# People v. McKinnon

> California Supreme Court · August 22, 2011 · 52 Cal. 4th 610

URL: https://www.frixlaw.com/law-library/cases/844251

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. CRANDELL McKINNON, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 22, 2011
- **Citations:** 52 Cal. 4th 610; 130 Cal. Rptr. 3d 590; 259 P.3d 1186; 2011 Cal. LEXIS 8580
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Baxter, Werdegar
- **Cited by:** 526 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/844251

## Opinion text

Filed 8/22/11 (reposted same date to correct concurring justices)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S077166
v. )
)
CRANDELL McKINNON, )
) Riverside County
Defendant and Appellant. ) Super. Ct. No. CR69302
____________________________________)

A jury found defendant Crandell McKinnon guilty of the first degree
1
murders (Pen. Code, § 187) of Perry Coder and Gregory Martin and two counts of
possession of a firearm by a convicted felon (§ 12021.1). The jury also found true
(1) the allegation that defendant personally used a firearm in the commission of
the murders (§ 12022.5) and (2) the multiple-murder special-circumstance
allegation (§ 190.2, subd. (a)(3)).
After a penalty trial, the jury returned a verdict of death. The court denied
defendant‘s motion for new trial (§ 1181) and automatic application to modify the
penalty verdict (§ 190.4, subd. (e)) and sentenced him to death. This appeal is
automatic. (§ 1239, subd. (b).) We affirm the judgment in full.

1 All further statutory references are to the Penal Code unless otherwise
indicated.
I. FACTS

A. Introduction
On January 4, 1994, defendant, a member of the Crips street gang, walked
up to Perry Coder behind the Desert Edge Motel, in Banning, and for no apparent
reason, placed his gun against Coder‘s head, and shot him. Coder died almost
instantly. About five weeks later, at the nearby Meadowbrook Apartments,
defendant and Gregory Martin, a member of the Bloods street gang, argued briefly
before defendant fatally shot Martin in the head.
The prosecution presented eyewitness testimony and forensic evidence
consistent with these accounts. The Martin murder weapon was found a week
after that murder in a car driven by defendant‘s girlfriend and in which defendant
was a passenger. About a month after the murders, while incarcerated in Chino
State Prison, defendant told Harold Black, a fellow inmate, that he had shot Martin
and a ―white boy‖ at the Desert Edge Motel.

B. Prosecution Guilt Phase Case

1. The murder of Perry Coder
On the evening of January 4, 1994, defendant, whose nickname was
Popeye, was driving a Cadillac with his friend, Orlando Hunt, in the passenger
seat. They drove to the Desert Edge Motel in Banning. The motel was located in
a high-crime area rampant with drug activities and operated as an apartment-type
complex. There was a dirt field behind the motel, to the west.
Gina Lee, who lived at the motel, saw defendant and Hunt arrive. She had
seen defendant in her room earlier that day with a black handgun. When he
arrived with Hunt that evening, defendant parked on the side of the motel, at the
north end of the lot, and he and Hunt got out of the car. Hunt spoke with Lee2 and

2 Lee and Hunt had a child together.

2
her cousin, Johnnetta Hawkins, who was with Lee. Defendant and Hunt then
walked to the back of the building. A short, White male, subsequently identified
as 23-year old Perry Coder was walking on Ramsey Street. Defendant told Hunt
―hold on, wait right [here].‖
Hunt did not know Coder and thought that defendant might know him or
that the two were dealing drugs. He was unaware of any problems between
defendant and Coder. Hunt stood by a tree, approximately 47 feet from where
Coder‘s body subsequently was found, and saw defendant walk up to Coder.
Without saying anything to Coder, defendant pulled a gun from his coat, extended
his right arm ―straight out‖ in front of his chest and shot Coder ―for no apparent
reason.‖ Coder immediately fell to the ground. Hunt ran from the scene.
During the same evening, Kerry Scott, who lived in Banning, was walking
westbound on Ramsey Street when he reached a field adjacent to the Desert Edge
Motel and saw Coder,3 who was walking eastbound on the same street.4 Coder
was alone and walking unsteadily. Scott walked approximately 50 yards into the
field and stood next to a tree, approximately 50 yards from where police
subsequently found Coder‘s body. Scott saw defendant5 approach Coder and
stand approximately two to three feet in front of him, ―face to face.‖ Without
exchanging any words with Coder, defendant extended his right arm straight out,
turned his arm in and his gun to the side, and fired four shots. Coder fell to the
ground and exhibited no further movement. Scott ―took off running.‖

3 Scott recognized Coder but had forgotten his name.
4 Earlier in the day, Scott walked from Banning to Cabazon, a distance of
approximately five miles. Scott frequently walked to and from Cabazon to visit a
friend.
5 Scott did not know defendant‘s name and identified him as ―Popeye.‖
Scott knew defendant had a sister named ―Robin.‖

3
Lee was outside her motel room when she heard a gunshot and saw
defendant and Hunt running through the field. She left the area to buy drugs and
returned to her room about 30 minutes later. She saw defendant and Hunt at the
motel. Defendant ―looked kind of strange‖ and his eyes were ―just big and stuff.‖
He appeared to be very agitated, upset, and hyper. When Lee asked defendant,
―what‘s up,‖ he put his finger to his lips, said ―Shhhhh,‖ and told her somebody
was dead outside. Before they left the motel, Lee told Hawkins that when she saw
defendant outside the motel after hearing the gunshot, he threatened to kill her if
she said anything.
Thereafter, at approximately midnight, City of Banning Police Officer Bill
Caldwell, Jr., arrived on the scene and found Coder‘s body lying adjacent to the
field between the roadway and the sidewalk. Coder apparently had been clutching
a jacket. The police did not recover any shell casings near the body and never
found the murder weapon.
The next day, Hunt was sleeping and rolled over to find defendant standing
in the doorway of his bedroom. Defendant told Hunt that if he said anything, ―this
could happen to you.‖
On December 29, 1994, Caldwell and City of Banning Police Sergeant
Marshall Palmer interviewed defendant at Ironwood State Prison in Blythe,
regarding the Coder murder.6 The prosecution played a tape recording of the
interview for the jury. During the interview, after defendant initially denied being
in Banning in January l994, he admitted he had passed through the town that
month to see his daughter. When Caldwell and Palmer informed defendant that
three individuals witnessed him shoot Coder, defendant denied knowing Coder
and having shot him.

6 Defendant was in custody for a parole violation in an unrelated matter.

4
Daryl Garber, Chief Forensic Pathologist for Riverside County, performed
an autopsy on Coder‘s body. Coder suffered a single gunshot wound to the head
and a black eye associated with the wound. The wound was a ―tight contact,‖
meaning the muzzle was actually pressed tightly against Coder‘s skin when the
gun was fired. The wound traversed the brain front to back, with a slightly left-to-
right and upward trajectory. The wound caused a rapid death, and there was no
other cause of death. There was no exit wound. Dr. Garber opined that the gun
inflicting the wound would have been ―pretty much level with the ground.‖
Dr. Garber testified that although Coder probably had some detectable life signs
for a few minutes, he would have immediately lost consciousness, gone into a
coma for a few minutes, and then quickly died. Coder would have become
immediately incapacitated, or if he were walking at the time he was shot, he might
have continued taking at most one or two steps before falling down. Dr. Garber
recovered a bullet from Coder‘s head during the autopsy.

2. The murder of Gregory Martin
During the evening of February 12, 1994, Gregory Martin was shot twice in
the head in front of the Meadowbrook Apartments in Banning. His wounds were
fatal. It was common knowledge that Martin, whose nickname was ―Moto,‖ was a
member of the Bloods street gang.
Palmer7 and other Banning police officers arrived at the crime scene,
secured the area, and searched unsuccessfully for relevant physical evidence.
Officers knocked on doors to see if they could locate any witnesses. Lloyd
Marcus was identified as a potential witness and was interviewed by Palmer at the
Banning Police Department, within one to one-and-a-half hours of Palmer‘s
arrival at the murder scene.

7 Palmer was the detective bureau sergeant at the time of the Martin murder.

5
Marcus told Palmer that during the evening hours of February 12, 1994, he
was standing under a carport at the apartment complex when he saw two people
arguing in the street, ―something about money.‖ Marcus said he was able to see
them well because they were standing directly under a streetlight. Marcus
identified one of the men as ―Moto.‖ Initially, he could not identify the other man,
but subsequently told Palmer that his name was ―Popeye.‖ Marcus said Moto
asked Popeye, ―Where's my money?‖ The two men began pushing each other, and
Popeye pulled a gun from his waistband and fired two rounds at Moto.
Marcus described Popeye as an adult Mexican or Asian male, ―six-two, six-
three, dark shoulder-length hair, weighing about 190 to 220 pounds.‖ Palmer
associated defendant with the name Popeye and knew that Martin was a Blood and
defendant was a Crip.
Palmer ―put the word out‖ that he needed to talk to Popeye and wanted him
brought in for questioning. Palmer and patrol officers searched for defendant at
various locations where he was known to hang out, but were unable to locate him
until months later, when defendant was in Ironwood State Prison in Blythe, on an
unrelated matter.
Riverside County Forensic Pathologist Joseph Choi conducted an autopsy
on Martin‘s body. Martin suffered two gunshot wounds to his head, one just
below the eyebrow of his right eye, and the other on the back right side of his
head. The presence of gunpowder tattooing on Martin‘s forehead and between his
eyelid and eyelash indicated his eye was open and the lid was folded up when the
first wound was inflicted. Dr. Choi estimated the distance between the muzzle and
the wound at the time the gun was fired to be approximately six to 12 inches. The
wound was fatal, and death occurred within minutes. Dr. Choi recovered the
bullet from the back left side of Martin‘s head. The second gunshot wound was
behind Martin‘s right ear and also would have been rapidly fatal.

6
On February 19, 1994, at around 11:00 p.m., Riverside County Deputy
Sheriff Peter Herrera stopped a light blue Cadillac for driving too slowly. Kimiya
Gamble, defendant‘s girlfriend, was driving and defendant was in the front
passenger seat. When Herrera stopped them, there was a gun on the front seat
between them. Defendant told Gamble to put the gun in her purse, and she did
because she knew he was on parole. During a search of the car, Herrera found the
loaded gun in Gamble's purse, which was on the front seat of the vehicle. Gamble
told Herrera she had borrowed the gun from ―some unknown person.‖
Herrera arrested defendant and Gamble.8 Before they were taken to the
precinct station, and while Gamble was in the police car, defendant told her that
she should tell police she bought the gun on the street.9 Ballistics testing revealed
that the gun found during the search of the car was the Martin murder weapon.
In late February 1994, Harold Black was incarcerated with defendant at
Chino State Prison. Black grew up in Banning, was a drug user, and occasionally
associated with gang members. He knew those who claimed to be Crips and those
who claimed to be Bloods, and associated with both. Black and defendant were
acquainted with each other, but they were not friends. They were housed in the
same dormitory, and Black slept in close proximity to defendant. One night,
Black asked defendant why he was in jail. Defendant said that he was in for a gun
violation; that he and his girlfriend were riding in a car and had been pulled over;
and that he had put a gun in her purse. On another night, defendant asked Black if
he knew Moto. Black answered yes, and that he had heard Moto had been shot.
Defendant looked at Black, gave ―a little smile, and he says, ‗I did it.‘ ‖

8 The arrest report from this incident describes defendant as a 26-year-old
African-American male, five feet 10 inches tall, weighing 170 pounds.
9 Gamble subsequently was charged with, and pled guilty to, possession of a
concealed, loaded weapon.

7
Defendant said he stayed that night with a friend at the Meadowbrook Apartments,
and as he was leaving he saw Moto, crept up on him, pointed a gun at him, said,
―this is for Scotty,‖ and shot him in the head. Defendant said Moto ―just
crumbled, the body just fell.‖ Defendant also told Black that he ―shot that white
boy down at the Desert Edge motel.‖
Black explained that ―this is for Scotty‖ referred to Scotty Ware, a Crip
who was killed at a party, supposedly by a Blood, and that defendant was a Crip.
It was common knowledge that the person who killed Ware was a Blood,
supposedly from the Pomona Island Bloods, and was hanging out in Banning.
Black said he did not hear defendant‘s words when he continued to talk about the
Coder murder because he was stunned by defendant‘s description of how Moto
crumbled to the ground.
In September 1995, Black ran into defendant again at the Robert Presley
Detention Center in Riverside. Defendant asked him whether the police had
contacted him and whether he had said anything. Black told him no. When he
asked defendant why, defendant said that Gregory Taylor had said something to
the police or the district attorney. During this conversation, Black recalled that he
had mentioned the shootings to Taylor. Black told defendant that he had not
talked to the police or anyone, and had not been questioned.

C. Defendant’s Guilt Phase Case
The defense presented two witnesses, Jessie James Brown and Charles
Neazer, in support of its theory of misidentification. Defendant also sought to
prove the Martin murder was not gang motivated.
On the night Coder was murdered, Brown10 and several others, including
Nona Woodson and Melva Murray, were in Brown‘s room at the Desert Edge

10 At the time of trial, Brown was in custody for selling rock cocaine.

8
Motel. Brown heard one shot fired. After the shot, he waited in the room for 15
to 20 minutes before leaving. He tried to leave with Woodson in Murray‘s light
blue Buick, which was parked in front of Brown‘s door. The police stopped them
and arrested them for ―possession.‖ Brown did not see Scott or defendant‘s car in
the parking lot that evening.
Neazer11 had lived in Banning off and on from 1973 through 1997. He
testified that there really was not any gang activity in the Banning area and that the
Crips and the Bloods were friends because everyone knew each other. According
to Neazer, there had never been any gang activities involving the Crips and the
Bloods in Banning.12 He and Moto hung out in Banning because each had friends
and relatives there. A few days before the murder, Neazer, Moto, and defendant
were together at the Eastside Park. They were friendly, talking and drinking.
Neazer did not believe Scotty Ware was a gang member, but if so, he may have
been affiliated with the Bloods. Neazer believed Ware was killed in late 1989 or
early 1990.

