Appendix — Brown v. Sanders

O45990 JAN 11 208

OFFICE Cr ~

COPY Qs

No.

IN THE SUPREME COURT OF THE UNITED STATES

JILL L. BROWN, Warden, Petitioner,

v.

RONALD L. SANDERS, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

APPENDIX

BILL LOCKYER

Attorney General of the State of California

MANUEL M. MEDEIROS

State Solicitor General

ROBERT R. ANDERSON

Chief Assistant Attorney General

MARY JO GRAVES

Senior Assistant Attorney General

ERIC L. CHRISTOFFERSEN

Deputy Attorney General

JANE N. KIRKLAND

Deputy Attorney General

Counsel of Record

1300 I Street

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 324-5244

Fax: (916) 324-2960

Counsel for Petitioner

TABLE OF APPENDICES

Document Appendix

United States Court of Appeals

for the Ninth Circuit

OPINION A

United States Court of Appeal

for the Ninth Circuit

Order - denying the Petition for

Rehearing en banc B

California Supreme Court

Opinion C

Appeal from the United States District Court

for the Eastern District of California

Robert E. Coyle, Senior Judge, Presiding

Argued and Submitted

February 12, 2004—Seattle, Washington

Filed July 8, 2004

Before: Dorothy W. Nelson, Andrew J. Kleinfeld and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

SANDERS Vv. WOODFORD 8991

COUNSEL

Nina Rivkind, Berkeley, California, and Eric E. Jorstad, Fae-

gre & Benson, LLP, Minneapolis, Minnesota, for the

petitioner-appellant.

Jane N. Kirkland, Deputy Attorney General, Sacramento, Cal-

ifornia, for the respondent-appellee.

OPINION

FISHER, Circuit Judge:

Convicted of murder and sentenced to death, Ronald Sand-

ers appeals the district court’s denial of his federal habeas

petition, challenging both his conviction and his death sen-

tence. We hold that the district court correctly rejected Sand-

ers’ claim that the jury that convicted him was drawn from a

jury venire that unconstitutionally failed to reflect the number

of Hispanics in Kern County, where he was tried. We con-

8992 SANDERS Vv. WooDFORD

clude, however, that Sanders did not receive an individualized

death sentence, as required by the Eighth Amendment. The

California Supreme Court neither independently reweighed

aggravating and mitigating sentencing factors after it had

invalidated two of the aggravating factors, nor did it conduct

an appropriate harmless-error analysis. We also conclude that

this error was not harmless. We therefore reverse the district

court’s denial of Sanders’ habeas petition as it relates to the

imposition of the death penalty and remand with instructions

to grant the petition if the state does not either provide a new

penalty trial or replace the sentence of death with another

legally appropriate punishment.

FACTUAL AND PROCEDURAL BACKGROUND'

Sanders was found guilty of murdering of Janice Allen.

According to the state, the murder arose out of an escalating

dispute between Allen’s boyfriend, Dale Boender, who was a

drug dealer, and two of Boender’s customers, Brenda Max-

well and her aunt Donna Thompson.

In 1980, Boender dealt cocaine around Bakersfield, Cali-

fornia. Maxwell was one of his customers, as was Thompson.

Boender had stopped selling cocaine to Maxwell because she

owed him money. As for her aunt, she felt that Boender had

“burned her” in a drug transaction. So — as Maxwell testified

— she, Thompson, and Sanders hatched a plan to rob Boender

and steal his cocaine. The plan was to lure Boender to Max-

well’s home, have Sanders — whom Boender did not know

— attack and rob Boender, and then have Sanders bind and

“rob” Maxwell to make her look innocent of the set-up.

Thompson would later “discover” and free both Boender and

Maxwell.

‘We take our factual statements from the California Supreme Court’s

opinion in People v. Sanders, 51 Cal. 34 471 (1990).

SANDERS Vv. WoopFORD 8993

On the morning of January 21, 1981, Maxwell called

Boender, asking him to come to her house with a large

amount of cocaine. Boender went to Maxwell’s home accom-

panied by Allen. Upon arriving, Boender was attacked with a

piece of a pool cue by a man whom he had never seen before,

but whom Boender later identified as Ronald Sanders. The

robbery, however, did not go according to plan. Boender

gained the upper hand over Sanders and left with the drugs.

