People v. Whalen

Filed 2/4/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S054569

v. )

)

DANIEL LEE WHALEN, )

) Stanislaus County

Defendant and Appellant. ) Super. Ct. No. 25297

____________________________________)

A jury found defendant Daniel Lee Whalen guilty of the 1994 first degree

murder (Pen. Code, § 187, subd. (a))1 and first degree robbery (§ 212.5, subd. (a))

of Sherman Robbins, and found true the special circumstance allegation that the

murder was committed during the course of a robbery (§ 190.2, former

subd. (a)(17)(i), now subd. (a)(17)(A)), and the allegation that defendant

personally used a firearm in the commission of the offenses (§ 12022.5).

Defendant admitted he had suffered three prior serious felony convictions (§ 667,

subd. (d)), and had served four prior prison terms (§ 667.5, subd. (b)). After a

penalty trial, the jury returned a verdict of death for the murder. The trial court

denied defendant‘s automatic application to modify the verdict (§ 190.4,

subd. (e)), and imposed the death sentence for the murder and a prison term for the

robbery and enhancements.

1 Hereafter undesignated statutory references are to the Penal Code.

1

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

its entirety.

I. FACTS

In March 1994, Sherman Robbins was house sitting for his brother, who

was away on vacation. Late one evening, defendant and his accomplices,

Michelle Lee Joe and Melissa Fader, gained entry into the home by pretending the

car they had been driving had broken down. The three took numerous items from

the house, and defendant shot Robbins as he lay on a couch with his hands tied

behind his back. Joe and Fader were initially charged, along with defendant, with

Robbins‘s first degree murder and robbery, but each agreed to plead guilty to

lesser charges in exchange for her testimony against defendant.2 At trial,

defendant attempted to place the blame for the murder on Joe and argued the

evidence was legally insufficient to corroborate the accomplice testimony. At the

penalty phase, defendant‘s attorney and an expert relayed to jurors defendant‘s

expressed desire for the jury to impose the death penalty, but each made a case for

sparing defendant‘s life.

2 Fader pleaded guilty to the robbery of Robbins with a vicarious arming

enhancement (§ 12022, subd. (a)), in exchange for a sentence of up to seven years

imprisonment, which she was serving when she testified, and her testimony in this

case. Joe pleaded guilty to the second degree murder and robbery of Robbins with

a vicarious arming enhancement, in exchange for a sentence of 16 years to life

imprisonment, which she was serving when she testified, and her testimony in this

case.

2

A. Guilt Phase

1. The prosecution’s case

a. Background and investigation

Sherman Robbins was an elderly diabetic man who normally lived alone in

an apartment in Modesto. Sherman was kind to ―street people‖ and they were

welcome at his apartment for food or a bath. In mid-March 1994, Sherman was

house sitting at his brother Bill‘s house at 519 Nebraska Avenue in Modesto while

Bill and his wife, Alvina, vacationed in Ireland. Bill‘s daughter-in-law, Shirley

Robbins, occasionally visited Sherman at the Nebraska Avenue house and took

him for blood tests.

On Saturday, March 19, Shirley was at the Nebraska Avenue house most of

the day with other family members, helping Sherman clean the yard. A few days

earlier, the family had rented a dumpster to facilitate the cleanup. Around noon, a

man and a woman whom Shirley did not know, but who later were identified as

Johnny Long and Michelle Joe, drove up in an olive green, late 1960s Ford

Mustang, and stayed for a couple of hours. Sherman introduced Long as his

cousin, and Long helped Sherman move a pole. Joe mostly stayed in the car with

her three children, but went into the house at least once to get water or to take her

children to the bathroom.

The next day, Sunday, Shirley spoke with Sherman on the phone about his

doctor‘s appointment on Monday. On Monday, March 21, Shirley‘s daughter,

Krista, arrived at the Nebraska Avenue house around 8:00 or 9:00 a.m. to take

Sherman to the doctor. When Krista arrived, Joe was there going through the

dumpster, while Joe‘s children played in the yard. Sherman told Krista that Joe

was his cousin‘s girlfriend. After Krista dropped Sherman off for his appointment,

she informed Shirley that Joe had been at the house. Shirley directed Krista to go

back to the house and make sure the doors were locked. When Krista returned,

3

Joe was no longer there. Krista checked the doors, but not the windows. As she

was leaving, she noticed Joe and Long driving up again in the green Mustang.

They stopped and gave Krista a ―dirty look,‖ but Krista did not stop or speak with

them because Sherman had said they could take some boxes from the house, and

Krista assumed they were going to the house to retrieve the boxes.

Shirley spoke with Sherman by phone between 7:00 and 9:00 p.m. that

evening. The following day, Tuesday, March 22, she tried to call him several

times but he did not answer.

Shirley went to the Nebraska Avenue house early Wednesday morning.

When she pulled up, she noticed two newspapers were in the driveway. Both the

screen door and wooden front door were open. Sensing something ―wasn‘t right,‖

she entered the house and discovered Sherman‘s dead body on the couch. She

immediately called 911. When the police arrived, she told them about Long and a

woman with long hair (Joe).

Stanislaus County Sheriff‘s Department Patrol Officer Brian Markum

arrived at the scene about 8:00 a.m. Upon entering the house, he found Sherman‘s

body on the couch, surrounded by blood. There was a large hole in Sherman‘s

right temple. Markum determined Sherman was deceased and secured the crime

scene.

Giles New, an investigator with the Stanislaus County Sheriff‘s

Department, arrived at the scene around 9:00 a.m. and later that day became the

principal investigator. Inside the house, he noticed a hole in the end of the couch

near Sherman‘s head. Cotton material from inside the couch, as well as shotgun

pellets, were on the floor. Sherman‘s senior citizen‘s identification card was in a

wallet on a bed in the second bedroom.

Examining the exterior of the house, New found that a screen had been

removed and placed on the ground below the windows of each of the two

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bedrooms on the south side of the house. One window was open in each bedroom.

There was a fresh trail in the high, wet grass leading from the south side of the

house to an area 30 to 40 feet from the brush pile at the end of the dirt road that

extended south from Nebraska Avenue. Tire tracks extended along the dirt road

and ended near the brush pile, and there were shoe tracks in that area. None of the

tracks were ever matched to any tires or shoes.

Stanislaus County Sheriff‘s Department identification officer Dan Cron

photographed the crime scene and processed it for fingerprints. He determined

that a latent palm print taken from the back bedroom window on the south side of

the house matched the rolled palm print of Melissa Fader.

Department of Justice Criminalist John Miller helped recover shotgun

pellets and a ―torn and chewed up‖ 20-gauge shotgun shell from the crime scene.

The pellets were scattered all over the room in which Sherman‘s body lay on the

couch, and a group of pellets had gouged a hole in the floor near the couch. Based

on measurements of the height of the gunshot hole in the arm of the couch near

Sherman‘s head, and the location of the hole gouged in the floor in relation to the

couch, Miller determined the shot had been fired at an angle of approximately

30 degrees relative to the floor. Miller further concluded Sherman had been shot

while lying in the position in which his body was found.

Department of Justice firearms expert Duane Lovaas later examined the

pellets and partial shotgun shell recovered from the crime scene. He discovered

there were two sizes of pellets, and that the shell had striations indicating it had

travelled through the barrel of a shotgun. Additionally, the powder in the shell had

not ignited. Based on this evidence, Lovaas concluded someone had loaded a 12-

gauge shell behind a 20-gauge shell in a 12-gauge shotgun and then fired,

propelling the 20-gauge shell through the barrel like a bullet, followed by the 12-

gauge pellets. No firearm was given to Lovaas for comparison.

5

On Thursday, the day after Shirley found Sherman‘s body, forensic

pathologist Thomas Beaver conducted an autopsy. He determined the cause of

death was a shotgun wound to the right temporal area of Sherman‘s head. The

presence of black, sooty material around the wound indicated the shot was fired at

close range, probably from within inches. Sherman‘s hands were tied tightly

behind his back with a twill-patterned necktie. Ligature furrows on the skin under

the tie had the same pattern. The absence of bruising under the skin indicated

there had been minimal struggle against the soft cloth. Beaver estimated Sherman

had died 24 to 48 hours earlier.

When Bill and Alvina returned home from Ireland, they determined that a

Remington 870 12-gauge shotgun and a .22-caliber rifle were missing from the

gun cabinet. Also missing were a typewriter, a microwave oven, a small television

set, a Magnavox CD player, a small tape player, a large peanut butter jar full of

pennies, and a Makita grinder that had been stored in the barn behind the house.

Bill identified People‘s exhibit No. 56, an item recovered in the murder

investigation (see p. 12, post), as his Makita grinder.

Investigator New arrested defendant in April 1994. Upon his arrest,

defendant spontaneously said, ―I was expecting to get picked up sooner or later.

Sometimes the best place to hide is right under your noses.‖

b. Events surrounding the murder

Defendant‘s accomplices, Joe and Fader, provided the principal testimony

regarding the killing. John Richie and Rick Saso testified about events both before

and after the killing. The testimony of these witnesses was consistent in many

respects, but varied in its details and from what each witness had said in prior

statements. We set out the testimony of these witnesses in some detail.

6

i. John Richie

John Richie testified pursuant to a grant of immunity from prosecution for

any crimes associated with his testimony. Richie testified Sherman Robbins was

his aunt‘s brother and had taken Richie to get candy when he was a child. Richie

also was acquainted with Michelle Joe; he had protected her on occasion from her

former boyfriend, who beat her.

Richie testified he first met defendant several years before the events at

issue in this case, at a place called Butler‘s Camp. About a month or two before

defendant was arrested, defendant began living with Richie, Richie‘s girlfriend

Kathy Sisk, and their children, in Richie‘s apartment.

On the morning of March 21, 1994, Joe drove to Richie‘s apartment in a

green Mustang and asked for defendant. Richie followed defendant outside,

where he overheard Joe ask defendant to help her commit a burglary. Richie went

back inside, and defendant came in about a half-hour to an hour later. Richie

―pleaded‖ with defendant not to participate in the burglary, and defendant assured

Richie he would not do it.

According to Richie, Joe came to the apartment again shortly before dark

and asked Richie to babysit her child. Richie agreed. Joe left as it was getting

darker, and defendant left as well, but Richie was not sure if they left together.

Richie did not see either defendant or Joe until the following morning. Richie had

gone to visit his friend, Rick Saso. When he returned, defendant and Joe were at

the apartment with various items including a small television set, a microwave

oven, a computer or typewriter, a stereo, a rifle, and a shotgun. The shotgun

smelled like gunpowder. Sisk and Melissa Fader, whom Richie had not met

before, were counting pennies from a jar. Fader claimed the pennies were hers.

Joe had ―urinated herself‖ and asked to use the shower, and Sisk gave Joe some

fresh clothes to wear.

7

Richie testified that he rode his bicycle to Saso‘s home and told him there

was some property for sale at his apartment. Saso followed Richie back to the

apartment in his car. While the others bartered over the property, Richie went

outside. At some point, Saso emerged and asked Richie to help him put the

property in his car. Saso said he had traded an ―eight-ball‖ — about 3.75 grams of

methamphetamine — for all of the property. Richie helped Saso load the items

into the car, and Saso left. Back in the apartment, defendant gave Richie part of

his share of the methamphetamine, and they, along with Joe and Fader, ―indulged‖

in use of the drug. Fader and Joe then left as it was getting light outside.

According to Richie, over the next few days defendant seemed nervous and

watched the newspapers. At some point, defendant volunteered to Richie that he

had killed a man. Defendant said he had tied the man up, ―told him to ‗get right

with God and he would be back in a minute,‘ ‖ and then shot him. Defendant also

said that he and Joe had argued about the way in which the victim was to die. Joe

wanted the victim smothered because it would be quieter, but defendant said that

― ‗wrestling with [the victim] until he died would have been more of a torture than

shooting him.‘ ‖ Defendant did not say why he had killed the man. When Richie

asked defendant how he could do such a thing, defendant said ―it was nothing, that

you couldn‘t get emotionally involved.‖ Either during this conversation, or a

subsequent one, Richie asked defendant to leave the apartment.

Richie further testified that at some point after his arrest defendant wrote

Richie a letter from jail. According to Richie, the second sentence of the third

paragraph of the letter began, ― ‗[W]ith both Michelle and Melissa telling on

me . . . .‘ ‖ In the letter, defendant did not deny that what Joe and Fader were

saying about him was true.

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ii. Melissa Fader

In March 1994, Melissa Fader was living in a trailer in Modesto behind her

landlady Nellie Thompson. On March 21, Fader‘s friend, Michelle Joe, stopped

by in a green Mustang with her new boyfriend, Johnny Long, around 10:30 or

11:00 a.m. and chatted with Fader for a while, then left. A couple of hours later,

Joe drove up again in the Mustang with her daughter Crystal, but without Long.

Joe told Fader she had told Long she needed to borrow the car to take Fader to the

hospital. Joe and Fader then cruised around in the Mustang for an hour or two

trying to ―score some dope‖ — meaning ―crank‖ or methamphetamine — but they

were unsuccessful. Joe dropped Fader off at her trailer and left.

According to Fader, she next saw Joe around 10:30 or 11:00 p.m. that

night. Fader had been up for several days on crank and was fighting with her

boyfriend, who had locked her in the trailer with a padlock. Fader told Joe she

wanted to get away, and Joe invited Fader to come with her. Fader climbed out

the window, taking some clothes so she could change later if necessary.

Fader testified that when she got in the backseat of the Mustang, defendant

was in the front passenger seat. Fader had met defendant once before. Both

defendant and Joe had gloves on, but Fader had none. Joe, who was driving, told

Fader they were going to rob a house where no one was home.3 The plan was to

enter the house, take things, and leave. Joe drove to the house at 519 Nebraska

Avenue and pulled into the driveway. Joe walked up to the house and determined

an old man was sleeping inside. They then drove around trying to find a back way

3 On cross-examination, Fader contradicted herself and said Joe had told her

that morning that Long‘s uncle was house sitting and would be at the Nebraska

Avenue house.

9

into the house, but were unsuccessful.4 They returned to the house and parked

near a brush pile.

According to Fader, Joe announced a plan to wake the old man, tell him her

car had broken down, and ask if she and Fader could spend the night. While Joe

walked up to the house, defendant retrieved a tool from a shed behind the house

and put it in the car‘s trunk. After about five minutes, Joe returned to the car and

said, ― ‗let‘s go.‘ ‖ Joe instructed defendant to wait 15 minutes; she and Fader

then walked to the house. Sherman let them in, and Joe pretended to use the

phone while Sherman offered Fader a beer. Joe claimed to be unable to reach

anyone by phone. Sherman said the women could stay the night and told them to

make themselves at home. He showed them to a bedroom and left them alone.

Joe then instructed Fader to go back out and talk to Sherman. Fader did so, then

took a bath and made a sandwich. Eventually, she fell asleep on the small sofa,

and Sherman fell asleep on the large sofa.

At 3:30 a.m., Fader explained, she awoke to find defendant standing over

Sherman, pointing a large gun at him and loudly demanding to know where he

kept his wallet. Sherman answered the wallet was in a box in the bedroom.

Defendant ordered Fader to tie up Sherman. When Fader refused, defendant

pointed the gun at her and said ― ‗you‘re gonna do it.‘ ‖ Defendant handed Fader a

necktie and told Sherman to put his hands behind his back. Fader tied Sherman‘s

hands, loosely at first, but defendant ordered her to tie them tighter. Defendant

seemed angry, whereas earlier in the evening his mood had been ―civil.‖

4 A neighbor who lived about 300 yards south of the Nebraska Avenue house

testified that late at night on March 21, 1994, a green Mustang with three people

inside drove into his yard, made a U-turn, and left as dogs were barking.

10

Fader testified that she told defendant she wanted to leave, but defendant

said ― ‗you ain‘t going nowhere,‘ ‖ and ordered her to grab the microwave oven

and typewriter. Fader took those items to the car and returned through the sliding

glass door. Sherman was lying on his stomach on the sofa with defendant

standing over him. Fader found Joe in the second bedroom, going through

Sherman‘s wallet. Fader said she wanted to leave, and Joe told her to go out the

window, which she did. Joe handed Fader some items — including a ―radio‖ or

―stereo‖ and a large jar of pennies — through the window, and Fader took them to

the car. Joe emerged from the house and put more items in the car. Together

Fader and Joe then loaded a few more things that had been piled outside the

window into the car. Joe then got in the driver‘s seat, and Fader got in the

backseat.

According to Fader, after about five minutes, the women heard a gunshot.

Defendant emerged from the house carrying a shotgun, which he put in the trunk.

He got in the car and said, ― ‗let‘s get out of here.‘ ‖ Joe informed him there was

another gun in the house. Defendant returned to the house and retrieved a second

gun, which Fader described as a ―long gun‖ that could have been a rifle.

