said in his interview that Chad was “banging for
Arvin,” he described the incident and referred to the Gomez
brothers as “Arvin [B]oys.”
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Opinion of the Court by Corrigan, J.
with the southern part of California. Lamont 13 has two
subsets: Varrio Chico Lamont (VCL) and Lamont Familia
Sureños (LFS). He testified that defendant, De La Rosa,
Quintana, Garza, Valenzuela, Rosales, and Flores belong to LFS
and that Santiago belonged to VCL. He identified photographs
of defendant’s tattoos, including “LFS,” “13,” “Lamont,” and
“Sur.” He testified that LFS initiated new gang members at
Myrtle Avenue School. Contreras had seen defendant and
others at the school. Garza had apparently just been initiated.
The court instructed the jury this gang evidence was admitted
solely for purposes of identification, motive, or intent.
2. Defense Evidence
Defendant offered an alibi for the evening Paredes was
kidnapped. In October 1997, Ashley Medina was dating
defendant’s cousin, Rosales. Medina testified that on October 4,
1997, the evening of the Paredes kidnapping, she had been at
the Kern County Fair, arriving home around 8:30 p.m. Around
9:00 p.m., Rosales and defendant came over. They talked and
watched movies, then defendant fell asleep. Medina and
Rosales retired about 2:00 a.m.; Rosales and defendant left her
house between 12:30 p.m. and 1:00 p.m. the next day. To
Medina’s knowledge, defendant did not leave the house before
that time. Rosales also testified that defendant spent the night
at Medina’s.
Defendant challenged Paredes’s identification of his
assailants. Efrain Garza’s brother, Jesus, testified about a
conversation with Paredes’s cousin, Rosalio. Rosalio related
that Paredes said he was unsure of Garza’s identification.
Dr. Scott Fraser, an eyewitness identification expert,
testified about factors that can affect identification accuracy. He
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explained that if there was a light source behind an approaching
assailant, as occurred in the kidnapping of Paredes, the
accuracy of the victim’s identification could be reduced. The
greater the number of individuals involved, the less accurate the
recognition of a single person. The presence of a weapon reduces
accuracy because it distracts the witness and causes stress.
As to Chad’s murder, the defense presented evidence of an
incident in September 1997. Chad and brothers Jose and
Freddy Gomez were friends. One day, as Jose was driving down
a road in Lamont, a car in which Carlos Rosales was riding
pulled up. Jose was told to pull over. When he did so the other
car blocked him in. Gabriel Flores (Gooney) ran up and swung
a knife at Jose. Around midnight that night, Chad drove Jose
and Freddy to Carlos Rosales’s house in Lamont. Chad and Jose
each picked up a sandbag and threw it at a car in the driveway.
Rosales’s mother, Maria Villa, came outside and Jose asked in a
respectful voice whether Rosales was there. Told he was not,
Jose asked her to tell Rosales that Jose had stopped by. Jose
denied doing or saying anything else before leaving, but his
brother Freddy testified that Jose told Ms. Villa to inform
Rosales that he was “going to kick his ass.”
Maria Villa is Rosales’s mother and defendant’s aunt. She
awoke to the noise of the men hitting her car with sandbags.
She did not know any of them, but subsequently learned Chad’s
name from television reports. One of them said Rosales had
fought with him and cut his arm. Chad said he was looking for
Rosales and was told he was not at home. Chad shouted for
Rosales to come outside. He tried to push Villa, but she stepped
back. During these events, Villa’s nieces, ages 11 and 12, and
her infant grandson, were in the house, and the girls were
frightened. Villa wrote down part of the license plate, which
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included “CYA.” Chad’s truck had a personalized license plate:
CYARBRO.
Defendant was in jail at the time of the Rosales incident,
but was released a week or two before Chad was killed. Maria
Villa’s son, Alejandro Saenz, told him about the incident,
including the attempt to shove Ms. Villa. Saenz also told
defendant about the license plate and asked him to find out who
had come to the house that night. Saenz further testified, “All
of us were raised together”; defendant “got really upset” when
he was told about the incident. Before October 14, defendant
told Saenz he knew whose truck had come to Villa’s house, and
defendant “said that it was taken care of.”
Defendant testified. He denied any part of the Paredes
kidnapping, admitted he assaulted Juan Carlos, and admitted
he shot Chad but did so by accident.
Defendant lived in Lamont until 1995, and attended Arvin
High School for about a year and a half. While there, Arvinas
gang members would jump him, making him fear for his safety.
In late 1994, someone shot at his house while his mother was
there, and someone threw a Molotov cocktail at the home. He
thought the Arvin Boys were responsible.13
After leaving Lamont, defendant lived in Phoenix for two
years with his fiancée and their two children. He attended a
design school and junior college. In May or June 1997, his
fiancée left him and he lost his job as a forklift operator. In
13
Quintana, who was 16 years old in 1997, lived in Lamont
and was bused to Arvin High School. He and others who were
bused to Arvin had trouble there just because they were from
Lamont.
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addition, tumors on his tongue and neck caused severe
headaches, unrelieved by over-the-counter medications.14
In June 1997, defendant purchased a Tec-9 firearm
altered to be fully automatic. After a three- or four-round burst,
the gun would jam, and a shell would have to be ejected. When
he returned to Lamont in August 1997, he left the gun in
Arizona. Sometime later, an ex-roommate brought the gun to
Visalia.
Defendant was arrested in August 1997 for possession of
methamphetamine and spent 30 days in jail. After his release
on bail, his cousin, Alex Saenz, told him that people in a white
truck had gone to his aunt’s house creating the disturbance
described above. Defendant told Saenz something had to be
done about the attack and retrieved the Tec-9 gun.
Defendant was experiencing pain from his tumors and was
depressed because he had lost his fiancée, home, children, and
job. He took drugs and was high most of the time, staying awake
for two or three days using methamphetamine. He came to
believe that Chad and the Gomez brothers attacked his aunt’s
house. He testified that the three ran around with the Arvin
Boys. Based on his experience, he thought if nothing was done
about their attack, his aunt might be harmed.
Defendant denied abducting Leonel Paredes. On October
4, he went with his cousin, Carlos Rosales, to the home of Ashley
Medina, arriving between 8:30 and 9:00 p.m., and staying there
until 1:00 or 2:00 p.m. on October 5.
14
As described below, defendant had vascular tumors on his
tongue and neck.
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As to the attack on Juan Carlos, defendant testified he was
at Garza’s house with Garza, Rosales, Quintana, De La Rosa,
and Valenzuela. Over the preceding two days he had been
consuming methamphetamine, phencyclidine (PCP), and
alcohol. That morning he consumed marijuana,
methamphetamine, and two 40-ounce bottles of Cobra malt
liquor. A truck drove up to Shannon Brown’s house next door.
Valenzuela and De La Rosa got in the truck, which drove away.
Fifteen or 20 minutes later, the truck returned and hit a car in
front of the neighbor’s house. De La Rosa told Juan Carlos to
settle the damage by telling Shannon to keep the money he owed
Juan Carlos for drugs. Then they told defendant, Quintana,
Rosales, and Garza to get in the back of the truck. Defendant
did not know where they were going or that Valenzuela and De
La Rosa had abducted Juan Carlos. He thought he was
“[g]etting a ride somewhere.”
In the truck, defendant told De La Rosa that Rosales
wanted to be dropped off. De La Rosa told him they were going
to take care of “something” and did not respond when asked
what the something was. They stopped on a canal bank and
defendant tried to find out what they were doing. De La Rosa
said that Juan Carlos had beaten up his sister. Angered by this
revelation, defendant hit Juan Carlos two or three times. He
and Valenzuela bound Juan Carlos, but did nothing else to him.
After they drove back to town, Valenzuela gave him $20 and a
medallion with “Juan” etched on it, and told him to give $10 to
Rosales.
Defendant went to Quintana’s house later in the afternoon
and ingested alcohol and narcotics. He had his Tec-9 with him.
People in the house played with the gun, inserting and ejecting
the clip. At some point, someone said: “There’s that guy.” He
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did not know what they meant, but walked outside and saw a
truck drive by. He and Garza, who had the Tec-9, approached
the truck. Defendant spoke to Chad who said he did not know
defendant. Chad opened the door and defendant got into the
driver’s seat. At Garza’s direction, Brent got out of the truck
and Garza entered it. Defendant wanted to scare and embarrass
Chad, get him to admit what he had done, and protect his aunt.
He did not intend to hurt Chad. Defendant was drunk and high,
slurring his words, and unable to think straight.
While they drove around, Garza told Chad to take his
clothes off. Defendant had heard that the Gomez brothers were
Arvin Boys, and told Chad he should not be hanging around with
gangbangers. Chad admitted trying to run down Rosales, but
denied being part of the incident at his aunt’s house. His
demeanor upset defendant, who said they would not hurt Chad
and would leave his truck where he could find it.
Defendant was still drunk and high, and had difficulty
thinking. At some point they stopped in a field. Garza secured
Chad’s hands, while defendant paced, trying to decide what to
do. He tried to scare Chad with the gun but Chad would not
admit the confrontation with his aunt. Defendant asked Garza
to get the clip from the truck.
Still intending to frighten Chad, he began to load the clip
into the weapon. In the process the gun fired. He was not
aiming the gun, and did not know there was a round in the
chamber. Chad fell to the ground and did not move. Defendant
was confused, unsure what to do, and did not think there was
anything he could do for Chad. He drove the truck to
Bakersfield and walked to his aunt’s house, as Garza left in the
truck. Defendant denied driving around with Joamy Garza. He
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stayed at his aunt’s house until morning, sitting by a window
and smoking “dope.” He was panicked and hallucinating, seeing
officers everywhere. He and Garza hitchhiked to Los Angeles,
and defendant threw the gun away en route.
Pathologist Barry Silverman opined that Chad’s wounds
were inflicted instantaneously by automatic gunfire.
Considering where the spent casings and spent bullets were
found, Dr. Silverman concluded that Chad’s head could not have
been on the ground when he was hit.
Criminalist Ronald Helson, testified that a Tec-9 may be
modified to be fully automatic. He thought Chad’s wounds were
consistent with automatic weapons fire. The shooter would have
to have been an expert marksman to have fired single shots
causing equidistant head wounds. A semi-automatic weapon
modified to be automatic no longer functions as designed. The
magazine spring may not have sufficient tension to load rounds
in the chamber as quickly as rounds are fired, which could cause
the gun to jam.
Dr. Stephen Estner diagnosed defendant with multiple
hemangiomas, or “vascular tumors that grow from and feed into
arteries and veins in certain parts of the body.” Defendant had
a tumor on his tongue and a mass in his right neck. Dr. Estner
expressed concern that jugular vein pressure would cause
deoxygenated blood to back up in the right brain, causing pain
and affecting brain function. In addition, tumors in his throat
pressed on both the internal jugular vein and carotid artery.
Dr. David Bearman testified that defendant’s
hemangioma caused pain and decreased blood flow to the brain.
Dr. Bearman also opined that defendant suffered from
depression; sleep deprivation; polysubstance abuse; and acute
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Opinion of the Court by Corrigan, J.
stress disorder along with posttraumatic stress. The combined
impact of drug use and sleep deprivation would affect judgment,
coordination, and perception.
Clinical psychologist Francisco Gomez met with defendant
three times over seven hours. He also interviewed defendant’s
mother and older brother, and reviewed school records along
with other documents. Based on cognitive and intelligence tests,
he diagnosed defendant with low level chronic depression and
polysubstance abuse, which he employed to cope with his
depression. Defendant experienced multiple stressors from
June to November 1997, including a drug arrest, and the loss of
his fiancée, job, and apartment. These factors exacerbated his
depression, increasing his drug use. The drugs compromised his
decision making.
Professor Jose Lopez testified about criminal street gangs.
He identified Arvina gang graffiti five blocks from defendant’s
mother’s house, which was in Lamont gang territory. Conflict
between the Arvin and Lamont communities dated back to 1958,
when a high school was established in Arvin and students from
Lamont were bused there. There were active gang members in
Arvin and Lamont in 1997, but Dr. Lopez opined that defendant
was not among them. He based his conclusion on the fact that
LFS was defunct as of 1994 or 1995, and defendant, who was 21
years old in 1997, was associating with 15-year-olds. Lopez
concluded that Chad’s killing was not gang related. In his view,
machismo culture would put pressure on a man to avenge an
attack in the middle of the night by a rival group.
3. Prosecution Rebuttal
Neuroradiologist Matthew Lotysch described the highly
redundant system of arteries and veins that carry blood to and
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Opinion of the Court by Corrigan, J.
from the brain. He disagreed with Dr. Estner’s opinions that
the hemangiomas would affect vessels in defendant’s neck and
impede blood drainage from the brain. He also testified that
defendant’s hemangiomas did not in any way compromise his
ability to breathe. He saw no physical evidence in this case or
in his experience that such masses impair blood supply to the
brain when a person’s blood pressure is elevated due to stress or
drug use. The withdrawal phase from methamphetamine is
itself accompanied by chronic headaches. He agreed, however,
hemangiomas could put pressure on nerves, causing discomfort.
Criminalist Gregory Laskowski reviewed Dr. Silverman’s
testimony and concluded that Silverman lacked knowledge of
ballistics. He testified that the pattern in which the bullet
casings dispersed suggested the shooter moved while firing. He
asserted that Mr. Helson’s testimony did not consider where the
bullet slugs were found, and without that information, no valid
opinion could be given as to whether the shots were fired by an
automatic or semiautomatic weapon.
Sergeant Rosemary Wahl interviewed Maria Villa on
October 30, 1997. Wahl asked whether the men who came to
her house had threatened her or tried to harm her. Villa
responded that they did not.
B. Penalty Phase
1. Prosecution Evidence
Defendant was arrested on August 22, 1997, in a
Bakersfield apartment. He was found in a bedroom with
methamphetamine and a loaded handgun nearby. He admitted
the drugs and weapon were his.