By that time, Allen had already fled the scene.

Immediately after the botched robbery, Maxwell feared that

Boender would realize he had been set up, and (according to

Maxwell) Sanders also feared Boender could iden fy him.

Maxwell, Thompson and Sanders went by the house of

another person, John Cebreros, to enlist his help. The group

then went to Thompson’s house, where Maxwell called

mutual friends of hers and Boender’s to tell them she had

been robbed and raped so as to enhance her claim that she had

been victimized along with Boender.

The next Friday evening, after drinking wine and smoking

marijuana with friends, Boender and Allen bought groceries

and returned to their apartment. While they were preparing

dinner, there was a knock at the door. Leaving Allen in the

kitchen, Boender went to the front door and opened it,

encountering Sanders and a man he later identified as

Cebreros (whom Boender had not seen before). Sanders spun

Boender around and pushed him to the floor, face down.

Allen emerged from the kitchen and was also made to lie on

the floor. Boender’s glasses were ripped from his face and

both he and Allen were bound and blindfolded.

Boender testified that the assailants asked for his cocaine

and his money. He heard the assailants rummaging around his

apartment. One of the assailants dragged him to what seemed

like his bedroom and left the room. He heard more footsteps,

muffled talking and more banging around the apartment.

Boender heard one of the assailants say that he wanted to

8994 SANDERS Vv. WOODFORD

leave, but heard the other say that he wanted to stay. Boender

could not identify the speaker who wanted to leave. Boender

then heard someone approach, felt a blow to the head and

recalled nothing further.

Later that night, Boender’s roommates retumed to the

apartment and found it full of smoke from a pot left on the

stove. They discovered Boender in his bedroom, lying in a

pool of blood. After calling an ambulance, they noticed that

the apartment was in disarray, there were spots of blood

around and a bag of marijuana was missing. One roommate

found Allen’s body in another bedroom and called the police.

Both Boender and Allen had been bound by lengths of elec-

trical cord cut from a vacuum cleaner. Allen sustained a fatal

head wound from a heavy, blunt object which fractured her

skull and lacerated her brain. Boender suffered a skull fracture

but was conscious when the police arrived. Maxwell, Sanders

and Cebreros were originally arrested, but Maxwell was

released and granted immunity in return for her testimony.

Sanders and Cebreros were tried jointly. As the state

acknowledged at trial, there was po direct evidence that deter-

mined whether Sanders or Cebreros had killed Allen. The

most important witnesses for the prosecution were Boender

and Maxwell; Boender identified Sanders from the robbery

and Maxwell implicated Sanders in the plot to rob or murder

Boender.

The defendants challenged Boender’s identification and

presented an alibi defense. Three defense witnesses testified

that on the night of the murder, both Sanders and Cebreros

were at the home of Cebreros’ brother, Salvador, talking,

playing chess and drinking beer. No physical evidence was

found at the murder scene to link Sanders or Cebreros to the

murder.

The first trial of the co-defendants resulted in a hung jury.

On January 22, 1982, after a retrial, both Sanders and

SANDERS v. WooDFORD 8995

Cebreros were convicted of robbery, burglary, attempted mur-

der of Boender and first degree murder for the death of Allen.

For both defendants, the jury found to be true four of the

“special circumstances” that are necessary under California

law for the imposition of the death penalty after a murder con-

viction.

At the penalty phase, for reasons that are unclear from the

record, the prosecution waived its right to seek the death pen-

alty for Cebreros but decided to seek death for Sanders. Sand-

ers instructed his counsel that he did not want to present any

evidence or argument at the penalty phase, because (as he told

the trial court at the time) he felt that both life in prison and

death were “equally unacceptable” sentences. Apparently

because of these instructions, Sanders’ counsel did not pursue

a thorough investigation into potential mitigating evidence.

He presented no evidence of mitigating circumstances and

gave no argument whatsoever to the jury at the penalty phase.