Defendant put that gun in the trunk and got back in the car. Joe then drove away.

At defendant‘s suggestion, Fader testified, they drove to Prescott Estates,

where defendant unsuccessfully tried to sell the stolen property. Eventually they

arrived at Richie‘s apartment. Fader was not acquainted with Richie or the

apartment at that time. Joe, who had urinated in her pants, took a shower and

changed into some fresh clothes provided by Richie‘s girlfriend, Sisk. Fader and

defendant went into the bathroom and ingested some crank. Fader then went into

the bedroom and started counting pennies from the jar taken from the Nebraska

Avenue house.

11

According to Fader, two men showed up at the apartment to purchase the

stolen property while Fader stayed in the bedroom counting pennies. After a

while, Joe entered the bedroom and said they had gotten an ―eight-ball‖ of crank

for all of the items. When Fader emerged from the bedroom, the crank was being

divided up. Fader received a gram or half a gram.

Fader testified that she and defendant went into the bathroom and ingested

more crank. Fader then returned to the bedroom and continued counting and

rolling pennies. Defendant followed her into the bedroom and wanted to ―mess

around.‖ Fader did not want to but complied ―under force‖ because she was afraid

of defendant. Afterwards, when it was getting light outside, Joe took Fader home

and instructed her not to tell anyone what had happened at the Nebraska Avenue

house.

Fader testified that when she arrived home, she had her share of the crank,

about $4 in pennies, and a grinder. Fader tried to sell the grinder to Nellie

Thompson for $5. Thompson did not want the grinder, but gave Fader $5 anyway.

Fader put the grinder on Thompson‘s porch. About a week later, Fader told

Thompson defendant had raped her the day she got the grinder. Fader identified

People‘s exhibit No. 56 as the grinder she had obtained from the robbery and left

on Thompson‘s porch.5

iii. Michelle Joe

Joe testified she had known Fader for about six years before the crime, and

first met defendant in March 1994 at Richie‘s apartment. During the week

preceding the murder, she had been to the Nebraska Avenue house three or four

5 Thompson confirmed Fader had tried to sell her the grinder and had told

her about the alleged rape. At some point, the police came and took the grinder.

12

times and had entered the house once or twice. At that time, she was using about

1.5 grams of methamphetamine per day and had been using for the past three

years.

According to Joe, on the morning of March 21, 1994, she first went with

Long to the Nebraska Avenue house to go through the dumpster, then stopped by

Fader‘s trailer on the way back to Long‘s apartment. She concocted a story about

needing to take Fader to the hospital in order to get Long to lend her his car. After

ingesting some methamphetamine, she picked up Fader in the afternoon and they

drove around for a few hours unsuccessfully trying to obtain more. After dropping

Fader off at her trailer, Joe obtained some methamphetamine from Rick Saso,

ingested it, and rode around until after dark.

Eventually, Joe explained, she ended up at Richie‘s apartment. She

encountered Richie outside the apartment and asked if defendant was there.

Defendant came out and sat in the car with Joe. Joe asked defendant to help her

commit a burglary. Defendant asked if anyone would be home; Joe responded she

didn‘t think so. Defendant agreed to help. Joe left, and returned a short while

later. Someone gave Joe a pair of gloves, and defendant obtained gloves too.

According to Joe, she drove with defendant to Fader‘s trailer, which was

padlocked. At the window, Joe invited Fader to help with the burglary. Fader

handed Joe a key to the padlock, and Joe opened the door, allowing Fader to leave.

Fader, who was upset because she had been arguing with her boyfriend, brought

along a tote bag and got in the back seat of the Mustang.

Joe explained that she drove to the Nebraska Avenue house and parked on

the dirt road near a pile of branches. She went up to the house to see if anyone

was there. After looking in the living room window and seeing Sherman asleep on

the couch, she returned to the car and informed the others. They then drove

around looking for a back way in, drove into someone‘s driveway, heard a dog

13

barking, turned around, and came back to the Nebraska Avenue house. At some

point during this period, defendant went to an area behind the house, retrieved a

chainsaw, and put it in the Mustang.

Joe testified that she came up with a plan to pretend the car had broken

down. Joe and Fader walked up to the house together and knocked on the sliding

glass door while defendant waited in back. When Sherman answered, Joe

explained they were having car trouble and asked to use the phone; Sherman

agreed. Once inside, Joe faked a phone call to Long, telling Sherman she was

unable to reach him. Sherman agreed to allow the women to stay the night. The

three talked for a while and had some drinks. Sherman then showed Joe to a

bedroom. While Fader and Sherman continued talking in the living room, Joe

emerged from the bedroom a couple of times to check on them and get a cigarette

or a glass of water. Fader was on the loveseat and Sherman was on the couch.

Fader got up to fix herself something to eat, took a bath, and went back to the

living room. After a time, Fader and Sherman fell asleep. Joe then turned on the

bedroom light as a signal, and defendant climbed in the bedroom window.6 Joe

and defendant went through the drawers in the bedroom and unplugged a CD

player and a television set.

Joe explained that she went back to the family room, determined Fader and

Sherman were still asleep, and returned to the bedroom. Defendant left the

bedroom. She then heard a ―ruckus‖ — something opened and slammed, and

someone was shouting. When she emerged, she saw defendant, who was holding

a large gun like a shotgun, standing in front of Sherman as he lay on the couch.

6 On cross-examination, Joe testified defendant came in the window one to

two hours earlier and stayed in the bedroom until Fader and Sherman fell asleep.

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Joe went into a bedroom and unplugged a ―boom box‖ to steal. Fader came in and

told her defendant wanted her to find something to tie up Sherman with. Fader

said defendant had pointed the gun at her. Fader found a necktie and left. Joe

went into the dining room and saw defendant standing over Sherman, demanding

to know where he kept his wallet. Sherman said the wallet was in the bedroom.

Joe retrieved the wallet from a green box in the bedroom and, without opening it,

handed it to Fader.

Joe testified that defendant instructed her to get the car. She moved the car

into the driveway near the house. When she returned, defendant was still standing

over Sherman, who was lying tied up on the couch. Defendant angrily

commanded Joe and Fader to load the items they had gathered into the car. Joe

told defendant she was afraid and did not want to go through with the burglary, but

defendant raised his voice and told her to just get stuff into the car. Joe and Fader

complied, putting several items, including a ―boom box,‖ a typewriter and a

microwave oven, into the car.7 When Joe returned to the house, she asked

defendant if he was going to kill Sherman. Defendant said ―no‖ but seemed very

upset.

Joe explained that when she went back outside, Fader was already at the

car. As Joe was opening the rear car door for Fader, she heard a gunshot. She and

Fader got in the car. Defendant emerged from the house carrying a gun, put the

gun in the car, then returned to the house and retrieved a second gun, which he

also placed at his side in the car.

7 According to Joe, Fader said defendant wanted her to go out the window.

Fader opened the window, but Joe could not recall if Fader left through it. Joe had

no recollection of handing or throwing stolen property through the window.

15

At defendant‘s suggestion, Joe testified, she drove to Prescott Estates. On

the way, Joe asked defendant if he had killed Sherman; defendant responded he

had not. At Prescott Estates, defendant unsuccessfully tried to sell the stolen

property. Eventually, the three returned to Richie‘s apartment. Joe took a shower

and changed clothes because she had urinated in her pants, while Fader counted

pennies in the bedroom. Richie and defendant unloaded the stolen items from the

car and brought them inside. When Joe emerged after her shower, defendant and

Richie were in the kitchen talking to Rick Saso. The stolen property was on the

kitchen table. Some methamphetamine was on a mirror on the counter; the men

were dividing it up with a razor blade.

Joe testified that Saso gave some methamphetamine to defendant, and she

received about a gram of the drug. She took her share into the bedroom and

ingested some of it. When she emerged from the bedroom, only Saso was there.

Joe told Saso she thought defendant might have killed someone. Saso got up,

kissed Joe and left without saying anything. Joe then saw Fader and defendant

come in from outside and go into the bedroom. When Fader came out of the

bedroom, she asked Joe to take her home, which Joe did.

iv. Rick Saso

Rick Anthony Saso testified pursuant to a grant of immunity from

prosecution for any crimes associated with his testimony. Saso testified that in

1994 he used, and made his living selling, drugs. He first met defendant at

Richie‘s apartment. Saso also was acquainted with Joe; she occasionally had sex

with him in exchange for drugs.

Saso explained that one night, Richie came to Saso‘s apartment and said he

had some guns to sell. Saso drove to Richie‘s apartment as it was getting light

outside, bringing along some drugs to exchange for the guns if the guns were

16

―nice.‖ When he arrived at Richie‘s apartment, Sisk, Richie‘s children, defendant,

Joe and another woman whom Saso had not met before were there; Richie arrived

a few minutes later. Joe was pacing around the house and seemed scared; the

other woman sat in the kitchen. Defendant remained in the bedroom while Saso

negotiated with the others regarding the price of the guns. After about an hour,

defendant emerged. Saso offered defendant 1/16 of an ounce of

methamphetamine for the guns, but defendant demanded an eight-ball. Saso

eventually ―cheated‖ defendant ―a little bit‖ and gave him 1.5 grams, which is less

than 1/16 of an ounce. The value of the drugs was about $70. Richie wrapped up

the guns and put them in Saso‘s car. About a week later, Saso sold the guns after

Richie told him defendant had used them to shoot someone.

2. The defense case

Nellie Thompson testified she had assisted Fader with obtaining SSI

(Supplemental Security Income) disability benefits, based on Fader‘s drug

addiction and her mental status. In Thompson‘s opinion, Fader had the mental

ability of a 12 year old. According to Thompson, after an article appeared in a

newspaper about the killing of a man in Patterson, Fader told Thompson that in

October 1993 she, Joe, and Joe‘s ex-boyfriend had gone to a house in the country

and taken some things. Fader told Thompson that when a dog barked, she had

jumped into the car through the window and cut her leg. According to Thompson,

when Fader heard about the Patterson murder, she exclaimed, ― ‗Oh my god, I

thought they shot the dog. They said they shot the dog.‘ ‖ Thompson said Fader

told her about this incident three to four months before she mentioned being raped

by defendant.

Defense investigator Alan Peacock testified he first interviewed Nellie

Thompson in August 1994. He recounted that Thompson never told him or any

17

member of his office that Fader had reported being raped by defendant. Instead,

he said, the first time Thompson mentioned the alleged rape was in the hallway

just before she testified for the prosecution.

The parties entered into several stipulations regarding prior statements by

prosecution witnesses, including the following:

Joe never told law enforcement that she had urinated on herself on the night

of the murder.

Fader told Detective New that Joe did all of the bargaining in the exchange

of the stolen property for drugs. Fader said she and defendant went to the store;

when they came back to Richie‘s apartment the stolen property was gone and Joe

had an eight-ball, which they split three ways. Fader further said that Joe

instructed her to ―take the [rap]‖ for the crime. Fader thought defendant should

―take the [rap]‖ because he had the guns and was the one ―doing this shit.‖

Richie told Detective Viohl that a few days after defendant and Joe

obtained the stolen guns, defendant told Richie he had to leave because he

[defendant] was endangering Richie‘s family. Defendant also said there was a

―drunkard‖ at the house where they had obtained the guns. This was the last time

defendant spoke to Richie about the events at the Nebraska Avenue house.

Saso told Detective Valdez that he gave Richie the dope in exchange for the

guns, and that he sold the guns for more dope the next day.

3. Rebuttal

Detective New testified that he had checked for reports of an elderly man

being killed in a rural area where there was a dog in October 1993. He found no

such occurrence.

18

B. Penalty Phase

1. The prosecution’s case in aggravation

Sharon Kennedy was working as a teller at Bank of America‘s Ceres

branch on May 26, 1988. She testified that on that day, defendant came into the

bank, went to the window of another teller, Frances Passalaqua, and handed her a

note that said ―This is a robbery.‖ Kennedy immediately pushed a ―panic‖ button.

Defendant turned and ran out the door, bumping into a customer on the way out.

Kennedy did not see a gun and nobody was shot. Frances Passalaqua testified

consistently with Kennedy, but she could not identify the robber. She did not give

the robber any money.

The parties stipulated that defendant had sustained several convictions. On

April 15, 1971, defendant was convicted of armed robbery and assault with a

deadly weapon on a police officer. He was sentenced to prison and released on

June 5, 1975. On March 17, 1976, defendant was convicted of robbery. He was

sentenced to prison and released on May 16, 1979. On January 16, 1980,

defendant was convicted of possession of a firearm by a felon. He was sentenced

to prison and released on November 8, 1985. On March 29, 1989, defendant was

convicted of the May 26, 1988, attempted robbery of Frances Passalaqua. He was

sentenced to prison and released on November 23, 1993.

2. The defense case

Defense investigator Alan Peacock testified he had conducted an

investigation into defendant‘s background but had found no one who could serve

as a ―social historian‖ for defendant. Defendant‘s family was ―nonexistent.‖

Defendant‘s father and sister had died, and he never knew his natural mother.

Defendant had one close friend and a daughter whom he was ―adamant‖ about not

involving in his case. Peacock did not know defendant‘s stepmother‘s name.

According to Peacock, what was known about defendant‘s social history came

19

from his California Department of Corrections records. Defendant had been

involved in the criminal justice system since the age of 14, when he had assaulted

his father. The records documented an ―extended history of abuse of controlled

substances,‖ including alcohol, methamphetamine, heroin, marijuana, and other

street drugs. Defendant, who was 48 years old at the time of trial, had spent most

of his adult life in a locked facility. His longest period out of confinement was 18

months, during which he absconded from parole.

Officer James Park had retired from the California Department of

Corrections and Rehabilitation after serving as its chief of classification for many

years. He testified that if defendant were sentenced to life in prison without the

possibility of parole, he would automatically be classified as a ―Level 4‖ prisoner,

meaning he would be subject to the highest level of security in the general prison

population.8 In a Level 4 prison, prisoners were double-celled in eight-by-10-foot

cells surrounding a guard station. There were gun ports visible from each cell, and

―a rifle [could] be brought to bear anywhere . . . in front of the cells or in the

exercise area.‖ Prisoners could earn privileges for good behavior and could

purchase items such as television sets if they had the funds. Prisoners generally

worked to produce products that saved the state money.

Park had reviewed defendant‘s prison disciplinary and work records and

had spoken with him. Defendant told Park that he wanted to be sentenced to

death; however, Park believed that if sentenced to life without possibility of

parole, defendant would ―settle down‖ and become a useful prisoner. According

8 Only prisoners in the security housing unit, or SHU, would be subject to

tighter security. The SHU was reserved for known gang leaders and other

prisoners who were assaultive or difficult to manage.

20

to Park, in the past defendant had gotten along well with staff and had done good

work in prison, but occasionally had refused to work. Defendant also received

commendations several times. For example, defendant had helped two officers

who were being confronted by an inmate with a razor blade, helped other prisoners

adjust to new jobs, volunteered to work during a lockdown, and turned in a knife

that a supervisor had forgotten to collect from him.

Defendant had gotten into trouble a few times for having homemade wine,

called pruno. He had once attempted suicide, had failed to report to work four

times, and once had refused to remove a towel from a window. On the latter

occasion, he cursed, but there was no violence. Defendant also had been written

up for possessing a wrench that could be used to unscrew the cover on an

electrical outlet, where contraband could be hidden.

Park noted that life prisoners — particularly those in their 40‘s and 50‘s —

were considered a stabilizing force because of their interest in the prison

remaining quiet.

II. DISCUSSION

A. Jury Selection Issues

1. Challenges for cause

Defendant makes several claims of error related to jury selection and the

trial court‘s application of the standard for exclusion set forth in Wainwright v.