Evidence was also presented about the murder of Javier
Ibarra in March 1995. Alma Mosqueda testified she was at
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home with Ibarra and Christina Ramirez. Defendant’s brother,
Cipriano Ramirez, called her to ask if he could come over and
“take care of business.” Because Cipriano and Ibarra had fought
about Christina in the past, Mosqueda suspected something bad
was going to happen. Five or ten minutes later, as Mosqueda
was walking the couple through the parking lot, Cipriano,
Gabriel Flores, and defendant arrived and blocked Ibarra’s car.
At Cipriano’s direction the women went back inside. Mosqueda
looked back and saw Ibarra spread his hands out like he was
calling somebody out to fight. She could not see the parking lot
from her apartment, but heard four or five shots, a pause, and
then one final shot. She ran out to find Ibarra face down on the
grass with a fatal gunshot wound in the back of his head. The
car in which the three men arrived was leaving.
Testimony varied as to defendant’s attire the night Ibarra
was killed. Jesse Ibarra, the victim’s brother, testified that
when he visited Mosqueda the next morning, she said defendant
had been wearing a white hat.15 Mosqueda testified, however,
that she did not remember that conversation. She also testified
that Gabriel Flores was wearing a white hat when the three men
confronted Ibarra. About two days after the killing Sheriff’s
Deputy Daniel Fuqua arrested defendant wearing a white
baseball cap. Gerardo Soto, defendant’s uncle, testified that the
evening Ibarra was killed, defendant was wearing a cap but it
was not white. He told Deputy Contreras the night of the
shooting that defendant was wearing a dark Pendleton shirt and
a blue baseball cap.
15
As noted below, the defense presented evidence that the
shooter was wearing a white cap.
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Opinion of the Court by Corrigan, J.
Chad’s girlfriend, brother and mother gave victim impact
testimony. Almost daily Chad and Castro discussed their hopes
for the future. Chad wanted to play college football, then become
a physical education teacher and coach. The couple had planned
to marry and picked names for their future children.
Brent did not return to school for many weeks after the
murder and his grades dropped. He had trouble sleeping and
still experienced nightmares. He went nowhere alone for fear
that something would happen to him. He blamed himself, in
part, for his brother’s death, feeling he should have done
something to prevent it.
Chad’s mother, Cheryl Yarbrough, had three children:
Melissa, Chad, and Brent. The family had been quite close,
doing everything together. After Chad died, the family seldom
dined together and gave up family trips. Melissa moved from
the house and everyone kept to themselves. They all attended
counseling. Ms. Yarbrough described her son as caring,
compassionate, and fun-loving. He loved to joke with his
mother.
2. Defense Evidence
Defendant also presented evidence about the Ibarra
killing. Ysela Nunez saw the crime from her second-story
window. A car drove up and three men approached a group of
two “girls” and a man. The girls walked away, and the men
fought briefly. Two of the attackers jumped back, and the third
man shot the man who had been with the girls. The shooter
wore a white hat; black pants; and a Pendleton shirt, checkered
in black, white, and grey. The second man wore coveralls, and
the third man wore blue jeans and a blue shirt. Nunez did not
recognize defendant in court.
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Opinion of the Court by Corrigan, J.
Defendant’s mother and grandmother described his
childhood. He was born in Guadalupe, Chihuahua, Mexico,
where his parents worked in the fields. The family was very
poor, and sometimes went without food. His father was an
alcoholic who was violent toward his wife and children. After
the parents separated, Angelita moved with her five children to
Bakersfield. Defendant was about one year old at that time,
sickly and thin. They lived in a three-bedroom house with about
15 to 20 others. They moved to Lamont after an uncle was killed
in the house. Defendant’s mother worked in the fields eight to
nine hours a day, six days a week, for 11 years to support her
children. Lorenzo, the oldest son, was rough with the younger
children and would beat them. When defendant was a child, he
had a tumor on his tongue that grew larger over time. When
defendant was nine years old, he worked cleaning yards and
delivering newspapers, giving his earnings to his mother.
In high school, students called defendant “stupid from
Lamont.” His mother intervened but school staff were not
helpful. Items, including a Molotov cocktail, were occasionally
thrown through their windows. Defendant began using drugs
at about age 14.
Other relatives testified about the scarcity of food and the
older brother’s abuse. His uncle would sometimes hit defendant
in the head, then say how tough he was. Relatives testified the
defendant loved his two daughters and wrote letters to them.
The parties stipulated that if Chad’s girlfriend were called
as a witness, she would testify that she and Chad once drove by
Carlos Rosales’s home. Chad said he and the Gomez brothers
had once gone to the house where Chad and “Luis” dented
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Opinion of the Court by Corrigan, J.
Carlos’s car. 16 She saw the car but did not see any damage.
Chad told her they tried unsuccessfully to break a window with
a rock.
Dr. Stephen Estner returned in the penalty phase and
testified that defendant’s hemangiomas pressed on more nerves
in the neck than Dr. Lotysch recognized. In addition to cranial
nerves described by Dr. Lotysch, the vagus nerve travels from
the brain to the gastrointestinal system and also branches off to
the heart, controlling its rate and rhythm. Pressure in the area
could affect the respiratory system and mental function. The
pressure would vary with the size of the mass. While he
generally agreed with Dr. Lotysch’s testimony, he thought
headaches, lightheadedness, and facial swelling were caused by
obstruction of some vascular structures. Methamphetamine
use, along with fear and anger, could cause enlargement of the
mass by raising defendant’s blood pressure. The enlargement
also causes difficulty speaking, and when a person has difficulty
speaking, he might take action rather than use words. Other
physiological effects can also occur due to the obstruction of
blood flowing in and out of the brain.
Dr. Francisco Gomez, Jr., who previously testified that
defendant suffered from chronic depression, testified about risk
factors for depression in an impoverished Hispanic community.
These include physical abuse and “severe neglect, poverty, low
socioeconomic status, [and] culturative stress.” Clinical
depression affects “social functioning — how you see the world,
how you act, how you behave, how you perceive things.”
Exposure to violence is a high-risk factor for depression. Very
16
Jose Gomez’s middle name was Luis.
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PEOPLE v. RAMIREZ
Opinion of the Court by Corrigan, J.
young children can be affected by these environmental factors.
Stimulants like methamphetamine provide some relief from
depressed feelings.
Dr. Jose Lopez also returned to testify about gang culture.
When parents are absent, children may be “subjected to street
socialization,” which functions like a “surrogate parent.” In the
Latino family, there is emphasis on the male image. Older
siblings do not have the authority of a parent, and may use
violence to discipline younger children. Respect is very
important in Latino and gang culture. No value attaches to
walking away from a fight. If a female relative is treated
discourteously, a manly reaction involving aggression is
required.
The parties stipulated that the defendant received no drug
or gang counseling when out of custody and had not joined a
prison gang following his arrest.
C. Bifurcated Trial on Counts 10 and 11
A new jury was empaneled to hear evidence on count 10,
unlawful possession of methamphetamine while armed with a
loaded gun (Health & Saf. Code, § 11370.1, subd. (a)); and count
11, possession of a loaded gun while under the influence of that
drug (Health & Saf. Code, § 11550, subd. (e)). The testimony
was substantially similar to that introduced at the penalty
phase, recounting defendant’s arrest in an apartment with
methamphetamine and a loaded handgun. When arrested,
defendant admitted both items were his. He showed signs of
drug use which was confirmed by urine test.
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Opinion of the Court by Corrigan, J.
II. DISCUSSION
A. Pretrial Issues
1. Motion To Disqualify the Prosecutor’s Office
Defendant moved to disqualify the Kern County District
Attorney’s Office on two grounds: (1) prosecutors had adopted
inconsistent theories about who was the shooter in the Javier
Ibarra murder; and (2) Chad’s aunt, Diana Yarbrough, was a
supervising clerk for the Kern County Municipal Court, with a
close relationship to the District Attorney’s Office. The motion
was denied and defendant urges the ruling was an abuse of
discretion. No error appears.
Under section 1424, subdivision (a)(1), a motion to
disqualify the district attorney “may not be granted unless the
evidence shows that a conflict of interest exists that would
render it unlikely that the defendant would receive a fair trial.”
This court has interpreted that standard to mean “ ‘the
circumstances of a case evidence a reasonable possibility that
the DA’s office may not exercise its discretionary function in an
evenhanded manner,’ ” making it unlikely the defendant will
receive fair treatment “ ‘during all portions of the criminal
proceedings.’ ” (People v. Eubanks (1996) 14 Cal.4th 580, 592
(Eubanks), quoting People v. Conner (1983) 34 Cal.3d 141, 148
(Conner).) Defendant bears the burden of demonstrating a
conflict of that nature. (Haraguchi v. Superior Court (2008) 43
Cal.4th 706, 709.) We review the superior court’s factual
findings for substantial evidence, then determine whether those
facts demonstrate the court abused its discretion in denying the
motion. (Id. at pp. 711–712.) An erroneous denial is state law
error reviewed for prejudice under the Watson standard. (People
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Opinion of the Court by Corrigan, J.
v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Vasquez
(2006) 39 Cal.4th 47, 66–70 (Vasquez).)
Defendant’s motion was litigated based on declarations
and exhibits. Transcripts showed that, in the separate trials of
Gabriel Flores and Cipriano Ramirez, the Kern County District
Attorney’s Office argued Flores personally shot Ibarra and that
Cipriano was an aider and abettor.
Each man was convicted of murder. Significantly, Flores’s
jury rejected an allegation that he personally used a firearm.
In support of the motion to disqualify, defense counsel
declared his belief that, in the penalty phase, the prosecutor
would argue defendant shot Ibarra, relying on testimony of
Cipriano Ramirez to that effect, which the prosecutor in the
Cipriano trial had disavowed as false. Defendant argued that
these circumstances demonstrated a conflict of interests because
the prosecutor in this case (1) was motivated by personal and
emotional bias against defendant; (2) was representing
conflicting interests; and (3) had adopted a strategy that would
require the defense to call several members of the district
attorney’s office as witnesses to rebut the allegation that
defendant was the shooter.
As for the victim’s aunt, Diana Yarbrough, defense counsel
declared that she “is a supervising clerk in the [Kern County]
Municipal Court” with an office in the same building as the
district attorney’s. Counsel alleged “upon information and
belief” that the close working relationship between the two
offices “has compromised the impartiality of the Office of the
District Attorney in this matter.”
In opposition, the People stated their intent, during the
penalty phase, to present evidence of defendant’s involvement
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PEOPLE v. RAMIREZ
Opinion of the Court by Corrigan, J.
in the Ibarra murder for which his brother Cipriano, and friend,
Gabriel Flores, had both been convicted. The People
acknowledged that defendant’s “degree of actual involvement
differs depending on which witnesses statements (including his
own brother) one chooses to believe. He clearly has culpability
as a co-principal in that crime by all accounts. [¶] The People
intend to present all of the evidence of defendant’s involvement,
and let the jury decide what to believe as to his degree of
culpability.” The People relied upon People v. Watts (1999) 76
Cal.App.4th 1250 to urge that they could permissibly “argue
inconsistent and even mutually exclusive theories in separate
trials of co-defendants so long as the evidence was subject to
different interpretations or had changed.” They argued that the
former prosecutors were not appropriate witnesses because
“their subjective personal theories of their respective cases are
irrelevant and inadmissible.” They represented that, in the
event a conflict arose from presenting inconsistent theories, “we
won’t put on Cipriano’s testimony [from his own trial]. We will
just go with the theory on aiding and abetting, which certainly
is not inconsistent with either of the theories of those prior
prosecutions.”
As to Diana Yarbrough, the People declared that she “has
never worked for the District Attorney’s Office. She has no
closer relationship to the District Attorney’s Office than any
other court employee. [¶] Her office is not within the District
Attorneys’ Office nor even on the same floor of the building. As
a ‘supervising’ clerk she does not even have daily contact with
deputy district attorneys in the courtroom. [¶] Her only
interaction on this case has been as a member of the victim’s
family and not as a court employee.”
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PEOPLE v. RAMIREZ
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The trial court did not abuse its discretion in finding that
the defense failed to carry its burden.
Defendant’s allegation of inconsistent theories did not
establish a conflict of interests sufficient to warrant recusal of
the district attorney’s office. The prosecutor relied on legal
authority to urge that he could argue defendant shot Ibarra so
long as the evidence was subject to different interpretations.
The argument did not demonstrate a lack of integrity or
impartiality warranting recusal. The remedy for the
prosecutor’s misapprehension, if any, was to restrict the People
to arguing, as they had in previous trials, that defendant was an
aider and abettor, making him equally guilty. We discuss in
detail below defendant’s separate claim that the prosecutor
deprived him of a fair penalty phase verdict by presenting
inconsistent theories of guilt in separate trials. (Pt. II.C.1.,
post.) Here, it suffices to note that the prosecutor did not
ultimately introduce Cipriano’s prior testimony identifying
defendant as the shooter. Defense counsel conceded below that
the prosecutor’s agreement not to present such evidence would
alleviate the alleged conflict. This record fails to establish that
the prosecutor acted in such an uneven manner as to make it
unlikely that defendant would receive a fair trial. (Eubanks,
supra, 14 Cal.4th at p. 592.)
The court’s ruling as to Diana Yarbrough was, likewise,
well within its discretion. A personal relationship between the
victim or a defendant and the district attorney’s office may
require disqualification, particularly where there is evidence
that the relationship has influenced the prosecutor’s
discretionary decisions. (See, e.g. Vasquez, supra, 39 Cal.4th at
pp. 52, 57; Conner, supra, 34 Cal.3d at pp. 148–149.) Here,
however, Ms. Yarbrough did not work for the district attorney’s
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Opinion of the Court by Corrigan, J.
office, did not share space with that office, and did not have daily
contact with deputy district attorneys in the courtroom. The
fact that the victim’s aunt was a county court employee, without
more, did not warrant the “serious step” of recusing the entire
district attorney’s office. (People v. Hamilton (1989) 48 Cal.3d
1142, 1156.)