D. Prosecution Penalty Phase Case

1. Prior felony convictions (§ 190.3, factor (c))
The parties stipulated that defendant was convicted of robbery (§ 211) on
June 1, 1989, and being a convicted felon in possession of a handgun (§ 12021.1)
on February 6, 1991.

11 Neazer ―claimed‖ the Bloods gang and had prior convictions for drug-
related offenses. At the time of trial, he was in custody for involuntary
manslaughter.
12 On cross-examination, when asked if he was aware that the majority of the
13 murder victims in Banning in 1994 were either Crips or Bloods, Neazer said he
was aware that ―a couple‖ of them were gang members.

9
2. Prior unadjudicated criminal activity involving force or violence
(§ 190.3, factor (b))13
The prosecution introduced evidence of the following prior unadjudicated
criminal offenses involving force or violence, or the threat to use force or
violence, within the meaning of section 190.3, factor (b) (factor (b)).
On December 11, 1984, then 17-year-old defendant committed a robbery of
a teacher in the cafeteria of a continuation school in the Banning Unified School
District. (See pt. IV.A.3., below.)
On November 12, 1988, defendant was found to be in possession of .357-
caliber ammunition, several pieces of rock cocaine and $168 in cash, and was
arrested for possession for sale of rock cocaine. (See pt. IV.A.1., below.)
On January 23, 1991, defendant admitted ownership of a Rugar Redhawk
revolver handgun that Banning police officers found in his car and that defendant
admitted he had purchased that afternoon.
On August 10, 1992, defendant was arrested for battery stemming from a
altercation with his sister, Robin McKinnon (Robin). (See pt. IV.A.2., below.)
On February 5, 1997, defendant was found to be in possession of a metal
shank, approximately nine inches long, during a search of defendant‘s cell at the
Robert Presley Detention Center in Riverside County. (See pt. IV.A.4., below.)

13 In addition to the evidence described here, the prosecution also presented
evidence in aggravation concerning a 1989 altercation between defendant and
Linda Bethune in which defendant allegedly hit Bethune. Trial counsel
subsequently moved to strike Bethune‘s testimony on the ground her testimony
failed to conform to the proffer and was unreliable. The trial court granted the
motion and subsequently instructed the jury not to consider it in aggravation.

10
3. Victim impact testimony
Darlene Shelton, Coder‘s fiancée, testified that she was living with him at
the motel when he was murdered. After the police told her that Coder was dead,
she became hysterical. Shelton was pregnant with their child when he was
murdered and ―almost lost the baby‖ because ―his death . . . affect[ed] me so bad.‖
Shelton‘s other child considered Coder his father and missed him very much.
Dawn Coder, Coder‘s sister, testified that she was near the scene of the
crime when Coder was murdered, and the police informed her of his death.
Thereafter, Dawn was an ―emotional wreck‖ for a week. The thyroid condition
she had at the time of the murder worsened. She mourned Coder‘s death for a
year ―on the streets.‖ She missed Coder because he was no longer available to
guide her with her problems.
Suzanne Coder, Coder‘s mother, testified that she was at the scene of the
murder. After hearing shots, she went outside and saw the feet of a partially
covered body in the street and knew by their size that they were Coder‘s. When
the prosecutor asked her how close she was to Coder, she stated that Coder was
partially deaf and had a twin and that he and his siblings were close. After
Coder‘s murder, she had ―fits of depression‖ and cried most of the time.
Mary Ann Martin, Martin‘s sister, testified that she had another brother
who was killed within five months of Martin's death. As a result of Martin‘s
death, she no longer trusted people and stayed to herself.

E. Defendant’s Penalty Phase Case
Defendant‘s mother, Janie Scott (Janie), his sister Jovina Brown, and his
estranged father, Robert Smith, testified on his behalf. Janie and Smith met when
Janie was 17 years old. Smith was married then and continued to have ongoing
relationships with other women during his relationship with Janie. Janie and
Smith had three other children: defendant‘s sisters, Robin, Jovina, and Marcina.
Smith had other families and did not live with Janie and their children on a regular
11
basis. He would come by about three times a month, typically at the beginning of
each month. He took all of Janie‘s welfare money and never provided financial
support. Janie and the children often went hungry. She had to rely on the charity
of family and friends to survive. When Smith was in their lives, they never
celebrated birthdays or holidays.
Smith was a serious heroin addict and injected the drug several times a day,
often in front of the children. He described how he would fund his habit by
committing armed robbery and larceny, and selling heroin.
Smith was physically abusive to Janie, frequently in front of their children.
Smith slapped Janie when she was pregnant with Jovina, and during one argument,
burnt her arm with a cigarette. Once, Smith beat Janie continuously as they
walked from their house to her sister‘s house, on the other side of town. He beat
her again once they arrived. On another occasion, Smith punched Janie in the
stomach with his fist when she was seven months pregnant with defendant.
Smith began physically abusing defendant at the time he started to walk.
He beat all of the children, except Robin, with belts and electrical cords. When
defendant was two years old, Smith held him up by one hand, beat him, and threw
him in a closet. He often would shake the children like they were rag dolls, beat
them, and put them in dark closets for hours. The children were terrified of Smith.
At times, Janie would have to soak the children in Epsom salt baths in order to
close and heal the wounds Smith inflicted on them. Defendant and Jovina sought
comfort from each other.
Growing up, defendant feared Smith and began to have nightmares when he
was three years old. He would wake up from his sleep at night, screaming that
Smith was beating him. When defendant wet his bed, Smith would beat him and
make him stand in the corner, for hours, in his soiled underwear.

12
In 1971, the family lived in the projects, an area rampant with drug activity
and violent crimes, including rapes, fights, and shootings. On one occasion,
defendant and Jovina were playing outside when they witnessed someone hit a
man in the head with a baseball bat and ―there was blood everywhere.‖ When he
was five years old, defendant cut off part of one of his fingers. Defendant
received good grades in school.
In 1972, Smith went to prison upon his conviction for murder. He had no
further contact with Janie and their children. Thereafter, Janie became
romantically involved with Troy Scott (Troy).
Janie married Troy and, in 1975, the family moved to California. Troy
began to use heroin, sometimes in front of the children. Occasionally, they
experienced financial hardship, had little food to eat, and went without electricity
and gas.
Troy physically abused Janie, but not in front of the children. Troy also
slapped defendant and once beat him with a belt. When defendant wet the bed,
Janie often made him lie in it for a couple of days before allowing him to clean
himself. Eventually, Troy was unable to work, and the family went on welfare.
Defendant was protective of his siblings.
Around 1976, the family moved to Riverside County. Defendant continued
to do well academically and played Pop Warner football. He continued to write
poetry, which he had begun to do at an early age.
When defendant was 14 or 15 years old, he began to have trouble with the
law. He was shot in the arm, elbow, and leg. The family moved to Banning. He
became more protective of his mother.
Defendant continued to write poetry over the years, including while
awaiting trial in this case. He was a good father to his daughter, who was about
nine years old at the time of trial. Defendant was a good son to his mother, and a

13
good brother to his sisters. Defendant loves his nieces and nephews and tells them
to obey their mother and stay out of trouble.
II. PRETRIAL ISSUES

A. Denial of Severance
Defendant contends the trial court abused its discretion in denying his
pretrial motion to sever the Coder murder charge and its related firearm-
possession charge from the Martin murder charge and its related firearm-
possession charge.14 He additionally argues that, even if the trial court did not
abuse its discretion at the time it denied his motion, his joint trial actually resulted
in gross unfairness amounting to a denial of due process. As we explain,
defendant‘s contentions are without merit.
Section 954 governs joinder and severance, providing in pertinent part:
―An accusatory pleading may charge . . . two or more different offenses of the
same class of crimes or offenses, under separate counts, and if two or more
accusatory pleadings are filed in such cases in the same court, the court may order

14 Defendant claims the erroneous denial of his severance motion violated his
Fifth, Eighth, and Fourteenth Amendment rights to due process, a fair trial, and
reliable verdicts. Pretrial, the trial court granted counsel‘s motion to deem all of
his trial objections and motions to be made under the Fifth, Sixth, Eighth, and
Fourteenth Amendments. These additional constitutional arguments are therefore
not forfeited on appeal. (See People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
Except as otherwise indicated, defense counsel did not urge that different legal
standards governed the constitutional and nonconstitutional aspects of his
objections, but instead simply implied that insofar as the trial court‘s act or
omission was wrong for the reasons actually presented to the court, it had the
additional legal consequence of violating the Constitution. In such cases, per our
standard practice, ―we resolve defendant‘s multiple constitutional claims without
separate discussion. Rejection of a claim on its merits necessarily disposes of the
additional constitutional ‗gloss.‘ (E.g., People v. Wallace (2008) 44 Cal.4th 1032,
1050, fn. 4.)‖ (People v. Hartsch (2010) 49 Cal.4th 472, 493, fn. 19 (Hartsch).)

14
them to be consolidated . . . . provided, that the court in which a case is triable, in
the interest of justice and for good cause shown, may, in its discretion order that
the different offenses or counts set forth in the accusatory pleading be tried
separately . . . .‖ When, as defendant concedes here, the statutory requirements for
joinder are satisfied, a defendant has the burden to clearly establish a potential of
prejudice sufficient to warrant separate trials. (People v. Cummings (1993) 4
Cal.4th 1233, 1283; People v. Stitely (2005) 35 Cal.4th 514, 531 (Stitely).)
―[T]he trial court‘s discretion under section 954 to deny severance is
broader than its discretion to admit evidence of uncharged crimes under Evidence
Code section 1101‖ because, in large part, a joint trial ―ordinarily avoids the
increased expenditure of funds and judicial resources which may result if the
charges were to be tried in two or more separate trials.‖ (People v. Bean (1988) 46
Cal.3d 919, 935-936; accord Hartsch, supra, 49 Cal.4th at p. 493.) ―Denial of a
severance motion may be an abuse of discretion if the evidence related to the
joined counts is not cross-admissible; if evidence relevant to some but not all of
the counts is highly inflammatory; if a relatively weak case has been joined with a
strong case so as to suggest a possible ‗spillover‘ effect that might affect the
outcome; or one of the charges carries the death penalty.‖ (People v. Cummings,
supra, 4 Cal.4th at p. 1283; see People v. Zambrano (2007) 41 Cal.4th 1082,
1128-1129 (Zambrano); People v. Bradford (1997) 15 Cal.4th 1229, 1315
(Bradford.) In assessing whether there was an abuse of discretion, we examine the
record before the trial court at the time of its ruling. (Zambrano, supra, at p.
1128.) Here, we conclude the trial court‘s denial of severance was not an abuse of
discretion.
Defendant argues at length that the trial court erred in finding evidence
related to the two murders to be cross-admissible. We need not, and do not,
decide this question, however, because, as we hereafter explain, defendant fails to

15
establish that, notwithstanding any absence of cross-admissibility, he was unfairly
prejudiced by joinder of the two murder cases. ― ‗While we have held that cross-
admissibility ordinarily dispels any inference of prejudice, we have never held that
the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice.‘ ‖
(People v. Sandoval (1992) 4 Cal.4th 155, 173, quoting People v. Mason (1991)
52 Cal.3d 909, 934; see Bradford, supra, 15 Cal.4th at p. 1316.) ―[E]ven if cross-
admissibility did not support consolidation of the cases, the absence of cross-
admissibility alone would not be sufficient to establish prejudice where (1) the
offenses were properly joinable under section 954, and (2) no other factor relevant
to the assessment of prejudice demonstrates an abuse of discretion.‖ (People v.
Geier (2007) 41 Cal.4th 555, 577 (Geier), citing Stitely, supra, 35 Cal.4th at pp.
531-532; see Bradford, supra, 15 Cal.4th at pp. 1317-1318.) As we discuss
below, defendant fails to persuade us that factors other than the lack, if any, of
cross-admissibility, demonstrate the need for severance.
Neither murder was especially likely, or more likely than the other, to
inflame the jury‘s passions. Each killing was cruel and brutal and committed for
seemingly trivial reasons. Contrary to defendant‘s assertions, the proffered gang
evidence in the Martin case was not unduly inflammatory. As we explain in part
III.A.3, below, the prosecution did not proffer evidence of any specific acts of
violence between members of the gangs involved in Martin‘s murder other than,
of course, evidence that his murder was connected to a prior gang-related murder.
This evidence, however, paled in comparison to the evidence of the most
prejudicial facet of the Coder murder—its absolute senselessness.
Defendant‘s argument that the asserted superficial similarities between the
crimes (i.e., both victims were shot in the head, both murders were committed at
night) invited the jurors improperly to cumulate the evidence and consider the
charges in concert is unpersuasive. This was not a matter in which a weak case

16
was joined with a strong case, or with another weak case, thereby ―causing a
spillover effect that might have unfairly altered the outcome of the trial.‖ (People
v. Stanley (2006) 39 Cal.4th 913, 935.) Strong evidence supported both cases.
It is true, as the jury learned, that most of the prosecution witnesses had
suffered prior convictions and had substance abuse problems. Harold Black had a
pending robbery charge at the time of trial. Nonetheless, defendant confessed to
each murder, and he was identified by eyewitnesses as the perpetrator of each
crime. The eyewitness testimony in the Coder case, moreover, was materially
consistent with the forensics evidence showing that he was shot in the head at
close range and that the gun was level to the ground and pressed against his head
when defendant shot him. In addition, the forensics evidence corroborated the
testimony of Orlando Hunt and Kerry Scott that Coder took at most a couple of
steps after he was shot before he fell to the ground.
In the Martin case, the forensics evidence corroborated eyewitness Lloyd
Marcus‘s statement that the killer fired two rounds at Martin at close range. Also,
the prosecution presented evidence that, within approximately one week after the
murder, defendant gave the murder weapon to his girlfriend. Thus, the evidence in
each case was equally strong. We see no possibility that the jury was improperly
influenced by the evidence of one murder in determining his guilt of the other.
Defendant correctly points out that, because the present matter is ―one in
which the joinder itself gave rise to the special circumstance allegation (multiple
murder, § 190.2, subd. (a)(3)), . . . a higher degree of scrutiny [must] be given the
issue of joinder.‖ (Bradford, supra, 15 Cal.4th at p. 1318.) But the trial court here
heard counsel‘s extensive argument on the issue and carefully scrutinized the
evidence. Our review of the record fails to disclose any abuse of discretion by the
trial court in denying defendant‘s motion to sever.