Witt (1985) 469 U.S. 412 (Witt) and Witherspoon v. Illinois (1968) 391 U.S. 510

(Witherspoon). Defendant claims the trial court exhibited a pro-death-penalty bias

in questioning prospective jurors, erroneously refused to excuse for cause 15

prospective jurors based on their views regarding the death penalty, and erred by

excusing for cause two prospective jurors based primarily on their written answers

to a questionnaire. Defendant claims these errors resulted in a jury composed of

21

pro-death and otherwise biased jurors and violated his rights to a fair and impartial

jury, to a fair trial, to the presumption of innocence, to freedom from self-

incrimination, to the effective assistance of counsel, to due process of law, and to a

reliable guilt and penalty determination guaranteed by the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution and parallel provisions

of the California Constitution. For the reasons discussed post, we conclude

defendant‘s claims are without merit.

a. Legal Principles

We recently summarized the governing principles: ―A prospective juror‘s

personal views concerning the death penalty do not necessarily afford a basis for

excusing the juror for bias in a capital case. (Uttecht v. Brown (2007) 551 U.S. 1,

6 (Uttecht) [‗ ―[a] man who opposes the death penalty, no less than one who favors

it, can make the discretionary judgment entrusted to him by the State,‖

[citation] . . .‘].) Rather, ‗[t]o achieve the constitutional imperative of impartiality,

the law permits a prospective 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 . . . 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, quoting Witt, supra, 469 U.S. at p. 424.) Under this standard, a prospective

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, including the death penalty where appropriate. [Citations.]‘ (People

v. McWhorter (2009) 47 Cal.4th 318, 340; see People v. Jenkins (2000) 22 Cal.4th

900, 987 (Jenkins).) The analysis is the same whether the claim is the failure to

exclude prospective jurors who exhibited a prodeath bias, or wrongful exclusion of

22

prospective jurors who exhibited an antideath bias. (See People v. Hoyos (2007)

41 Cal.4th 872, 906.)‖ (People v. Jones (2012) 54 Cal.4th 1, 40-41.)

―During voir dire, jurors commonly supply conflicting or equivocal

responses to questions directed at their potential bias or incapacity to serve. When

such conflicting or equivocal answers are given, the trial court, through its

observation of the juror‘s demeanor as well as through its evaluation of the juror‘s

verbal responses, is best suited to reach a conclusion regarding the juror‘s actual

state of mind. (People v. Hamilton (2009) 45 Cal.4th 863, 890 (Hamilton).)

‗ ― ‗There is no requirement that a prospective juror‘s bias against the death

penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient

that the trial judge is left with the definite impression that a prospective juror

would be unable to faithfully and impartially apply the law in the case before the

juror.‘ ‖ ‘ (People v. Abilez (2007) 41 Cal.4th 472, 497-498.) ‗[T]he [trial court‘s]

finding may be upheld even in the absence of clear statements from the juror that

he or she is impaired because ―many veniremen simply cannot be asked enough

questions to reach the point where their bias has been made ‗unmistakably clear‘;

these veniremen may not know how they will react when faced with imposing the

death sentence, or may be unable to articulate, or may wish to hide their true

feelings.‖ [Citation.] Thus, when there is ambiguity in the prospective juror‘s

statements, ―the trial court, aided as it undoubtedly [is] by its assessment of [the

venireman‘s] demeanor, [is] entitled to resolve it in favor of the State.‖ ‘ (Uttecht,

supra, 551 U.S. at p. 7.)‖ (People v. Jones, supra, 54 Cal.4th at p. 41.)

―A trial court‘s determination concerning juror bias is reviewed for abuse of

discretion. (People v. Abilez, supra, 41 Cal.4th at pp. 497-498.) ‗[A]ppellate

courts recognize that a trial judge who observes and speaks with a prospective

juror and hears that person‘s responses (noting, among other things, the person‘s

tone of voice, apparent level of confidence, and demeanor), gleans valuable

23

information that simply does not appear on the record.‘ (People v. Stewart (2004)

33 Cal.4th 425, 451 (Stewart).) As such, ‗the reviewing court generally must

defer to the judge who sees and hears the prospective juror, and who has the

―definite impression‖ that he is biased, despite a failure to express clear views.‘

(People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1007 (Lewis and Oliver); see

Uttecht, supra, 551 U.S. at p. 9 [‗Deference to the trial court is appropriate

because it is in a position to assess the demeanor of the venire, and of the

individuals who compose it, a factor of critical importance in assessing the attitude

and qualifications of potential jurors.‘].)‖ (People v. Jones, supra, 54 Cal.4th at

pp. 41-42.)

―[U]nder existing United States Supreme Court precedent, the erroneous

excusal of a prospective juror for cause based on that person‘s views concerning

the death penalty automatically compels the reversal of the penalty phase without

any inquiry as to whether the error actually prejudiced defendant‘s penalty

determination.‖ (People v. Riccardi (2012) 54 Cal.4th 758, 783, citing Gray v.

Mississippi (1987) 481 U.S. 648; see also People v. Riccardi, at p. 840 (conc. opn.

of Cantil-Sakauye, C. J.).) ―To prevail on a claim that the court erroneously

denied a challenge for cause, however, the defendant must show ‗ ―that the court‘s

rulings affected his right to a fair and impartial jury.‖ ‘ ‖ (People v. Clark (2011)

52 Cal.4th 856, 895.)

b. Factual Background

Jury selection proceeded in the following manner. At the outset, the court

gave the entire panel of prospective jurors a brief oral explanation of the charges

against defendant, the stages of a death penalty trial, the duties of a juror, and the

process of jury selection. All prospective jurors who were not excused for

hardship then filled out a 30-page questionnaire comprised of 122 questions.

24

Questions Nos. 9-32 and 87-88 were prefaced by an explanation of the phases of a

death penalty trial and focused on the prospective jurors‘ beliefs about and

attitudes toward the death penalty and their ability to set aside those beliefs and

follow the law. Other questions involved such matters as the prospective jurors‘

exposure to media coverage about the case, attitudes toward plea bargaining,

familiarity with and attitudes toward drug and alcohol addiction and psychological

testimony, and educational, employment and family background.

After filling out the questionnaires, the prospective jurors underwent oral

voir dire. Before this process began, the court announced it intended to conduct

most of the questioning itself, but would allow counsel to ask appropriate

followup questions. The prospective jurors were brought into the courtroom in

groups of between 14 and 17 individuals. The court first questioned each group as

a whole regarding some preliminary matters. Prospective jurors not excused

during group questioning were then questioned individually, outside the presence

of the other prospective jurors. Of the 158 prospective jurors questioned in this

manner, 73 were excused for cause or on the basis of hardship.

The court then generated a random list of the remaining prospective jurors,

which was supplied to counsel. Twelve prospective jurors were called in the order

appearing on the random list and seated in the jury box, and the parties

commenced exercising peremptory challenges, alternating between the

prosecution and the defense. When a prospective juror was excused, the next

individual appearing on the random list was seated in his or her place, until both

sides were satisfied with the 12 jurors selected. This process was repeated for the

four alternate jurors. Defendant exercised 16 of his 20 allotted peremptory

challenges to the regular jurors and none of his four allotted peremptory

challenges to the alternate jurors. The prosecutor exercised 15 peremptory

challenges to the regular jurors and four as to the alternates. Defendant did not

25

request additional peremptory challenges or object to the jurors and alternates

ultimately sworn.

c. Asserted trial court bias in voir dire

Defendant first asserts the trial court repeatedly intervened in voir dire

questioning to rehabilitate death-leaning prospective jurors who, on the basis of

their questionnaire responses, would have been subject to defense challenges for

cause. He argues the court‘s leading and suggestive questions to these prospective

jurors were not designed to ferret out bias, but rather to have the prospective jurors

change their questionnaire responses and hide their biases. In contrast, he urges,

life-leaning prospective jurors were excused after cursory questioning without any

extensive efforts at rehabilitation. He argues the court‘s manner of questioning

allowed death-leaning prospective jurors to conceal disqualifying biases, thus

preventing the reasonable exercise of defense challenges for cause; forced

defendant to use peremptory challenges against prospective jurors who should

have been removed for cause; ―stacked‖ the jury pool with pro-death-penalty

jurors and ―skewed‖ it lopsidedly in favor of the state and a death penalty verdict,

thus rendering the exercise of defense peremptory challenges ―irrelevant‖ and

―futile‖; and deprived him of a fair and impartial jury. (See Morgan v. Illinois

(1992) 504 U.S. 719, 729-734; Mu’Min v. Virginia (1991) 500 U.S. 415, 425-426.)

He contends the error is ―structural‖ (Arizona v. Fulminante (1991) 499 U.S. 279,

309) and requires reversal regardless of whether any particular ruling on a

challenge for cause was in error.

Referring to the rule regarding forfeiture of claims of error in the denial of

defense challenges for cause (see post, at pp. 46-47), the Attorney General initially

contends defendant forfeited his claim for purposes of appeal by agreeing to the

jury without exhausting his peremptory challenges. Here, however, defendant

26

raises a different argument. He asserts the court‘s manner of questioning was

itself so biased as to be inadequate to root out juror partiality. He claims the

court‘s questioning was not designed to uncover juror bias, but instead was

designed to, and did, conceal bias, rendering it impossible for defendant to obtain

a fair jury. Defendant thus raises a threshold challenge to the adequacy of the trial

court‘s voir dire that we must address first, because it affects the validity of all of

the court‘s rulings on challenges for cause. (See Morgan v. Illinois, supra, 504

U.S. at p. 729 [―part of the guarantee of a defendant‘s right to an impartial jury is

an adequate voir dire to identify unqualified jurors‖]; Mu’Min v. Virginia, supra,

500 U.S. 415.) In the past, we have reached the merits of similar claims

notwithstanding the defendant‘s failure to object to the assertedly disparate

questioning in the trial court. (People v. Martinez (2009) 47 Cal.4th 399, 439,

fn. 8; People v. Thornton (2007) 41 Cal.4th 391, 419-425; People v. Navarette

(2003) 30 Cal.4th 458, 485 & fn. 2, 487-488; see also People v. Mills (2010) 48

Cal.4th 158, 189 [construing claim as one of judicial misconduct and assuming,

without deciding, it is preserved despite defendant‘s failure to object in the trial

court].)

In any event, here defendant did object to the trial court‘s manner of

questioning. Toward the end of the first day of individual voir dire, following the

questioning of Prospective Juror Y.C. and the court‘s denial of defendant‘s

challenge for cause, the following exchange between the court and counsel took

place:

Defense counsel: ―My second objection is that the court‘s using leading

questions in [an] attempt to lead the juror down the path towards rehabilitation. I

mean, if it‘s this particular juror and in particular is a clear cut case where you can

take someone who initially answering the questionnaire with no pressure on them

will set out some very strong preconceived notions concerning the death penalty

27

and the course of trial and through skillful leading questions have them in effect

do a 180 degrees turn while standing before the court. I think that basically causes

the juror to hide their true biases and [prevents] a reasonable exercise of

challenges for cause.‖

The Court: ―Thanks for the ‗skillful phraseology.‘ ‖

Defense counsel: ―Nothing but skillful. There is nothing about that. You

were skillful as a lawyer. You are skillful as a judge.‖

The prosecutor: ―Your Honor, except as to different areas of questioning, I

think I need to join [defense counsel‘s] objection.‖

The Court: ―You think I‘m skillful in those areas too, Mr. [Prosecutor]?‖

The prosecutor: ―Yes, your Honor. I think you are very skillful. That‘s the

problem.‖

The Court: ―Thank you. Well, thank you for your praise. But I don‘t think

I have done anything improper.‖

Accordingly, defendant apprised the court that he believed it was

improperly rehabilitating death-leaning prospective jurors with ―skillful leading‖

questions. Although defendant did not, at that time or any time thereafter, object

to the court‘s assertedly less thorough questioning of life-leaning prospective

jurors, we think the implications of defendant‘s objection were sufficiently clear

that we may review the merits of his claim.

On the merits, however, defendant‘s claim fails. Trial courts possess broad

discretion over both ―[d]ecisions concerning the qualifications of prospective

jurors to serve‖ (People v. Martinez, supra, 47 Cal.4th at p. 445) and the manner

of conducting voir dire (People v. Thornton, supra, 41 Cal.4th at p. 420 [trial court

― ‗possesse[s] discretion to conduct oral voir dire as necessary and to allow

attorney participation and questioning as appropriate.‘ [Citations.]‖). Indeed,

decisions of the United States Supreme Court in this area ―have made clear that

28

‗the conduct of voir dire is an art, not a science,‘ so ‗ ―[t]here is no single way to

voir dire a juror.‖ ‘ [Citations.]‖ (People v. Cleveland (2004) 32 Cal.4th 704,

737.) ― ‗The Constitution . . . does not dictate a catechism for voir dire, but only

that the defendant be afforded an impartial jury.‘ ‖ (Ibid., quoting Morgan v.

Illinois, supra, 504 U.S. at p. 729.)

In evaluating claims of judicial bias during the conduct of death-

qualification voir dire, we have stressed that ―[t]rial courts must of course ‗be

evenhanded in their questions to prospective jurors . . . 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.‘ ‖ (People v. Mills, supra, 48

Cal.4th at p. 189; accord, People v. Martinez, supra, 47 Cal.4th at p. 446.)

Evenhandedness is encouraged because ―[i]t is entirely possible . . . that even a

juror who believes that capital punishment should never be inflicted and who is

irrevocably committed to its abolition could nonetheless subordinate his personal

views to what he perceived to be his duty to abide by his oath as a juror and to

obey the law of the State.‖ (Witherspoon, supra, 391 U.S. at p. 515, fn. 7; see

Lockhart v. McCree (1986) 476 U.S. 162, 176 [―It is important to remember that

not all who oppose the death penalty are subject to removal for cause in capital

cases; those who firmly believe that the death penalty is unjust may nevertheless

serve as jurors in capital cases so long as they state clearly that they are willing to

temporarily set aside their own beliefs in deference to the rule of law.‖].)

Nonetheless, the trial court has ― ‗broad discretion over the number and

nature of questions about the death penalty. . . .‘ ‖ (People v. Mills, supra, 48

Cal.4th at p. 189.) ―[W]e cannot predicate a finding of error merely on the number

of questions the court asks‖ death-leaning and life-leaning jurors. (Id. at p. 190,

citing People v. Thornton, supra, 41 Cal.4th at p. 425.) Indeed, on appeal, ―[a]

reviewing court should not require a trial court‘s questioning of each prospective

29

juror in the Witherspoon-Witt context [citations] to be similar in each case in

which the court has questions, lest the court feel compelled to conduct a needlessly

broad voir dire, receiving answers to questions it does not need to ask.‖ (People v.

Thornton, at p. 425; see also People v. Martinez, supra, 47 Cal.4th at pp. 446-

447.)

Finally, ― ‗ ―[d]espite its importance, the adequacy of voir dire is not easily

subject to appellate review. The trial judge‘s function at this point in the trial is

not unlike that of jurors later on in the trial. Both must reach conclusions as to

impartiality and credibility by relying on their own evaluations of demeanor

evidence and of responses to questions.‖ ‘ ‖ (People v. Holt (1997) 15 Cal.4th

619, 661, quoting Mu’Min v. Virginia, supra, 500 U.S. at p. 424.) For these

reasons, the court‘s manner of conducting voir dire will not be disturbed on appeal

unless it renders the trial fundamentally unfair. (People v. Carter (2005) 36

Cal.4th 1215, 1250; see Mu’Min v. Virginia, supra, 500 U.S. at pp. 425-426.)

Here, defendant points to 23 death-leaning prospective jurors whom he

asserts the court improperly rehabilitated, and 11 life-leaning prospective jurors

whom he contends the court peremptorily excused without similar efforts at

rehabilitation. We have carefully reviewed the questionnaire responses and voir

dire transcripts of these prospective jurors and of the jurors ultimately chosen, as

well as the transcript of the voir dire of all other prospective jurors who were

individually questioned. Our review leads us to conclude the court did not abuse

its discretion or display bias in its questioning of either death-leaning or life-

leaning prospective jurors, and its voir dire was adequate to enable it to determine

whether the prospective jurors‘ views on the death penalty qualified them to sit on

a capital jury.

