finding no error in a prosecutor’s reference to the defendant as the victim’s judge, jury and executioner in a death penalty sentencing proceeding when “Nowhere in his closing argument did the prosecutor suggest, explicitly or implicitly, that the jurors should take lightly either the mitigating evidence or their duty to determine the appropriate penalty according to the law”
How later courts described this case
- finding no error in a prosecutor’s reference to the defendant as the victim’s judge, jury and executioner in a death penalty sentencing proceeding when “Nowhere in his closing argument did the prosecutor suggest, explicitly or implicitly, that the jurors should take lightly either the mitigating evidence or their duty to determine the appropriate penalty according to the law”
- appellate court need not examine merits of the defendant’s claims of error if the defendant cannot show prejudice
- "To use a suspect's image in successive lineups might be suggestive if the same photograph were reused or if the lineups followed each other quickly enough for the witness to retain a distinct memory of the prior lineup."
Written by the judges who cited it.
The opinion
*166 KENNARD, J., Concurring.
I concur in the majority opinion. I offer these additional thoughts on defendant’s contention that the prosecutor peremptorily challenged four Black jurors because of their race, in violation of Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (Wheeler). In rejecting that contention, the majority makes several references to this court’s very recent decision in People v. Johnson (2003) 30 Cal.4th 1302 [ 1 Cal.Rptr.3d 1 , 71 P.3d 270 ] (Johnson), in which I dissented. As I shall explain, Johnson is superficially similar but fundamentally different from this case.
A trial court may deny a Wheeler motion outright if the moving party has failed to make a prima facie showing that impermissible group bias motivated the opposing party’s challenges. In Johnson , a majority of this court held that to establish a prima facie case, “the objector must show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias.” (Johnson, supra, 30 Cal.4th at p. 1306 , italics added.) I disagreed. As I explained, to establish a prima facie case the objecting party need only “prove facts that, if unexplained, permit a reasonable inference of discriminatory purpose.” (Id., at p. 1329 (dis. opn. of Kennard, J.), italics added.)
But the discussion in Johnson, supra, 30 Cal.4th 1302 , on what it takes to establish a prima facie case of group bias in challenging prospective jurors has nothing to do with the issue here. That discussion pertains only to the standard of proof the trial court must use to determine a prima facie showing of group bias. Here, defendant claims the court misapplied that standard to the facts. In reviewing that claim, the majority here correctly applies the standard for appellate review of a trial court’s determination that a moving party did not make a prima facie showing, rather than the standard that the Johnson majority said the trial court should use.
In Johnson , the majority upheld the trial court’s ruling that the defendant had not made a prima facie showing of group bias. I disagreed. I explained: “[Defendant showed that the prosecutor challenged all three Blacks on the jury panel, used a disproportionate number of his peremptory challenges against members of that racial group, and failed to engage in any questioning whatever of any these prospective jurors notwithstanding invitations to do so by the trial court. With respect to two of the three jurors, there is nothing in their oral or written responses that stands out to show they would be unacceptable jurors.” (Johnson, supra, 30 Cal.4th at p. 1340 (dis. opn. of *167 Kennard, J.).) This aspect of my dissent in Johnson was based on the facts of that case, not on any disagreement with the underlying legal principles. This case presents a different factual pattern. Defendant argued that the prosecutor’s challenges of four prospective Black jurors were motivated by group bias. With respect to one of those jurors, the trial court found a prima facie case and, after hearing the prosecutor’s explanation, concluded that the challenge was not based on group bias. As to the remaining three prospective jurors, the trial court ruled that defendant had not made a prima facie case of group bias. I agree with the majority that these jurors’ oral and written responses on voir dire afforded the prosecution race-neutral reasons for its peremptory challenges. Thus, unlike Johnson , the majority here properly upholds the trial court’s ruling that defendant failed to make a prima facie showing that the prosecutor’s peremptory challenges were based on group bias. On that basis, I concur in the majority’s opinion.
Appellant’s petition for a rehearing was denied October 1, 2003.