2. Change of Venue
Defendant contends that conducting his trial in Kern
County violated his statutory right to a change of venue (§ 1033,
subd. (a)) and his constitutional right to a fair trial by an
impartial jury under the Sixth and Fourteenth Amendments to
the United States Constitution. He argues that pervasive media
coverage of the crimes, false rumors, and the victim’s popularity
in the community raised a reasonable likelihood that 12
impartial jurors could not be impaneled. He fails to persuade.
a. Governing Principles
On a defendant’s motion, the court must order a change of
venue when a reasonable likelihood appears “that a fair and
impartial trial cannot be had in the county.” (§ 1033, subd. (a);
see People v. Famalaro (2011) 52 Cal.4th 1, 21.) This
requirement was adopted in response to a series of Supreme
Court cases in the 1960’s recognizing that media publicity about
a criminal trial could, in some circumstances, deprive the
defendant of due process. (People v. Peterson (2020) 10 Cal.5th
409, 438 (Peterson).) Courts must weigh five factors in
evaluating this claim: “the nature and gravity of the offense,
the nature and extent of the news coverage, the size of the
community, the status of the defendant in the community, and
the popularity and prominence of the victim.” (People v. Harris
(1981) 28 Cal.3d 935, 948; accord, Peterson, at p. 439.)
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Opinion of the Court by Corrigan, J.
On appeal, a defendant “must show both error and
prejudice, that is, that it was not reasonably likely the defendant
could receive a fair trial at the time of the motion, and that it is
reasonably likely he did not in fact receive a fair trial.” (People
v. Rountree (2013) 56 Cal.4th 823, 837 (Rountree).) “[I]n rare
and ‘exceptional cases,’ a defendant may show circumstances so
‘ “extraordinary” ’ that a court may assume no fair trial could be
had.” (Peterson, supra, 10 Cal.5th at p. 439, quoting People v.
Prince (2007) 40 Cal.4th 1179, 1216 (Prince).) The United States
Supreme Court has occasionally found such a showing adequate
in cases where media coverage “manifestly tainted a criminal
prosecution” and resulted in “ ‘kangaroo court proceedings.’ ”
(Skilling v. United States (2010) 561 U.S. 358, 379 (Skilling).)
But the high court has made clear that the assumption “attends
only the extreme case.” (Id. at p. 381.)
“[W]e accept the trial court’s factual findings where
supported by substantial evidence, but we review independently
the court’s ultimate determination whether it was reasonably
likely the defendant could receive a fair trial in the county.”
(Rountree, supra, 56 Cal.4th at p. 837.)
b. Proceedings Below
Defendant moved for a change of venue in May 2000, two
and a half years after the crimes occurred. Materials provided
in support included transcripts of television broadcasts and
excerpts from newspaper coverage. In addition, Dr. Edward
Bronson, a professor of political science at California State
University, Chico, testified about the media coverage and a
survey conducted in January 2000 to assess coverage impact.
Defendant and Garza were originally charged together, but the
cases were ultimately severed. Dr. Bronson’s analysis included
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PEOPLE v. RAMIREZ
Opinion of the Court by Corrigan, J.
potential jurors’ views of both defendants. He did not always
disaggregate the information as to views about each defendant
when calculating his statistics. Based on his research, training,
and experience, Dr. Bronson opined there was a reasonable
likelihood that the jury panel would be affected by pretrial
publicity and that no remedy other than a change of venue
would be adequate.
Dr. Bronson testified that 225 articles were published
about the case in the Bakersfield Californian, the Lamont
Reporter, and the Arvin Tiller. Of those articles, 133 were from
1997, 72 from 1998, 19 from 1999 and one from 2000. There
were 97 articles on the front page of the paper; 30 more were on
the front page of an interior section. Coverage included 24
letters to the editor and three editorials. Dr. Bronson
characterized this level of media coverage as “very high.”
Dr. Bronson described several kinds of prejudice.
Inflammatory publicity is of the greatest concern, followed by
inadmissible or inaccurate reporting, and coverage reflecting a
presumption of guilt. He noted approximately 20 references to
an execution-style slaying, emphasizing the brutality of
shooting a kneeling victim in the head. References to torture
were later discounted. Other details included Chad’s fear, being
forced to disrobe, having tape over his eyes, and being on his
knees. Defendant reportedly admitted intending to humiliate
the victim in retaliation for an act of disrespect against a
relative. The media also made numerous references to
carjackings and gang activities. Dr. Bronson could not
determine whether the reporting was inadmissible or
inaccurate. As to a presumption of guilt, reports noted that
defendant had confessed and fled to Mexico, and that
codefendant Garza, whose case had not yet been severed, had
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Opinion of the Court by Corrigan, J.
refused to take a lie detector test. Reports related that
defendant said the gun discharged accidentally and that he did
not intend to kill the victim. But these statements would be
followed by an observation that Chad was shot three times.
Bronson considered a change of venue was warranted
because of the gravity of the crime and the pursuit of a death
penalty. Letter writers expressed the view that even more
extreme penalties should be imposed. One writer opined that
defendant’s arms should be cut off so he could never pull a
trigger again. Dr. Bronson found no mitigating content in the
media he reviewed.
Some coverage described defendant and Garza as
Hispanic. Some stories discussed a theory that Chad was killed
because he was dating a Hispanic classmate. Others addressed
contentions that the case received greater resources because the
victim was White. Most of the stories, however, did not include
a racial slant. Other negative details included references to
gangs, defendant’s criminal history, and his being armed and
dangerous. Bronson listed as a positive factor that defendant
and Garza were not described as outsiders to the community.
As to victim status, Chad was the high school football
captain. His jersey number appeared in thousands of places,
including the football fields at Arvin and Bakersfield High
Schools, armbands, cheerleaders’ uniforms, and plaques. There
was a shrine and multiple memorials, including one attended by
4,200 people. A candlelight vigil was conducted on his 18th
birthday. He was honored at his high school’s homecoming and
numerous fundraisers were held to raise money for scholarships
in his name. Many contributed to a reward fund that grew to
$15,000.
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Dr. Bronson testified that Kern County was the 14th most
populous of California’s 58 counties, with a population of
648,400. News coverage reflected that Chad’s death shocked,
saddened, and galvanized people throughout the county. Dr.
Bronson opined that the response was similar to that common
in a small community.
Dr. Bronson also discussed electronic media, although he
gave it less emphasis because it is harder to track and tends to
have a lesser impact than print media. He observed generally
that “there was a massive amount of coverage. There were far
more broadcasts than there were news articles; that the
material largely tracked what was in the newspapers; that . . .
the coverage was — as with the newspapers, . . . heavier in the
earlier period and then dwindled later on.”
A survey of Kern County residents conducted in January
2000, about a year before jury selection began, revealed the
following: approximately 82 percent of the 403 jury-eligible
respondents recognized the case; 53.6 percent of eligible
participants thought the two defendants were definitely or
probably guilty; 52.9 percent favored the death penalty after
conviction; 41.9 percent had heard the defendants were gang
members; 14.9 percent had heard that a defendant had
confessed to the murder; 61.2 percent did not know whether it
was defendant or Garza who had confessed; 52.3 percent had
heard that Chad was tortured; 32.8 percent had heard that both
defendants had criminal records that included carjacking and
murder charges. Finally, focusing on the details of gang
membership, torture, confession, and criminal record, almost 75
percent had heard one or more of those facts, 44 percent knew
two or more, 21.6 percent knew three or more, and 5 percent
knew all four. Of those who were aware of all four specifics, 100
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Opinion of the Court by Corrigan, J.
percent thought the defendants were guilty and 81 percent
thought they deserved the death penalty. Lesser degrees of
awareness gave rise to less belief in guilt and favor for the death
penalty, but the numbers remained high.17 The survey did not
ask if participants could put aside their knowledge of the case
and beliefs about guilt and punishment to decide the case solely
on the evidence introduced in court.
The court denied the motion. It found that defendant had
not met his burden to show a reasonable likelihood that an
impartial jury could not be empaneled. In particular, it
expressed concern that Dr. Bronson’s survey did not reflect
whether those surveyed had fixed opinions that could not be set
aside. The court added that the motion could be renewed,
presumably at the end of jury selection. Defendant’s petition for
writ of mandate was denied by the Fifth District Court of
Appeal.
Four hundred and fifty jury panelists were called; 199
were dismissed for hardship and 166 were excused for cause,
leaving 85 panelists from which to select the jurors and
alternates.18
17
Of those who recognized three specifics, 83.6 percent
thought they were guilty and 71 percent thought they deserved
the death penalty. Of those who recognized two specifics, 74.7
percent thought they were guilty and 56 percent thought they
deserved the death penalty. Of those who recognized one
specific, 64.8 percent thought they were guilty and 45 percent
thought they deserved the death penalty.
18
In some of our own jury selection cases, and those of the
United States Supreme Court, the terminology used can
potentially cause confusion. Those called to a courtroom for jury
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Opinion of the Court by Corrigan, J.
Defendant renewed his motion for a change of venue on
January 5, 2001, at the completion of the for-cause excusals.
The renewed motion was based on publicity since the previous
motion and on an analysis of the juror questionnaires. Dr.
Bronson was recalled. He identified 19 new articles since the
last change of venue motion. They contained references to the
victim having been bound and killed “execution style” with three
shots to the head. The articles stated that defendant was the
decisionmaker and fired the fatal shots. They mentioned
defendant’s inculpatory and exculpatory statements. There was
discussion of defendant’s gang involvement and his flight to
Mexico. The articles also reported that defendant faced charges
for two other carjackings.
Some articles mentioned that football players touched
Chad’s memorial plaque before taking the field; a Sheriff’s
bicycle patrol had been established from a memorial fund; and
a quote from one citizen that “Chad will never be forgotten.”
Jury questionnaires revealed that 79 percent of panelists
recognized the case, and 11 percent knew the victim or his
family; 16 percent had attended the victim’s funeral or a
memorial, or knew someone who had done so; only 2 percent
knew the defendant or his family; 18 percent said they could not
be fair and impartial if street gangs were involved in the case;
14 percent believed they could not be fair due to the nature of
selection are prospective jurors, or members of a jury panel.
However, some jury panel members are occasionally referred to
as “jurors,” once they are called forward for voir dire, even if they
are never sworn in as trial jurors. To avoid confusion we refer
to prospective jurors as panelists and use the term “juror” only
to describe someone actually sworn to serve in that capacity.
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Opinion of the Court by Corrigan, J.
the charges; 19 percent had formed an opinion on guilt that they
could not set aside.
Dr. Bronson reviewed the voir dire of the first 75 of the 251
panelists who remained after hardship excusals. He considered
the sample representative. He did not know the age, race or
residence of those questioned. Nor did he focus attention
specifically on the 85 panelists who remained after challenges
for cause. Dr. Bronson opined that panelists are not always
completely forthcoming about bias in voir dire, although he
acknowledged that this was less of a concern during individual,
or Hovey¸ voir dire,19 that was used in this case. In his view the
court’s questioning was not always thorough enough. He cited
examples of leading questions asking whether a panelist would
“do your duty” and “follow the law” that suggested the panelists
should respond favorably. In addition, 31 of the 75 panelists
were not asked about their familiarity with the case. Of the
remaining 44 people who were asked, 41 (93 percent) were
aware of some facts; 15 percent of the group were excused based
on their representations that they could not be fair and
impartial.
Dr. Bronson acknowledged that of the 85 panelists
remaining after challenges for cause, approximately one quarter
had heard nothing about the case. He also agreed that all of the
39 panelists who stated that they could not be fair because of
pretrial publicity were excused for cause. Nonetheless, he
continued to maintain that the selection process did not remedy
19
In a Hovey voir dire (Hovey v. Superior Court (1980) 28
Cal.3d 1) each prospective juror is questioned outside the
presence of any others.
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Opinion of the Court by Corrigan, J.
the effect of pretrial publicity, and that defendant could not
receive a fair trial in Kern County.
The trial court again denied the motion. Relying on its
firsthand observation of the panelists and their demeanor, the
court concluded that defendant had failed to demonstrate a
reasonable likelihood that the panelists had such fixed opinions
that a fair and impartial trial could not be conducted.
During jury selection defendant used all of his peremptory
challenges allotted to the selection of the panel and alternates.
His request for additional peremptory challenges was denied
and he expressed dissatisfaction with the jury empaneled to try
the case.
c. Pretrial Motions
Defendant has failed to demonstrate error in the denial of
his motions to change venue.
As to the nature of the offense, “ ‘every capital case
presents a serious charge. This factor adds weight to a motion
for change of venue, but is not dispositive.’ ” (People v. Smith
(2015) 61 Cal.4th 18, 40.) This case was not particularly
aggravated in comparison to other capital murders; it did not
involve multiple murders or violent sex acts, for example. That
the victim was bound and shot in the head at close range are
gruesome facts, but do not approach the sensational nature of
other cases in which we have upheld the denial of venue
motions. (See, e.g., Smith, at pp. 23–24, 40 [defendant and
accomplices hit victim multiple times with blunt objects, forced
the victim to cut her own wrist with a razor, forced her to hold
her wrists over a fire pit, poured whiskey on her wounds,
wrapped a garbage bag around her head, and then bludgeoned
her to death with a metal bar]; People v. Zambrano (2007) 41
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Opinion of the Court by Corrigan, J.
Cal.4th 1082, 1096–1097, 1125 (Zambrano) [defendant shot the
victim then decapitated and dismembered the body with an ax
and saw].)
Defendant places great emphasis on the pretrial publicity
factor. There were 244 articles in the three local papers over a
five-year period. Articles reported that the victim was bound
and killed execution style, and that defendant admitted the
shooting but claimed it was accidental. The newspapers
mentioned carjacking and gang activities. But media coverage
“ ‘is not biased or inflammatory simply because it recounts the
inherently disturbing circumstances of the case.’ ” (People v.
Suff (2014) 58 Cal.4th 1013, 1048.) The use of descriptions like
“ ‘execution-style murders,’ ‘ “brutal,” “cold-blooded,” “evil,”
“horrible,” or “horrific” ’ [are] not by themselves necessarily
prejudicial when they appear[] in generally factual and
noninflammatory reporting.” (People v. Scully (2021) 11 Cal.5th
542, 570 (Scully).) The coverage here was similar to that in
Scully where we upheld the denial of a change of venue motion.