We begin with an analysis of the voir dire of Y.C., the prospective juror

whose voir dire led to the defense objection set forth above. On her questionnaire,

30

Y.C. stated that she ―strongly support[ed]‖ the death penalty. Asked to explain her

views on the death penalty, she wrote ―If ‗you‘ think another‘s life is

inconsequential — prepare to pay the ultimate penalty! — if ‗you‘ decide to take

that person‘s life —.‖ In response to a question about her views regarding a case

involving the murder of an elderly man with a shotgun during a robbery, she wrote

that everyone convicted of such a murder should receive the death penalty because

―The murder was probably not necessary.‖ However, when asked whether she

would base her penalty decision on the evidence and instructions presented at the

penalty phase, she responded in the affirmative. Asked her views regarding the

frequency with which the death penalty is imposed, she wrote that she believed the

penalty was used ―too seldom‖ because ―death row is overcrowded with convicted

& sentenced criminals way overdoing the appeal time — too much money spent

supporting these folks!‖ She believed the death penalty should be mandatory for

murder and murder with special circumstances, should be possible and was

appropriate for ―any murder,‖ and was inappropriate for anything but murder and

murder with special circumstances. She answered in the affirmative to a question

asking whether she would automatically vote for the death penalty if defendant

was convicted of murder with a special circumstance; but she also wrote in

response to a different question that before deciding on the penalty, she would

want to know ―why he had such little disregard [sic] for another human life.‖ In

response to questions regarding her views on the ―eye for an eye‖ principle, she

wrote that she believed in that adage based on religious conviction, that to her it

meant ―If you sin against another & take their life prepare to lay down your own,‖

and that she could not set aside that concept and apply the principles the court

would give her. She further wrote in response to pertinent questions that she had

religious or moral training regarding the death penalty from ―family & church,‖

and she did ―not know‖ if she could set aside such training and decide the case

31

according to the law given by the court. She answered ―no‖ to a question asking

whether she could set aside her personal feelings regarding what the law should be

and follow the law as instructed by the court. In response to a question asking

whether she could agree to accept the court‘s representation that life without

possibility of parole means the defendant would be sentenced to life without

possibility of parole, she wrote ―do not know.‖ Asked whether the costs of either

incarceration or the appellate process would be a consideration for her in deciding

on the penalty, she answered ―yes‖ to both. Finally, she answered ―yes‖ to a

question asking whether her feelings were such that in every case that reached a

penalty phase she would automatically vote for the death penalty rather than life

without possibility of parole.9

Defendant argues these questionnaire responses alone would have subjected

Y.C. to a challenge for cause, but the court went to ―extraordinary lengths to

rehabilitate [her], leading her to contradict everything she had answered in the

questionnaire.‖ We conclude the court did not abuse its broad discretion in

conducting the voir dire of Y.C. As defense counsel acknowledged during the

voir dire of a different prospective juror, the questionnaire was ―designed to get

[the venireperson‘s] first impressions‖ regarding the matters discussed; the

purpose of voir dire was to determine whether or not those first impressions

represented ―solid, firm convictions.‖ As is readily apparent from a review of the

relevant portion of the voir dire, the court‘s questioning was designed to do

precisely that. The court began by noting what appeared to it to be a conflict

9 Y.C. also answered ―yes‖ to a question asking whether she would in every

case automatically vote for life without possibility of parole, but on voir dire she

confirmed this was a ―wrong answer.‖

32

between Y.C.‘s questionnaire response indicating she thought everyone convicted

of the murder of an elderly man with a shotgun during a robbery should be put to

death, regardless of the evidence regarding penalty introduced by the parties, and

her response indicating that if selected as a juror, she would listen open-mindedly

to the penalty phase evidence and base her decision solely on the evidence and the

court‘s instructions. This led Y.C. to volunteer that she was confused about ―the

first part and the penalty part,‖ prompting the trial court to launch into a detailed

explanation of the two phases of a death penalty trial and the purpose of each, the

decision to be made at the penalty phase, and the meaning of ―aggravation‖ and

―mitigation.‖ Having ascertained that Y.C. understood these concepts, the court

asked whether, if the case reached the penalty phase, Y.C. would be able to vote

for the death penalty if she believed the evidence in aggravation outweighed that

in mitigation, and conversely, whether she would be able to vote for life in prison

without possibility of parole if she felt the evidence in mitigation outweighed that

in aggravation. When Y.C. hesitated in response to the latter portion of the

question, and seemed at a loss for words, the court queried whether she meant she

would need to hear all of the evidence before making a decision to impose life

without possibility of parole, and Y.C. agreed. The court then ascertained that

Y.C. would not hesitate to vote for either penalty if she believed that was what the

evidence indicated.

Next, the court addressed Y.C.‘s responses indicating she believed in the

―an eye for an eye‖ principle and could not set that concept aside and apply the

principles given by the court. The court asked whether Y.C. wanted to change the

latter answer in light of the answers she had previously given in court, and she

agreed, explaining she had had difficulty concentrating on the questionnaire given

the time of day and the number of people in the jury assembly room when she

filled it out. The court then moved on to Y.C.‘s views on the penalty of life in

33

prison without possibility of parole. The court asked whether, if selected as a

juror, Y.C. would conduct herself in the jury room as if imposing such a sentence

meant defendant ―will stay there without parole,‖ and Y.C. again agreed. The

court proceeded similarly with the question regarding the costs of incarceration

and appeals, asking whether Y.C. meant that she would, if selected, tend to vote

for the death penalty because she believed it was less expensive. When Y.C.

responded in the affirmative, the court asked if she would agree to not ―put dollars

and [cents] either way before any other consideration.‖ Y.C. agreed, indicating

she would not ―take lightly‖ the penalty decision. Finally, the court explored

Y.C.‘s response indicating she would ―in every case automatically‖ vote for the

death penalty because of her feelings. The court asked whether, based on Y.C.‘s

responses to the previous questions, her answer now would be ―no,‖ and she

agreed, commenting she had found the questionnaire ―rather tricky‖ and the court

should ―[j]ust change everything.‖

The court‘s conduct of the voir dire of Y.C. did not exceed the bounds of

permissible discretion. The court asked questions testing Y.C.‘s questionnaire

responses that were inconsistent or indicated confusion, to clarify her beliefs and

to assess how firmly Y.C. held these beliefs as a prelude to determining whether

Y.C. could perform the duties of a juror. When Y.C. confirmed that she was

confused about the two-phase nature of the trial, the court was well within its

discretion in explaining these matters to her and ascertaining whether, in light of

her new understanding, she could impose either penalty option. As we have

explained, ―we ordinarily defer to the court‘s determination that a prospective

juror‘s answers require clarification‖ (People v. Martinez, supra, 47 Cal.4th at

p. 446), and ―[w]e see nothing improper in the court‘s explaining the law‖ to a

prospective juror whose questionnaire responses gave rise to concerns in the

court‘s mind. (People v. Thornton, supra, 41 Cal.4th at p. 423.) The court

34

similarly was within its discretion in ascertaining whether, in light of her new

understanding, Y.C. wished to change her pro-death-penalty responses to other

questions. ―Clearly the court found it necessary to ask [Y.C.] questions to reach a

decision about her, and doing so was not unfair to defendant.‖ (Id. at p. 422.)

Further, although we caution against overreliance on leading questions10 to

the exclusion of more open-ended questions because the authority of the trial

judge may cause a prospective juror to give what he or she perceives to be a

―correct‖ answer rather than a considered statement of his or her true views, we

conclude the court‘s use of leading questions here did not fall outside the wide

range of its discretion. Prospective jurors unschooled in the law may have

difficulty fully articulating their views or forecasting how they would conduct

themselves if selected as a juror in a death penalty case, particularly when they are

asked to express themselves using legal terms and concepts that may be entirely

new to them. (Cf. Uttecht, supra, 551 U.S. at p. 7 [recognizing some

venirepersons may be unable to articulate their views].) In such a situation,

prompting the prospective juror with leading questions may be the only way for

the court to obtain a clear answer. (See People v. Mills, supra, 48 Cal.4th at

p. 190 [―court‘s occasional use of leading questions when attempting to

rehabilitate ‗death-leaning‘ jurors‖ did not ―suggest a lack of impartiality‖ because

―[w]e assume the trial court formulated its questions based on the individual

characteristics of each juror‖].) Finally, the court did not prevent defendant‘s

10 ―A ‗leading question‘ is a question that suggests to the witness the answer

that the examining party desires.‖ (Evid. Code, § 764.)

35

counsel from engaging in follow-up questioning of Y.C. if he chose, but counsel

elected not to do so. (See Code Civ. Proc., former § 223.)11

The analysis is the same with respect to the remaining 22 prospective jurors

whom defendant claims the court improperly rehabilitated. A review of the

questionnaire responses and voir dire of these prospective jurors indicates the

court orally questioned them regarding their views on the death penalty when their

written responses to critical questions were blank or appeared to the court to create

a conflict or to reflect confusion or a misunderstanding of the capital trial process.

In most such cases, including Prospective Jurors J.E., M.C., J.O., D.O., G.T., J.J.,

M.E., I.W., R.Z., C.Ph., L.H, R.L., S.W., F.G., M.A., C.Pa., E.S., M.S., L.V., the

court began by noting the blank response or the apparent conflict and then

engaged in an explanation of the law similar to that given to Prospective Juror

Y.C., stopping at critical junctures to ascertain whether the prospective juror

understood the explanation.12 Having ascertained that each prospective juror

understood the process, the court then asked each whether he or she would have ―a

11 At the time of defendant‘s trial in 1996, that section provided as follows:

―In a criminal case, the court shall conduct the examination of prospective jurors.

However, the court may permit the parties, upon a showing of good cause, to

supplement examination by such further inquiry as it deems proper . . . . [¶] . . .

[¶] The trial court‘s exercise of its discretion in the manner in which voir dire is

conducted shall not cause any conviction to be reversed unless the exercise of that

discretion has resulted in a miscarriage of justice, as specified in Section 13 of

Article VI of the California Constitution.‖ (Code Civ. Proc., former § 233, as

adopted by voters (Prop. 115, § 7) June 6, 1990.)

12 Two individuals included in this claim did not fit this pattern. The court

found it unnecessary to explain the phases of the case and the nature of

aggravating and mitigating evidence to Juror L.G-H. And the court‘s voir dire of

Juror C.H. was very brief, encompassing only one transcribed page, and covered

only her experience as a crime victim. We find nothing improper in the voir dire

of these jurors.

36

problem‖ or ―any hesitancy‖ in voting for either penalty option if, after weighing

all the circumstances, he or she believed the evidence called for it. Some

prospective jurors who initially expressed reluctance to impose life in prison

without possibility of parole, or who could not imagine themselves doing so if

they found defendant guilty of first degree murder with special circumstances

(e.g., Prospective Jurors J.E., J.O., and M.A.), changed their responses when the

court explained the concept of mitigating evidence or when examples of

mitigating evidence were given. Often the court found it necessary, as with

Prospective Juror Y.C., to explain that it would be improper for the individual, if

selected as a juror, to vote based on a belief that a person sentenced to life in

prison without parole could someday be released, to consider the costs of

incarceration or appeals, or to follow the ―eye for an eye‖ adage instead of the law

given by the court; the court then obtained the prospective juror‘s assurance that

he or she would set aside his or her personal beliefs and follow the law as

instructed by the court (e.g., Prospective Jurors J.J., J.M., I.W., L.G-H., R.L.,

M.A., C.Pa., and M.S.). Although the court often used the ―do you understand‖

questioning format when explaining the law and sometimes employed leading

questions, after defendant objected the court displayed an awareness of the issue

and even caught and corrected itself during questioning of Prospective Juror R.Z.

Moreover, the court often asked open-ended questions and allowed the prospective

jurors to express themselves in their own way when they were willing and able to

do so (e.g., Prospective Jurors F.G. and M.S.).

In sum, the record reflects the court questioned each prospective juror in a

manner consistent with its assessment of that person‘s ―individual characteristics‖

(People v. Mills, supra, 48 Cal.4th at p. 190) and asked questions and explained

the law it felt necessary to come to a decision about the ability of the prospective

juror to serve on the jury. (People v. Thornton, supra, 41 Cal.4th at pp. 422-423.)

37

As with Prospective Juror Y.C., and for similar reasons, we find no abuse of the

court‘s broad discretion in its manner of questioning these prospective jurors.13

13 At oral argument, defendant‘s counsel identified Juror C.P. as the ―most

egregious‖ example of assertedly improper rehabilitative questioning. We

conclude the trial court‘s manner of questioning C.P. was not an abuse of

discretion. On her questionnaire, Juror C.P. expressed very strong pro-death-

penalty views and some hesitancy about her ability to put aside those views. For

example, she wrote that she ―strongly support[ed]‖ the death penalty if the murder

was ―premeditated‖ and there was ―past criminal history.‖ She wrote that she was

―sick and tired of appeals & paroles & shortened time served.‖ She wrote that

everyone convicted of the murder of an elderly man with a shotgun during a

robbery should receive the death penalty, regardless of the evidence regarding

penalty introduced by the parties, because the defendant ―was armed and invaded

a home with robbery planned possibly — He was armed ‗in case he needed the

gun.‘ ‖ She wrote that if selected as a juror, she would agree to listen

openmindedly to the penalty evidence and base her decision solely on such

evidence and the court‘s instructions, but she ―would have a hard time, however, if

it were a ‗cold-blooded‘ act.‖ She felt the death penalty was used too seldom,

explaining ―too many prisoners released on parole or appeals — waste of tax $$‖

She wrote she felt the death penalty should be mandatory for ―murder, violent

crimes — & perhaps rape under certain circumstances.‖ She wrote that the costs

of incarceration and appeals would be a factor for her in deciding penalty because

she was ―fed up with tax $$ used to house inmates (& pampering them with

frivo[li]ties).‖ Asked whether she would hesitate to vote for a verdict of guilt or a

true finding on the special circumstance allegation in order to avoid the task of

deciding on the penalty, she wrote she ―would try to be open-minded — I simply

just have a problem with compromising penalty for FIRST –Degree murder.‖

Asked whether there was anything about defendant‘s appearance that would

prevent her from deciding the case based upon the law and the evidence and not

upon prejudice, sympathy, pity, or bias, C.P. wrote in part: ―Sympathy or pity

would play no part — My sympathy or pity would be reserved for the victim and

family.‖ And asked whether she had formed any opinion about this case based

upon completing the questionnaire, C.P. wrote ―I hope not — the term ‗murder‘

doesn‘t set with me — but I‘d have to hear all evidence.‖

C.P.‘s answers, however, hinted that she misunderstood the nature of

special circumstances and the function of the penalty phase. For example, she

wrote she would not automatically vote for either a penalty of death or a penalty of

life imprisonment without possibility of parole if defendant were found guilty of

murder with a special circumstance, because ―I would need to hear the details of

(footnote continued on next page)

38

Defendant contends, nonetheless, that the error here is not only that the

court rehabilitated death-leaning prospective jurors, but that it failed to take the

same steps with life-leaning prospective jurors, instead summarily excusing them

after brief questioning. He contends the court failed to explain the two phases of

the trial, the nature of aggravating and mitigating evidence, and the weighing

(footnote continued from previous page)

the special circumstances,‖ and it ―would depend on the special circumstances —

if there were no special circumstances I would vote for the death penalty.‖

Given the inconsistency in some of C.P.‘s questionnaire responses, her

responses indicating she would not automatically impose either penalty, and her

apparent confusion about the nature of special circumstances and other aspects of

the trial process, the court was fully justified in attempting to educate this juror by

engaging in a detailed explanation of the phases of a capital case, explaining that

the defendant had not yet been found guilty and the circumstances of the crime

had not yet been proved, explaining that neither penalty option was favored, and

asking probing questions to determine C.P.‘s true state of mind. The questioning

bore out that C.P. was indeed confused. For example, when the court asked C.P.

about her response indicating she would ―need the hear the details of the special

circumstances‖ in deciding penalty, C.P. responded, ―I think deep down I have a

question of what special circumstances are.‖ After listening to the court‘s

explanations and responding to further questions, C.P. affirmed she would not

automatically vote for either penalty, she could follow the court‘s instructions, and

she would not consider cost in deciding penalty. She reaffirmed these answers (as

well as her initial confusion) in response to additional questioning by defendant‘s

counsel. Defendant complains the court phrased its questions in unduly leading

terms. For example, in questioning C.P. about her response on the questionnaire

indicating the death penalty should be ―mandatory‖ for certain types of crimes, the

court asked ―[w]hen you said ‗mandatory‘ did you mean that it automatically

[should] be imposed if a person is found guilty of it, or did you mean that it should

be an available penalty?‖ C.P. responded, ―It should be an available penalty.‖

Again, although we caution against overreliance on leading questions, we

conclude the court did not abuse its discretion by employing them here

(see People v. Mills, supra, 48 Cal.4th at p. 190), particularly with this juror whose

misunderstanding of many aspects of the trial and penalty process was so

apparent.

39

process to such prospective jurors, and failed to determine whether they could set

aside their personal views and follow the law. Defendant points to 11 prospective

jurors whom he contends the court summarily dismissed in this manner.14

Again, we have examined the questionnaire responses and voir dire

transcript related to these 11 prospective jurors — as compared to the responses

and transcript related to the alleged death-leaning jurors and prospective jurors —

and conclude the court‘s manner of questioning them was not an abuse of

discretion. First, we note defendant stipulated to the excusal of Prospective Juror

J.L. because his religious beliefs prohibited him from judging another person.

Further, defendant expressed a willingness to stipulate to the excusal of

Prospective Jurors R.R. and B.C. based on their questionnaire responses before

they were even brought in for individual questioning. The court was fully justified

in short-circuiting the questioning of these three prospective jurors.

For the eight remaining prospective jurors, the court‘s questioning

generally followed a pattern similar to the questioning of Prospective Juror M.F.,

which we set out in full:

The Court: ―Hi, Mr. [F.]. How are you? [¶] We‘re just going to ask you a

couple of questions in this matter. [¶] You indicate that you . . . oppose the death

penalty?‖

Prospective Juror M.F.: ―Right.‖

The Court: ―Correct?‖

14 Defendant also mentions Prospective Juror D.S., whom the court excused

summarily because of bias against testimony from law enforcement officers. But

the court also summarily excused six other prospective jurors due to bias in favor

of the testimony of law enforcement officers. Thus, defendant‘s mention of D.S.

does not support his claim that the court exhibited bias in favor of the prosecution.