17
Finally, defendant does not show joinder in this matter amounted to a
denial of fundamental fairness. ― ‗A pretrial ruling that was correct when made
can be reversed on appeal only if joinder was so grossly unfair as to deny due
process.‘ ‖ (Hartsch, supra, 49 Cal.4th at p. 494, quoting Stitely, supra,
35 Cal.4th at p. 531.) In light of defendant‘s confessions, the eyewitness
identifications of defendant as the perpetrator of each killing, and forensic
evidence that corroborated the eyewitnesses‘ accounts of the murders, joinder of
the murder charges did not render defendant‘s joint trial fundamentally unfair.

B. Denial of Defendant’s Motion for Individual Sequestered Voir Dire
of the Prospective Jurors
Defendant contends the trial court‘s denial of his motion for individual
sequestered voir dire violated his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution and parallel provisions of the
California Constitution. His contention lacks merit.
―In Hovey v. Superior Court (1980) 28 Cal.3d 1, 80, we stated that, to
minimize the potentially prejudicial effects of voir dire conducted in open court, in
future capital cases, the portion of the voir dire of each prospective juror involving
death qualification should be done individually and in sequestration.‖ (People v.
Avila (2006) 38 Cal.4th 491, 559 (Avila).) On June 5, 1990, the voters adopted
Proposition 115, which, among other things, abrogated Hovey by adding section
223 of the Code of Civil Procedure, containing a provision stating that ― ‗where
practicable, [voir dire shall] occur in the presence of the other [prospective] jurors
in all criminal cases, including death penalty cases.‘ ‖ (People v. Slaughter (2002)

18
27 Cal.4th 1187, 1199 (Slaughter).) Because defendant was tried after Code of
Civil Procedure section 223 was enacted, that section controls here.15
Before trial, defendant moved for individual sequestered voir dire. He
asserted a significant possibility of prejudice existed in this case because the
circumstances of the murders of two young men would present emotional issues,
evidence of gang affiliation and rivalry would be introduced, defendant was a
young African-American man, and the nature of the death-qualification process
itself was prejudicial. The trial court summarily denied his request for sequestered
voir dire, but granted his motion for the use of a questionnaire containing 50
questions drafted by the parties.
Initially, defendant contends that any restriction on individual and
sequestered voir dire on death-qualifying issues, including that imposed by Code
of Civil Procedure section 223, violates a defendant‘s rights to an impartial jury, to

15 At the time of defendant‘s 1998-1999 trial, section 223 of the Code of Civil
Procedure provided: ―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 the examination by such further inquiry as it deems
proper, or shall itself submit to the prospective jurors upon such a showing, such
additional questions by the parties as it deems proper. Voir dire of any prospective
jurors shall, where practicable, occur in the presence of the other jurors in all
criminal cases, including death penalty cases. [¶] Examination of prospective
jurors shall be conducted only in aid of the exercise of challenges for cause. [¶]
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.‖ (Added by Prop. 115, approved by
voters, Primary Elec. (June 5, 1990).) As amended effective in 2001, that section
grants counsel for each party a limited right to examine prospective jurors through
direct oral questioning. (Code Civ. Proc., § 223, as amended by Stats. 2000, ch.
192, § 1; see also People v. Stewart (2004) 33 Cal.4th 425, 455 & fns. 17 & 18
(Stewart).)

19
a reliable death sentence, and to the effective assistance of counsel under the
Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. Consistent
with past decisions, we reject this contention. (See, e.g., People v. Lewis (2008)
43 Cal.4th 415, 494 (Lewis); Avila, supra, 38 Cal.4th at p. 559; People v. Vieira
(2005) 35 Cal.4th 264, 287-288 (Vieira); Stitely, supra, 35 Cal.4th 514, 537.)
Defendant next contends the trial court‘s summary denial of motion did not
amount to a reasoned judgment, and thus constitutes an abuse of discretion.
―Under Code of Civil Procedure section 223, the question of whether individual,
sequestered voir dire should take place is entrusted to the trial court‘s discretion.
[Citations.] Discretion is abused when the questioning is not reasonably sufficient
to test prospective jurors for bias or partiality.‖ (People v. Tafoya (2007) 42
Cal.4th 147, 168.)
Here, we agree with the People that, although the trial court did not state its
reasons for denying defendant‘s motion for sequestered voir dire, its remarks
during voir dire confirm that its denial of the motion reflected careful
consideration of the issue and that it properly exercised its discretion. Before the
commencement of voir dire, the court explained to the prospective jurors that use
of the questionnaires would save about two to three weeks in selecting a jury
because it would obviate the need to question them and listen to their answers in
open court. The court offered prospective jurors the option to discuss sensitive
subjects in private, if needed. In the context of these comments, it is apparent the
trial court thoroughly considered the issue and determined group voir dire was
adequate. The court‘s denial of defendant‘s motion was not outside the bounds of
reason.
Defendant additionally contends that group voir dire was not ―practicable‖
within the meaning of Code of Civil Procedure section 223 because prospective
jurors were influenced by the responses of others. He observes that, during voir

20
dire, Prospective Juror S.R. expressed in front of other prospective jurors her
views that she did not think she could ever vote to impose a death sentence. The
trial court dismissed her for these views. Defendant asserts this juror‘s views
suggested to other prospective jurors who favored the death penalty and wished to
serve, but feared disqualification based on their pro-death penalty views, that they
could avoid dismissal by expressing less support for the death penalty and
conveying a willingness to consider both penalties if they served.
―The possibility that prospective jurors may have been answering questions
in a manner they believed the trial court wanted to hear,‖ however, ―identifies at
most potential, rather than actual, bias and is not a basis for reversing a judgment.‖
(Vieira, supra, 35 Cal.4th at p. 289.) Indeed, the purpose and effect of the ―group
voir dire‖ requirement of Code of Civil Procedure section 223 would be obviated
if nonsequestered questioning were deemed ―[im]practicable‖ because of the
speculative concern that one prospective juror‘s death penalty responses might
influence the responses of others in the venire. It is precisely this premise of
People v. Hovey, supra, 28 Cal.3d 1, that Proposition 115‘s adoption of Code of
Civil Procedure section 223 was intended to overrule. (Vieira, supra, at p. 288,
citing Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168, 1178.)
Finally, defendant asserts that the group voir dire procedure employed by
the trial court was inadequate to identify prospective jurors whose views on the
death penalty rendered them partial and unqualified to serve. As a result, he
asserts, the court was unable to determine whether any of the prospective jurors
who sat on the jury in his case held disqualifying views that impaired their ability
to judge him in accordance with the court‘s instructions. Defendant, however,
does not ―describe any specific example of how questioning prospective jurors in
the presence of other jurors prevented him from uncovering juror bias.‖ (People v.

21
Navarette (2003) 30 Cal.4th 458, 490.) Accordingly, defendant has not
demonstrated he was prejudiced by the trial court‘s use of group voir dire.

C. Excusal of Prospective Jurors for Cause
In Witherspoon v. Illinois (1968) 391 U.S. 510 (Witherspoon), the United
States Supreme Court held that a death sentence cannot be carried out if the jury
that imposed or recommended the penalty was selected by excluding prospective
jurors for cause ―simply because they voiced general objections to the death
penalty or expressed conscientious or religious scruples against its infliction.‖
(Witherspoon, supra, 391 U.S. at p. 522.) In Wainwright v. Witt (1985) 469 U.S.
412 (Witt), the high court clarified the standard enunciated in Witherspoon and
held that a prospective ―juror who is substantially impaired in his or her ability to
impose the death penalty under the state-law framework can be excused for cause;
but if the [prospective] juror is not substantially impaired, removal for cause is
impermissible.‖ (Uttecht v. Brown (2007) 551 U.S. 1, 9 (Uttecht), citing Witt,
supra, at p. 424.) Under Witt, a prospective juror is ―substantially impaired‖ and
may properly be excused for cause if he or she is unable to follow the trial court‘s
instruction and ―conscientiously consider all of the sentencing alternatives,
including the death penalty where appropriate.‖ (People v. McWhorter (2009) 47
Cal.4th 318, 340 (McWhorter).)
Defendant contends the trial court erroneously excused Prospective Jurors
R.A., J.S., R.G., G.H., and P.F. for cause based on their views regarding the death
penalty, in violation of his constitutional rights to a fair and impartial jury, due
process, and a reliable verdict under the Sixth, Eighth, and Fourteenth
Amendments. He also impliedly claims that the procedure by which the trial court
resolved the challenges for cause of these individuals was constitutionally
defective. The People argue not only that defendant‘s claims lack merit but also
that defendant has forfeited both procedural and substantive challenges to the

22
excusals of the prospective jurors because his trial counsel either expressly agreed
to the procedures or rulings leading to those excusals, or affirmatively acquiesced
in them by stating that the defense would ―submit‖ the matters. We reject both of
defendant‘s claims.
At stake here are the important interests of a capital defendant‘s
constitutional right to a fair and impartial penalty trial and the People‘s
expectation of, and entitlement to, finality of capital judgments. Manifestly, our
efforts in reconciling these competing interests depend, in significant part, on the
fair and orderly administration of our criminal justice system. A fundamental
tenet of our system of justice is the well-established principle that a party‘s failure
to assert error or otherwise preserve an issue at trial ordinarily will result in
forfeiture of an appeal of that issue. ― ‗The purpose of the general doctrine of
waiver is to encourage a defendant to bring errors to the attention of the trial court,
so that they may be corrected or avoided and a fair trial had.‘ ‖16 (People v.
Walker (1991) 54 Cal.3d 1013, 1023, quoting People v. Melton (1990) 218
Cal.App.3d 1406, 1409.)
In People v. Velasquez (1980) 26 Cal.3d 425 (Velasquez), this court
observed that ―[t]he decisions of the United States Supreme Court and of the
California courts have unanimously ruled that Witherspoon [excusal] error is not

16 As we stated in People v. Saunders (1993) 5 Cal.4th 580: ―In this context,
the terms ‗waiver‘ and ‗forfeiture‘ have long been used interchangeably. . . .
[H]owever: ‗Waiver is different from forfeiture. Whereas forfeiture is the failure
to make the timely assertion of a right, waiver is the ―intentional relinquishment or
abandonment of a known right.‖ [Citations.]‘ [Citation.]‖ (Id. at p. 590, fn. 6.)
Thus, here, we characterize the issue as whether counsel‘s failure to object to the
excusals at trial forfeited, rather than waived, the issue on appeal.

23
waived by mere failure to object.‖17 (Id. at p. 443.) There, we adopted the rule
that a defendant‘s failure to object to a Witherspoon excusal at trial does not forfeit
the issue on appeal (the ―no-forfeiture rule ‖). (Velasquez, at p. 443.) This case
presents an occasion to reconsider the validity of this rule, and, as we explain
below, we conclude that the rule finds no support in either the United States
Supreme Court or California decisional law on which it relies. For this reason,
and others that we explain in detail below, we abandon our no-forfeiture rule with
respect to Witherspoon/Witt excusal error. In addition, we require, prospectively,
counsel (or defendant, if proceeding pro se) to make either a timely objection, or
the functional equivalent of an objection (i.e., statement of opposition or
disagreement) to the excusal on specific grounds under Witherspoon/Witt in order
to preserve the issue for appeal.

1. The jury selection process and written questionnaire
At the beginning of the jury selection process, the trial court proposed to
pare down the jury pool to a size the courtroom could accommodate by using the
questionnaires defendant had requested, and helped to draft, in order to eliminate
prospective jurors whose questionnaire responses reflected death penalty views
that precluded their service in a capital case. The prosecutor concurred, and
defense counsel raised no objection.
Thereafter, during a discussion of the questionnaires, the prosecutor
expressed his understanding that the two sides had ―agreed on everything.‖
Defense counsel responded, ―That‘s fine, Your Honor.‖

17 Because our decision in Velasquez predated the high court‘s decision in
Witt, which, as stated, clarified the Witherspoon standard for excusing prospective
jurors for cause, our analysis of Velasquez below refers to ―Witherspoon‖ instead
of ―Witherspoon/Witt‖ excusal error.