There newspapers discussed a “ ‘cold-blooded’ ” or “ ‘execution-
style’ ” murder and described the defendant as “a parolee,
violent felon, career criminal, or reputed member of the Aryan
Brotherhood.” (Id. at p. 569.) Nonetheless, those articles also
referred to the defendant as “ ‘suspected’ ” or “ ‘accused’ ” of
“ ‘allegedly’ ” shooting the victim, and were “generally factual,
fair, and not inflammatory.” (Ibid.) Similarly, the reporting in
this case was “essentially factual, not sensationalized”
(Zambrano, supra, 41 Cal.4th at p. 1126), and presented
defendant’s assertion that the shooting was accidental.
Moreover, the impact of pretrial publicity may be
mitigated as time elapses between coverage and jury selection.
(People v. Proctor (1992) 4 Cal.4th 499, 525 (Proctor); see, e.g.,
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Opinion of the Court by Corrigan, J.
Scully, supra, 11 Cal.5th at pp. 568, 570–571 [publicity largely
abated two weeks after the killing]; People v. Jennings (1991) 53
Cal.3d 334, 361 [publicity 11 months before trial]; People v.
Anderson (1987) 43 Cal.3d 1104, 1130 [lapse of five months];
People v. Welch (1972) 8 Cal.3d 106, 113–114 [news reports
ending about a month before trial].) Here, 205 articles were
published between 1997 and 1998, over two years before
defendant’s trial. Only 19 articles were published in 1999, with
20 articles published in 2000 and 2001. The press coverage here
had abated in the months preceding jury selection, and the trial
was held in Bakersfield, a larger community approximately 20
miles away from Arvin, where the victim lived. (See Proctor, at
p. 525.) These circumstances greatly mitigated the effect of
pretrial publicity.
Defendant relies on the results of the 2000 survey of Kern
County residents to argue that recollection of the case remained
high despite the passage of time. Approximately 82 percent (329
of 403) of jury-eligible respondents recognized the case; 53.6
percent thought the two defendants were definitely or probably
guilty; 41.9 percent had heard the defendants were gang
members; 14.9 percent had heard that a defendant had admitted
the killing; and 32.8 percent had heard that both defendants had
prior criminal records that included carjacking and murder
charges. But the fact that many jurors recall a case does not
equate to the type of extreme press coverage that manifestly
taints a criminal prosecution. The degree of exposure was
comparable to that in Proctor, where 80 percent of those
surveyed had heard of the case and 31 percent had formed an
opinion as to the defendant’s guilt. There, based on the passage
of time and the location of the trial in a larger community, we
held that a change of venue due to pretrial publicity was not
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Opinion of the Court by Corrigan, J.
strongly indicated. (Proctor, supra, 4 Cal.4th at pp. 524−526,
and cases cited; accord Scully, supra, 11 Cal.5th at pp. 570–571,
and cases cited.) “Almost inevitably even those qualified for
potential service by a court may have had some prior exposure
to the case, but ‘[p]rominence does not necessarily produce
prejudice, and juror impartiality, we have reiterated, does not
require ignorance.’ ” (Peterson, supra, 10 Cal.5th at p. 441,
quoting Skilling, supra, 561 U.S. at p. 381.) The answer is to
“rigorously vet potential jurors to screen out those tainted and
irrevocably biased by pretrial publicity, to find 12, plus
alternates, who can decide only on the evidence admitted at
trial.” (Peterson, at p. 441.)
As for community size, at the time of defendant’s trial
Kern County was the 14th largest in California, with a
population of 648,400. The trial was held in Bakersfield, the
county seat and the largest city in the county. (California State
Association of Counties, Kern County
<https://www.counties.org/county-profile/kern-county> [as of
Aug. 22, 2022]; Statistical Atlas, Population of Kern County,
California <https://statisticalatlas.com/county/California/Kern-
County/Population> [as of Aug. 25, 2022]. All Internet citations
in this opinion are archived by year, docket number and case
number at <http://www.courts.ca.gov/38324.htm>.) In a
populous urban area, a major crime is less likely to remain
imbedded in the public consciousness. (People v. Coleman (1989)
48 Cal.3d 112, 134; People v. Balderas (1985) 41 Cal.3d 144, 178
(Balderas).) We have upheld the denial of motions for change of
venue in Kern County and other, smaller counties. (See, e.g.,
Scully, supra, 11 Cal.5th at p. 574 [Sonoma County, population
approximately 421,500]; People v. Vieira (2005) 35 Cal.4th 264,
280–283 [Stanislaus County, population approximately
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PEOPLE v. RAMIREZ
Opinion of the Court by Corrigan, J.
370,000]; People v. Weaver (2001) 26 Cal.4th 876, 905 [Kern
County].) The size of this community militates against a venue
change.
As to defendant’s community status, he was not an
outsider. Although born in Mexico, he moved to Kern County as
an infant and lived there most of his life. According to Bronson,
several articles described defendant as Hispanic without any
contextual relevance, which he deemed to be “unprofessional.”
However, he did not note any overtly inflammatory terms
designed to spark ethnic prejudice. (See Prince, supra, 40
Cal.4th at p. 1214.) Defendant emphasizes that media reports
portrayed him as a gang member. But evidence of that
involvement would be part of the trial evidence, including
defendant’s own admissions to law enforcement. Any prejudice
stemming from defendant’s status as a gang member would be
a potential factor wherever the case was tried. (Scully, supra,
11 Cal.5th at p. 575; Prince, at p. 1214.) Chad’s death did spark
local action. Law enforcement announced plans to crack down
on gang activity. A “Call to Action” meeting and various
fundraisers were held to combat gang violence, and a reward
was offered for information leading to the arrest and conviction
of the suspect at large. A few letters to the editor described the
suspects as “evil,” and “self-centered gang members.” But we
cannot say that these circumstances reflected “ ‘ “unusual local
hostility . . . such that a change of venue would likely produce a
less biased panel.” ’ ” (Scully, at p. 575, original italics, quoting
People v. Panah (2005) 35 Cal.4th 395, 449 (Panah); see also
Balderas, supra, 41 Cal.3d at p. 179.)
As for the victim’s prominence, Chad was well-known and
well-liked in his hometown, particularly among his peers.
Memorial attendance and the ongoing local tributes were
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Opinion of the Court by Corrigan, J.
significant. But he did not appear to have particular
prominence outside of this small town and the local football
community. Certainly jurors from anywhere might sympathize
with the fact that a popular and successful young man met an
untimely death. In Proctor, we did not find a change of venue
indicated where the victim was a well-known and well-liked
member of the small community who worked in the school
system for 20 years and had “ ‘taught everyone’s kids.’ ”
(Proctor, supra, 4 Cal.4th at p. 526.) And in People v. Rices
(2017) 4 Cal.5th 49, we upheld the denial of a change of venue
where the victims “were members of the close-knit Chaldean
community” and “that community, understandably, grieved
heavily over its loss,” but the community “constituted only a
small portion of the large overall population in the East County
district” from which the jurors were chosen. (Id. at pp. 72–73.)
The above factors do not weigh strongly in favor of a
change of venue for a trial that was conducted in a larger city
with jurors drawn countywide.
Most significantly, a review of the voir dire demonstrates
no reasonable likelihood that defendant did not, in fact, receive
a fair trial from the jurors actually seated. The profile of 10 of
the 12 seated jurors is discussed in greater detail below in
connection with defendant’s challenge to the court’s ruling on
challenges for cause. (See pt. II.A.4., post.) In brief, 11 of the 12
had been exposed to some pretrial publicity. However, that fact,
standing alone, “does not necessarily require a change of venue.
[Citation.] ‘ “It is sufficient if the juror can lay aside his [or her]
impression or opinion and render a verdict based on the
evidence presented in court.” ’ ” (Panah, supra, 35 Cal.4th at p.
448.) In Prince, we affirmed the denial of a venue change even
though “a high percentage of the [panelists] and 12 of the 13
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Opinion of the Court by Corrigan, J.
jurors who actually served at trial . . . had been exposed to the
publicity . . . .” (Prince, supra, 40 Cal.4th at p. 1215.) We noted
the responses to the questionnaires and voir dire “did not
disclose any prejudgment or emotional bias” and “displayed only
a vague recollection of past news coverage.” (Ibid.) The
panelists asserted that “the publicity would not prevent them
from serving as unbiased jurors.” (Ibid.)
Likewise, here most of the jurors had heard only the basic
facts that would be presented at trial, and many remembered
very little due to the passage of time. (See pt. II.A.4., post.)20
And all of the seated jurors stated that their exposure to pretrial
publicity would not affect their ability to be fair and impartial.
While a “juror’s assurances that he [or she] is equal to this task
cannot be dispositive of the accused’s rights” (Murphy v. Florida
(1975) 421 U.S. 794, 800), defendant here “offers no sound basis
to believe the jurors’ assurances in this case were insincere”
(Peterson, supra, 10 Cal.5th at p. 442).
As discussed below, the court and the parties carefully
vetted the seated jurors and the court made specific findings
based on the jurors’ answers and demeanor. We have repeatedly
declined to find prejudice under similar circumstances. (See
Scully, supra, 11 Cal.5th at pp. 573–574; Proctor, supra, 4
Cal.4th at p. 527, and cases cited.) “When pretrial publicity is
at issue, ‘primary reliance on the judgment of the trial court
makes [especially] good sense’ because the judge ‘sits in the
locale where the publicity is said to have had its effect’ and may
base her evaluation on her ‘own perception of the depth and
20
Seated Juror No. 7’s purported emotional reaction to the
fact that Brent stood in for his late brother as homecoming king
is discussed in further detail below. (Pt. II.A.4.f., post.)
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Opinion of the Court by Corrigan, J.
extent of news stories that might influence a juror’
[Citation.] . . . [¶] Reviewing courts are properly resistant to
second-guessing the trial judge’s estimation of a [panelist’s]
impartiality, for that judge’s appraisal is ordinarily influenced
by a host of factors impossible to capture fully in the record —
among them, the [panelist’s] inflection, sincerity, demeanor,
candor, body language, and apprehension of duty. [Citation.] In
contrast to the cold transcript received by the appellate court,
the in-the-moment voir dire affords the trial court a more
intimate and immediate basis for assessing a venire member’s
fitness for jury service.” (Skilling, supra, 561 U.S. at pp. 386–
387.) That the jury acquitted on one count of carjacking is
another indication that the jurors were not unduly swayed by
emotion, and considered each allegation separately. (See id. at
pp. 394–396; People v. Harris (2013) 57 Cal.4th 804, 831.) The
record demonstrates that defendant was tried by 12 impartial
jurors.
We further reject defendant’s claim that the pretrial
publicity in this case was so pervasive and damaging that
prejudice must be presumed rather than shown. (See generally
Mu’Min v. Virginia (1991) 500 U.S. 415, 429; People v. Avila
(2014) 59 Cal.4th 496, 509–513 (Avila); Prince, supra, 40 Cal.4th
at pp. 1216–1218.) Such a presumption “attends only the
extreme case.” (Skilling, supra, 561 U.S. at p. 381 [pervasive
publicity from the Enron scandal did not require that prejudice
be presumed].) The examples cited in Skilling are illustrative:
Rideau v. Louisiana (1963) 373 U.S. 723 involved a
murder trial in a small community. Three times shortly before
trial, a local television station broadcasted a video of the
defendant “in jail, flanked by the sheriff and two state troopers,
admitting in detail the commission of the robbery, kidnapping,
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Opinion of the Court by Corrigan, J.
and murder, in response to leading questions by the sheriff.”
(Id. at p. 725.) Over a third of the community had watched at
least one of the televised confessions, as had three of the actual
jurors. (Id. at pp. 724–725.) In finding a presumption of
prejudice, the court observed that the trial amounted to
“kangaroo court proceedings” in which “the people of Calcasieu
Parish saw and heard, not once but three times, a ‘trial’ of
Rideau in a jail, presided over by a sheriff, where there was no
lawyer to advise Rideau of his right to stand mute.” (Id. at pp.
726–727.)
The Skilling court also discussed Estes v. Texas (1965) 381
U.S. 532, which it described as follows: “extensive publicity
before trial swelled into excessive exposure during preliminary
court proceedings as reporters and television crews overran the
courtroom and ‘bombard[ed] . . . the community with the sights
and sounds of’ the pretrial hearing. The media’s overzealous
reporting efforts . . . ‘led to considerable disruption’ and denied
the ‘judicial serenity and calm to which [Billie Sol Estes] was
entitled.’ ” (Skilling, supra, 561 U.S. at pp. 379−380.)
Finally, the Skilling court looked to Sheppard v. Maxwell
(1966) 384 U.S. 333. There the defendant “was accused of
bludgeoning his pregnant wife to death. ‘[B]edlam reigned at
the courthouse during the trial and newsmen took over
practically the entire courtroom,’ thrusting jurors ‘into the role
of celebrities.’ [Citation.] Pretrial media coverage, which [the
court] characterized as ‘months [of] virulent publicity about
Sheppard and the murder,’ did not alone deny due process . . . .
[Citation.] But Sheppard’s case involved more than heated
reporting pretrial: [The court] upset the murder conviction
because a ‘carnival atmosphere’ pervaded the trial [citation].”
(Skilling, supra, 561 U.S. at p. 380.)
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Opinion of the Court by Corrigan, J.
This was not such an “extreme case.” (Skilling, supra, 561
U.S. at p. 381.) There was no media circus surrounding the trial
and no broadcast of a videotaped confession. Although the press
reported that defendant had admitted shooting Chad, it also
reported his exculpatory statement that the gun discharged
accidentally. Of course, these same facts were admitted at trial.