40

Prospective Juror M.F.: ―Yes.‖

The Court: ―Okay. Do you feel that there are any circumstances under

which the — if the defendant were found guilty of the crime that he is charged

with and the special circumstances are proved, do you feel that there are any

circumstances which you would vote for the death penalty?‖

Prospective Juror M.F.: ―No, I don‘t.‖

The Court: ―In other words, if the evidence, and I‘m not saying that it

would, showed that this crime was exceedingly vicious and callous and horrible,

and if the evidence, and I‘m not saying that it does, were to show that the

defendant was a particularly vicious, brutal and horrible person, under no

circumstances do you believe that you could impose the death penalty; is that

correct?‖

Prospective Juror M.F.: ―I don‘t believe I could.‖

The prosecutor: ―Move to excuse for cause, Your Honor.‖

The Court: ―All right. You‘re excused. Thank you, Mr. [F.].‖

We conclude the court‘s manner of questioning these prospective jurors fell

within its broad discretion. The written questionnaire responses of these

venirepersons left little or no cause to believe that extensive questioning would

render them eligible to serve. Several — including J.B., G.F-M., N.C., O.B., and

A.M. — wrote on their questionnaires that they would ―never under any

circumstances impose [the] death penalty, regardless of the evidence‖; others,

including M.F. and B.H., wrote they ―oppose[d]‖ or ―strongly oppose[d]‖ the

death penalty. Each of these seven also wrote that they would automatically

impose life in prison without possibility of parole if defendant were convicted of

murder with special circumstances. Often, these prospective jurors included

strong language explaining why they held these views. For example, Prospective

Juror G.F-M. wrote ―two wrongs do not make a right. Whoever is the executioner

41

is a murderer also.‖ Prospective Juror N.C. wrote ―I could not live with myself if I

was the cause of another person‘s death,‖ repeating the same sentiment numerous

times in the questionnaire. Similarly, Prospective Juror A.M. wrote, ―I don‘t think

I could live with myself knowing I sent someone to their death.‖ Prospective

Juror J.B. wrote, ―I feel some people deserve it but I‘m not going to determine it.‖

Four of these venirepersons — J.B., N.C., G.F-M., and O.B. — wrote their

opposition to the death penalty was based on religious or moral beliefs they could

not set aside. Others, such as Prospective Juror M.F., based their views on

practical considerations such as cost. Notably, the questionnaire responses of

these prospective jurors were, with few exceptions, internally consistent; that is,

their expressions of general feelings in opposition to the death penalty were

coupled with answers indicating they could not set aside their personal moral or

religious views and follow the law, and for that reason they would always vote

against the death penalty regardless of the evidence. Further, none of their

questionnaire responses indicated they misunderstood the capital trial process as it

had been explained to them both orally and on the questionnaire; rather, their

responses suggested that regardless of the process, they personally could not or

would not participate in the decision to sentence someone to death. Under these

circumstances, the court reasonably could conclude that neither extensive

questioning nor an explanation of the law was ―likely to render the[se]

venireperson[s] qualified to sit in a capital case.‖15 (People v. Mills, supra, 48

Cal.4th at p. 190.)

15 The questionnaire responses of two prospective jurors identified by

defendant as summarily excused did not fit this pattern. Prospective Juror B.H.‘s

answers were somewhat internally inconsistent and she left many responses blank.

Comparing the questionnaire and voir dire responses of this prospective juror with

those of two death-leaning prospective jurors, the concurring opinion finds a ―lack

(footnote continued on next page)

42

Here, the court orally questioned each of the identified prospective jurors

regarding whether he or she could not impose the death penalty even if the

evidence showed defendant had committed a horrible, vicious crime and was a

horrible, vicious person. Such a formulation, while straying from what we have

previously approved as satisfying the standard set forth in Witt, was adequate to

assess whether there was any ―realistic, practical possibility‖ the prospective

jurors could impose the death penalty in this case. (People v. Martinez, supra, 47

Cal.4th at p. 432; cf. ibid. [asking prospective jurors ―whether there was a realistic,

(footnote continued from previous page)

of symmetry in the court‘s voir dire of pro- and anti-death-penalty jurors whose

written questionnaires presented the same degree of ambiguity.‖ (Conc. Opn.,

p. 12.) The concurring opinion argues that this asserted lack of symmetry ―cannot

itself be explained by anything having to do with the [prospective] jurors‘

demeanor because the disparity in questioning occurred at the very beginning of

each juror‘s voir dire.‖ (Conc. Opn., p. 10.) We note, however, that the trial court

had an opportunity to observe B.H.‘s demeanor both during the group questioning

that preceded individual, sequestered voir dire, and while B.H. responsed to the

first five questions posed to her on individual voir dire, before it asked the

question that the concurring opinion finds to be significantly different from those

asked of death-leaning prospective jurors. Moreover, that the court might have

had reasonable cause to explain the law to B.H. or to question her more

extensively cannot establish a pattern of discriminatory questioning in violation of

defendant‘s rights. (See People v. Martinez, supra, 47 Cal.4th at p. 447 [small

sample of jurors allegedly disparately questioned insufficient to establish a

practice of bias where court questioned over 150 venirepersons].) We discuss this

prospective juror in more detail, post.

Prospective Juror C.Z. left many answers on the questionnaire blank,

including all the questions related to the death penalty. Her oral voir dire revealed

she had limited English skills, but she did clearly state, ―I don‘t like to judge a

person, how you say, I don‘t believe in the death penalty or anything like that,‖

and ―not for me to say, no, sir.‖ She also affirmed that she could never vote for

the death penalty under any circumstances, regardless of the nature of the crime or

the defendant. Again, the trial court‘s manner of questioning this prospective juror

appeared tailored to her ―individual characteristics‖ and was not an abuse of

discretion. (People v. Mills, supra, 48 Cal.4th at p. 190.)

43

practical possibility the juror could consider either penalty option‖ sufficient to

satisfy Witt].) The court had the opportunity to assess each prospective juror‘s

demeanor, both before and during questioning, and to evaluate whether each was

sincerely expressing his or her views. Although the court did not explain the law

in detail to these venirepersons, this omission was not an abuse of discretion in

light of their questionnaire responses and the questions the court did ask. (See

People v. Thornton, supra, 41 Cal.4th at p. 425.) Because the trial court who

―observes and speaks with a prospective juror . . . gleans valuable information that

simply does not appear on‖ the cold record (People v. Stewart, supra, 33 Cal.4th at

p. 451), we normally defer to that court‘s determination that further questioning

would not be fruitful (People v. Mills, supra, 48 Cal.4th at p. 190), and we do so

again here. Further the court here did not prevent defendant from asking follow-

up questions in an effort to rehabilitate these prospective jurors. Defense counsel

did so on several occasions, but for the most part even he did not see the need to

explain to these individuals the phases of a death penalty trial or the duty of a juror

to set aside personal beliefs. (Cf. People v. McKinnon (2011) 52 Cal.4th 610, 644

[when counsel, advised of the court‘s intention to excuse a prospective juror,

declined an opportunity for further voir dire to clarify the prospective juror‘s

views, we assume ―counsel accepted that the record as it stood was sufficient to

support the intended ruling‖].)

Although the foregoing is sufficient to resolve defendant‘s claim of biased

questioning, we additionally note the remainder of the voir dire record does not

support defendant‘s contention. The court excused death-leaning Prospective

Jurors D.M., D.Mi. I, and L.S. without extensive efforts at rehabilitation. The

court also engaged in lengthy questioning — including an explanation of the

phases of a capital case and the duty of a juror to weigh aggravating and

mitigating evidence in deciding penalty — with Prospective Jurors M.V. and

44

D.Mi. II, both of whom expressed hesitation about imposing the death penalty in

their written and/or oral responses. These examples illustrate the court‘s effort to

be fair.

In sum, we reiterate that trial courts must be scrupulously ― ‗evenhanded‘ ‖

in conducting death qualification voir dire. (People v. Mills, supra, 48 Cal.4th at

p. 189; accord, People v. Champion (1995) 9 Cal.4th 879, 908-909.) Given the

―broad discretion‖ traditionally afforded to trial courts in this context (People v.

Mills, supra, 48 Cal.4th at p. 189), we conclude the court‘s manner of conducting

voir dire in this case did not rise to the level of abuse of discretion, bias, lack of

impartiality, or fundamental unfairness, and we reject defendant‘s claim that the

voir dire was inadequate.

Finally, in addition to his threshold procedural claim regarding the manner

of the court‘s voir dire, defendant also asserts the court erred substantively by

applying different and more stringent criteria to evaluate life-leaning prospective

jurors than it applied to death-leaning prospective jurors. As in previous cases, we

address this claim on the merits notwithstanding defendant‘s failure to object on

these precise grounds in the trial court. (People v. Clark, supra, 52 Cal.4th at

p. 902, fn. 10; People v. Martinez, supra, 47 Cal.4th at p. 439, fn. 8; People v.

Thornton, supra, 41 Cal.4th at pp. 419-425.) We conclude the claim lacks merit.

The record demonstrates the court excused for cause both death-leaning and life-

leaning prospective jurors whose questionnaire responses and oral voir dire, taken

together, left the court with the ― ‗ ―definite impression‖ ‘ ‖ (People v. Abilez,

supra, 41 Cal.4th at p. 498) that they would never, under any circumstances,

impose one or the other of the penalty options, and thus that their personal beliefs

about the death penalty would ― ‗prevent or substantially impair the performance

of [their] duties as a juror.‘ ‖ (Witt, supra, 469 U.S. at p. 424.) Conversely, the

court did not excuse prospective jurors who, although expressing serious

45

reservations about or difficulty with imposing one penalty or the other, did not

leave such an impression. These included Prospective Juror R.L., who stated ―I

think so‖ and ―I think I could‖ impose life; Prospective Juror M.A., who stated she

would find it ―difficult‖ to impose life; Prospective Juror M.V., who stated he

would ―struggle‖ with the decision to impose death; Prospective Juror D.S., who

stated he ―possibly‖ could impose death; Prospective Juror D.Mi. II, who stated

imposing death would be ―difficult‖; Prospective Juror L.B., who said ―I think I

could‖ impose death; and Prospective Juror K.T., who said he would have

―reservations‖ about imposing death. We find no merit to defendant‘s contention

that the court applied disparate substantive standards when evaluating prospective

jurors.

d. Assertedly erroneous denials of defense challenges for cause

Defendant contends the court erroneously denied his challenges for cause to

15 of the prospective jurors discussed in the previous part: Prospective Jurors J.E.,

I.W., Y.C., M.E., J.J., J.M., R.Z., R.L., S.W., F.G., M.A., C.Pa., M.S., L.V., and

G.T. He alleges the erroneous denials cumulatively ―stacked‖ the jury pool

against him, inhibited the exercise of defense peremptory challenges, and resulted

in a biased and pro-death-penalty jury being chosen.

―As a general rule, a party may not complain on appeal of an allegedly

erroneous denial of a challenge for cause because the party need not tolerate

having the prospective juror serve on the jury; a litigant retains the power to

remove the juror by exercising a peremptory challenge. Thus, to preserve this

claim for appeal we require, first, that a litigant actually exercise a peremptory

challenge and remove the prospective juror in question. Next, the litigant must

exhaust all of the peremptory challenges allotted by statute and hold none in

reserve. Finally, counsel (or defendant, if proceeding pro se) must express to the

46

trial court dissatisfaction with the jury as presently constituted.‖16 (People v.

Mills, supra, 48 Cal.4th at p. 186; accord, People v. Jones, supra, 54 Cal.4th at

pp. 45-46.) ―In addition, the issue may be deemed preserved for appellate review

if an adequate justification for the failure to satisfy these rules is provided.‖

(People v. Mills, supra, at p. 186, fn. 8; see also People v. Wilson (2008) 43

Cal.4th 1, 34 (conc. opn. of Werdegar, J.).)

Here, although defendant employed peremptory challenges against

Prospective Jurors J.E., J.J., M.E., R.L., and L.V., he used only 16 of his 20

allotted peremptory challenges during selection of the regular jurors and none of

his four allotted peremptory challenges during selection of the alternate jurors.

Nor did defendant express any dissatisfaction with the jury ultimately selected, or

request additional peremptory challenges. ―[T]he existence of unused peremptory

challenges strongly indicates defendant‘s recognition that the selected jury was

fair and impartial.‖ (People v. Davis (2009) 46 Cal.4th 539, 581.)

In an apparent attempt to justify his failure to exhaust peremptory

challenges, defendant claims the court‘s biased questioning and assertedly

erroneous denials of challenges for cause so ―stacked‖ the pool with death-leaning

jurors as to ―overwhelm‖ the defense peremptory challenges and render their

exercise ―irrelevant.‖ He speculates that even had the defense used all of its

peremptory challenges, ―a biased jury would still have resulted . . . due to the

Court‘s ability and demonstrated inclination to ‗seed‘ the panel with pro-death-

biased prospective jurors in a quantity sufficient to overwhelm the defense

16 All three of these requirements apply to any case tried after our decision in

People v. Crittenden (1994) 9 Cal.4th 83, at page 121. (See People v. Mills,

supra, 48 Cal.4th at pp. 186-187.) This case was tried in 1996; therefore, the post-

Crittenden rule applies.

47

peremptory challenges.‖ He asserts, ―it would have been futile to challenge too

many of the earlier chosen objectionable jurors, beyond the extremely biased, if

the remaining eligible pool had an equal or possibly even higher proportion of

objectionable jurors.‖ Moreover, he claims, ―the presence in the pool of so many

‗rehabilitated‘ jurors with extreme pro-death-penalty biases‖ also prejudiced him

because ―challenging the moderately biased risked their substitution with the

extremely biased.‖ Thus, defendant contends, his objection to the court‘s

questioning methodology and his challenges for cause to specific prospective

jurors were sufficient in and of themselves to preserve his claim for appeal.

Defendant‘s argument fails both factually and legally. On a factual level,

we have concluded in the previous part that the trial court did not improperly

rehabilitate pro-death-penalty prospective jurors or otherwise exhibit bias in its

voir dire questioning. Accordingly, defendant‘s assertion that the exercise of

additional peremptory challenges would have been futile rests on nothing but

speculation. On a legal level, we rejected a similar argument in People v. Mills,

supra, 48 Cal.4th 158. There, the defense exercised all but one of its allotted

peremptory challenges. On appeal, defendant argued his failure to exhaust

peremptory challenges was justified because he needed to hold one peremptory

challenge in reserve in the event he needed it to excuse a particular prospective

juror, L.S., whom he claimed ―was strongly pro-death-penalty.‖ (Id. at p. 186.)

We disagreed, reasoning ―acceptance of this excuse would swallow the rule

entirely, for a defense attorney might in every case wish to hold challenges in

reserve for strategic reasons.‖ (Ibid.) Here, defendant in essence argues he

needed to hold four peremptory challenges in reserve in case he needed to

challenge any of the assertedly death-leaning prospective jurors whom the court

had improperly rehabilitated. Mills, however, forecloses the argument.

48

For the first time in the reply brief, defendant appears to modify his

argument that his failure to exhaust peremptory challenges was justified. He

contends, without citation to the record, that after jury selection was completed the

only prospective jurors remaining in the pool were nine extremely pro-death-

penalty venirepersons whom the court had improperly rehabilitated: J.O., Y.C.,

J.M., R.Z., S.W., F.G., M.A., C.Pa., and M.S. The court had denied defendant‘s

for-cause challenges to eight of these prospective jurors. Thus, he claims, ―no

amount of challenges . . . could have improved the jury‖ ultimately selected.

Were defendant correct that only these nine prospective jurors remained the

in the pool, and had he expressed dissatisfaction with the jury ultimately selected

and requested additional peremptory challenges, we might agree that defendant‘s

failure to exhaust his peremptories was justified and reach the merits of his claim

that the trial court erroneously denied his challenges for cause. In People v. Clark,

we reached the merits of defendant‘s claim that the trial court erroneously denied

defense challenges for cause when defense counsel: (1) used peremptory

challenges to remove some of the complained-of prospective jurors, but declined

to use her final peremptory challenge because the person in line to fill the next

vacancy in the jury box was a prospective juror whom defendant had

unsuccessfully challenged for cause; (2) expressed dissatisfaction with the jury as

then constituted; and (3) asked for additional peremptory challenges. (People v.

Clark, supra, 52 Cal.4th at pp. 901-902.)