24
The court read 111 completed juror questionnaires, each 21 pages long.
The court and counsel then addressed, one by one, certain prospective jurors
whom the court had preliminarily identified, by reason of their written responses,
as ―questionable.‖ During this process, defense counsel expressly stipulated to the
excusal of several prospective jurors, based solely on their questionnaire answers.
Thereafter, the court and counsel discussed one by one the remaining prospective
jurors, and the prosecutor stipulated to the excusals for cause of Prospective Jurors
R.A., J.S., R.G., G.H., and P.F. Counsel ―submitted‖ each matter. In addition,
with respect to Prospective Jurors R.A. and J.S., defense counsel declined the
court‘s offer to conduct oral voir dire. The court then excused each of these
prospective jurors for cause, based solely on their questionnaire responses.

2. Discussion

a. Forfeiture
Preliminarily, insofar as defendant now claims the wording of the
questionnaires was inherently incapable of revealing that a prospective juror was
unqualified, his words or conduct during the jury selection proceedings, described
above, constituted express agreements or stipulations to the contrary. He therefore
has forfeited such a contention.
Turning now to defendant‘s substantive claims that the excusals of the five
prospective jurors were improper under Witherspoon/Witt, the People insist
defendant forfeited these claims on appeal because counsel expressed no
objection, argument, or opposition, but merely ―submitted‖ these matters to the
trial court. In a number of our cases (e.g., People v. Lynch (2010) 50 Cal.4th 693,
733 (Lynch); People v. Hawthorne (2009) 46 Cal.4th 67, 82-83; People v.
Schmeck (2005) 37 Cal.4th 240, 262 (Schmeck)), dating back to Velasquez, supra,
26 Cal.3d 425, we expressed the rule that an appellate challenge to a
Witherspoon/Witt excusal is not forfeited by a failure to object at trial, or even by

25
counsel‘s affirmative statement to the trial court that the matter is ―submitted.‖
Here, by counsel‘s submission of the matters to the trial court, ― ‗as a practical
matter, he ―did not object to the court‘s excusing the juror, but . . . also refused to
stipulate to it.‖ ‘ [Citation.]‖ (Lynch, supra, at p. 733.) Under our precedent,
defendant therefore did not forfeit this claim on appeal. (Ibid.)
Nevertheless, we take this opportunity to reexamine, for future purposes,
our no-forfeiture rule as established in Velasquez. As we explain, we conclude
Velasquez was based on a faulty premise and was wrongly decided. For this and
the additional reasons discussed below, we overrule People v. Velasquez, supra,
26 Cal.3d 425, to the extent it provides that failure to object to a Witherspoon
excusal at trial does not forfeit the issue on appeal.
―[A]s a general rule, ‗the failure to object to errors committed at trial
relieves the reviewing court of the obligation to consider those errors on appeal.‘
(Fischer et al., Appeals and Writs in Criminal Cases (2d ed. 2000) § 1D.26,
pp. 182–183; see also 4 Cal.Jur.3d (1998) Appellate Review, § 175, pp. 233–234.)
This applies to claims based on statutory violations, as well as claims based on
violations of fundamental constitutional rights. [Citations.] [¶] The reasons for
the rule are these: ‗ ―In the hurry of the trial many things may be, and are,
overlooked which would readily have been rectified had attention been called to
them. The law casts upon the party the duty of looking after his legal rights and of
calling of the judge‘s attention to any infringement of them. If any other rule were
to obtain, the party would in most cases be careful to be silent as to his objections
until it would be too late to obviate them, and the result would be that few
judgments would stand the test of an appeal.‖ ‘ [Citation.]‖ (In re Seaton (2004)
34 Cal.4th 193, 198.)
A careful review of our forfeiture analysis in Velasquez reveals that this
court established the exception to the objection requirement for Witherspoon

26
excusal error based on the mistaken assumption that post-Witherspoon decisions
of the high court and this court ruled such error is not forfeited on appeal by
failure to object at trial. (Velasquez, supra, 26 Cal.3d at p. 443, citing Maxwell v.
Bishop (1970) 398 U.S. 262 (Maxwell); Boulden v. Holman (1969) 394 U.S. 478
(Boulden); Wigglesworth v. Ohio (1971) 403 U.S. 947 (Wigglesworth); Harris v.
Texas (1971) 403 U.S. 947 (Harris); People v. Risenhoover (1968) 70 Cal.2d 39
(Risenhoover); In re Anderson (1968) 69 Cal.2d 613 (Anderson).)
This court first applied the no-forfeiture rule set forth in Velasquez in
People v. Lanphear (1980) 26 Cal.3d 814, 844-846 (Lanphear). We did so citing
Velasquez as the sole authority for excusing the defendant‘s failure to object to the
Witherspoon excusals, and without mention of the majority‘s rationale for
adopting the rule. (Lanphear, supra, 26 Cal.3d at p. 844.) In his dissent to the
majority‘s conclusion in Lanphear, however, Justice Clark correctly observed that
each of the post-Witherspoon decisions cited in Justice Tobriner‘s lead opinion in
Velasquez in support of the no-forfeiture rule involved trials that had preceded the
decision in Witherspoon (which the high court decided June 3, 1968) and as to
which the appellate or habeas corpus proceedings were pending when the opinion
was filed. (Lanphear, at pp. 844-846 (dis. opn. of Clark, J.), quoting Velasquez,
supra, 26 Cal.3d at p. 443.) As such, the defendant in each of those cases was
entitled to the fully retroactive application of the new Witherspoon standards
respecting for cause challenges. (Witherspoon, supra, 391 U.S. at p. 523, fn. 22.)
Either expressly or impliedly, the defendant‘s failure to object on Witherspoon
grounds at trial was excused on appeal. (Lanphear, supra, 26 Cal.3d at p. 845; see
Maxwell, supra, 398 U.S. at p. 267; Boulden, supra, 394 U.S. at pp. 484-485;
Wigglesworth, supra, 403 U.S. 947 [judgment reversed and case remanded for
further proceedings under Witherspoon, citing Boulden and Maxwell]; Harris,
supra, 403 U.S. 947 [same]; Anderson, supra, 69 Cal.2d at p. 619 [the defendant‘s

27
failure to object to the dismissals in his pre-Witherspoon trial was expressly
excused because Witherspoon made a material change in the law]; Risenhoover,
supra, 70 Cal.2d at p. 56 [relying on Anderson].) Indeed, because the
Witherspoon rule had not yet been articulated at the time of the trials in these
cases, defense counsel had no occasion to object to dismissals on Witherspoon
grounds.18
As with our jurisprudence (see, e.g., Avila, supra, 38 Cal.4th at p. 566),
decisions of the high court are not authority for issues neither considered nor
decided therein. (Cooper Industries, Inc. v. Aviall Services, Inc. (2004) 543 U.S.
157, 170 [― ‗Questions which merely lurk in the record, neither brought to the
attention of the court nor ruled upon, are not to be considered as having been so
decided as to constitute precedents.‘ ‖], quoting Webster v. Fall (1925) 266 U.S.
507, 511.) Because the question of forfeiture in post-Witherspoon trials was not
decided by Witherspoon or any of the post-Witherspoon decisions cited by the
Velasquez majority, the no-forfeiture rule adopted in that case is grounded in
neither the law, nor, as we clarify below, the facts of that case.
The United States Supreme Court first discussed the forfeiture issue in the
context of Witherspoon excusal error in Witt. (Witt, supra, 469 U.S. at p. 431, fn.
11.) There, Justice Rehnquist explained that defense counsel‘s failure to object to
the dismissals of the prospective jurors did not bar federal habeas corpus review.
(Ibid.) Because the state supreme court did not dispose of the defendant‘s claim
on independent state grounds (e.g., by failure to preserve the issue on appeal) and

18 We observe that our cases decided after Lanphear that apply the Velasquez
no-forfeiture rule have done so without further analysis or examination. (See, e.g.,
Schmeck, supra, 37 Cal.4th at p. 262; People v. Memro (1995) 11 Cal.4th 786, 818
(Memro); People v. Cox (1991) 53 Cal.3d 618, 648, fn. 4 (Cox), citing Velasquez,
supra, 26 Cal.3d at p. 443.)

28
reached the merits of the claim, the issue was properly before the high court.
(Ibid.)
Much more recently, the high court elaborated on the forfeiture issue in
Uttecht, supra, 551 U.S. 1. The Uttecht majority confirmed that for purposes of
federal habeas corpus review of Witherspoon/Witt excusal error in a state criminal
trial, there is ―no independent federal requirement‖ of a trial objection; instead,
―state procedural rules govern.‖ (Uttecht, at p. 18, italics added.) Nonetheless,
the Uttecht majority noted the federal habeas corpus court may take into account,
on the merits, the implications of trial counsel‘s ―voluntary acquiescence to, or
confirmation of, a juror‘s removal.‖ (Ibid.) As the majority explained, ―[b]y
failing to object, the defense [does] not just deny the conscientious trial judge an
opportunity to explain his judgment or correct any error. It also deprive[s]
reviewing courts of further factual findings that would have helped to explain the
court‘s decision.‖ (Ibid.) Uttecht thus strongly implied that a requirement of trial
objection in Witherspoon/Witt cases is sound policy, and that the federal
Constitution does not bar the adoption of such a ―state procedural rule[ ].‖
(Uttecht, at p. 18.)
Ironically, in Velasquez, this court did embrace this sound policy. In
addition to creating the no-forfeiture rule, the Velasquez majority also observed
that the trial court in that case was in fact apprised of the risk of error in excusing
the prospective juror and provided an opportunity to correct the error. We thus
impliedly held that the issue had been preserved for appeal on this additional basis.
We stated: ―[I]n the present case the trial judge was alerted to the possibility of
Witherspoon error by the prosecutor and further was informed that defendants did
not consent to the dismissal of [the prospective juror]. [Citation.] Thus the
function of an objection—to alert the court to the risk of error and permit it to
avoid that error—was essentially fulfilled. Furthermore, the court‘s statement that

29
‗I‘m going to stand by my ruling. It‘s plenty clear to me,‘ suggests that any formal
objection would have been futile.‖ (Velasquez, supra, 26 Cal.3d at p. 444; see id.
at p. 437.)
Because, as indicated, Velasquez held in the alternative that the issue was
preserved at trial (albeit atypically by both defense counsel and the prosecutor),
Velasquez‘s suggestion that Witherspoon excusal error is not forfeited by failure to
object effectively was dictum. Insofar as not inherently persuasive, it thus has
little authoritative weight.
Finally, our no-forfeiture rule as to Witherspoon/Witt excusal error is
inconsistent with the requirement of an objection that applies to other jury
selection issues. We have repeatedly required that an objection be interposed in
the trial court to preserve jury selection issues other than Witherspoon/Witt excusal
error, including inadequate voir dire (People v. Foster (2010) 50 Cal.4th 1301,
1324; People v. Taylor (2010) 48 Cal.4th 574, 638 (Taylor); People v. Rogers
(2009) 46 Cal.4th 1136, 1149 (Rogers); People v. Cook (2007) 40 Cal.4th 1334,
1341-1342); failure to instruct prospective jurors regarding their civic duty to
serve in a death penalty case (People v. Mills (2010) 48 Cal.4th 158, 170); non-
Witherspoon/Witt error in excusing jurors (People v. Holt (1997) 15 Cal.4th 619,
656 (Holt) [prosecutor‘s challenge for bias/conflict of interest]; People v. Mickey
(1991) 54 Cal.3d 612, 664-665 [undue personal hardship]); error in discharging a
prospective juror at his or her request (People v. Ashmus (1991) 54 Cal.3d 932,
987, fn. 16 [failure to preserve federal constitutional claim]); representative cross-
section error (People v. Ramirez (2006) 39 Cal.4th 398, 440 [composition of the
master jury list]; People v. Champion (1995) 9 Cal.4th 879, 907 (Champion),
overruled on another point in People v. Combs (2004) 34 Cal.4th 821, 860 [wage
earners systematically excluded]; People v. Fauber (1992) 2 Cal.4th 792, 816

30
[hearing impaired prospective jurors systematically excused]; Batson/Wheeler19
error (People v. Davis (2009) 46 Cal.4th 539, 583; Lewis, supra, 43 Cal.4th at
pp. 481-482; People v. Thornton (2007) 41 Cal.4th 391, 462); and improper denial
of a defendant‘s challenge for cause under Witherspoon/Witt (Mills, supra, at
pp. 186-187 [defendant must use peremptory challenge to remove prospective
juror in question, must exhaust peremptory challenges, and must express
dissatisfaction with the jury as finally constituted]; People v. Wallace, supra, 44
Cal.4th 1032, 1055 [same]; but cf. People v. Hoyos (2007) 41 Cal.4th 872, 904,
fn. 16 [explicit nonjoinder in codefendant‘s challenge for cause to pro-death
prospective juror did not forfeit appellate contention that juror was death
disqualified ―because failure to object does not forfeit a Witt/Witherspoon claim
on appeal‖].)20

19 Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22
Cal.3d 258.
20 Our review of decisions from other jurisdictions has disclosed no example
of a rule, similar to California‘s, that uniquely preserves for review, despite the
failure to object below, a claim that the record does not support an excusal under
Witherspoon/Witt. Indeed, numerous states have held such a claim is forfeited if
the defendant did not interpose a trial objection. (Clark v. Arkansas (Ark. 1978)
573 S.W.2d 622, 636-637 [general rule that failure to object at trial or by motion
for new trial waived issue on capital appeal applied to defendant‘s claim of
unsupported Witherspoon excusal]; Brown v. State (Fla. 1980) 381 So.2d 690,
693-694 [defendant could not complain on appeal of unsupported Witherspoon
excusal where no objection was interposed]; Blankenship v. State (Ga. 1988) 365
S.E.2d 265, 267 [failure to object at trial waived defendant‘s appellate claim of
unsupported Witherspoon/Witt excusal pursuant to Georgia court rule generally
applicable to excusals for cause]; State v. Campbell (La. 2008) 983 So.2d 810,
862-864 [where counsel, or defendant personally when representing himself,
stated ―no objection‖ to prospective jurors‘ excusal, statute and case law mandated
forfeiture for failure to make contemporaneous objection]; Scott v. State (Miss
2006) 938 So.2d 1233, 1247 [failure to object at trial or on appeal forfeited issue
under statute governing collateral postconviction relief], overruled on another
point, in Lynch v. State (Miss. 2007) 951 So.2d 549; White v. State (Miss. 1988)
532 So.2d 1207, 1215 [failure to object at trial forfeited issue on direct appeal];
(Footnote continued on next page.)