The volume of pretrial publicity alone did not give rise to a
presumption of prejudice. “ ‘[P]retrial publicity — even
pervasive, adverse publicity — does not inevitably lead to an
unfair trial.’ ” (Id. at p. 384.) This is particularly true given the
passage of three years between the crime and the beginning of
trial. (See Avila, supra, 59 Cal.4th at p. 510.) The high court
has “rightly set a high bar for allegations of juror prejudice due
to pretrial publicity. [Citations.] News coverage of civil and
criminal trials of public interest conveys to society at large how
our justice system operates. And it is a premise of that system
that jurors will set aside their preconceptions when they enter
the courtroom and decide cases based on the evidence
presented.” (Skilling, at p. 399, fn. 34.) Here there was a three-
year gap between the crimes and trial, and the facts are
substantially different from the cases to which the defense
points. No presumption of prejudice is warranted on these facts.
d. Renewed Motions
Defendant claims the trial court erred in denying several
motions for a change of venue prompted by developments during
jury selection and the trial itself. He fails to persuade.
i. Panelist M.D.
On January 17, 2001, during the selection of alternates,
Panelist M.D. reported that she had just learned her brother
worked with the victim’s sister. M.D.’s brother had commented
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Opinion of the Court by Corrigan, J.
that he had to rearrange the sister’s schedule so that she could
attend the trial. M.D. told her brother that she could not talk
about the case. She was not acquainted with Chad’s sister or
even aware of her name. She stated that this brief conversation
with her brother would not affect her ability to be fair and
impartial. Defendant challenged the panelist for cause, moved
for a mistrial, and renewed the motion for change of venue. He
argued that it was “absolutely unfair and prejudicial . . . to be
put through . . . this type of a jury pool, with jurors that we know
have close connections with this family, are one person away
from this family, going to affect them for the rest of their lives.”
Defendant objected that “[w]e have to waste a peremptory on
people like this, when, if we were in the situation where we had
a jury that could be fair and impartial, and didn’t prejudge guilt,
we can — there would be totally different considerations, in
exercising challenges.” The court found, based on the panelist’s
answers and demeanor, that she could perform her duties, and
denied defendant’s motions.
The voir dire of M.D. does not bear out defendant’s
argument that the panel was “saturated” with people closely
associated with the Yarbrough family. M.D. did not personally
know the victim or his sister. The panelist’s brother worked at
the same chain store as Chad’s sister, but the record did not
establish a close relationship. The panelist conscientiously
avoided any discussion of the case with her brother and the trial
court found that she could be fair and impartial.
ii. Circus Atmosphere
On January 31, 2001, defendant objected that the
presence of family members in the courtroom was creating a
“circus atmosphere.” He described that 20 to 25 members of the
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Opinion of the Court by Corrigan, J.
Yarbrough family had broken into “loud and raucous laughter”
when Brad testified about his underpants. Several members of
the jury followed suit. He also commented that, twice that day
during breaks in the trial, the family members were “gathered
outside the courtroom . . . visiting in loud voices and seemingly
very happy about the progress of affairs, with jurors sitting a
few feet away . . . .” Defendant suggested there had been
favoritism shown towards the victim’s family, citing as examples
a sign on the courtroom door saying, “Yarbrough case,” and a
uniformed bailiff having commiserated with the Yarbrough
family in the hallway. The bailiff was questioned and said that
he had asked the family how they were holding up during the
trial. The interaction lasted about five minutes. The trial court
denied defendant’s motion for mistrial. It observed: “I don’t find
there’s been a circus atmosphere. I deny that there’s been any
inappropriate behavior by the jurors or people in the audience
section. [¶] I don’t agree with that characterization . . . that
people were laughing in a loud and raucous manner. Certainly,
I could hear laughter. But I don’t feel it was inappropriate.” The
court admonished the bailiff not to speak with the family
members.
This record does not bear out defendant’s assertion that a
circus atmosphere permeated the case. Family members have a
right to attend a public trial and may well have done so
regardless of the venue. The family’s audible laughter over a
discrete aspect of testimony did not undermine courtroom
decorum. The court specifically found that the laughter was not
disruptive and saw no need to admonish the audience at the
time. The bailiff’s interaction with the family in the hallway
was an isolated incident for which he was admonished. A sign
identifying the trial by the victim’s last name, rather than
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Opinion of the Court by Corrigan, J.
defendant’s, is somewhat unusual. But as the prosecutor
observed below, this was likely done for practical reasons to
assist witnesses and court-watchers, rather than as an overt act
of favoritism. These circumstances are a far cry from Sheppard
v. Maxwell, supra, 384 U.S. 333, where “bedlam reigned at the
courthouse during the trial and newsmen took over practically
the entire courtroom,” causing “frequent confusion and
disruption” (id. at p. 355) and thrusting jurors “into the role of
celebrities” (id. at p. 353).
iii. Juror No. 11
On February 5, 2001, Juror No. 11 had lunch with her
father. He asked her if she was getting bored with the case.
When she said no, he replied, “[W]hat’s taking them so long?
They know he did it.” She responded that she could not discuss
the case. After the juror reported the incident, defendant moved
for a mistrial and renewed his change of venue motion. The
court questioned Juror No. 11 and several other jurors who were
also aware of the incident. The court declined to dismiss Juror
No. 11, grant a mistrial, or revisit its venue ruling.
Defendant contends that Juror No. 11 was “subject to
improper influence by her father who expressed a forceful
opinion, in public, about the guilt of the defendant,” and
“appeared hostile” to defense counsel when questioned about the
incident. These arguments are more properly addressed to
defendant’s claim of juror misconduct. That claim, and a fuller
discussion of the relevant record, appears post at part II.B.1.
Here, it is enough to note that this isolated incident between the
juror and her father does not evidence a pervasive and damaging
bias held by the seated jurors that would warrant a change of
venue.
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Opinion of the Court by Corrigan, J.
iv. Diana Yarbrough
On February 9, 2001, defense counsel reported that the
previous day he had encountered the victim’s aunt, Diana
Yarbrough, when appearing before a different judge, in another
courtroom, in connection with defendant’s funding requests.
Ms. Yarbrough, a supervising clerk in the municipal court, had
regularly attended defendant’s trial. Defense counsel argued it
was “inappropriate” for Ms. Yarbrough to be supervising the
clerk in a department that handled matters related to this case
and moved for a change of venue, a mistrial, and dismissal. Ms.
Yarbrough testified about the incident. She generally
supervised the clerk in the other courtroom, but had made
arrangements for another supervisor to oversee issues arising
from defendant’s proceedings there. She entered that
department during a recess and spoke for about one minute with
the clerk about an unrelated juvenile matter. She heard nothing
about defendant’s case and reviewed no records related to it.
The trial court denied defendant’s motions. The court noted that
Ms. Yarbrough did not supervise the clerk assigned to the trial
courtroom, and found no evidence that she had seen or discussed
any information regarding the case.
Ms. Yarbrough’s status as an employee of the Kern County
Superior Court did not warrant a change of venue. She was
effectively walled off from defendant’s trial and had no
confidential information about it. Her brief presence on an
unrelated juvenile case in a different department did not
undermine confidence in the fairness of these proceedings.
3. Correctional Officers in Jury Pool
Defendant contends the denial of his motion to dismiss all
correctional officers from the jury pool violated his right to an
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Opinion of the Court by Corrigan, J.
impartial jury. He argues that “[I]t was clear from the
testimony of the numerous correctional officers called as
prospective jurors that the local correctional facilities were
centers of interest and concern about this case; that it was a
major topic of discussion during the process of jury selection;
and that many correctional officers held opinions or expressed
notions that were premature, unfounded, and false.” The claim
fails.
Panelist S.L. was a correctional officer and gang
investigator for the Department of Corrections and
Rehabilitation. Defendant challenged him for cause arguing
that he had special knowledge about gangs and had heard a
rumor at work that the victim’s penis was severed and placed in
his mouth. Counsel argued: “This is a CDC officer. He’s not
one of the defendant’s peers. There’s a potential here that he
will substitute his expertise for the evidence in this case. He
indicated that. [¶] The problem with this case and having this
case in Kern County keeps resurfacing, because the burden
keeps shifting to the defendant to disprove rumors. We don’t
know all the rumors that these people have heard. [¶] This
[juror] heard some of the more horrendous rumors, which now
we are going to have to disprove and possibly show autopsy
pictures we have agreed to stipulate to keep out, and now I have
to show the fact this victim’s genitals are intact. [¶] The juror
himself is in an adversarial position with gangs automatically
because of his job. He would be in an adversarial position to
potential defense witnesses and to this defendant if he was a
juror.”
The court denied the challenge for cause against
correctional officers as a group and against panelist S.L. in
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particular.21 As for the blanket challenge, the court observed
that “the Legislature, in their wisdom, had not excluded
correctional officers from the prospective jury pool. It’s the
legislative intent that correctional officers be allowed to be on
criminal juries.” Defendant renewed his blanket challenge
during the subsequent voir dire of another correctional officer,
Panelist S.W. The renewed motion was denied.
Defendant argues that, under the unique facts of this case,
all correctional officers in the jury pool were unfit to serve
because the case was “a chief subject of concern and speculation
in the numerous correctional institutions of Kern County, and
. . . falsities, presumptions of guilt, and poisonous rumors were
part of daily talk in public areas of these institutions.” The court
acted within its discretion. We addressed a similar claim in
People v. Ledesma (2006) 39 Cal.4th 641 (Ledesma).) There, the
defendant argued that the panelist’s “employment as a
corrections officer in the county jail system where defendant was
housed constituted ‘implied bias’ — a presumption of bias that
could not be overcome by a finding that he could be fair and
impartial.” (Id. at pp. 669–670.) We noted that, under
California law, “a juror may be excused for ‘implied bias’ only for
one of the reasons listed in Code of Civil Procedure section 229,
‘and for no other.’ ” (Id. at p. 670.)22 If the facts do not establish
21
The court’s ruling with respect to the attributes of this
particular panelist is discussed post at part II.A.5.a.iv.
22
Code of Civil Procedure section 229 provides for dismissal
of a panelist or seated juror because of: (1) consanguinity or
affinity to a party, witness or victim; (2) certain family,
confidential, or business relationships; (3) participation in
another action or trial involving the same parties or cause of
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one of the grounds for implied bias listed in that statute, a
panelist may be excused for “[a]ctual bias” if the court finds that
the panelist harbors a state of mind that would prevent
impartiality. (Code Civ. Proc. § 225, subd. (b)(1)(C); Ledesma,
at p. 670.) We rejected Ledesma’s claim, concluding: “None of
the statutory grounds for a finding of implied bias is present in
this case, and the trial court concluded that [the panelist] was
not actually biased.” (Ledesma, at p. 670.) The same is true
here.
Defendant’s assertion about panelists’ exposure to case
information among correctional officers was explored on a case-
by-case basis. Three of the panelists defendant identifies: S.L.,
S.W., and M.T., did not serve on the jury. Those people could
not possibly have affected the fairness of defendant’s trial.
(People v. Black (2014) 58 Cal.4th 912, 921 (Black); People v.
Yeoman (2013) 31 Cal.4th 93, 114 (Yeoman).)
The challenges against Seated Juror Nos. 6, 8, and 12 are
discussed in further detail below. As to the venue claim, we note
that these jurors had some general knowledge about the case
from the news media. None of the information they recounted
was inaccurate, and none was acquired from their employment
in the prison system. This voir dire record disproves defendant’s
expansive claim that “falsities, presumptions of guilt, and
action or being a party to the action pending before the court; (4)
an interest in the outcome of the action; (5) an unqualified
opinion on the merits of the action founded on knowledge of its
material facts; (6) a state of mind evincing enmity against, or
bias towards, either party; or (7) in a capital case, a
conscientious opinion that would preclude the juror from finding
the defendant guilty. Correctional officers, as a class, do not
automatically fall under any of these categories.
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poisonous rumors” about the case were so prevalent in the
correctional institutions of Kern County that anyone who
worked there was automatically disqualified from service. The
defense presented no independent proof on this broad assertion.
The trial court properly denied defendant’s blanket challenge.
4. Biased Jury
Defendant contends the trial court repeatedly and
erroneously denied for cause challenges, resulting in a biased
jury. Of the 48 panelists he identifies, 26 were removed by
defense peremptory challenges. After the defense exhausted its
peremptories, 10 panelists whom defendant unsuccessfully
challenged sat on the jury and two others were seated as
alternates.23
As a preliminary matter, the People argue that the claim
is forfeited. To preserve a claim of error in the denial of a
challenge for cause, the defendant must exhaust his peremptory
challenges, declare his dissatisfaction with the jury as finally
constituted, and request additional challenges. (Black, supra,
58 Cal.4th at p. 918.)
Defendant did not forfeit the claim as to the seated jurors.
He exhausted his allotted peremptory challenges and requested
more. The court denied his request and deemed his objection to
be continuing. Defendant did not immediately express his
dissatisfaction with the jury as sworn. However, shortly
thereafter, he moved for a mistrial on the ground that his
23
The relevant jurors are Jurors Nos. 1, 2, 3, 4, 6, 7, 8, 10,
11, 12 and Alternate Jurors Nos. 1 and 5. Original Juror No. 12
was excused during trial and replaced by Alternate Juror No. 3.
References to Juror No. 12 are to this seated alternate.
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challenges for cause had been improperly denied, resulting in a
biased jury. The motion was considered and denied. Although
this timing was not ideal, the mistrial motion was specific and
timely enough to allow the trial court to take corrective action.
At the time of the motion the court was engaged in the selection
of alternates and the jury pool had not been discharged.
Accordingly, defendant sufficiently preserved the claim of error.
(See People v. Peoples (2016) 62 Cal.4th 718, 801 (Peoples).)
Defendant failed, however, to preserve his objection with
respect to the alternate jurors. While defendant exhausted his
allotted peremptory challenges and requested more, he did not
express dissatisfaction with the ultimate composition of the
alternate group. His challenge to the alternates is therefore
forfeited. (People v. Mills (2010) 48 Cal.4th 158, 186–187
(Mills).)
In any event, defendant’s challenge fails on the merits.
Under both state and federal Constitutions, a criminal
defendant is guaranteed the right to be tried by an impartial
jury. (Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.)
To prevail on a claim that the court erroneously denied a
challenge for cause, “defendant must demonstrate that the
court’s rulings affected his right to a fair and impartial jury.”
(Yeoman, supra, 31 Cal.4th at p. 114.)