Our review of the record, however, does not support defendant‘s contention

that the only persons who had not yet been called to the jury box after jury

selection was completed were the nine he identifies. As noted above, following

hardship excusals, the court and counsel individually questioned 158 prospective

49

jurors. During this phase, 73 were excused for cause or for hardship, leaving 85

eligible prospective jurors at the start of the exercise of peremptory challenges.17

During selection of the 12 regular jurors, defendant exercised 16 peremptory

challenges and the prosecution exercised 15, leaving 42 prospective jurors

remaining when the selection of alternate jurors began. These 42 included, of

course, those ultimately selected as alternate jurors: A.H., R.W., R.T., and M.L.

Defendant does not claim any of these four individuals was biased or improperly

rehabilitated, and he did not challenge any of them for cause. Had defendant

exercised all of his peremptory challenges during selection of the regular jurors,

one or more of them might have been seated on the regular jury. During the

selection of alternate jurors, defendant exercised no peremptory challenges and the

prosecution exercised four; one person called to the jury box was excused based

on a late-developing hardship. Thus, by our calculation, even after selection of the

alternate jurors, 33 venirepersons remained in the pool and on the random list.

Defendant has not shown, with citations to the record, that the nine he claims were

unacceptable were next in line to fill vacancies in the jury box. (Cf. People v.

Clark, supra, 52 Cal.4th at pp. 901-902.) Accordingly, we find no merit to

defendant‘s contention that the exercise of additional defense peremptory

challenges would have been futile. His claim that the court erroneously denied

defense challenges for cause is thus forfeited.

17 As explained above, following the exercise of challenges for cause the

court generated a ―random list‖ of the remaining prospective jurors, which was

supplied to counsel. During the exercise of peremptory challenges, prospective

jurors were called to be seated in the jury box in the order appearing on the

random list. The ―random list‖ is not part of the record on appeal. Absent

evidence to the contrary, we presume the random list included all 85 prospective

jurors remaining after the exercise of challenges for cause.

50

Even were we to find the claim preserved for review, however, we would

reject it on the merits. To prevail on this claim, ―defendant must demonstrate that

the court‘s rulings affected his right to a fair and impartial jury.‖ (People v.

Yeoman (2003) 31 Cal.4th 93, 114.) Here, none of the 15 identified prospective

jurors sat on defendant‘s jury. (Ibid.; accord, People v. Mills, supra, 48 Cal.4th at

p. 187.) Further, although defendant used five of his peremptory challenges to

remove some of these 15 from the jury, the loss of a peremptory challenge in this

manner ― ‗is grounds for reversal only if the defendant exhausts all peremptory

challenges and an incompetent juror is forced upon him.‘ ‖ (People v. Hillhouse

(2002) 27 Cal.4th 469, 487, italics added, quoting Ross v. Oklahoma (1988) 487

U.S. 81, 89.) Here, defendant did not challenge for cause any of the 12 jurors who

decided his case.18 Moreover, as we explain post, none of the 12 jurors was

biased against defendant. Because defendant ―was not forced to tolerate an

incompetent juror‖ as a result of having used peremptory challenges to excuse the

five prospective jurors identified above, and because none of the 10 other

prospective jurors whom defendant unsuccessfully challenged sat on his jury, the

court‘s assertedly erroneous denials of challenges for cause ―could not have

affected [defendant‘s] right to be tried by a fair and impartial jury.‖ (People v.

Mills, supra, at p. 187.)

e. Assertedly erroneous excusals for cause

Defendant contends the trial court erred by excusing Prospective Jurors

M.F. and B.H. ―primarily based on their written answers to the juror questionnaire

. . . without making any rehabilitative efforts similar to those made for‖ death-

18 Nor did he challenge for cause any of the alternate jurors; however, none

participated in either the guilt or the penalty deliberations.

51

leaning prospective jurors. He contends the court‘s ―short and quick‖ questioning

was designed to eliminate these prospective jurors as quickly as possible.

Prospective Juror M.F. wrote on his questionnaire that he opposed the death

penalty, explaining ―I feel by the time the accused is put to death he must [be]

tried over & over again. Life imprisonment seems more economical.‖ He wrote

he did not believe everyone convicted of the shotgun robbery murder of an elderly

man should be put to death. He wrote he believed the death penalty was used too

often, explaining ―Don‘t feel we need to keep having trials to keep someone alive

after he‘s already been given the death sentence.‖ When asked to identify crimes

for which the death penalty was appropriate, he wrote, ―I am opposed to the death

penalty but I don‘t know how I would feel if the crime involved one of my

family.‖ Asked to identify crimes for which that penalty was inappropriate, he

wrote, ―death penalty is inappropriate I believe in life imprisonment.‖ He wrote if

defendant were found guilty of first degree murder with special circumstances he

would automatically vote for life in prison without parole because it is

―punishment enough,‖ and he would not want to know anything about defendant

before deciding on the penalty. He wrote he did not believe in the ―eye for an

eye‖ principle, and although he would accept the court‘s assurance that the

sentence of life in prison without possibility of parole meant exactly that, the costs

of imprisonment and appeals would be a consideration for him in deciding penalty

because ―I read an article a few years back stating life imprisonment is actually

more cost effective.‖ Tellingly, he wrote he would not listen open-mindedly to the

evidence at the penalty phase and base his decision on such evidence and the

court‘s instructions, and he could not set aside his personal feelings regarding

what the penalty should be and follow the law because he ―can‘t see spending tax

dollars on [appeals] for death penalty verdicts.‖ Finally, he wrote that he would

52

automatically vote against the death penalty and for life in prison without parole in

every case, regardless of the evidence introduced at the penalty phase.

As explained ante, at pages 40-41, on voir dire the court first asked M.F.

whether it was correct that he opposed the death penalty, and he said ―Yes.‖ The

court then asked whether, if defendant were found guilty of the charged crime and

the special circumstances were found true, there were ―any circumstances‖ under

which M.F. felt he would vote for the death penalty, and he responded, ―No, I

don‘t.‖ Probing further, the court asked whether M.F. believed he could vote for

the death penalty if the evidence showed ―the crime was exceedingly vicious and

callous and horrible‖ and the defendant ―was a particularly vicious, brutal, horrible

person,‖ and M.F. again responded, ―I don‘t believe I could.‖ The prosecutor

challenged M.F. for cause, and the court excused him. Defendant did not object to

the excusal; nor did he ask for the opportunity to question M.F.19

The record amply supports the trial court‘s conclusion that M.F.‘s views

about the death penalty would prevent or substantially impair the performance of

his duties as a juror. M.F.‘s written responses on the juror questionnaire were

consistent and unambiguous. He consistently wrote that he would automatically

vote against the death penalty and in favor of life in prison without parole if the

case reached the penalty phase, and that he could not set aside his personal

19 Because this case was tried before our decision in People v. McKinnon,

supra, 52 Cal.4th 610, no objection in the trial court was required to preserve for

review defendant‘s claim of error in excusals for cause. (See id., at pp. 635-643

[adopting, prospectively only, a requirement of a contemporaneous objection to an

allegedly erroneous Witherspoon/Witt excusal to preserve the issue for appeal],

overruling People v. Velasquez (1980) 26 Cal.3d 425, 443.) We may consider

defendant‘s failure to object to these excusals, however, to the extent it supports

our conclusion that the excusals were proper. (People v. McKinnon, supra, at

pp. 644, 650, 651.)

53

opposition to the death penalty in deference to the law. On oral voir dire he

confirmed there were no circumstances under which he could vote to impose the

death penalty, even if the evidence showed the crime to be extremely aggravated

and the defendant unredeemable. Because the court had the opportunity to assess

M.F.‘s demeanor, we defer to its implicit assessment that his responses were

credible. (People v. Stewart, supra, 33 Cal.4th at p. 451; see Uttecht, supra, 551

U.S. at p. 9.) On this record, we have no trouble concluding the court did not err

in finding M.F. would be substantially impaired in this case.

Prospective Juror B.H. wrote on her questionnaire that she opposed the

death penalty, but did not provide an explanation. She wrote that she did not

believe everyone convicted of the shotgun robbery murder of an elderly man

should get the death penalty. She wrote that she ―do[esn‘t] hear‖ of the death

penalty being used too often. Asked to identify those crimes for which she

believed the death penalty should be mandatory, possible or appropriate, she wrote

―No. ?‖ and ―None. ?‖ She also wrote, however, that the death penalty was

inappropriate ―under no circumstances.‖ She wrote that she would not

automatically vote for the death penalty if defendant were convicted of murder

with special circumstances, but answered ―No ?‖ to the counterpart question

asking whether she would vote automatically for life in prison without parole. She

wrote that she would want to know ―nothing‖ about defendant before deciding on

the penalty, that she did not believe in the ―eye for an eye‖ principle, and that she

could accept the court‘s assurance that a sentence of life in prison without parole

would mean exactly that. She wrote that the costs of incarceration for life would

be a consideration in her penalty decision, explaining ―I feel it would be better

[than] the death penalty.‖ She further wrote that she would vote against a verdict

of guilt, or against finding the special circumstances true, in order to avoid having

to decide the penalty because ―I feel against the death penalty.‖ She also wrote

54

that she would automatically vote against the death penalty in every case,

regardless of the evidence, because ―[I‘m] against the death penalty.‖ Notably,

however, B.H. wrote that she could set aside her personal feelings regarding what

the penalty should be, listen to the evidence, and follow the law and the court‘s

instructions.

The voir dire of Prospective Juror B.H. proceeded as follows:

The Court: ―All right. First of all, in answer to Question 9, you indicated

that you oppose the death penalty, correct?‖

Prospective Juror B.H.: ―Yes.‖

The Court: ―And then in 10 and 11 . . . you were asked to explain your

views on the death penalty. You left that blank.‖

Prospective Juror B.H.: ―Uh-huh.‖

The Court: ―And can you explain either, A, why you left it blank, or B,

what your views are?‖

Prospective Juror B.H.: ―Because I didn‘t know what to put down.‖

The Court: ―Okay. So you just weren‘t sure what to say?‖

Prospective Juror B.H.: ―Uh-huh.‖

The Court: ―And have your views on the death penalty changed over

time?‖

Prospective Juror B.H.: ―No.‖

The Court: ―I‘m not clear here on some of your answers exactly what you

feel here. [¶] Is your feeling about the death penalty such that under no

circumstances could you vote to approve it?‖

Prospective Juror B.H.: ―Under no circumstances.‖

The Court: ―None whatsoever?‖

Prospective Juror B.H.: ―None whatsoever.‖

55

The Court: ―Okay. So if — even if this were the most horrible crime in

history?‖

Prospective Juror B.H.: ―Even if.‖

The Court: ―And even if the defendant was the worst person in history, you

could not — ‖

Prospective Juror B.H.: ―I don‘t believe in it.‖

The Court: ―All right. Thank you, ma‘am. You‘re excused.‖

Defense counsel did not object to the excusal; nor did he ask for the

opportunity to question B.H.

The record amply supports the trial court‘s conclusion that B.H.‘s views

regarding the death penalty would prevent or substantially impair the performance

of her duties as a juror in this case. Although her written questionnaire responses

were somewhat ambiguous, her answers on oral voir dire made it quite clear that

because of her beliefs, she was unwilling to vote to impose the death penalty under

any circumstances, even if this were the most ―horrible crime in history.‖ Again,

the court had the opportunity to assess B.H.‘s demeanor, and we defer to its

implicit assessment that her responses were credible. (People v. Stewart, supra,

33 Cal.4th at p. 451; see Uttecht, supra, 551 U.S. at p. 9.) No abuse of discretion

appears.

Defendant argues deference to the trial court‘s rulings on these challenges

for cause is unwarranted because the court ruled primarily on the basis of the

written questionnaires, without any in-depth questioning. He likens this case to

Stewart, in which we concluded the trial court had erred by excusing five

prospective jurors for cause based solely on their written responses to the juror

questionnaire. (People v. Stewart, supra, 33 Cal.4th at pp. 440-454.) In doing so,

we did not defer to the trial court‘s assessment because it was ―informed by no

more information than the cold record of the five prospective jurors‘ check marks

56

and brief handwritten comments — the exact same information‖ we had before us.

(Stewart, supra, at p. 451; accord, United States v. Chanthadara (10th Cir. 2000)

230 F.3d 1237, 1270 [―because the trial court here was not in a position to observe

[the prospective juror‘s] demeanor, it was in no better position than an appellate

court to assess her answers‖].) Defendant argues the same reasoning applies here

because the court‘s oral questioning was so brief.

We disagree. Unlike in Stewart, here the court did not base its decision

solely on M.F.‘s and B.H.‘s written responses to the questionnaire. Instead, the

court questioned them orally and in person, outside the presence of other jurors. It

thus had the opportunity to assess their demeanor, both before and during

questioning, as well as the sincerity of their responses. Even a brief session of oral

voir dire such as occurred here provides valuable information to the trial court that

is unavailable from a review of the cold record. Here, the court had a sufficient

opportunity to observe the prospective jurors‘ demeanor, tone of voice, apparent

level of confidence, facial expressions and body language. (See People v. Stewart,

supra, 33 Cal.4th at p. 451; see also Uttecht, supra, 551 U.S. at p. 9; Witt, supra,

469 U.S. at p. 426 [―deference must be paid to the trial judge who sees and hears

the juror‖].) Moreover, as explained above, we defer to the trial court‘s implicit

determination that additional questioning would not have rendered these

prospective jurors eligible to serve. (People v. Mills, supra, 48 Cal.4th at p. 190;

People v. Martinez, supra, 47 Cal.4th at p. 446.) We do so because that

determination itself was based on all the circumstances, including the individual‘s

questionnaire responses, his or her responses on oral voir dire, and his or her

demeanor in court. It follows that we likewise must defer to the trial court‘s

ultimate assessment of the credibility of statements the prospective jurors made in

response to the court‘s questioning.

57

Defendant contends, nonetheless, that the evidence cited above failed to

establish a proper basis for excusing M.F. and B.H. Relying on the proposition

that prospective jurors ―who firmly believe that the death penalty is unjust may

nevertheless serve as jurors in capital cases so long as they state clearly that they

are willing to temporarily set aside their own beliefs in deference to the rule of

law‖ (Lockhart v. McCree, supra, 476 U.S. at p. 176), he complains these

prospective jurors were not given the opportunity to state they could set aside their

personal beliefs. We disagree. Here, Prospective Juror M.F. twice wrote on his

questionnaire that he would be unable to set aside his personal beliefs and apply

the law. The trial court, having assessed M.F.‘s demeanor, was entitled to credit

those responses. Although B.H. stated on her questionnaire that she could set

aside her personal views, her clear answers on oral voir dire contradicted those

statements. The trial court, ―aided as it undoubtedly was by its assessment of

[B.H.‘s] demeanor, was entitled to resolve [any ambiguity] in favor of the State.‖

(Witt, supra, 469 U.S. at p. 434.) Defendant also notes that in Stewart we held the

prospective jurors‘ ―bare written response[s]‖ were insufficient to establish a basis

for exclusion for cause absent clarifying follow-up questioning ―during which the

court would be able to further explain the role of jurors in the judicial system,

examine the prospective juror‘s demeanor, and make an assessment of that

person‘s ability to weigh a death penalty decision.‖ (People v. Stewart, supra, 33

Cal.4th at p. 448, italics added.) By this statement, we did not suggest that a trial

court is in all instances required during oral questioning to explain the role of

jurors in the judicial system. Rather, as explained above, trial courts possess

considerable discretion to formulate the questions to be asked on voir dire and to

tailor those questions to the needs of each individual prospective juror. (People v.

Mills, supra, 48 Cal.4th at pp. 189-190; People v. Martinez, supra, 47 Cal.4th at

p. 446; People v. Thornton, supra, 41 Cal.4th at pp. 419-425.) Here, the trial court

58

reasonably could have concluded an explanation of the role of jurors in the judicial

system was not ―likely to render [M.F. and B.H.] qualified to sit in a capital case.‖

(People v. Mills, supra, at p. 190.)

Finally, relying on People v. Heard (2003) 31 Cal.4th 946, defendant

asserts the trial court ―could easily have followed up with additional questions

designed to probe beneath the surface questionnaire responses,‖ and could have

―provided an explanation of the governing legal principles‖ and explored M.F.‘s

and B.H.‘s ability to follow them. In Heard, we determined that a prospective

juror‘s response to a single question on the questionnaire was insufficient to

support his removal for cause when the juror later changed that response on oral

voir dire after an explanation of the governing legal principles. (Id., at pp. 964-

965.) We further noted that the prospective juror‘s responses on oral voir dire did

not support a conclusion that his views regarding the death penalty would prevent

or substantially impair the performance of his duties as a juror, and added, ―[i]f the

trial court remained uncertain as to whether [Prospective Juror] H.‘s views

concerning the death penalty would impair his ability to follow the law or to

otherwise perform his duties as a juror, the court was free, of course, to follow up

with additional questions.‖ (Id. at p. 965.) Here, by contrast, M.F. and B.H. were

not excused based on questionnaire responses that were contradicted on voir dire.