31
(Footnote continued from previous page.)

Commonwealth v. Ligons (Pa. 2009) 971 A.2d 1125, 1155 [lack of
contemporaneous trial objection resulted in forfeiture under statute governing
collateral postconviction relief]; Hodges v. Commonwealth (Va. 1972) 191 S.E.2d
794, 795 [general objection to excusal of prospective jurors for cause held
insufficient to preserve Witherspoon claim on appeal]; but cf. Carter v. State (Tex.
Crim.App. 1986) 717 S.W.2d 60, 76 [failure to state specific grounds of objection
did not constitute waiver where context made it obvious to court that objection
was on grounds the record did not support prospective juror‘s death
disqualification, and no one was misled].)
We have found several decisions indicating that a failure to object below
did not bar limited review of a Witherspoon/Witt excusal issue, but these cases
arose in jurisdictions which, unlike California, recognized, as a matter of local
practice, some more general ―plain error‖ or ―fundamental error‖ exception to the
rule requiring a trial objection. (E.g., State v. Detrich (Ariz. 1997) 932 P.2d 1328,
1336 [while claim of erroneous individual Witherspoon/Witt excusal was waived
by failure to object on this specific ground, circumstances of excusal would
nonetheless be examined, under general state practice governing criminal appeals,
for fundamental error]; People v. Gacho (Ill. 1988) 522 N.E.2d 1146, 1154-1155
[Witherspoon/Witt excusal claim would be considered under state rule calling for
―plain error‖ review of capital penalty issues otherwise waived by failing to object
in cases where evidence is closely balanced]; State v. Keith (Ohio 1997) 684
N.E.2d 47, 56 [the absence of an objection did not preclude appellate review for
plain error of defendant‘s claim of erroneous Witherspoon/Witt excusal], but see
State v. Bethel (Ohio 2006) 854 N.E.2d 150, 174-175 [despite general rule that,
regardless of objection, record in criminal case will be reviewed for plain error
affecting defendant‘s substantial rights (see, e.g., State v. Barnes (Ohio 2002) 759
N.E.2d 1240, 1246-1247), claim of unsupported Witherspoon/Witt excusal was
waived by failure to object on this specific ground]; see also Douglas v. State
(Okla.Crim.App. 1997) 951 P.2d 651, 660 [by failure to object that prospective
jurors should not have been excused on Witherspoon/Witt grounds absent a motion
by the state, defendant waived all but plain error, and no such error occurred];
(State v. McDougald (N.J. 1990) 577 A.2d 419, 436 [despite lack of objection
below, ―reverse Witherspoon‖ claim that pro-death juror should have been
excused would be addressed pursuant to state rule requiring ―plain error‖ review
of capital sentencing issues affecting right to fair and impartial jury], and see also
State v. Biegenwald (N.J. 1987) 524 A.2d 130, 166 [―plain error‖ doctrine applies
where ―life is at stake‖ and error was likely to affect defendant‘s substantial
rights].)

32
By applying to Witherspoon/Witt issues the usual requirement of a
contemporaneous objection, we promote fair and orderly judicial administration.
A timely objection alerts the trial court to potential Witherspoon/Witt error in the
disqualification of a prospective juror, thus enabling the court to avoid or correct
the problem before it irrevocably nullifies the entire subsequent penalty trial.21
Moreover, by requiring the defendant to advise the trial court he or she opposes
the excusal under Witherspoon/Witt in order to preserve the issue for appeal, we
eliminate the unfair risk of ―sandbagging‖ the court by finding it committed
reversible error of which it received no warning. Defendant offers no persuasive
reason why our requirement of a contemporaneous objection stating specific
grounds of Witherspoon/Witt excusal error should not apply.
Accordingly, for the reasons stated, we overrule People v. Velasquez,
supra, 26 Cal.3d 425 to the extent it articulates a no-forfeiture rule with respect to
Witherspoon/Witt excusal error. In any capital case tried after the finality of this
decision, counsel (or defendant, if proceeding pro se) must make either a timely
objection, or the functional equivalent of an objection, such as a statement of
opposition or disagreement, to the excusal stating specific grounds under
Witherspoon/Witt in order to preserve the issue for appeal. Nevertheless, as stated
above, because at the time of this trial we had not expressly held that an objection
is necessary to preserve Witherspoon/Witt excusal error on appeal, we do not
apply this rule here. (See People v. Scott (1994) 9 Cal.4th 331, 357-358.) We
thus proceed to the merits of defendant‘s claims.

21 As noted below, the erroneous excusal of a prospective juror under
Witherspoon/Witt requires reversal of a death penalty judgment. (Gray v.
Mississippi (1987) 481 U.S. 648, 666-668.)

33
b. The law
A ―criminal defendant has the right to an impartial jury drawn from a venire
that has not been tilted in favor of capital punishment by selective prosecutorial
challenges for cause.‖ (Uttecht, supra, 551 U.S. at p. 9, citing Witherspoon,
supra, 391 U.S. at p. 521.) As stated, a prospective juror in a capital case may be
excused if his or her views would ― ‗prevent or substantially impair the
performance of his [or her] duties as a juror in accordance with his [or her]
instructions and his [or her] oath.‘ ‖ (Witt, supra, 469 U.S. at p. 424.) A
prospective juror‘s bias against the death penalty, however, need not be proved
with ―unmistakable clarity.‖ (McWhorter, supra, 47 Cal.4th at p. 340.) Moreover,
―a prospective juror in a capital case may be discharged for cause based solely on
his or her answers to the written questionnaire if it is clear from the answers that
he or she is unwilling to temporarily set aside his or her own beliefs and follow the
law.‖ (Avila, supra, 38 Cal.4th at p. 531, italics added; accord, People v. Wilson
(2008) 44 Cal.4th 758, 787 (Wilson).)
The erroneous exclusion of a prospective juror under Witherspoon/Witt
compels reversal of the penalty verdict regardless of whether the prosecutor had
remaining peremptory challenges. (People v. Heard (2003) 31 Cal.4th 946, 965;
see Gray v. Mississippi, supra, 481 U.S. at pp. 666-668.) On appeal, we
independently review a trial court‘s decision to excuse for cause a prospective
juror based solely upon that juror‘s written responses to a questionnaire. (People
v. Russell (2010) 50 Cal.4th 1228, 1261 (Russell), citing Avila, supra, 38 Cal.4th
at p. 529.)
In addition to applying the above standards, we find the following
principles also are helpful in analyzing the instant trial court‘s decision to excuse
the prospective jurors for cause.
As we have held in a number of our decisions, even if counsel‘s failure to
object does not technically forfeit an appellate challenge to a Witherspoon/Witt

34
excusal, it does indicate counsel acquiesced and concurred that the juror could be
excused. (Lynch, supra, 50 Cal.4th at p. 733; Schmeck, supra, 37 Cal.4th at p.
262; People v. Cleveland (2004) 32 Cal.4th 704, 734-735; Memro, supra,
11 Cal.4th at p. 818; Cox, supra, 53 Cal.3d at p. 648, fn. 4; see Uttecht, supra,
551 U.S. at p. 18.) Such an inference is reinforced when, faced with a tentative
ruling that the prospective juror is excusable, as here, counsel passed up an
opportunity to question the juror further, or declined a direct offer of further voir
dire. (Witt, supra, 469 U.S. at pp. 430-431 [noting, as factor supporting excusal of
the prospective juror, that ―defense counsel did not see fit to object to [the
prospective juror]‘s recusal, or to attempt rehabilitation‖]; id., at pp. 434-435
[noting again that defense counsel chose not to question the prospective juror or
object to her excusal, and that ―[i]ndeed . . . it seems that at the time [she] was
excused no one in the courtroom questioned the fact that her beliefs prevented her
from sitting‖]; see also id., at p. 431, fn. 11 [where state supreme court did not find
waiver for failure to object, claim will not be deemed ― ‗waived‘ ‖ on federal
habeas corpus, but ―counsel‘s failure to speak in a situation later claimed to be so
rife with ambiguity as to constitute constitutional error is a circumstance we feel
justified in considering when assessing respondent‘s claims‖]; cf. Stewart, supra,
33 Cal.4th 425, 440, 452 [stressing that counsel repeatedly objected to the
excusals, based exclusively on their questionnaire responses, of all five
prospective jurors there at issue and despite prior promises by the court was
denied all opportunity for follow-up questioning].)
When counsel failed to openly contest an excusal, we may logically assume
counsel did not oppose it. It is equally logical to assume that when, having been
advised of the court‘s intention to excuse a prospective juror, counsel declined an
opportunity for further voir dire to clarify the juror‘s views, counsel accepted that
the record as it stood was sufficient to support the intended ruling. These

35
assumptions also take into account that there may be subjective reasons why,
exercising the lawyer‘s art and instinct, counsel would prefer to dispense with a
particular juror despite the juror‘s pro-life views. Additionally, they discourage
counsel from seeking to create ―built-in error‖ by forcing the trial court to rule,
without guidance, on a record counsel hopes will later be found inadequate. (See
Uttecht, supra, 551 U.S. at p. 18.)

c. The merits
As we explain below, we conclude that all of defendant‘s Witherspoon/Witt
claims lack merit.

(1) Challenge to the adequacy of the questionnaire
Initially, defendant contends the jury questionnaire was defective because
none of the questions ―directly address[ed] the pertinent constitutional issue‖ in
Witt—i.e., whether the prospective juror could temporarily set aside his or her
personal beliefs and follow the court‘s instructions in determining penalty. (See
Stewart, supra, 33 Cal.4th at p. 447.) As explained above, defendant forfeited this
claim by expressing agreement in the trial court with the form of the questionnaire.
In any event, his argument lacks merit.
In Stewart, we held that ―the trial court erred by excusing for cause five
prospective jurors based upon their [written] answers to a jury questionnaire that
asked whether the prospective juror‘s views on the death penalty would prevent or
make it very difficult for him or her to impose the penalty.‖ (Russell, supra,
50 Cal.4th at p. 1261, citing Stewart, supra, 33 Cal.4th at pp. 442, 444-445; Avila,
supra, 38 Cal.4th at p. 530.) The ―make it very difficult‖ language in the Stewart
questionnaire precluded the trial court from ascertaining ―whether a juror‘s
response supported disqualification under the Wainwright v. Witt standard
requiring that such person‘s views on the death penalty would prevent or
substantially impair that person‘s ability to perform his or her duties. (People v.

36
Stewart, supra, 33 Cal.4th at pp. 444-445; Wainwright v. Witt, supra, 469 U.S. at
p. 424.)‖ (Russell, supra, at p. 1261.) That is not the case here.
Question No. 46 directly asked prospective jurors whether they would
―always‖ vote for either life or death.22 The wording of this particular question is
equivalent to that which we approved in Avila, supra, 38 Cal.4th at page 531, and
fully enabled the trial judge to ascertain whether a prospective juror was
―substantially impaired‖ within the meaning of Witt. (See Wilson, supra, 44
Cal.4th at p. 787.) In addition, unlike in Stewart, the questionnaire as a whole
included ―expansive and detailed questions on capital punishment and gave jurors
the clear opportunity to disclose views against it so strong as to disqualify them for
duty on a death penalty case.‖ (Avila, supra, 38 Cal.4th at p. 531; see Russell,
supra, 50 Cal.4th at p. 94.)
As defendant observes, the questionnaire also inquired whether prospective
jurors would have ―difficulty‖ in voting to impose the death penalty. Inclusion of
such a question, however, does not necessarily render a questionnaire inadequate

22 Question No. 46 read as follows: ―It is important that you have the ability
to approach this case with an open mind and a willingness to fairly consider
whatever evidence is presented as opposed to having such strongly held opinions
that you would be unable to fairly consider all the evidence presented during the
penalty phase. [¶] There are no circumstances under which a jury is instructed by
the court that they must return a verdict of death. No matter what the evidence
shows, the jury is always given the option in a penalty phase of choosing life
without the possibility of parole. Assuming a defendant was convicted of a special
circumstance murder, would you:
__ a. No matter what the evidence was, ALWAYS vote for the death
penalty.
__ b. No matter what the evidence was, ALWAYS vote for life without
possibility of parole.
__ c. I would consider all of the evidence and the jury instructions as
provided by the court and impose the penalty I personally feel is appropriate.‖

37
to screen for disqualified prospective jurors, provided other questions are framed
in such a way as to elicit the information necessary for a proper excusal under
Witt. (See Wilson, supra, 44 Cal.4th at p. 789.) In any event, the trial judge did
not excuse the challenged prospective jurors based solely on their answers to
question No. 46. We find no basis to conclude that the questionnaire was
inherently inadequate.