Defendant cannot make that showing as to the panelists
he dismissed peremptorily because none of those panelists sat
on his jury. (Black, supra, 58 Cal.4th at p. 921; Yeoman, supra,
31 Cal.4th at p. 114.) The same is true of Alternate Jurors Nos.
1 and 5 who were sworn but never called to serve. (Mills, supra,
48 Cal.4th at p. 186.) Because there was no possible prejudice,
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we need not consider the correctness of the trial court’s ruling
respecting those jurors. (Yeoman, at p. 114.)
We find no error in the court’s denial of defendant’s
challenges for cause as to jurors who ultimately adjudicated his
case. “A party may challenge a prospective juror for actual bias,
defined as a state of mind that would prevent that person from
acting impartially and without prejudice to the substantial
rights of any party.” (People v. Hillhouse (2002) 27 Cal.4th 469,
488.) “The trial court is in the best position to determine the
[juror’s] true state of mind because it has observed firsthand
[that person’s] demeanor and verbal responses. [Citations.]
Thus, ‘ “ ‘[o]n review of a trial court’s ruling, if the [juror’s]
statements are equivocal or conflicting, that court’s
determination of the person’s state of mind is binding.’ ” ’ ”
(People v. Clark (2011) 52 Cal.4th 856, 895 (Clark).) “If there is
no inconsistency, the reviewing court will uphold the court’s
ruling if substantial evidence supports it.” (Hillhouse, at p. 488.)
Defendant’s challenges for cause focused primarily on
jurors’ knowledge of the case and exposure to pretrial publicity.
Qualified jurors “need not be totally ignorant of the facts and
issues involved.” (People v. Cooper (1991) 53 Cal.3d 771, 807
(Cooper).) “ ‘To hold that the mere existence of any preconceived
notion as to the guilt or innocence of an accused, without more,
is sufficient to rebut the presumption of a [juror’s] impartiality
would be to establish an impossible standard.’ ” (Murphy v.
Florida, supra, 421 U.S. at p. 800.) “ ‘ “It is sufficient if the
juror[s] can lay aside [their] impression[s] or opinion[s] and
render a verdict based on the evidence presented in court.” ’ ”
(Cooper, at p. 807.)
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Some seated jurors were also challenged by defendant
based on their death penalty views. “ ‘To achieve the
constitutional imperative of impartiality, the law permits a
[juror] to be challenged for cause only if his or her views in favor
of or against capital punishment ‘would “prevent or
substantially impair the performance of his [or her] duties as a
juror” ’ in accordance with the court’s instructions and the
juror’s oath.” (People v. Blair (2005) 36 Cal.4th 686, 741 (Blair),
quoting Wainwright v. Witt (1985) 469 U.S. 412, 424 (Witt).) A
juror’s bias in favor of or against the death penalty need not be
proven with “ ‘ “unmistakable clarity. [Citations.] Rather, it is
sufficient that the trial judge is left with the definite impression
that a [juror] would be unable to faithfully and impartially apply
the law . . . .” ’ ” (People v. Abilez (2007) 41 Cal.4th 472, 497–498
(Abilez).) Under this standard, a juror is properly excluded in a
capital case if he or she is unable to follow the trial court’s
instructions and “conscientiously consider all of the sentencing
alternatives.” (People v. McWhorter (2009) 47 Cal.4th 318, 340.)
a. Juror No. 1
Juror No. 1 wrote in her questionnaire that she did not
know the victim or any of his family. She had heard about the
case and seen some related photographs but “remember[ed] very
little” because “it was some time ago.” She had formed no
opinion about defendant’s guilt or innocence. Neither her
knowledge of the case nor the nature of the charges would affect
her ability to be fair and impartial. During voir dire Juror No.
1 explained that she had heard coworkers talking about the case
when it occurred but did not recall what was said. She recalled
news reports that the victim had been shot and that a suspect
was arrested in another state. She was aware that the victim
went to Arvin High School and played football. She did not
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recognize defendant by name or appearance. She explained. “I
don’t hear much about the case. I don’t watch the news a lot,
and I don’t read the paper.”
The juror stated that, based on media accounts, she
believed the victim was “murdered.” When asked if she could
put that belief aside, she agreed that she could “if there’s
evidence that I feel that he was not murdered. I can’t just go by
what the media says, because I know it’s not fact.” The
prosecutor explained the burden of proof in a criminal trial, and
the juror agreed that “[i]f I feel that it wasn’t proved, there was
not enough evidence, then I would have to say, yeah, the person
is not guilty,” “[r]egardless” of what she had heard in the media.
She affirmed that she could decide the case based solely on the
evidence and from no other source. The trial court denied
defendant’s challenge for cause.
Defendant’s argument that Juror No. 1 prejudged the case
fails. She knew very little about the case and said that she could
set aside what she had heard to base her verdict on the trial
evidence. She stated repeatedly in her questionnaire that she
could be fair and impartial. None of her answers during voir
dire cast doubt on that representation. Although she initially
described the crime as a murder, she readily accepted the
prosecutor’s explanation of the burden of proof. The court
specifically relied on the juror’s in-court demeanor in denying
the challenge. Its ruling was fairly supported by the record.
Defendant also argues that Juror No. 1 should have been
excused based on information she disclosed to the court after the
jury was sworn but before evidence was presented. The juror
informed the court that she owned two rental properties in
Lamont and went there monthly to collect the rent. She was
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concerned that she or her property might be the subject of gang
retaliation if she served as a juror. When asked to elaborate,
the juror said that she did not visit Lamont often and did not
know people there. She did not recognize anyone on the witness
list. After being shown a map of Lamont, the juror indicated
that one of her properties was next door to Garza’s house, and
another was close to the parking lot from where Leonel Paredes
was kidnapped. The court cautioned the juror that it would be
inappropriate for her to visit these locations in order to
“investigate the case.” It further informed her that retaliation
was “rare,” and that the court was not aware of any cases of such
retaliation in Kern County in the past 13 years. The court asked
the juror if she could “find someone . . . who could travel out
there just to avoid your having to do that” and to let the court
know the next court day “if you have made those arrangements,”
because “if you can’t make those arrangements then I want to
talk further about it.” The juror indicated that she would find
someone to collect her rents while she served as a juror on the
case. Asked if she was satisfied she could perform her duties,
the juror answered affirmatively based on the court’s
assurances. She did not presently feel that she was in danger,
although she continued to have “concerns.” She promised she
would speak up if at any time during the trial she became fearful
or was otherwise unable to perform her duties.
Defendant’s request to remove the juror was denied. The
court noted that the juror was diligent in reporting her
connection to the area, and honest about expressing her concern,
which was not unusual in a case of this type. The court was
“satisfied, having observed her demeanor, the manner in which
she answered the questions, that she can perform her duties”
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and was also satisfied that she would inform the court if she had
any further doubts about her ability to serve as a juror.
The next session, the court addressed Juror No. 1 and
asked if she had anything to add regarding the issue she had
raised earlier. The juror responded, “No.”
Section 1089 provides for the discharge of a juror at any
time the juror “is found to be unable to perform his or her duty.”
Here, Juror No. 1 expressed some concern about gang
retaliation. But she had not been threatened and was not
closely associated with the neighborhoods where the crime took
place. She was satisfied by the court’s representation that
retaliation against jurors was rare, and she agreed to revisit the
subject if her fears prevented her from performing her duties.
When the court revisited the subject, she expressed no such
concern at that time, or any time thereafter. The juror’s
“responses to the trial court’s examination revealed no bias, and
the trial court found none.” (People v. Mora and Rangel (2018)
5 Cal.5th 442, 485.) Defendant offers no sound basis to believe
the juror’s assurances were insincere. (Peterson, supra, 10
Cal.5th at p. 442.) We defer to the trial court’s credibility
determinations, which are supported by substantial evidence.
(People v. Merriman (2014) 60 Cal.4th 1, 100; People v. Harris
(2008) 43 Cal.4th 1269, 1304.)
b. Juror No. 2
Juror No. 2 wrote in her questionnaire that she did not
know the defendant, the victim, or their families. She had
“briefly” “glanced at or heard portions” of reports about the case
but recalled “no specifics” other than the “nature” of the crime
and a photograph of the victim. She had also heard others
talking about the case. Her exposure to this information would
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not affect her ability to be a fair and impartial juror. She had
no preformed opinion about defendant’s guilt.
During voir dire Juror No. 2 explained that she had
overheard a “brief” conversation between two mothers
expressing sympathy for the victim’s mother. She had heard on
the news that the victim “was a football player, and he was
found murdered and there was a truck involved. But that’s
about all as far as details. I never really took interest in
learning more.” She recalled hearing on the news that the
perpetrators were Hispanic, and the crime was possibly gang
related. Although the newspapers described the killing as a
“murder,” Juror No. 2 “didn’t really form any opinion. I just
knew a young man was dead, and the newspaper declared it to
be a murder.” She affirmed that she could set aside what she
had heard in the news media and would not prejudge the case.
The trial court denied defendant’s challenge for cause.
Defendant argues that Juror No. 2 “was close to this case,
and not forthcoming about what she knew, or what she
thought.” He claims she minimized her knowledge of the case
when “[i]n truth, she knew plenty of details about the crime.
She revealed them in between repeated statements that she
didn’t really know anything.” The record does not support this
overstatement. Juror No. 2 was not “close to this case.” She
knew a few basic details, as would almost anyone who had any
media exposure, and she readily disclosed them when asked.
She consistently maintained that she had not prejudged the case
and that she could disregard pretrial publicity and base her
decision on the evidence. The record supports the trial court’s
determination that she could be fair and impartial.
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c. Juror No. 3
Juror No. 3’s questionnaire recounted that he did not
know the defendant, the victim, or their families. He had not
read about the case in the newspapers or heard about it on
television; nor had he spoken to anyone about it. He had not
formed an opinion about defendant’s guilt and affirmed he could
be fair and impartial. During voir dire, Juror No. 3 clarified that
he had seen “a few brief” news reports about the case, and that
his wife had discussed the case with him. He recalled that there
was a carjacking and that police had recovered a truck
associated with the crimes. He knew that a young man had been
shot and that a suspect had been arrested in another state. He
disagreed with defense counsel’s characterization that he had
learned “an awful lot about this case” from discussions with his
wife. The juror explained that his wife mentioned the crime to
him but he was getting ready to go out and “wasn’t . . . really
paying too much attention to what she was saying.” He
expressed no doubt that he could set aside what he had heard
about the case and base his verdict solely on the evidence
presented in court.
The juror had received a subpoena from the district
attorney’s office to appear at a court date involving child
support. He had not spoken with anyone in the district
attorney’s office about settling the case. When asked by the
defense if he would “want to help out the D.A. in order to get
favorable treatment from the D.A. on that case,” the juror
responded, “No,” and observed, “That’s [two] totally different”
things. He was certain that the proceeding would not affect his
ability to be fair and impartial. The trial court denied
defendant’s challenge for cause.
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Defendant again maintains that Juror No. 3 “had learned
quite a bit about this case” and was “slow to reveal” that
information. He notes, without further elaboration, that the
juror indicated in his questionnaire that he favored the death
penalty for deliberate murder except in rare cases, and that the
juror had a pending child support matter. This record does not
support a challenge for cause. The juror’s voir dire revealed very
little familiarity with the case and he affirmed that he would
base his verdict solely on the evidence. The trial court probed
the juror about his views on the death penalty. The juror
affirmed that he was “very open-minded” on the topic and could
impose either death or life without the possibility of parole
(LWOP) depending on the evidence. He explicitly denounced the
philosophy of an “eye for an eye,” explaining, “if a person was
found guilty for taking somebody else’s life, I don’t see that it
would, in my beliefs, I don’t see that it’s right to take that
person’s life, just because he took somebody else’s life,
depending on the situation, or the crime that was committed, I
should say.”
As for the pending child support matter, the juror
voluntarily disclosed that fact on his questionnaire, and, when
questioned, was emphatic that it would not affect his service.
Defendant “offers no sound basis to believe the juror[’s]
assurances in this case were insincere.” (Peterson, supra, 10
Cal.5th at p. 442.) On the contrary, the juror seemed perplexed
by defense counsel’s suggestion that he might try to curry favor
with the prosecutor, responding, “that’s [two] totally different”
things. The trial court implicitly credited the juror’s
representations and denied the challenge “considering all the
circumstances.” Its determination is fairly supported by the
record.
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d. Juror No. 4
Juror No. 4 was the Dean of Students at Highland High
School and was acquainted with members of the Kern High
School District Police Department. She indicated in her
questionnaire that she did not know defendant, the victim, or
their families. She had heard about the case on television but
did not recall the specifics. She was not aware of how the victim
died. She had not formed an opinion about defendant’s guilt,
and her media exposure would not affect her ability to be fair
and impartial. During voir dire, the juror elaborated that she
had heard discussions about memorials for the victim at Arvin
High School. She was not personally involved in any such
discussions, and observed that such memorials “can get out of
hand and disrupt school activity” because it “keeps the students
in turmoil.” She stated that she was “somewhere between”
favoring the death penalty for deliberate murder and believing
that it should only be used in rare cases. She would keep an
open mind between the two punishments. The trial court denied
defendant’s challenge for cause.
Defendant argues that his challenge for cause should have
been granted. He offers no analysis in support of this assertion
other than to repeat some of the details summarized above.
Juror No. 4 knew very little about the case and she was open to
both penalties. The trial court’s ruling was fairly supported by
the record.
e. Juror No. 6
Juror No. 6 worked as a correctional counselor at Wasco
State Prison. Her job required her to evaluate an inmate’s
history, medical and psychiatric status, and criminal behavior.
She had many friends who were parole agents, correctional
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officers, and correctional counselors. She would not give the
testimony of these people greater weight.
She checked the box “Yes,” to the question: “If evidence in
this case shows the involvement of a ‘street gang,’ is there
anything about that which would prevent you from being a fair
and impartial juror?” She wrote, “Street gangs are generally
crime-oriented.” During voir dire she explained that she had
previously worked with gang members as a parole agent. Based
on that experience she believed that street gangs were formed
for the purpose of committing crimes. She had not worked
directly with gang members for at least eight years, and had no
special knowledge or experience with gangs in Arvin or Lamont.