To the contrary, M.F.‘s written and oral responses were consistent. Although

B.H.‘s oral responses contradicted some of her written ones, like M.F.‘s they were

sufficient to remove any uncertainty from the trial court‘s mind regarding whether

she was unfit to serve as a juror in this case, and also were adequate to support the

court‘s conclusion that her views would substantially impair the performance of

her duties. Under such circumstances, further questioning was not required.

59

f. Assertedly biased jury

Defendant finally contends his jury was composed of biased and pro-death

jurors. Relying principally on the questionnaire responses of the 12 sitting jurors,

defendant contends that all either expressed views that would make the death

penalty mandatory in all murder cases or had a strong bias in favor of the death

penalty. He further asserts that four jurors had been crime victims or had family

members who were crime victims, five had connections with law enforcement,

two had ―opinions‖ regarding mental health testimony, and all 12 had personal

experience with alcohol and/or drugs.

Defendant did not challenge for cause any of the seated jurors; nor did he

exhaust his peremptory challenges or object to the jury as constituted at the

completion of jury selection. His claim therefore fails unless he can prove actual

bias. (People v. Foster (2010) 50 Cal.4th 1301, 1325, citing Johnson v.

Armontrout (8th Cir. 1992) 961 F.2d 748, 754.) ― ‗Actual bias‘ is ‗the existence of

a state of mind on the part of the juror in reference to the case, or to any of the

parties, which will prevent the juror from acting with entire impartiality, and

without prejudice to the substantial rights of any party.‘ ‖ (People v. Foster,

supra, at p. 1325, quoting Code Civ. Proc., § 225, subd. (b)(1)(C).)

Our review of the record reflects none of the 12 jurors who decided

defendant‘s case exhibited actual bias against him. Defendant relies primarily on

the jurors‘ questionnaire responses in claiming they held disqualifying views on

the death penalty and other matters. But as noted above (ante, at p. 32), the parties

and the court in this case considered the questionnaire to be merely the starting

point for the court‘s assessment of prospective jurors‘ fitness to serve. Here, the

trial court questioned each of the jurors about most of the questionnaire responses

defendant identifies as signifying bias, and both the defense and the prosecution

were given the opportunity to question them about any additional areas of

60

concern.20 Each juror satisfied the court and apparently counsel on voir dire that

he or she could be fair despite holding strong opinions on the death penalty, or

having been the victim of a crime, or having relatives or friends in law

enforcement, or having personal experience with or opinions about drugs, alcohol,

or psychiatric testimony. Moreover, we have concluded above that the trial court

did not exhibit a lack of impartiality in conducting voir dire, thus rejecting

defendant‘s claim that the voir dire was insufficient to uncover juror bias. On this

record, we find no evidence that any juror was actually biased against defendant.

2. Asserted prosecutorial misconduct

Defendant contends the prosecutor engaged in misconduct during the voir

dire of Prospective Juror T.P. He asserts that this and other instances of

misconduct occurring throughout the trial (see post, pts. II.B.2. and II.C.2.),

collectively violated his rights to due process of law, to equal protection of the

laws, to trial before an impartial jury, and to a reliable sentencing determination

under the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal

Constitution and parallel provisions of the California Constitution, warranting

reversal of the guilt, special circumstances and penalty verdicts.

The standards governing this claim are well established. A prosecutor‘s

conduct violates the federal Constitution when it infects the trial with such

unfairness as to make the resulting conviction a denial of due process. Conduct by

a prosecutor that does not rise to this level nevertheless violates California law if it

involves the use of deceptive or reprehensible methods to attempt to persuade

20 To the extent defendant contends his counsel rendered ineffective

assistance by conducting a voir dire that was inadequate to uncover juror bias, his

claim is more appropriately raised in a petition for writ of habeas corpus. (People

v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

61

either the court or the jury. (E.g., People v. Ayala (2000) 23 Cal.4th 225, 283-284;

accord, People v. Clark, supra, 52 Cal.4th at p. 960.) To preserve a prosecutorial

misconduct claim for appeal, the defendant ― ‗must make a timely and specific

objection and ask the trial court to admonish the jury to disregard the

impropriety‘ ‖ unless doing so would be futile or an admonition would not cure

the harm. (Clark, at p. 960.) As we shall explain, we conclude defendant has

forfeited several of his claims, and in any event fails to establish any misconduct

occurred.

During the individual, sequestered, portion of the voir dire, Prospective

Juror T.P. mentioned he had problems with reading and writing, and also with

remembering names. T.P. said he could remember the substance of what

witnesses said, however, and would be able to avoid confusion by asking other

jurors during deliberations to identify witnesses by what they said or by their

physical characteristics. T.P. also indicated he would not feel bad asking other

jurors for help if he had difficulty reading any of the exhibits. The prosecutor then

asked, ―Assuming, sir, that at some point in the trial you got handed . . . a stack, oh

yay-high, of documentary evidence, primarily court papers. Is your difficulty with

reading such that you would not be able to read those for yourself?‖ T.P.

responded, ―I don‘t think so. But it would take me a long time to do it.‖ After

further discussion of T.P.‘s problems with name confusion, T.P. volunteered, ―My

biggest problem would be a big stack if — if I didn‘t have enough time to go

through it.‖ T.P. agreed it would take him ―a while‖ to read such papers.

After the trial court denied the prosecutor‘s challenge for cause, the

following exchange occurred in the presence of T.P.:

The prosecutor: ―May I address the point, Your Honor?‖

The Court: ―Briefly.‖

62

The prosecutor: ―Thank you. [¶] The Court has indicate[d] to Mr. [P.]

twice that he can get the assistance of other jurors to tell [him] what the evidence

is. And I don‘t think he gets the services of a reader in jury deliberations to decide

on the validity of the prior convictions. That troubles me greatly.‖

The Court: ―Well —―

Defense counsel: ―Now I‘m going to have to challenge for cause because

the subject of prior convictions has come up in voir dire.‖

The Court: ―Okay.‖

The prosecutor: ―I apologize. I didn‘t realize I had said it that way.‖

The Court: ―All right, sir. You‘re excused.‖

Defendant contends that even if the prosecutor‘s comment was inadvertent,

it compromised the fairness of the trial because it caused the defense to lose a

prospective juror it had previously passed for cause, allowed the prosecution to

remove a prospective juror it had unsuccessfully challenged for cause, and

contributed to the overall asserted pro-death bias of the jury.

Defendant‘s claim fails. Defendant‘s right to a fair and impartial jury did

not entitle him to a jury composed of any particular individuals. (People v.

Thomas (1990) 218 Cal.App.3d 1477, 1486, citing People v. Howard (1930) 211

Cal. 322, 325.) Moreover, the prosecutor‘s comment did not render the trial

fundamentally unfair. No other prospective juror was exposed to the comment;

T.P. himself was excused; and as we have concluded above, defendant has not

established that either the process of jury selection or the jury itself lacked

impartiality.

63

B. Guilt Phase Issues

1. Accomplice corroboration

Section 1111 prohibits a conviction based ―upon the testimony of an

accomplice unless it be corroborated by such other evidence as shall tend to

connect the defendant with the commission of the offense.‖ Defendant raises

several contentions based on this provision. Specifically, he asserts the trial court

erred by denying his motion for a directed verdict based on insufficient non-

accomplice corroborating evidence. He further contends the court erred by failing

to instruct the jury that John Richie was an accomplice as a matter of law and that

it was to view the testimony of the accomplices with distrust. He argues these

errors deprived him of his rights under state law and to due process of law and

fundamentally fair and reliable guilt and penalty determinations under the Fifth,

Eighth and Fourteenth Amendments to the federal Constitution, and require that

we set aside his convictions for first degree murder and robbery as well as the

jury‘s special circumstances and penalty determinations. As we shall explain, we

conclude defendant‘s claims lack merit.

a. Sufficiency of the evidence

Defendant‘s accomplices, Melissa Fader and Michelle Joe, provided the

primary testimony regarding what occurred at the Nebraska Avenue house on the

night Sherman Robbins was killed. John Richie testified about events occurring

before the robbery and murder, and both he and Rick Saso testified about events

occurring afterward.

At the conclusion of the presentation of the prosecution‘s guilt phase case-

in-chief, defendant moved for a judgment of acquittal under section 1118.1, based

64

on assertedly insufficient nonaccomplice corroborating evidence.21 Defense

counsel pointed out that the parties had assumed Richie‘s testimony that defendant

had admitted the murder to him would corroborate the testimony of Joe and Fader.

And yet, counsel asserted, because Richie had testified he was aware of a plan to

commit a burglary, and Joe testified Richie gave her a pair of gloves, Richie was

an aider and abettor whose testimony could not be used to corroborate the other

accomplices. Counsel further argued there was no other independent,

uncontradicted evidence connecting defendant either to the stolen property or to

the murder. In response, the prosecutor conceded that Richie ―might fall into the

category of maybe he‘s a co-conspirator, but he doesn‘t fall into the category of

he‘s clearly a co-conspirator.‖ In any event, the prosecutor continued, Saso‘s

testimony that he gave drugs to defendant in exchange for ―stolen property coming

out of‖ the burglary was sufficient independent corroboration to connect defendant

to the robbery and murder of Robbins. The trial court denied the section 1118.1

motion, concluding that the evidence did not establish Richie was an accomplice,

and that Saso‘s testimony provided ―further corroboration.‖

Defendant contends the court‘s ruling was error; we disagree. ―In ruling on

a motion for judgment of acquittal pursuant to section 1118.1, a trial court applies

the same standard an appellate court applies in reviewing the sufficiency of the

evidence to support a conviction, that is, ‗ ―whether from the evidence, including

all reasonable inferences to be drawn therefrom, there is any substantial evidence

21 Section 1118.1 provides in pertinent part: ―In a case tried before a jury, the

court on motion of the defendant or on its own motion, at the close of the evidence

on either side and before the case is submitted to the jury for decision, shall order

the entry of a judgment of acquittal of one or more of the offenses charged in the

accusatory pleading if the evidence then before the court is insufficient to sustain a

conviction of such offense or offenses on appeal.‖

65

of the existence of‖ ‘ ‖ the elements of the charged offense. (People v. Cole

(2004) 33 Cal.4th 1158, 1212-1213; accord, People v. Dement (2011) 53 Cal.4th

1, 46.) Substantial evidence is defined as ―evidence that is reasonable, credible,

and of solid value — from which a reasonable trier of fact could have found the

defendant guilty beyond a reasonable doubt.‖ (People v. Cole, supra, at p. 1212;

see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320; People v. Johnson

(1980) 26 Cal.3d 557, 578.) ― ‗Where the section 1118.1 motion is made at the

close of the prosecution‘s case-in-chief, the sufficiency of the evidence is tested as

it stood at that point.‘ [Citation.]‖ (People v. Cole, supra, at p. 1213.) ―We

review independently a trial court‘s ruling under section 1118.1 that the evidence

is sufficient to support a conviction.‖ (Ibid.)

An accomplice is ―one who is liable to prosecution for the identical offense

charged against the defendant on trial in the cause in which the testimony of the

accomplice is given.‖ (§ 1111.) The testimony of accomplices must be

corroborated by ―such other evidence as shall tend to connect the defendant with

the commission of the offense.‖ (Ibid.) Such evidence may not come from, or

require ― ‗aid or assistance‘ ‖ from, the testimony of other accomplices or the

accomplice himself. (People v. Davis (2005) 36 Cal.4th 510, 543; People v. Perry

(1972) 7 Cal.3d 756, 769.) The evidence, however, need not corroborate every

fact to which the accomplice testifies. (People v. Davis, supra, at p. 543; People

v. Gurule (2002) 28 Cal.4th 557, 628.) ― ‗Corroborating evidence may be slight,

may be entirely circumstantial, and need not be sufficient to establish every

element of the charged offense. [Citations.]‘ . . . The evidence ‗is sufficient if it

tends to connect the defendant with the crime in such a way as to satisfy the jury

that the accomplice is telling the truth.‘ [Citation.]‖ (People v. Lewis (2001) 26

Cal.4th 334, 370.)

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The trial court instructed the jurors that Joe and Fader were accomplices as

a matter of law and it was up to them to decide if Richie was an accomplice. Here,

ample evidence connected defendant to the robbery and murder of Robbins

independently of the testimony of any and all of these witnesses.

First, Detective Giles New testified that upon his arrest on April 7, 1994,

defendant spontaneously blurted, ― ‗I was expecting to get picked up sooner or

later. Sometimes the best place to hide is right under your noses.‘ ‖ The jury

could have concluded this statement was an admission by defendant of his

connection to the robbery and murder. (Evid. Code, § 1220; People v. Davis,

supra, 36 Cal.4th at pp. 537-538 & fn. 10; People v. Horning (2004) 34 Cal.4th

871, 898, fn. 5.) This statement alone was sufficient independent corroboration

tying defendant to the crimes to render admissible the testimony of Fader, Joe, and

Richie if the jury found Richie was an accomplice.22 (See People v. Davis, supra,

at pp. 537-538 & fn. 10, 546 [defendant‘s admissions and adoptive admissions on

jailhouse tape linking him to charged crimes of murder, robbery and kidnapping

provided sufficient legal corroboration of accomplice testimony]; People v. Brown

(2003) 31 Cal.4th 518, 556 [defendant‘s admissions to crimes of robbery and

murder supplied corroborating evidence].)

22 Relying on Richie‘s testimony that defendant was on parole when the

charged offenses occurred, defendant argued to the jury that New‘s testimony was

insufficient to corroborate the accomplice testimony because the jury reasonably

could conclude defendant was referring to his status as a parole absconder and not

to the robbery and murder. Defendant does not repeat the argument here, and with

good reason. Although the jury was instructed that if two reasonable inferences

arise from circumstantial evidence, it must accept the inference that points to

innocence, on appeal we draw all reasonable inferences in support of the

judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Here, it is reasonable to

infer that defendant was referring to the Robbins murder.

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Second, Rick Saso testified that he negotiated directly with defendant

regarding the amount of drugs he would supply in exchange for two guns, a .22-

caliber rifle and a shotgun, located in Richie‘s apartment. Saso testified he offered

defendant 1/16 of an ounce of methamphetamine for the guns, but defendant

demanded an ―eight-ball.‖ Saso eventually ―cheated‖ defendant ―a little bit‖ and

gave him 1.5 grams — less than 1/16 of an ounce. Saso was ―sure‖ he gave the

drugs to defendant, not Richie. This evidence, which connected defendant to

possession of property stolen from the Nebraska Avenue house, including possibly

the murder weapon, also was strong corroboration tying defendant to the robbery

and murder of Robbins. (See People v. Fauber (1992) 2 Cal.4th 792, 834-835

[nonaccomplice witness‘s testimony that defendant gave him property proved to

have belonged to the victim constituted independent corroboration of accomplice

witness].)

Defendant argues Saso‘s testimony did not tie defendant to the robbery and

murder because there was no independent proof that the guns Saso bought at

Richie‘s apartment were the guns stolen from the Nebraska Avenue house. He

emphasizes that Saso testified he sold the guns about a week after acquiring them,

and the guns themselves were never introduced into evidence. The evidence,

however, was sufficient for the jury to infer, independent of the testimony of

Fader, Joe and Richie, that the guns Saso bought were taken from the Nebraska

Avenue house. Saso described purchasing two guns: a ―.22‖ and a shotgun that

he ―guess[ed]‖ was ―maybe a 20-gauge.‖ Bill Robbins testified similar guns — a

.22-caliber rifle and a Remington 870 12-gauge shotgun — were missing when he

returned home from Ireland. Saso also testified that while he was looking at the

guns in Richie‘s living room, he noticed other property including a microwave

oven and a ―boom box‖; Bill Robbins testified that similar property was stolen

from his house. The similarity of the guns Saso bought to those stolen from the

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Nebraska Avenue house, and their proximity to other property similar to that

stolen from the house, supported the conclusion that the guns were proceeds of the

crimes. Saso further testified that Joe was acting strangely on the day he bought

the guns; she was pacing around the apartment, and seemed ―scared,‖ ―antsy‖ and

―worried‖ in a way that was different from how people usually act when they are

waiting for their dope. He testified there was ―tension‖ in the air at the apartment,

and people were ―running around‖ for the first 45 minutes after his arrival, until

defendant emerged from the bedroom and ―just wanted to hurry up and get . . .

some dope.‖ The jury could have inferred the unusual behavior Saso described

indicated consciousness of guilt on the part of Joe and the other occupants of the

apartment, further tying the goods sold to Saso to the robbery and murder of

Robbins. (Cf. People v. Avila (2006) 38 Cal.4th 491, 563 [evidence of defendant‘s

consciousness of guilt may constitute corroborating evidence].)