(2) Challenges for cause
Defendant urges that the questionnaire responses of Prospective Jurors
R.A., J.S., R.G., G.H., and P.F. did not clearly establish bases for their excusals
under Witherspoon/Witt. We disagree. Based on our independent review of the
record, the questionnaire responses of each of these prospective jurors, taken
together, make it clear that he or she was substantially impaired within the
meaning of Witt and thus, unable to serve as a capital juror.

(a) Prospective Juror R.A.
As discussed above, Witt held that a prospective juror may be excluded for
cause from a capital case if the juror‘s views on capital punishment would
―prevent or substantially impair‖ the performance of his or her duties in
accordance with the juror‘s oath and the court‘s instructions. (Witt, supra,
469 U.S. 412, 424.) In Witt, the court thus retracted and nullified any inference
from its prior decision in Witherspoon that a prospective juror may be excluded
for cause from a capital trial, on grounds of capital penalty bias, only by indicating
with ―unmistakable clarity‖ that he or she would ―automatically‖ vote for or
against a judgment of death. (Ibid.) The high court has specified, however, that
prospective jurors cannot be disqualified merely for expressing strong views
against the death penalty. They may serve ―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 (1986) 476 U.S. 162, 176, italics added.)

38
In several recent cases, we have addressed the circumstances in which the
trial court may excuse a prospective juror solely on the basis of answers to a
written questionnaire, without observing the prospective juror‘s demeanor under
oral examination in open court. Such an excusal is permitted if the questionnaire
affords ―sufficient information regarding the prospective juror‘s state of mind to
permit a reliable determination‖ whether the juror‘s views would ― ‗ ―prevent or
substantially impair‖ ‘ the performance of his or her duties . . . .‖ (Stewart, supra,
33 Cal.4th 425, 445.) Thus, we have held that a prospective juror may be
disqualified on his or her questionnaire responses alone ―if it is clear from the
answers that he or she is unwilling to temporarily set aside his or her own beliefs
and follow the law.‖ (Avila, supra, 38 Cal.4th at p. 531; see Russell, supra,
50 Cal.4th at p. 1262 [same]; accord, Wilson, supra, 44 Cal.4th at p. 787 [excusal
on questionnaire answers alone ―is permissible if, from those responses, it is clear
(and ‗leave[s] no doubt‘) that [the] prospective juror‘s views about the death
penalty would satisfy the Witt standard [citation] and that the juror is not willing
or able to set aside his or her personal views and follow the law,‖ italics added];
People v. Thompson (2010) 49 Cal.4th 79, 97 [same].) As stated above, where the
trial court ruled on the questionnaire alone, we review its determination de novo,
without affording the deference that would apply had the court observed the
prospective juror in person. (Avila, supra, at p. 529.)
Importantly, neither we nor the high court has asserted that any
statement—however unconvincing or ambiguous—by a prospective juror of
willingness to apply the law despite strong death penalty views bars the juror‘s
excusal, even if other statements by the prospective juror clearly demonstrate that
he or she cannot do so. We have been careful to note that, even when an excusal
was based on questionnaire responses alone, the excusal may be upheld if those
answers, ―taken together,‖ clearly demonstrate the juror‘s unwillingness or

39
inability, because of attitudes about the death penalty, to perform his or her duties
in a capital trial. (Avila, supra, 38 Cal.4th at p. 533.)
Moreover, while we have said that written questionnaire responses do
justify excusal if those responses leave no doubt the prospective juror cannot or
will not act fairly in a capital case, we have not held the converse — that the
questionnaire responses will support excusal only if those responses establish
beyond all possible or theoretical doubt that the juror cannot apply the law and
instructions, or follow the juror‘s oath, in a capital case. As Witt suggested, often
no process for assessing juror qualifications, written or oral, can achieve such an
exacting level of certainty. (Witt, supra, 469 U.S. at pp. 424-425.)
In Stewart, we confirmed that, even where the trial court considers only a
prospective juror‘s written questionnaire responses, it may excuse the juror if it
has ―sufficient information . . . to permit a reliable determination‖ that the juror‘s
death penalty views ―would ‗ ―prevent or substantially impair‖ ‘ the performance
of his or her duties (as defined by the court‘s instructions and the juror‘s
oath) . . . .‖ (Stewart, supra, 33 Cal.4th at p. 445, italics added.) This standard is,
of course, quite exacting when the trial court did not observe the juror‘s personal
demeanor. Still, follow-up questioning for purposes of clarification and personal
observation should not be essential to a proper excusal when the record, as it
stands, makes it clear that the juror is disqualified.23

23 While we have cautioned against overreliance on written questionnaires in
an attempt to streamline the juror selection process (Wilson, supra, 44 Cal.4th 758,
790; Avila, supra, 38 Cal.4th 491, 529-530, fn. 25), we have indicated our
―appreciat[ion]‖ for trial courts‘ ―laudatory‖ efforts to make the ―long and tedious
business‖ of juror selection more efficient (Wilson, supra, at p. 790; see Avila,
supra, at p. 530, fn. 25). As stated, the appellate record in this case includes 111
completed juror questionnaires, each 21 pages long, and comments by the trial
court give the impression that 140 or more prospective jurors may have filled out
questionnaires. Records filed in this court for other death penalty appeals suggest
(Footnote continued on next page.)

40
If our de novo review of a ―written questionnaire‖ excusal reveals that the
prospective juror‘s pro forma statement of willingness to apply
the law—particularly when that statement was itself ambiguous—was flatly
negated by other clear indications on the whole record that the juror could not be
fair, the juror‘s excusal under Witt may be upheld. In such a case—and especially
where trial counsel specifically declined to contest the court‘s ruling and turned
down an offer of further voir dire—we may conclude the trial court had ―sufficient
information . . . to permit a reliable determination‖ the prospective juror was
unqualified. (Stewart, supra, 33 Cal.4th 425, 445.) That is the situation here.
R.A.‘s questionnaire responses are replete with indications that he was
vehemently and unalterably opposed to capital punishment. Asked to describe his
general feelings about the death penalty, R.A. responded, ―I don‘t agree with it. I
think the state shouldn‘t take a life nor do I think an individual should take
another‘s life.‖ Asked why he felt that way, R.A. answered, ―It‘s wrong to kill
people.‖ Asked whether his views would make it difficult to vote for the death
penalty ―in this case, regardless of what the evidence was,‖ R.A. responded, ―I
think it would be hard to vote for the death penalty under any condition.‖ R.A.
further stated he believed the purpose of the death penalty was ―punishment and
revenge.‖ (Italics added.)

(Footnote continued from previous page.)

that jury selection in such matters typically requires the filtering of a similar or
greater volume of prospective jurors. These realities make it understandable, and
necessary, that overburdened trial courts should employ fair and balanced means
to reduce the time and resources devoted to this process. Such efforts should not
be discouraged by the imposition of overstringent standards for excusals on the
basis of written questionnaire responses.

41
A separate inquiry on the questionnaire particularly highlighted the
intensity of R.A.‘s attitudes. Asked to rate the strength of his views on a scale of
1 to 10, with 1 representing the strongest opposition to the death penalty and 10
representing the strongest support for it (the 1 to 10 scale), R.A. rated himself a
―1.‖24
With respect to question No. 46, quoted above, R.A. marked ―c,‖ indicating
that he would ―consider all the evidence and the jury instructions as provided by
the court and impose the penalty I personally feel is appropriate.‖ (Italics added.)
But this response hardly constituted a clear and unqualified statement of R.A.‘s
willingness and ability, despite his opposition to capital punishment, to apply the
law and evaluate the penalty choices fairly. R.A.‘s response could plausibly have
conveyed only his understanding that, after ―consider[ing]‖ the evidence and
instructions, he was free to impose the penalty he ―personally [felt] [was]
appropriate.‖ In light of R.A.‘s intense anti-death-penalty views, it is difficult to
see how he could ―personally feel‖ the death penalty was ―appropriate‖ in any
case. The trial court could properly conclude that R.A.‘s answer to question
No. 46 did not overcome what were otherwise uniform and clear statements of
implacable resistance to imposing a judgment of death. Indeed, when viewed
together, R.A.‘s answers, including his response to question No. 46, clearly

24 Asked how, if at all, his views about the death penalty had changed over
time, R.A. did state that ―I have basically become more passive due to life‘s
experiences.‖ But this statement, suggesting only that R.A.‘s opposition to the
death penalty did not dominate this stage of his day-to-day life, did not imply that
he would remain ―passive‖ on the issue once confronted with direct responsibility
for deciding whether to put someone to death. His other responses strongly
indicated otherwise.

42
demonstrate that, because of his views on capital punishment, he was unable to
deliberate fairly on the issue of penalty.25
Most telling is defense counsel‘s reaction when the court asked what
counsel would ―like to do‖ about R.A. Defendant‘s attorney first replied, ―We‘d
submit it, Your Honor.‖ The following colloquy then occurred: ―THE COURT:
Do you want further voir dire? Tentatively based on [R.A.‘s] answers, I would
rule that he‘s impaired, substantially impaired. If you want further voir dire,
I will.‖ [¶] MR. MACHER [defense counsel]: No, Your Honor.‖ By these
actions, counsel signaled concurrence in R.A.‘s excusal solely on the basis of his
questionnaire answers. Even if counsel‘s conduct did not forfeit, at the procedural
threshold, an appellate challenge to the excusal, it thus weighs heavily, along with
the substance of R.A.‘s questionnaire responses, in favor of a determination on the
merits that the excusal was proper.

25 The concurring and dissenting opinion asserts that we find R.A.‘s excusal
proper, in part, because his answer to question No. 46 did not make it clear he
would set aside his personal views on the death penalty and apply the law in
deciding penalty. But we do not so hold. On the contrary, we are satisfied that,
when his response to that question is considered with all of his other responses,
these responses, ―taken together,‖ make it clear he could not fairly consider the
question of penalty.
The concurring and dissenting opinion also suggests that insofar as question
No. 46 allowed R.A.‘s ambiguous answer, the question itself was defective. Not
so. Question No. 46 gave prospective jurors every opportunity to indicate that
they would automatically vote for life or death. (Cf. Stewart, supra, 33 Cal.4th at
pp. 446-447 [question whether a prospective juror‘s views on capital punishment
―would either ‗prevent or make it very difficult‘ for the prospective juror ‗to ever
vote to impose the death penalty‘ ‖ did not allow for determination of
disqualification under Witt].) That question No. 46 provided for a third
response—and that R.A. chose this response—does not make the questionnaire
defective. And where this answer, ―taken together‖ with R.A.‘s other responses,
made it clear that R.A. was unable to follow the law and fairly deliberate penalty,
a finding of disqualification was proper without the need to conduct further voir
dire.

43
The record as a whole thus allowed a reliable determination, and clearly
established, that R.A. could not fairly discharge the duties of a capital juror. The
trial court did not err in excusing him.

(b) Prospective Juror J.S.
Similarly, the record as a whole clearly established that Prospective Juror
J.S. was disqualified from service under Witt. Like R.A, J.S. expressed no support
for the death penalty in his questionnaire responses, and instead, communicated
clear, unwavering opposition to this penalty option. J.S. stated that he did not
―think another human has the right to determine another[‘]s death‖ and flatly
declared he was ―not in favor of the death penalty.‖ Moreover, J.S. believed that
he could not be a fair and impartial capital juror in this case because he did not
―agree with the death penalty.‖ Indeed, J.S. stated that he ―never ha[d] agreed
with it.‖ Consistent with his strong anti-death-penalty attitudes, J.S., like R.A.,
ranked himself a ―1‖ on the 1 to 10 scale, indicating the strongest opposition to the
death penalty. Further, J.S. indicated that because he ―couldn‘t agree to put
another person to death,‖ deciding the question of penalty would always be
difficult for him, regardless of what the evidence presented.
J.S., like R.A., checked option ―c‖ in response to question No. 46, stating
his willingness to ―consider‖ the evidence and instructions and impose the penalty
he ―personally feel[s] is appropriate.‖ But this ambiguous response may have
implied his understanding that, after such consider[ation],‖ his personal preference
could still prevail. It did not overcome J.S.‘s otherwise consistent declarations
suggesting he ―couldn‘t agree‖ to participate in a death judgment.
Finally, as with R.A., counsel failed to express any opposition to J.S.‘s
excusal, merely ―submit[ting]‖ the issue. Moreover, when the court indicated its

44
inclination to excuse J.S., but offered further voir dire, counsel declined.26 This
conduct, though not a technical forfeiture, demonstrated counsel‘s acquiescence
and concurrence that the record, as it stood, supported J.S.‘s excusal. (Lynch,
supra, 50 Cal.4th at p. 733; Schmeck, supra, 37 Cal.4th at p. 262.) Together with
the substance of J.S.‘s questionnaire answers, counsel‘s conduct weighs strongly
in favor of a determination that the excusal of this prospective juror was proper. It
is clear from J.S.‘s questionnaire responses, taken together, that J.S. could not set
aside his views about the death penalty and perform the duties of a capital juror.
(See Witt, supra, 469 U.S. at pp. 430-431; Avila, supra, 38 Cal.4th at p. 530.)
Accordingly, the trial court did not err by excusing him.

