# People v. Whalen

> California Supreme Court · February 4, 2013 · 56 Cal. 4th 1

URL: https://www.frixlaw.com/law-library/cases/821509

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. DANIEL LEE WHALEN, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** February 4, 2013
- **Citations:** 56 Cal. 4th 1; 152 Cal. Rptr. 3d 673; 294 P.3d 915; 2013 Cal. LEXIS 779; 2013 WL 406443
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Cantil-Sakauye
- **Cited by:** 259 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved on other grounds by People v. Romero and Self, 62 Cal. 4th 1 (2015).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/821509

## Opinion text

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

4
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.

8
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.

14
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/821509. Public record. Not legal advice.