The evidence also strongly suggested one of the guns sold to Saso was the

murder weapon. Saso said one of the guns was ―maybe a 20-gauge‖ shotgun;

criminalist Duane Lovaas testified the murder weapon was likely a 12-gauge

shotgun through which both 12-gauge and 20-gauge shells had been fired. And

Saso testified, without objection from defendant, that the reason he sold the guns

was that Richie told him defendant had shot someone with them.

Because the foregoing evidence was sufficient to link defendant to the

robbery and murder of Robbins and thus to corroborate the testimony of any and

all accomplices, we need not decide whether the trial court properly considered

Richie‘s testimony about defendant‘s admissions to him as additional

corroboration. Finally, to the extent defendant contends the evidence was

insufficient as a matter of law to corroborate the accomplice witnesses, his claim

fails for the reasons described above.

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b. Asserted error in accomplice jury instructions

With regard to accomplices, the court began with lengthy instructions on

the general principles of accomplice corroboration.23 It then instructed the jury in

relevant part as follows: ―If the crime[s] of murder and robbery were committed

by anyone, the witnesses Michelle Joe and Melissa Fader were accomplices as a

matter of law, and their testimony is subject to the rule requiring corroboration.

[¶] You must determine whether the witness John Richie was an accomplice as I

have defined . . . that term. . . . [¶] The defendant has the burden of proving by a

preponderance of the evidence that Mr. Richie was an accomplice in the crime

charged against the defendant. [¶] . . . [¶] Testimony of an accomplice ought to

be viewed with distrust. This does not mean that you may arbitrarily disregard

such testimony, but you should give it the weight . . . to which you find it to be

entitled after examining it with care and caution and in the light of all the evidence

23 Thus, the court instructed the jury that an accomplice is a person subject to

prosecution for the identical offense charged against the defendant (CALJIC

No. 3.10); that a defendant cannot be found guilty based on the testimony of an

accomplice unless that testimony is corroborated by other evidence that tends to

connect the defendant with the commission of the offense (CALJIC No. 3.11); that

to corroborate the testimony of an accomplice, there must be evidence of some act

or fact related to the crime which, if believed, by itself and without aid,

interpretation or direction from the testimony of the accomplice, tends to connect

the defendant with the commission of the crime, but it is not necessary that the

evidence establish every element of the crime charged or corroborate every fact to

which the accomplice testifies (CALJIC No. 3.12); that the required corroboration

may not be supplied by the testimony of other accomplices (CALJIC No. 3.13);

and that merely assenting to or aiding or assisting in the commission of a crime

without knowledge of the unlawful purpose of the perpetrator and without the

intent or purpose to commit, encourage or facilitate the commission of the crime

does not make one an accomplice (CALJIC No. 3.14).

70

in the case.‖ These instructions tracked the language of CALJIC Nos. 3.16, 3.19,

and 3.18.24

Defendant contends the court erred by failing to instruct on its own motion

that Richie was an accomplice as a matter of law.25 An accomplice is ―one who is

liable to prosecution for the identical offense charged against the defendant on trial

in the cause in which the testimony of the accomplice is given.‖ (§ 1111.) ―To be

so chargeable, the witness must be a principal under section 31. That section

defines principals as ‗[a]ll persons concerned in the commission of a crime,

whether . . . they directly commit the act constituting the offense, or aid and abet

in its commission . . . .‘ (§ 31.) An aider and abettor is one who acts with both

knowledge of the perpetrator‘s criminal purpose and the intent of encouraging or

facilitating commission of the offense. Like a conspirator, an aider and abettor is

guilty not only of the offense he intended to encourage or facilitate, but also of any

reasonably foreseeable offense committed by the perpetrator he aids and abets.‖

(People v. Avila, supra, 38 Cal.4th at p. 564, citing People v. Hayes (1999) 21

Cal.4th 1211, 1271, fns. 19 & 20.) ―Unless there can be no dispute concerning the

evidence or the inferences to be drawn from the evidence, whether a witness is an

accomplice is a question for the jury. On the other hand, the court should instruct

24 The court concluded the accomplice portion of the instructions by defining

principals (CALJIC No. 3.00) and aiders and abettors (CALJIC No. 3.01), and by

describing the ―natural and probable consequences‖ doctrine (CALJIC No. 3.02).

25 Defendant also contends the court erred by failing to instruct on its own

motion that Fader and Joe were accomplices as a matter of law. But as defendant

acknowledges, the court instructed the jurors that ―[i]f the crime[s] of murder and

robbery were committed by anyone, the witnesses Michelle Joe and Melissa Fader

were accomplices as a matter of law, and their testimony is subject to the rule

requiring corroboration.‖ This instruction was sufficient to satisfy the court‘s

obligation to instruct that Joe and Fader were accomplices as a matter of law.

71

the jury that a witness is an accomplice as a matter of law when the facts

establishing the witness‘s status as an accomplice are ‗ ― ‗clear and

undisputed.‘ ‖ ‘ ‖ (People v. Williams (2008) 43 Cal.4th 584, 636; see also People

v. Fauber, supra, 2 Cal.4th at p. 834.)

Defendant argues that the evidence establishes Richie aided and abetted the

burglary of the Nebraska Avenue residence and therefore was chargeable with the

reasonably foreseeable robbery and murder of Robbins. He points out that Richie

testified he overheard Joe speaking with defendant about a planned burglary when

she came over to his apartment on the morning of March 21, 1994, and Joe

testified Richie thereafter supplied her with a pair of gloves. Richie further

testified that he agreed to babysit Joe‘s child that evening. Defendant contends

Richie‘s testimony establishes he was aware of Joe‘s purpose, and argues that

because it was not cold that day, Richie‘s intent in giving Joe the gloves, as well as

in agreeing to watch her child, must have been to facilitate the burglary.

We disagree. Neither the facts defendant relies upon nor the inferences to

be drawn therefrom were undisputed. (See People v. Fauber, supra, 2 Cal.4th at

p. 834; see also People v. Williams, supra, 43 Cal.4th at pp. 636-637.) First, Joe

testified inconsistently regarding who gave her the gloves. On direct examination,

Joe said the gloves ―came from‖ Kathy Sisk, but she did not get them from Sisk

―personally.‖ Further, she was ―not sure‖ if she got the gloves from Richie, and

she also was ―not sure‖ if defendant handed them to her. On cross-examination,

Joe said that neither Sisk nor defendant gave her the gloves; rather, she got them

from Richie. Richie was not asked and did not testify about whether he gave Joe a

pair of gloves. Thus, it was up to the jury to determine who, if anyone, gave Joe a

pair of gloves. Moreover, Richie testified that after hearing about the planned

burglary he ―pleaded‖ with defendant not to participate, and defendant assured

Richie he would not. Thus, even if the jurors concluded Richie gave Joe a pair of

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gloves and agreed to babysit Joe‘s child, the evidence defendant describes merely

―supports, but does not dictate the conclusion‖ that Richie acted with the intent to

encourage or facilitate the commission of the burglary. (People v. Fauber, supra,

at p. 834.) The trial court therefore properly instructed the jury to decide whether

Richie was an accomplice. (Ibid.; accord, People v. Avila, supra, 38 Cal.4th at

p. 565.)

Defendant argues Richie‘s involvement in supplying both a buyer for the

stolen goods and a location for their sale, and in sharing in the proceeds of the

crimes, also supports the conclusion that he was an accomplice. But Richie‘s

sharing in drugs exchanged for the stolen items says little about his intent before

the crimes occurred. Further, assisting with the sale of stolen property after the

crimes were completed might have subjected Richie to prosecution as an

accessory. (See § 32 [An accessory is ―[e]very person who, after a felony has

been committed, harbors, conceals or aids a principal in such felony, with the

intent that said principal may avoid or escape from arrest, trial, conviction or

punishment, having knowledge that said principal has committed such

felony . . . .‖].) But an accessory is not liable to prosecution for the identical

offense as a principal, and therefore is not an accomplice. (People v. Horton

(1995) 11 Cal.4th 1068, 1114-1116 [witness‘s actions after the crime, including

retrieving items from defendant‘s abandoned vehicle and driving defendant to a

bus depot, might have implicated witness as an accessory, but did not subject him

to accomplice liability]; People v. Fauber, supra, 2 Cal.4th at pp. 833-834.)

In any event, even assuming the trial court erred by failing to instruct on its

own motion that Richie was an accomplice as a matter of law, such failure was

harmless if there was sufficient corroborating evidence in the record. (People v.

Williams, supra, 43 Cal.4th at pp. 636-638; People v. Brown, supra, 31 Cal.4th at

p. 556.) As we have explained, ample evidence connected defendant to the crimes

73

of robbery and murder apart from the testimony of Richie, Fader, and Joe. Any

error did not prejudice defendant.

Defendant finally contends the trial court erred by failing to instruct the

jury to view with distrust the accomplice testimony of Fader, Joe and Richie. An

instruction to view with ―distrust‖ accomplice testimony given on behalf of the

prosecution was required in 1996, when this case was tried.26 (E.g., People v.

Zapien (1993) 4 Cal.4th 929, 982.) The court, however, instructed that the

testimony of accomplices must be viewed with distrust, and further instructed that

Fader and Joe were accomplices as a matter of law and that it was up to the jury to

determine if Richie was an accomplice. Considering the instructions as a whole,

as we must (People v. Moore (2011) 51 Cal.4th 1104, 1140), we conclude the

jurors would have understood they were to view with distrust the testimony of

Fader, Joe, and — if they determined he was an accomplice — Richie. No error

appears.

2. Asserted prosecutorial misconduct

Defendant points to three instances of asserted prosecutorial misconduct

that either occurred during the guilt phase or affected the guilt phase. We

conclude these claims lack merit.

a. Asserted misconduct during the examination of John Richie

During the prosecutor‘s direct examination of John Richie, the following

exchange occurred:

26 Two years later we modified this requirement prospectively, holding that

henceforth juries should be instructed to view with ―caution‖ the testimony of an

accomplice to the extent it ―tends to incriminate the defendant.‖ (People v.

Guiuan (1998) 18 Cal.4th 558, 569.)

74

The prosecutor: ―And Mr. Richie, are you acquainted with the defendant,

Daniel Whalen, sitting at the far end of counsel table?‖

Richie: ―I have known him a very short time.‖

The prosecutor: ―When did you first meet him?‖

Richie: ―At a place called Butler‘s Camp years ago.‖

The prosecutor: ―About — how many years ago? Roughly?‖

Richie: ―Five.‖

The prosecutor: ―Could it have been a little earlier than that, in ‘87 or

‘88?‖

Richie: ―I‘m not sure. It was during my — I was living there.‖

The prosecutor: ―Was there some gap of time between the last time you

saw him four or more years ago and when you saw him in 1994?‖

Richie: ―Yes. He — he mysteriously disappeared.‖

Defense counsel: ―Objection, Your Honor. Move to strike all after ‗yes.‘ ‖

The Court: ―Sustained.‖

Defendant contends the prosecutor engaged in misconduct by questioning

Richie about the ―gap of time‖ in his acquaintance with defendant, while knowing

the court had ruled references to defendant‘s prior convictions and incarceration

were improper. He argues the jurors would have ―readily concluded‖ defendant‘s

―mysterious disappearance‖ referred to a period of incarceration.

The prosecutor‘s questions were proper because they were directed at the

length and nature of Richie‘s relationship with defendant, an area of inquiry

relevant to Richie‘s credibility in testifying against defendant. The questions were

designed to show Richie had known defendant only a short period of time and the

two were not close — despite the circumstance that they had initially met several

years before the crime occurred — and the prosecutor could not reasonably have

anticipated Richie‘s answer. Moreover, the jury would not necessarily have

75

understood ―mysterious disappearance‖ to refer to a period of incarceration, and in

any event the trial court struck the comment on defendant‘s request. No

misconduct, prejudice. or unfairness appears.

b. Failure to turn over expert’s handwritten notes and

photographs

Department of Justice criminalist John Miller testified that he participated

in the investigation of the crime scene on March 23, 1994. Among other tasks,

Miller made some sketches, took photographs, collected ballistics evidence, and

reconstructed the trajectory of the shot that killed Robbins. Miller concluded that

the fatal shot was probably fired from within a few inches of the victim, at an

angle of about 30 degrees relative to the floor, and the victim was probably shot in

the position in which his body was found.

During cross-examination, defense counsel asked Miller whether he had

with him any of the sketches he had made at the crime scene. Miller responded

that he had ―a single sketch without measurements in my notes.‖ Upon defense

counsel‘s request, Miller produced the sketch along with his notes. Defense

counsel attempted to renew his cross-examination, but soon stopped, explaining,

―Well, I‘m sorry, Your Honor. Despite numerous requests for all handwritten

notes, this is the first time I‘ve ever seen this file. I can‘t adequately cross-

examine this witness without having time to review these notes.‖ The court

directed Miller to step down, indicating defense counsel could recall him if

counsel had any further cross-examination he wished to conduct.

Later that same day, defendant moved for a mistrial, based in part on the

prosecution‘s failure to produce Miller‘s notes in a timely manner. Defense

counsel explained that while copying the notes for defendant‘s investigator, Miller

had discovered seven rolls of film that had been developed but not printed.

Counsel pointed out that neither Miller‘s notes nor the photographs had been

76

―forthcoming‖ in response to either his letter to the prosecution requesting

informal discovery or to the court‘s order, issued several months before trial, that

the prosecution provide discovery of all photographs and handwritten notes.

Counsel conceded he was ―convinced‖ the prosecutor had turned over all of the

photographs in his possession, which did not include prints from the seven

recently discovered rolls of film. Nonetheless, he argued that the failure to turn

over the notes and photographs earlier had prejudiced the defense because its

investigator had not had an opportunity to determine the evidentiary or

exculpatory value of the seven rolls of film and, ―oh, half an inch thick sheet of

handwritten notes.‖ He continued, ―[e]specially I did not have the benefit of those

handwritten notes at the time that I consulted with a defense criminalist,‖ and

―[h]ad those notes been available to me at that time, I may have been able to direct

the criminalist in a new direction.‖ Counsel argued that without the notes, ―the

criminalist was unable to reach any conclusion other than that which Duane

Lovaas [the prosecution‘s expert] had reached‖ — that is, that a 12-gauge shotgun

shell had been loaded behind a 20-gauge shell and fired into the victim. He added

the notes might support alternate theories, such as the theory that two rounds had

been fired.

The court denied the mistrial motion, explaining, ―we have some time yet

in this trial. I would suggest you take those films, have them looked at by your

investigator, and if necessary, by your criminalist, and we will see what develops.

If it turns out there‘s some exculpatory evidence there, we‘ll take a look at it at

that time.‖ Defense counsel objected, pointing out, ―a number of these

photographs are of shoe prints that were apparently taken at the scene of the crime.

If we‘d have had those back early on, we may have been able to track down some

shoes. [¶] Now you‘re talking two years later. . . . There‘s not much chance

we‘re going to be able to find those shoes.‖ Finally, regarding Miller‘s notes,

77

counsel noted that after his criminalist had examined the physical evidence, it had

been ―packaged up‖ and returned to the sheriff‘s department. The court responded

that the problem was ―not insoluble‖ and continued, ―I would suggest that you let

[the defense criminalist] take a look at this stuff, and if he thinks there‘s anything

that he can do about it, certainly [you] can make arrangements for him to do

whatever it is he thinks he needs to do.‖

Defense counsel did not raise the discovery matter again. The defense

completed its cross-examination of Miller six days later.

Defendant contends the prosecutor‘s failure to timely disclose Miller‘s

handwritten notes and the seven rolls of unprinted film prevented effective cross-

examination of Miller and amounted to misconduct. We generally analyze such

claims under the rubric of Brady v. Maryland (1963) 373 U.S. 83, and its progeny.

(E.g., Strickler v. Greene (1999) 527 U.S. 263; Kyles v. Whitley (1995) 514 U.S.

419; United States v. Bagley (1985) 473 U.S. 667.) We recently summarized the

governing principles: ―The federal due process clause prohibits the prosecution

from suppressing evidence materially favorable to the accused. The duty of

disclosure exists regardless of good or bad faith, and regardless of whether the

defense has requested the materials. [Citations.] The obligation is not limited to

evidence the prosecutor‘s office itself actually knows or possesses, but includes

‗evidence known to the others acting on the government‘s behalf in the case,

including the police.‘ [Citation.] [¶] For Brady purposes, evidence is favorable if

it helps the defense or hurts the prosecution, as by impeaching a prosecution

witness. [Citations.] Evidence is material if there is a reasonable probability its

disclosure would have altered the trial result. [Citation.] Materiality includes

consideration of the effect of the nondisclosure on defen

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