(c) Prospective Juror R.G.
The record on a whole reflects that Prospective Juror R.G. indicated that his
clear opposition to the death penalty rendered him unable to serve as a capital
juror. Although R.G. indicated his general willingness to follow the law if his
personal feelings conflicted with the court‘s instructions, when asked specifically
about his ability to be impartial in deciding whether to impose a death sentence,
however, R.G. responded negatively. That is, he selected option ―b‖ in answer to
question No. 46, quoted above, vowing to always vote for a penalty of life without
possibility of parole if guided by his personal feelings, regardless of what the
evidence showed. R.G.‘s personal expressions confirmed his resolve to never

26 With respect to J.S., the following colloquy between court and counsel
occurred: ―THE COURT: [J.S.] [i]ndicates, ‗Don‘t think another human has the
right to determine another‘s death. Couldn‘t agree to put another person to death.
Not in favor of the death penalty.‘ [¶] Indicates ─ but he does indicate under
[question No. 46] [‗c‘] that he would consider all the evidence. [¶] So I‘ll submit
it to the defense. Do you want further voir dire? [¶] MR. MACHER [defense
counsel]: Your Honor, we would submit on that one. [¶] THE COURT: No
further voir dire? [¶] MR. MACHER: Correct, Your Honor. [¶] THE COURT:
All right. The Court finds he‘s substantially impaired based upon his answers.‖

45
impose the death penalty. R.G. described his general feelings about the death
penalty in simple, unambiguous terms: ―Thou shal[l] not kill,‖ explaining that
―man is not God.‖ Also, R.G. believed that ―[n]o one has the right to kill another
human being as despicable as that person might be.‖ In expressing his opinion
about the death penalty in practical terms, R.G. stated the death penalty ―only
serves to sell newspapers‖ and was ineffective as punishment.
In sum, R.G.‘s questionnaire responses, taken together, make it clear that he
was unable to set aside his views on the death penalty, follow the law and the trial
court‘s instructions, and fairly consider the death penalty. Our conclusion is not
altered by R.G.‘s self-rating as a 10 on the 1 to 10 scale described above,
indicating he strongly favored the death penalty. None of his responses to any of
the other questions on the questionnaire that solicited his personal views on the
death penalty reflected this similar level of support. The trial court properly
excused R.G. for cause.

(d) Prospective Juror G.H.
With respect to Prospective Juror G.H., we conclude that her answers to the
questionnaire clearly indicated that she could not fulfill the duties of a capital
juror. Although G.H. expressed a general willingness to follow the trial court‘s
instructions in spite of any personal feelings or beliefs to the contrary, she also
exhibited unyielding general opposition to the death penalty based on her religious
and moral beliefs and stated she would always vote for a life sentence, regardless
of the evidence. G.H. expressed her stance against the death penalty as follows:
―Only God has the right to take a life‖; ―The more I study the word of God, I find
it more difficult to put someone else in a position to die‖; ―No one is to take a
life‖; and ―When one believes that God created us to follow him and Jesus by
faith—it would be difficult to follow man‘s law.‖ Seemingly contradictory to
these sentiments is the rating she gave herself, an 8, on the 1 to 10 scale described

46
above, indicating she was moderately in favor of the death penalty. When asked
to explain this rating, however, she stated that this level of support was essentially
reserved for the situation, unlike here, where ―[the victim] was my family
member‖ because ―it would be difficult not wanting that person [i.e., the killer] to
suffer.‖ Such sentiment, though, does not dilute the otherwise clear impression
from G.H.‘s questionnaire responses that she was otherwise patently opposed to
the death penalty. Taken together, G.H.‘s questionnaire answers make it clear that
she would be unable to set aside her religious and moral convictions against the
death penalty and follow the law in determining penalty. The trial court properly
dismissed her for cause.

(e) Prospective Juror P.F.
Prospective Juror P.F.‘s questionnaire responses, taken together, reflected
intense opposition against the death penalty that permitted a reliable determination
that he was unable to fairly consider the evidence and adhere to the trial court‘s
instructions in determining penalty. Preliminarily, we note P.F. stated that, in
general, he would have difficulty sitting in judgment of another individual because
he was unable to be impartial in light of his religious or moral beliefs. On the
other hand, when he expressed his views specifically regarding the death penalty,
P.F. gave the clear impression that he would experience no difficulty resolving the
question of punishment always in favor of a life sentence. When asked to rank his
level of support for the death penalty, he marked 1 on the 1 to 10 scale, meaning
he strongly opposed penalty, because he believed ―it is wrong to take a life.‖
Although P.F. indicated his general willingness to follow the law in spite of any
personal feelings that might conflict with the court‘s instructions, his response to
question No. 46, ―b,‖ clearly indicated his unwillingness to disregard his firm
opposition to the death penalty in order to fairly consider the question of penalty.
No matter what the evidence established, P.F. indicated that he would always vote

47
for life without the possibility of parole. Thus, P.F.‘s questionnaire responses
clearly demonstrate that he was disqualified from service under Witt. P.F. was
properly excused for cause.
III. GUILT PHASE ISSUES

A. Admission of Gang Evidence
Defendant contends on multiple grounds that the trial court erroneously
admitted gang evidence offered in support of the prosecution‘s theory that the
Martin murder was gang motivated. Initially, he asserts that the gang evidence
was irrelevant to the joined murder charges and that, under Evidence Code section
352, its probative value was substantially outweighed by a risk the jury would
infer from this evidence his criminal disposition to commit the charged murders.
In addition, defendant contends that the evidence was excludable on grounds of
hearsay and lack of foundation. As we explain below, we conclude that the gang
evidence was properly admitted.

1. Procedural background and preservation of issues
Pretrial, the defense moved to exclude ―any and all evidence of gang
membership and activities of the defendant‖ as irrelevant and unduly prejudicial
under Evidence Code section 352, and asked the trial court to read the preliminary
hearing transcript in anticipation of the hearing on the motion. The prosecutor
made an offer of proof, based solely on the preliminary hearing testimony of
jailhouse informant Harold Black, that defendant was a member of the Crips street
gang and killed Martin, purportedly a member of the Bloods gang, in retaliation
for a Blood having killed a purported fellow Crip (Scotty Ware) more than a year
before the Martin murder. Denying the defense motion, the trial court ruled that
the evidence was relevant to the Martin murder and that its admission would not
deny defendant due process.

48
At trial, the prosecutor presented evidence in support of its theory that
Martin‘s murder was gang motivated through the testimony of Kerry Scott, Harold
Black, and Sergeant Palmer. Defendant objected to Scott‘s testimony on grounds
of relevance, lack of foundation, hearsay, and undue prejudice. In overruling
defendant‘s objections, the trial court indicated generally it would permit this type
of evidence. Defendant thereafter did not object on these grounds to similar
evidence conveyed through Black‘s and Palmer‘s testimony.
Defendant acknowledges that he did not object to Black‘s testimony but
asserts any objections would have been futile and would only have reinforced the
incompetent evidence in the minds of the jurors. We have reviewed the record
and agree that any objections to Black‘s testimony based on grounds similar to
those upon which he objected to Scott‘s testimony would have been equally
unsuccessful. Defendant, therefore, is excused from having failed to object to the
admission of Black‘s testimony regarding defendant‘s purported gang membership
and gang activities in Banning. (See, e.g., People v. Hill (1998) 17 Cal.4th 800,
821 [a defendant is excused from making a timely objection to asserted
prosecutorial misconduct or a request for admonition if either would be futile];
People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1365, & fn. 8 [where counsel‘s
hearsay objection was overruled as to one statement, same objection to similar
statements was unnecessary and, hence, the failure to object to the latter statement
did not waive the asserted error for appeal].)

2. Gang evidence
Kerry Scott testified that he was a member of the ―94 Street Swamp‖
Bloods gang out of Los Angeles in 1994 and had relatives who were members of
the Crips gang. He frequently talked with people in the parks in East Banning

49
and, based on these conversations, learned who was a gang member and what
particular gang set each claimed.27 Scott went to Banning High School with
defendant and saw him ―all the time on the streets of Banning.‖ Scott knew
defendant claimed the Crips gang based on defendant‘s ―gang signs‖ and his
―Grape Street Watts‖ tattoo, which referred to a Crips gang in Los Angeles. Scott
had spoken with Ware, who claimed to be a Crip. Scott testified that ―the word
out on the street was Scotty Ware was killed by a Blood,‖ and that he had talked to
members of the Bloods and the Crips about Ware‘s death. Scott stated that Ware
was killed before Martin‘s murder.
Black testified he was acquainted with, but not a ―close friend‖ of,
defendant, and occasionally saw him in Banning. Within a few weeks after
Martin‘s murder, he and defendant were incarcerated in the same dormitory in
Chino State Prison and, during a conversation, defendant confessed he had killed
Martin. Defendant told Black that, on the day before Martin‘s murder, he visited a
friend at the Meadowbrook Apartments. He saw Martin the next morning in the
parking lot, and ―creeped up on him,‖ pointed his gun at Martin, said, ―This is for
Scotty,‖ and then shot him in the head. Before this conversation, Black had
learned of Martin‘s death through either a phone conversation or a letter he had
received in prison. In addition, Black testified that ―[Ware] was a Crip, and
[Martin] was a Blood‖ and that Ware was ―killed at a party, supposedly by a
member of the Blood[s] gang.‖
Sergeant Palmer testified that he had personally interviewed about 100
gang members in Banning about ―various gang things,‖ including who was in a

27 To ―claim‖ a gang is synonymous with declaring membership in, or
allegiance to, a gang.

50
gang and the particular gang he or she claimed. He stated it was common
knowledge that Martin was a Blood and that defendant was a Crip. Palmer was
aware of the homicide of a person known as Scotty Ware that occurred in
Banning, though Palmer was not the investigator on that case.

3. Discussion
In general, ―[t]he People are entitled to ‗introduce evidence of gang
affiliation and activity where such evidence is relevant to an issue of motive or
intent.‘ [Citation.]‖ (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
―[E]ven where gang membership is relevant,‖ however, ―because it may have a
highly inflammatory impact on the jury trial courts should carefully scrutinize
such evidence before admitting it.‖ (People v. Williams (1997) 16 Cal.4th 153,
193, citing Champion, supra, 9 Cal.4th at p. 922.) On the other hand, ― ‗[b]ecause
a motive is ordinarily the incentive for criminal behavior, its probative value
generally exceeds its prejudicial effect, and wide latitude is permitted in admitting
evidence of its existence.‘ [Citation.]‖ (Gonzalez, supra, 126 Cal.App.4th at p.
1550.) On appeal, we review for abuse of discretion a trial court‘s ruling on
whether evidence is relevant, not unduly prejudicial, and thus admissible.
(Williams, supra, 16 Cal.4th at p. 197.)
Here, the gang evidence was properly admitted. In attempting to establish
defendant‘s motive and intent for simply walking up to Martin and shooting him,
the prosecution was entitled to give context to defendant‘s statement to Black that,
just before he killed Martin, he told Martin, ―This is for Scotty.‖ As noted, Palmer
testified, based on his professional understanding of Banning gangs, that defendant
was a Crip and Martin was a member of a rival gang, the Bloods; Palmer indicated
this was common knowledge within the Banning gang culture. According to
Kerry Scott, the ―word on the street‖ was that, some time prior to Martin‘s murder,
Ware, a Crip, had been killed by a Blood. Palmer confirmed that a ―Scotty Ware‖

51
had been the victim of a homicide in Banning. The jury was entitled to infer from
this evidence that when defendant, a Crip, shot Martin, a Blood, ―for Scotty,‖ he
was acting in retaliation for Ware‘s murder, which he thought had been committed
by a Blood.
Defendant insists there was no adequate foundation, beyond inadmissible
hearsay, for the premise that Ware was a Crip who had been killed by a Blood. It
is true that the information supplied by Kerry Scott and Harold Black about
Ware‘s murder, and its gang implications, was apparently based on rumor and
gossip. But the purpose of testimony about the ―word on the street‖ concerning
the murder of ―Scotty Ware‖ was not to establish that this street gossip was true.
(Cf. People v. Staten (2000) 24 Cal.4th 434, 455-456.) Instead, this evidence was
properly admissible for the relevant nonhearsay purpose of showing defendant had
heard information about Ware‘s murder and its gang implications ―on the street,‖
that defendant believed what he had heard, and that he thus had reason, in his own
mind, to kill Martin ―for Scotty.‖
Nor was the evidence inadmissible simply because the prosecution failed to
establish, by direct means, that defendant had heard the rumors about Ware‘s
death or the gang-related circumstances surrounding it. Ample evidence
confirmed defendant‘s gang membership, his gang identity, and his association
with other gang members in Banning. Under these circumstances, and especially
considering defendant‘s specific reference to ―Scotty‖ as he shot Martin, the jury
could readily infer defendant‘s familiarity with the information about Ware that
was circulating ―on the street.‖
Moreover, the gang evidence was a relatively minor component of the
prosecution‘s case, and was not unduly inflammatory. It did not emphasize the
general violent nature of gang activity or suggest that defendant‘s gang
membership predisposed him to violent crimes, but instead focused narrowly on

52
the prosecution‘s theory for why defendant might have had a specific reason to kill
Martin. Under these circumstances, we are persuaded no error occurred in the
admission about evidence of a gang-related motive for Martin‘s murder.28

B. Investigator Buchanan’s Memorandum to the Prosecutor
Defendant contends the trial court violated state law, as well as his rights
under the Sixth, Eighth, and Fourteenth Amendments, by denying his request to
introduce evidence of a memorandum written by District Attorney Investigator
Buchanan to the prosecutor in support of his defense of evidence fabrication.
Specifically, he argues the evidence is relevant to (1) Buchanan‘s intent to threaten
to charge Kimiya Gamble as an accessory and his conduct in conformity,
(2) Gamble‘s motive to testify falsely against defendant, and (3) Buchanan‘s intent
to interview Harold Black and Johnnetta Hawkins for the purpose of pressuring
them to change their stories about their knowledge of defendant‘s involvement in
the murders. As we explain below, the trial court may have erred, in part, but no
reversible prejudice resulted.