She did not claim to have any gang expertise. She did not
believe that gang members are incorrigible and knew of
members who had turned their lives around. The juror affirmed
that she could “set aside any experiences, any training, any
views or opinions [she had] about street gangs or individuals
and not let them influence [her] in this case[.]” She explained,
“I have given it a lot of thought. And in some ways I think,
because of my background, I can be more objective maybe than
the average person. I really do feel I can be objective.”
The juror also checked the box “Yes” to the question: “Is
there anything about the use or possession of firearms that
would prevent you from being a fair and impartial juror?” She
wrote: “If carried by other than law enforcement, the carrier
often has criminal intent.” During voir dire she explained that
she felt gun possession resulted in escalated encounters that
might not otherwise be lethal. If a person intentionally
purchased a weapon to commit a crime, she would consider that
indicative of criminal intent. She would be less likely to focus
on gun possession if a spontaneous event took place that
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prompted a person to take defensive steps. She believed that
accidental shootings were common. The juror was a gun owner
herself and grew up around firearms. She described herself as
“very unbiased . . . about weapon possession.”
Juror No. 6 disclosed during voir dire that she had some
familiarity with the case. She had heard the victim was
kidnapped and killed, and that his body was found in a field.
She recalled fundraisers held for the victim’s family. She knew
nothing about the suspects or how the victim died. Her exposure
to pretrial publicity would not affect her ability to be fair and
impartial. She had not formed an opinion about defendant’s
guilt. She affirmed that she could be completely fair to both
sides.
Regarding punishment, the juror stated in her
questionnaire a preference for the death penalty for deliberate
murder. She explained, “If the murder was intentional, the
death penalty is fair and just.” “I’m in agreement with it in
certain clear-cut, premeditated cases.” Nonetheless, she felt
that life in prison without the possibility of parole “is acceptable
in some cases with extenuating circumstances.” She confirmed
that she was open minded about the penalty to be imposed and
would give honest consideration to both outcomes. Specifically,
she would consider mitigating circumstances as well as the
defendant’s intent in assessing an appropriate punishment. She
explained, “I worked in Child Protective Services for eight years
before going to the Department of Corrections. So it’s easy to
see how a childhood affects adulthood.” Defendant’s challenge
for cause was denied.
Defendant argues that the juror should have been excused
because “[c]orrectional facilities in Kern County were full of
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prejudicial talk about this case, including poisonous false
rumors and prejudicial beliefs.” Aside from Panelist S.L.’s
observations (see pt. II.A.3., ante), this allegation was largely
unsubstantiated. Moreover, Juror No. 6 had heard no such talk.
She was unfamiliar with the facts of the crime and was unaware
of how the victim had died. Defendant also urges, without
further analysis, that the juror should have been excused based
on her opinions about gangs, gun possession, and the death
penalty. The trial court probed all of these topics. The juror felt
that her exposure to gang members would enhance her
objectivity. She believed that accidental shootings were
common, which was in line with the defense theory of the case.
And she said she could be fair and openminded about
punishment, citing her service with Child Protective Services as
providing insight into the deleterious effects of childhood
trauma. The trial court’s denial of the challenge for cause was
fairly supported by the record.
f. Juror No. 7
Juror No. 7 disclosed in her questionnaire that she had
learned about the case through the newspapers and television,
and that she had discussed it with others. This pretrial
exposure would not affect her ability to be fair and impartial.
The juror elaborated during voir dire. She was aware that a
young man was carjacked and fatally shot in Arvin and that his
body was found by a family member. She recalled that the
suspects had painted the victim’s truck. She knew that the
victim played high school football and that his brother had stood
in for him as homecoming king. She had not prejudged
defendant’s guilt and could disregard this information to base
her verdict solely on the evidence. She was open to the
possibility “that the death of Chad Yarbrough was an accident,
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as opposed to an intentional murder.” The trial court denied
defendant’s challenge for cause.
Defendant argues that Juror No. 7 “had an extraordinary
amount of knowledge about this case.” The record does not
support this characterization. The juror had no personal
connection to the case and was unfamiliar with the victim, the
defendant, and their families. Her knowledge of the
circumstances surrounding the crime was typical of someone
who had been exposed to media coverage and hardly
“extraordinary.” Qualified jurors “need not be totally ignorant
of the facts and issues involved.” (Cooper, supra, 53 Cal.3d at p.
807.) The juror confirmed that she could disregard the
information she had heard in the media and base her verdict on
the evidence presented.
Defendant also claims that Juror No. 7 “became upset”
during voir dire. He cites defense counsel’s observation that the
juror “got upset when you talked about the brother taking over
[as] homecoming king.” His reliance on this offhand remark is
unpersuasive. Counsel did not elaborate on the juror’s
demeanor or challenge her specifically on this basis. In any
event, a juror’s emotional reaction, while relevant, is not
automatically disqualifying. (See generally Adams v. Texas
(1980) 448 U.S. 38, 50; Clark, supra, 52 Cal.4th at p. 897.) When
defense counsel asked the juror about her response, she
confirmed that she could set aside her knowledge of the
circumstances and focus only on the evidence presented. She
said that what she knew about the crime would not affect her
penalty determination. The trial court was in the best position
to assess the juror’s demeanor and the credibility of her
representations.
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Defendant also criticizes the trial court for limiting
defense counsel’s voir dire of this juror. Specifically, the court
sustained an objection to the following question: “if the jury
came to the conclusion that it was a first degree accidental
murder during a kidnapping or carjacking, do you have any
predeterminations as to what the sentence should be?” (Italics
added.) The court explained that it would allow defense counsel
to probe the jurors’ thoughts about possibilities like accident or
self-defense, but that referring to a verdict of “first degree
accidental murder” was misleading.
The trial court has considerable discretion to place
reasonable limits on voir dire, including the process of death
qualification. (People v. Jenkins (2000) 22 Cal.4th 900, 990.)
“ ‘[A]s we have said on many occasions, “[d]efendant ha[s] no
right to ask specific questions that invite[] [panelists] to
prejudge the penalty issue based on a summary of the
aggravating and mitigating evidence [citation], to educate the
jury as to the facts of the case [citation], or to instruct the jury
in matters of law [citation].” [Citations.]’ [Citation.] [¶]
‘Nevertheless, voir dire cannot be so abstract that it fails to
identify those jurors whose death penalty views would prevent
or substantially impair their performance . . . .’ [T]he defense
cannot be categorically denied the opportunity to inform jurors
of case-specific factors that could invariably cause an otherwise
reasonable and death-qualified juror to vote for death regardless
of the strength of the mitigating evidence.” (People v. Tate
(2010) 49 Cal.4th 635, 657–658.)
No error appears. Defense counsel had significant leeway
to probe the topic of penalty. He asked the juror if she was open
to the possibility that the victim’s death was an accident, and
she affirmed that she was. He then asked, if the jury returned
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a verdict of “murder [in the] first degree with kidnapping or
carjacking,” whether the juror’s knowledge about the case from
pretrial publicity would influence her penalty decision. The
juror said it would not. Counsel asked if the juror would equally
consider death and LWOP as punishments, and the juror said
she would. Counsel then asked what punishment the juror
would feel was appropriate for first degree murder during a
kidnapping or carjacking. She responded that she “would have
to hear all the details before [she] would be able to give any
opinion on that.” She affirmed that she would be willing to
listen to evidence of circumstances in mitigation, including the
defendant’s background, before she made up her mind about
penalty. This voir dire was ample. The trial court acted within
its broad discretion to curtail counsel’s implication that there
could be of a verdict of “first degree accidental murder.” There
is no such offense in the California legal lexicon.24
g. Juror No. 8
Juror No. 8 was a correctional officer at North Kern State
Prison. During voir dire, he explained that his job would not
cause him to be prejudiced against defendant. He treats the
inmates he works with as human beings and does not pass
judgment on them because they are incarcerated.
The juror had read two newspaper articles about the crime
at the time it was committed, and a third article about
24
An unintentional murder committed during the
commission of certain felonies may quality as murder in the first
degree, under the felony murder doctrine. However, defense
counsel did not mention felony murder, but instead referred to
the nonexistent crime of “first degree accidental murder.”
(Italics added.)
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defendant being captured trying to cross the border. He could
“[d]efinitely” set aside his knowledge of the case from outside
sources and not consider it in reaching a verdict. Although he
had checked a questionnaire box stating that he had an opinion
about defendant’s guilt, he clarified that he did not in fact hold
such an opinion. His only opinion was that defendant was
innocent until proved guilty.
The juror stated in his questionnaire that he believed the
death penalty was appropriate for deliberate murder. He felt
that LWOP sentences were not enforced because “our appeal
system has opened many doors to life without parole.” He
checked boxes on the questionnaire indicating that he was open
to both penalties and would listen to all of the evidence before
making a decision. The court probed these responses during voir
dire. It told the juror that “it’s going to be your duty to assume
that any sentence that’s selected by the jury will be carried out
ultimately, whether it be the death penalty or [LWOP].” The
juror explained that, during his employment, he had seen
inmates with LWOP sentences who “are gone [from custody].
One has to assume that they have either died or they were
released from prison. And it’s an assumption, your Honor. It’s
not a fact.” The juror confirmed that he could set aside that
assumption and accept that the sentence would be carried out.
The court emphasized that it would be improper for the juror to
return a sentence of death instead of LWOP simply because the
juror was concerned that defendant might be released from
custody. The juror agreed. He had “[n]o doubt” that he could
have an open mind about penalty and base his decision on the
evidence presented at trial.
In response to questions by defense counsel, the juror
stated that he did not believe the death penalty should be
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imposed for every first degree murder committed during a
kidnapping or carjacking. He favored the death penalty for an
intentional murder committed while “lying in wait.” When
asked by the court if he could set that view aside and base his
penalty decision on the evidence presented, the juror responded,
“I believe I could. I really do. Because, as I said, I stress very
strongly that, in my type of job, I try very hard not to be
judgmental. And I think I could.” He reiterated, “I’m satisfied
that I could be very fair.” He would consider the circumstances
of defendant’s background in making a penalty determination,
and could return a verdict of LWOP if the mitigating
circumstances warranted it. The court denied defendant’s
challenge for cause.
Defendant argues that the juror’s penalty views
warranted disqualification. Not so. The juror stated repeatedly
that he would consider all penalty options and could return an
LWOP sentence if warranted by the facts of the case. Giving
deference to the trial court, which had the opportunity to
observe and listen to the juror, the court’s ruling is fairly
supported by substantial evidence in the record. (People v. Holt
(1997) 15 Cal.4th 619, 651.)
Defendant also contends that the trial court erred in
limiting counsel’s questioning about circumstances in
mitigation. Specifically, counsel asked whether the juror would
consider defendant’s upbringing. He gave as an example: “If
evidence is presented at the penalty phase, for example, that the
defendant had some type of abused childhood or some problems
in childhood . . . .” The court interjected, and directed counsel to
“stay with the general nature of the juror’s duties to consider
circumstances in aggravation or mitigation and address it more
generally, please.” Defense counsel then asked more generally,
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“Are there circumstances regarding the defendant’s background
that you would not consider in mitigation?” The juror replied,
“I don’t know I think probably what you are trying to say is that
if someone has some problems as a child and that is the cause of
a violent crime later on in his lifetime should that be considered.
Is that what you are saying?” When counsel responded, “Yes,”
the juror said, “In some cases, yes, very much so” and confirmed
that he was “open to considering that evidence.”
Death qualification voir dire “ ‘must not be so abstract that
it fails to identify those jurors whose death penalty views would
prevent or substantially impair the performance of their duties
as jurors in the case being tried’ and ‘it must not be so specific
that it requires the prospective jurors to prejudge the penalty
issue based on a summary of the mitigating and aggravating
evidence likely to be presented.’ [Citation.] In striking this
balance, the trial court may not categorically deny the defense
an opportunity to inform prospective jurors of case-specific
factors that could invariably cause them to vote for death.”
(People v. Nieves (2021) 11 Cal.5th 404, 425–426 (Nieves).) Here,
notwithstanding the trial court’s admonishment, the juror
ventured back into the area of childhood circumstances and
affirmed that he believed them to be a significant factor in
mitigation. The topic was adequately covered.
h. Juror No. 10
Juror No. 10 worked for Kern County as a physician’s
assistant. She did not know any of the listed witnesses, but was
acquainted with people in the Bakersfield Police Department,
the county Sheriff’s Department, and doctors from the Kern
Medical Center. The people she mentioned by name were not
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called as witnesses in the case. She also knew the court
interpreter.
Juror No. 10 indicated in her questionnaire that she had
read about the case in the paper and heard others talking about
it. She did not recall specifics and any such information would
not affect her ability to be fair and impartial.
The juror indicated in her questionnaire that “[w]hile [she
was] somewhat in favor of the death penalty, [she did] not
believe it should be used as a punishment for most murder cases,
even where a life has been taken deliberately.” She believed
that each case is different and that the penalty depends on the
individual facts of the crime. Although the juror is Catholic, she
disagrees with her church’s position against the death penalty.
She confirmed during voir dire that she would consider
circumstances in mitigation and keep an open mind about both
penalties. Defense counsel and the prosecutor both
unsuccessfully challenged the juror for cause.
Defendant claims error. He repeats some of the details set
forth above but offers no analysis as to why the record shows the
juror could not be fair and impartial. Defendant observes that
the prosecutor joined in the challenge. But the prosecutor’s
concern was that the juror would not be able to vote for death
given her religious beliefs. That view does not demonstrate a
bias against defendant. In any event, the juror emphasized that
she would keep an open mind about penalty and base her
decision on the facts of the case. The trial court’s denial of the
challenge for cause was fairly supported by the record.
i. Juror No. 11
Juror No. 11 worked as a postal clerk. Her son was a Kern
County Sheriff’s Deputy. She knew two people on the potential
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witness list: Jill Johnson was the daughter of her friends from
church, and Steve Urner was her son’s partner in the sheriff’s
department. She affirmed that she would not view these
people’s testimony more favorably because of her relationship
with them. Ultimately neither of them testified.