1. Factual and procedural background
As stated, one week after the murder of Martin, a deputy sheriff stopped
Gamble for driving too slowly. A loaded gun was found in Gamble‘s purse.
Defendant was a passenger in the car. Gamble initially told police that she owned
the gun.
In May 1996, after ballistics testing revealed the gun was the Martin
murder weapon, District Attorney Investigator Buchanan sent a memorandum to
the prosecutor about the progress of the investigation (the Buchanan

28 Given our conclusion that the gang testimony of Scott and Black was
properly admitted for a nonhearsay purpose, defendant‘s claim that his
constitutional right to confrontation was violated also fails. (Crawford v.
Washington (2004) 541 U.S. 36, 60, fn. 9.)

53
memorandum). The first paragraph of the memorandum acknowledged that
defendant ―did not possess‖ the murder weapon when he was arrested, but
expressed Buchanan‘s belief that defendant ―probably stuck it in [Gamble‘s]
purse‖ at the time the couple was stopped. The second paragraph, noting that
Gamble had already pled guilty to a concealed-weapons charge in the matter,
indicated Buchanan's intent to ―find‖ Gamble and ―make a [witness] out of her,‖
or to ―arrest her‖ as an accessory to Martin‘s murder. The third paragraph stated
Buchanan‘s intent to interview Harold Black (then in Folsom Prison) and to find
and interview Johnnetta Hawkins (then believed to be in Las Vegas).29
On May 30, 1996, Buchanan interviewed Gamble, who stated that the gun
belonged to defendant and that he told her to put it in her purse as police
approached the car. At trial, Gamble testified consistently with this statement.
She also testified that, during her interview with Buchanan, he explained to her
that if she had anything to do with the crime, she could be charged as an
accessory. Gamble denied that Buchanan threatened or pressured her in any way
to state that defendant owned the gun and testified that she ―freely gave‖ him her
statement.
Out of the presence of the jury, trial counsel moved to introduce the
Buchanan memorandum into evidence as relevant to prove that, before trial,
Buchanan interviewed Gamble with the intent to threaten to charge her as an

29 The memorandum stated as follows: ―John – [¶] As you can tell by this
[police] report Defendant did not possess the handgun at the time of his arrest.
However, I think he probably stuck it in the female‘s purse at the time of the car
stop. [¶] I will find this gal (Kimiya Gamble) and make a wit [sic] out of her. Or
arrest her for 32 P.C. She apparently pled out to the 12025/12031 PC charge and
took 36 months probation. [¶] As of now, Steve Gomez and I plan to go to
Folsom and interview Harold Black & Las Vegas to locate and interview Johnetta
Hawkins on May 1 & 2. [¶] Buck [¶] I‘m keeping an envelope for def.
discovery.‖

54
accessory in the Martin murder unless she recanted her statement to police that she
owned the gun and instead stated it belonged to defendant. The prosecutor
objected that the memorandum contained irrelevant material, but he agreed that
the second paragraph was relevant to impeach Buchanan regarding any threats he
may have made to Gamble. The trial court ruled that only the statements
contained in the second paragraph of the memorandum were relevant and that the
defense could impeach Buchanan with them if Buchanan denied on the stand that
he threatened Gamble or discussed the possibility she could be charged as an
accessory if she was involved in the murder. Counsel then stated that, in light of
the court‘s ruling, and for tactical reasons, the defense would not call Buchanan as
a witness and attempt to impeach him on this point.
On appeal, defendant contends the trial court erroneously confined use of
the Buchanan memorandum to impeachment of any testimony Buchanan might
give on the witness stand. Defendant asserts that the statements in the first two
paragraphs were independently admissible under the state-of-mind exception to
the hearsay rule as substantive proof that Buchanan intended to, and did, pressure
Gamble to recant her statement to police and testify the gun belonged to
defendant. (Evid. Code, § 1250, subd. (a)(2).) Defendant also contends the
memorandum was admissible for the nonhearsay purpose of showing Gamble
relented under Buchanan‘s pressure and stated falsely that defendant owned the
gun. Finally, defendant contends the memorandum was admissible to show
Buchanan intended to interview Harold Black and Johnetta Hawkins with the
similar intent to pressure those witnesses to change their stories about their
knowledge of defendant‘s involvement in the Coder and Martin murders. We
review a trial court‘s ruling on the admissibility of evidence for abuse of
discretion. (People v. Riggs (2008) 44 Cal.4th 248, 290 (Riggs).)

55
2. Forfeiture
The People urge at the outset that defendant forfeited any claim the
contents of the Buchanan memorandum were relevant, not simply to impeach
Buchanan‘s denials of improper pressure, but as substantive proof of such
pressure, because defendant did not present this theory to the trial court. Defense
counsel was hardly articulate on the point, and the issue of forfeiture is thus close,
but we conclude the claim was not forfeited.
Counsel did advise the court that the defense intended to call Buchanan,
question him about his interview of Gamble, and confront him with the
memorandum. Counsel‘s argument for use of the memorandum centered
primarily around this theory. However, counsel also advised that ―this is [not]
merely and should [not] be merely relegated to the theory of impeachment. [¶]
We believe this goes to Mr. Buchanan‘s intent . . . . And it indicates he has
documented his intent and it is at least circumstantial evidence of what attempts,
perhaps, were made . . . . We believe it is relevant on more than just the theory
and issue of impeachment.‖ The obvious relevance of circumstantial evidence that
Buchanan improperly pressured Gamble was to refute Gamble‘s claims that she
was not pressured, and to raise the inference that the pressure applied influenced
her admission, at odds with her prior statements, that defendant told her to hide the
gun. Accordingly, we conclude, the issue was adequately preserved.
On the other hand, we agree defendant has forfeited his appellate challenge
to the trial court‘s refusal to admit the third paragraph of the Buchanan
memorandum, which expressed Buchanan‘s intent to find and interview Harold
Black and Johnnetta Hawkins. The trial court ruled that this paragraph was
―totally irrelevant.‖ But defense counsel made no attempt whatever to challenge
or rebut the court‘s conclusion. Indeed, counsel‘s argument for use of the
Buchanan memorandum focused exclusively on the Kimiya Gamble interview,
and did not mention Black or Hawkins at all. Under such circumstances,

56
defendant did not preserve for appeal his current claim that paragraph three was
relevant and admissible because it indicated an intent to pressure Black and
Hawkins, like Gamble, to change their stories.
Notwithstanding our conclusion that defendant has forfeited certain of the
arguments he now raises, we proceed to the merits of these claims.

3. Merits

a. Buchanan’s asserted intent to pressure Gamble during her police
interview
In essence, defendant argues, with respect to Buchanan‘s interview of
Gamble, that the first two paragraphs of Buchanan‘s memorandum were relevant,
and were admissible under the state-of-mind exception to the hearsay rule (Evid.
Code, § 1250),30 not only to impeach any disclaimers Buchanan might assert on
the witness stand, but also to prove circumstantially that Buchanan acted in
conformity with his expressed intent by pressuring Gamble to say that the Martin
murder gun was defendant‘s, and that defendant told her to put it in her purse
when the police stopped her car. In turn, defendant asserts, evidence that
Buchanan exerted such pressure on Gamble was relevant to impeach her trial
testimony by suggesting, contrary to her denials, that she experienced such
pressure, succumbed to it, and thus falsely incriminated defendant. Contrary to
the trial court‘s ruling, defendant insists, he was not limited to using the contents

30 Evidence Code section 1250 provides in pertinent part: ―(a) Subject to
Section 1252 [statement made under circumstances indicating untrustworthiness],
evidence of a statement of the declarant‘s then existing state of mind . . .
(including a statement of intent, plan, motive, design . . . ) is not made
inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove
the declarant‘s state of mind . . . at that time or at any other time when it is itself
an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or
conduct of the declarant.‖

57
of Buchanan‘s memorandum to impeach testimonial denials by Buchanan that he
improperly pressured Gamble.
Defendant‘s claim that the first two paragraphs of the Buchanan
memorandum were thus admissible as substantive proof he acted on the intent
therein expressed has probable merit. (See People v. Griffin (2004) 33 Cal.4th
536, 575-579 [under state-of-mind exception to hearsay rule, 12-year-old murder
victim‘s statement to friend that she intended to confront the defendant if he
molested her again was admissible to prove she did confront him prior to the
murder]; see also, e.g., People v. Majors (1998) 18 Cal.4th 385, 404-405 [murder
victim‘s statement of intent to conduct drug deal with people from Arizona on the
night he was killed was admissible, under state-of-mind exception to hearsay rule,
to prove he carried out such intent].) As defendant suggests, the first two
paragraphs of the memorandum, read together, permit the reasonable inference
that Buchanan followed through on his stated intent to threaten her with
prosecution as an accessory in order to get her to admit that defendant hid, or told
her to hide, the murder weapon in her purse.
We need not finally resolve the issue, however, for any error in failing to
admit this evidence was harmless by any applicable standard. As we have
indicated elsewhere, the admissible evidence that defendant was Martin‘s killer
was extremely strong. Lloyd Marcus, an eyewitness to the fatal shooting of
Martin, identified the killer by defendant‘s nickname of ―Popeye.‖ Defendant
admitted to Harold Black that he crept up on Martin and shot Martin in the head.
The ballistics evidence was consistent with Marcus‘s eyewitness account of two
bullets fired at close range. One week after the killing, the murder weapon was
found in a car driven by defendant‘s girlfriend, and in which he was a passenger.
Given the other evidence, the fact that the gun was in his girlfriend‘s purse, rather
than on his person, and that she initially sought to protect him by claiming

58
ownership, was not likely to persuade a rational jury that defendant was not
associated with the weapon.
Moreover, aside from any support the Buchanan memorandum might have
provided, the defense was able to cross-examination Gamble effectively about the
truthfulness of her claim that the murder weapon belonged to defendant. In
particular, the defense elicited that at the time she and defendant were arrested,
Gamble claimed the gun was hers, and that she subsequently pled guilty to
possession of the weapon. Counsel questioned Gamble closely on why she was
willing to enter such a plea if the gun was not hers. She answered that the judge
told her she would need a lawyer to contest the charge, but was then confronted
with her signed plea waiver form indicating that she was entitled to a free
appointed attorney if she could not afford to retain one. She finally admitted she
was seeking to purchase a firearm at the very time the murder weapon was found
in her purse.
Under these circumstances, it appears clear that introduction of the
Buchanan memorandum would not have altered the jury‘s perception of Gamble‘s
credibility, or otherwise undermined its acceptance of the powerful evidence that
defendant was Martin‘s killer. No basis for reversal appears.

b. Black’s and Hawkins’s interviews with Buchanan
Defendant also contends the trial court erred in ruling that the third
paragraph of Buchanan‘s memorandum, in which he expressed his intention to
interview Harold Black and Johnnetta Hawkins, was irrelevant. As in the
preceding argument, he contends the paragraph was relevant to establish his
defense of evidence fabrication. Assertedly, jurors could infer from the evidence
that Buchanan intended to pressure both witnesses to change their stories about
their knowledge of defendant‘s involvement in the crimes, and accordingly, that
their testimony was unreliable. But Buchanan‘s memorandum did not suggest any

59
intent to pressure Black or Hawkins to make any particular statements. It simply
recited that Buchanan intended to locate and interview these witnesses. Hence, the
trial court ruled correctly that this paragraph of the memorandum was irrelevant
and thus, inadmissible.

C. Evidence of Orlando Hunt’s Polygraph Test Results
Defendant contends the trial court erred by admitting polygraph evidence in
violation of state law and his rights to a fair trial and a reliable verdict under the
Sixth, Eight, and Fourteenth Amendments. We agree, as we must, that error
occurred, but find no reversible prejudice.

1. Factual and procedural background
On direct examination by the prosecutor, Orlando Hunt stated that during
his initial police interviews he denied any knowledge of the Coder murder because
he was afraid for his safety and that of his family. Hunt further testified that, after
a subsequent interview in San Bernardino, he decided to tell investigators the truth
about witnessing defendant shoot Coder. On cross-examination, counsel asked
Hunt whether he changed his story and implicated defendant because the
prosecutor pressed him and threatened to charge him with the murder. Hunt
answered that he decided to tell the truth because his conscience bothered him.
Thereafter, out of the presence of the jury, the prosecutor sought to
introduce evidence that Hunt took and failed a polygraph test in order to establish
his state of mind when he decided to tell police the truth about witnessing the
murder. Defense counsel objected that the test results were inadmissible under
Evidence Code section 351.1, and that their admission would improperly place a
―stamp of approval‖ upon the version of events to which Hunt ultimately testified.
The trial court overruled the objection, reasoning the proffered evidence was

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/844251. Public record. Not legal advice.