The juror indicated in her questionnaire that the
involvement of street gangs in the case would not affect her
ability to be fair and impartial. Asked how she felt about street
gangs, she wrote, “They scare me.” She was not asked to
expound on this comment.
The juror stated in her questionnaire that she had seen
newspaper and television accounts of the case at the time of the
crimes but did not recall any details. During voir dire she
elaborated that she remembered the crime involved “teen-agers,
somebody was killed, it was out in Arvin . . . .” Her exposure to
pretrial publicity would not affect her ability to be fair and
impartial.
Asked on the questionnaire to circle the response that best
corresponded to her view on the death penalty, the juror circled
the following: “The death penalty should be imposed in every
case where someone deliberately takes another human being’s
life.” Asked if LWOP was an appropriate punishment for first
degree murder, she wrote, “I’m not sure — it would depend on
the circumstances.” During voir dire the juror again stated that
she believed death was the appropriate penalty for homicide in
the course of kidnapping or carjacking. When asked if she would
automatically vote for death under those circumstances, she
clarified: “Oh no. When I was circling that, in my mind — and
it was very confusing, the whole questionnaire, I think. [¶] . . .
[¶] But when I was getting down to that, I was thinking, okay,
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this is, when you break the law, this is the penalty. That’s what
I was thinking.” She confirmed that she would keep “a
completely open mind” between the two available penalties and
base her decision on the evidence presented at trial. The
prosecutor sought further clarification, asking, “If you are
saying, as you seem to indicate, that you would have an open
mind, can you see yourself considering life without parole even
though someone murdered somebody?” The juror responded, “I
guess, yes.” She continued: “Yes. Because, to me, it was very
confusing on the answers of the questions.” She affirmed that
she could impose a sentence of LWOP for a murder committed
during a carjacking or kidnapping, and that she would “have an
open mind” about penalty. The trial court then asked if the juror
was “satisfied that you can set aside any personal views or
opinions you have about the death penalty and follow the law
and keep an open mind as to the two possible penalties that
might be imposed here?” The juror responded, “Yes.” When
asked if she had “any doubt about that?” the juror replied, “No.”
Defense counsel questioned further. He observed that
when the juror said she could vote for LWOP, she “did not sound
certain in your answer, and you rolled your eyes to the top of
your head.” The juror apologized, saying, “It’s just very
confusing.” She again confirmed that she felt death was the
appropriate penalty for a killing during a kidnapping or
carjacking. The trial court denied defendant’s challenge for
cause.
Defendant argues that the juror’s preference for the death
penalty warranted her excusal. But the juror explained that she
found the questionnaire confusing. She clarified that her
understanding was that the death penalty was the punishment
provided by law. After being told that she could choose between
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death and LWOP, the juror confirmed that she could keep an
open mind about penalty and make her decision based on the
evidence. No more is required of a juror, even one who expresses
a preference for death. (Rountree, supra, 56 Cal.4th at p. 843;
People v. McKinzie (2012) 54 Cal.4th 1302, 1343–1345.)
Defendant argues that the juror contradicted herself
immediately thereafter by restating that she felt death was the
appropriate penalty for a killing during a kidnapping or
carjacking. Variations are not surprising, however, when a
juror is “less than consistent in her answers. ‘In many cases, a
[juror’s] responses to questions on voir dire will be halting,
equivocal, or even conflicting. Given the juror’s probable
unfamiliarity with the complexity of the law, coupled with the
stress and anxiety of being a [panelist] in a capital case, such
equivocation should be expected. Under such circumstances, we
defer to the trial court’s evaluation of [the] . . . juror’s state of
mind, and such evaluation is binding on appellate courts.’ ”
(People v. Moon (2005) 37 Cal.4th 1, 15–16, quoting People v.
Fudge (1994) 7 Cal.4th 1075, 1094.) The trial court’s finding
that Juror No. 11 could conscientiously consider all of the
sentencing alternatives is fairly supported by the record. 25
j. Juror No. 12
Juror No. 12 (previously Alternate Juror No. 3), worked at
Wasco State Prison as a personal services supervisor. Her ex-
husband was a Kern County Sheriff’s Deputy and one of her sons
was a correctional officer. She had learned about the case in
news articles and television reports, and had seen related
25
Defendant’s claim that the trial court erred in failing to
discharge Juror No. 11 for asserted bias revealed during the
trial is discussed post at part II.B.1.
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photographs. Specifically, she had heard that the victim was
bound and shot in the back of the head, “execution style” after
his truck was stolen. Her exposure to pretrial publicity would
not affect her ability to be fair and impartial, and she would base
her decision solely on the evidence presented in court. Defense
counsel noted that she had used the word “hope” in connection
with these statements and asked if she was concerned about her
ability to do that. The juror replied, “I would try to the best that
I could, to do what I needed to do.”
The juror was familiar with several persons on the witness
list, including Greg Justice, John Soliz, Glenn Johnson, Robert
Castaneda, Stan Moseley, and Patty Poeschel. Robert
Castaneda was a friend; the others were people she had met “a
long time ago” and no longer knew, had worked briefly with, or
recognized the name but did not know personally. She
confirmed during voir dire that she could set aside her
affiliations with the witnesses and judge them by the same
standard as anyone else. Only two of the people mentioned,
Glenn Johnson and Stan Moseley, actually testified. Regarding
Glenn Johnson the juror wrote: “met him a long time ago —
don’t know him now but see him on TV news.” Regarding Stan
Moseley, the juror wrote: “don’t know [him] — but have heard
name, either through ex-husband or TV or paper.”
The juror indicated in her questionnaire that her views on
the death penalty were best reflected by the following
statement: “While I favor the death penalty, I do believe there
are rare cases where the death penalty should not be imposed
even if someone has deliberately taken another human being’s
life.” She also wrote that “I often wonder how it will affect my
life should I choose to return a death penalty verdict.” Asked if
LWOP was an appropriate sentence for first degree murder, she
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wrote: “It would depend on the circumstances related to the
murder.” During voir dire the juror stated that she generally
felt the death penalty was a “good idea” but that she had “mixed
feelings” about it. Specifically, she felt that “I don’t have a right
to put my beliefs on somebody else about how I would feel as to
whether they should be put to death or not.”
The jury questionnaire asked: “At this point, before you
have heard the evidence, do you believe you are open minded
about what the penalty should be?” Juror No. 12 wrote, “No.”
During voir dire, the juror stated that she had misunderstood
the question. She affirmed that she had not predetermined
penalty and could be open minded. This clarification was
consistent with another answer on her questionnaire, where she
answered, “Yes” to the question: “If you were a juror at a penalty
phase, would you be able to listen to all the evidence, as well as
the judge’s instructions on the law, and give an honest
consideration to both death and life without parole before
reaching a decision?” When asked by defense counsel what she
felt was the appropriate penalty for first degree murder, she
replied, “I don’t have an opinion right now.” Defendant’s
challenge for cause was denied.
Defendant argues that the juror should have been excused
for cause because of her familiarity with the facts of the case
through news media. As noted above, total ignorance is not
required for juror qualification. (Cooper, supra, 53 Cal.3d at p.
807.) The juror had no concern that she could put aside what
she had heard and fairly and impartially judge the evidence
presented at trial. The trial court credited the juror’s
representation, taking into account her answers and demeanor.
Its ruling was fairly supported by the record.
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Defendant also argues that the juror’s views on the death
penalty warranted her excusal. But the juror was not a
particularly strong death penalty proponent. Although she
supported capital punishment in principle, she expressed
hesitation about personally returning such a verdict.
Ultimately, she was quite clear that she could keep an open
mind about both penalties, and that she would base her decision
on the facts of the case. Again, the trial court credited this
representation, taking into account the juror’s answers and her
demeanor. Its ruling was fairly supported by the record.
For the reasons discussed above, the trial court did not err
in denying defendant’s challenges for cause as to any of the
seated jurors. Because no incompetent juror was forced upon
defendant, his claim of error fails. (Black, supra, 58 Cal.4th at
pp. 920–922.)
5. Judicial Misconduct
In addition to challenging the for-cause rulings discussed
above, defendant claims that the court’s “overbearing, leading,
and directive voir dire, and refusal to remove biased jurors”
amounted to judicial misconduct. He maintains that the court
“refused to accept prospective jurors’ plain indications of bias or
prejudgment,” and used leading and suggestive questions “to
press until a juror said that he or she would do their duty.” He
further contends the court was “hypersensitive, quick to
threaten defense counsel, and unwilling to acknowledge error.”
The court’s conduct, he claims, evidenced actual bias in violation
of his state and federal constitutional rights.
These arguments were unsuccessfully raised in a motion
for mistrial, and reasserted in a motion to disqualify the trial
judge for bias. (Code Civ. Proc., § 170.1.) Another judge was
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assigned to rule on the disqualification motion. That jurist
considered written motions and reviewed approximately 6,700
pages of voir dire record. He subsequently found that the trial
judge was “very thorough in his voir dire of the jurors” and was
“very deliberate” in his effort to assure the jurors could fairly
and impartially judge the case. He found no evidence that “the
trial judge was anything but fair and impartial to both sides.”
He further observed that “[i]t is obvious from the record the trial
judge exhibited great tolerance, patience and judicial restraint
with the defense counsel’s conduct which bordered on insolence.”
He concluded: “the trial judge exercised patience and judicial
restraint in dealing with the many attacks alleging bias and
prejudice on the record of the trial court. It is also very apparent
that the trial judge carefully ruled on all objections and
conducted extensive voir dire to assure both the defendant and
the prosecution were to receive a fair trial. The court finds that
trial judge was neither bias[ed] nor prejudiced against the
defendant nor his counsel. The court further finds the
defendant’s allegation that he cannot receive a fair trial is
unfounded.”
a. Questioning of Panelists
“Trial courts must of course ‘be evenhanded in their
questions to [panelists] . . . and should inquire into the jurors’
attitudes both for and against the death penalty to determine
whether these views will impair their ability to serve as jurors.’
[Citation.] But the court has ‘broad discretion over the number
and nature of questions about the death penalty.’ ” (Mills,
supra, 48 Cal.4th at p. 189.) “We trust our trial courts
understand and appreciate the importance of the voir dire
procedure and the need to be ‘evenhanded’ in questioning
[panelists] in a capital case. [Citation.] We assume the trial
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court formulated its questions based on the individual
characteristics of each juror, including the juror’s questionnaire
answers and in-court demeanor. To second-guess these choices
would encourage the trial court to engage in substantially the
same questioning of all [panelists] irrespective of their
individual circumstance, something we have declined to do.”
(Id. at p. 190.)
Here, defendant complains, not that the court asked too
few questions (see Mills, supra, 48 Cal.4th at p. 189), but instead
that it asked too many, effectively rehabilitating jurors who
showed obvious bias. We have reviewed the record of voir dire,
with particular attention to the jurors identified by defendant in
support of his argument. We conclude the court did not commit
misconduct or demonstrate actual bias against defendant.
Nothing in the record suggests the trial court lacked
impartiality during voir dire.
i. Panelist J.D.
Defendant cites the voir dire of Panelist J.D. as an
example. J.D. worked as a correctional officer. When asked if
there was any reason he could not be fair, J.D. explained: “I
work in a setting where I deal with convicted felons on a daily
basis. And I have done that for 16 years. And it’s hard to be in
that environment and not become a little bit callused in the way
I view certain things.” The court asked if the panelist’s feeling
was related to this particular case or to criminal trials in
general. J.D. replied, “I don’t know anything about this case. I
think it would be in any case. I would probably tend to look more
on a negative way of looking at it. To be honest, it would
probably be harder for me to believe in innocence than guilt. I
have been trained in my job they are guilty, and that’s kind of
hard not to look at after 16 years. And I could try to be fair, and
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I really would. But I have thought about it since I was here last,
and, honestly, inside, I have become a little bit cynical in my job.
And I think that would affect me.”
The court stated that it wanted to explore this topic and
cautioned that it was “not trying to change any views or opinions
that you have.” The court explained that all panelists come to
the courtroom with feelings, opinions, and biases. The question
was whether J.D. could honestly assure the court that he could
set those views aside and not let them influence his verdict. The
panelist affirmed that he sets aside his biases every day at work
“[b]ecause I have to be fair at all times. It’s something that I
have been trained to do for a long time. I think I can do it, and
I would sure give it a try. I would do the best I could.” The court
then asked if J.D. thought he could decide the case based solely
on the evidence and the law. The panelist responded, “I would
definitely try my hardest. Honestly, I would have a hard time.
But I would be willing to make the effort to put it aside.”
The court then observed, “I’m not trying to put you in an
impossible situation here, where you really, you know, have a
serious doubt as to whether you can perform your duties.” The
court asked whether J.D.’s doubt was hypothetical and based on
potential human frailties, or if the panelist actually had a
reasonable doubt about his ability to perform his duties. J.D.
replied, “I believe I can do it, because I’m sitting here, being as
honest as I can with you, and that’s putting it aside in itself.”
The court continued to probe, asking if J.D. was truly satisfied
he could perform his duties “[b]ecause if you have some doubt
about it, I want you to tell me.” J.D. replied, “I do have a doubt
about it. It would be a daily thing that I have to deal with.” The
court then asked if it would be difficult or impossible task. J.D.
replied, “I don’t think it would be difficult or impossible. I think
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it would be reasonable. I would expect every juror to be able to
do it to an extent, and I believe I could do it to that extent that
you are asking.”
The court asked, “Are you feeling pressured in any way to
give me the right answers here?” J.D. responded, “No. No, I’m
not.” The court repeated that it needed the panelist’s “honest
response” and that he should not be embarrassed to share his
feelings or be concerned that the court would be upset with him.
J.D. replied, “I can perform my duties.” The court asked
whether the panelist had any doubt, and J.D. replied, “There’s
a little doubt.” The court asked J.D. to explain, and he replied,
“[I]t’s just daily situations I have had to face every day. My
whole attitude has gone to the cynical side of life. It’s kind of
sad to say, but, in being fair here, I would make the effort to
keep it centered best I can. [¶] .
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