The state argued only one aggravating circumstance to the

jury at the penalty phase — namely, that Sanders had commit-

ted five armed robberies in Orange County, California, in

1970, to which several witnesses testified. Sanders had been

convicted for these robberies, pled guilty, served time in state

prison and, in 1973, was granted parole, from which he had

been removed in 1980. After hearing the prosecution’s pen-

alty evidence and argument, the jury returned a verdict of

death after deliberating for about two hours over two days.

As discussed in more detail below, on automatic appeal, the

California Supreme Court invalidated two of the four special

circumstances found by the jury in convicting Sanders. The

California Supreme Court upheld the conviction and sentence

in all other respects, and the United States Supreme Court

denied certiorari.

On December 20, 1993, Sanders filed his first federal peti-

tion for a writ of habeas corpus in the district court. The dis-

8996 SANDERS Vv. WooDFORD

trict court ordered Sanders to exhaust state remedies, which

he proceeded to do. Sanders then filed an amended petition in

the district court, which denied the petition in its entirety on

August 24, 2001. We granted Sanders a certificate of appeala-

bility on several of his claims on July 30, 2002.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction over Sanders’ habeas

petition under 28 U.S.C. § 2254. We have jurisdiction under

28 U.S.C. § 1291. Because Sanders filed his habeas petition

before the effective date of the Anti-Terrorism and Effective

Death Penalty Act of 1996, AEDPA does not apply. Alcala v.

Woodford, 334 F.3d 862, 868 (9th Cir. 2003). The district

court’s decision to deny relief is reviewed de novo. Clark v.

Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Factual find-

ings made by the district court are reviewed for clear error.

Alcala, 334 F.3d at 868.

DISCUSSION

We first address Sanders’ challenge to the imposition of the

death penalty, and then discuss his challenge to his convic-

tion.

I. Sentencing Error

{1] In assessing whether a death sentence satisfies the

Eighth Amendment’s prohibition on cruel and unusual pun-

ishment, a “primary concern . . . has been that the sentencing

decision be based on the facts and circumstances of the defen-

dant, his background, and his crime.” Clemons v. Mississippi,

494 U.S. 738, 748 (1990). “Given that the imposition of death

by public authority is so profoundly different from all other

penalties, we cannot avoid the conclusion that an individual-

ized decision is essential in capital cases. The need for treat-

ing each defendant in a capital case with that degree of

respect due the uniqueness of the individual is far more

ae

SANDERS Vv. WOODFORD 8997

important than in noncapital cases.” Lockett v. Ohio, 438 U.S.

586, 605 (1978).

[2] A serious concern about whether a death sentence is

truly individualized arises when a jury decides to impose a

death sentence based on its own assessment of aggravating

and mitigating factors, and an appellate court later declares

some or all of those aggravating factors legally invalid. Later

invalidation of aggravating factors may undermine a jury’s

original calculus for imposing death, introducing the risk that

a defendant in such cases will not receive “the individualized

treatment that would result from actual reweighing of the mix

of mitigating factors and aggravating circumstances.” Cle-

mons, 494 U.S. at 752; see also Stringer v. Black, 503 U.S.

222, 230-31 (1992). Moreover, “[e]mploying an invalid

aggravating factor in the weighing process creates the possi-

bility of randomness, by placing a thumb on deatii’s side of

the scale, thus creating the risk of treating the defendant as

more deserving of the death penalty.” Sochor v. Florida, 504

U.S. 527, 532 (1992) (internal quotation marks, citations and

alterations omitted).

{3} The Supreme Court has set out clear rules for the proce-

dures appellate courts must follow when an aggravating factor

has been held invalid. See id. at 532. The procedures differ

significantly between so-called “weighing” and “nonweigh-

ing” states. In nonweighing states, aggravating factors matter

for determining eligibility for the death sentence, but have no

specific function in the sentencing process itself. At sentenc-

ing in nonweighing states, the factfinder always takes into

consideration all circumstances from both the guilt and the

sentencing phases of the trial. See Stringer, 503 U.S. at 229-

230. Thus, in these states, as long as the jury finds that at least

one aggravating factor makes the defendant death-eligible, the

subsequent elimination of another aggravating factor does not

pose a problem for individualized sentencing, because the

aggravating circumstances are not considered as separate fac-

tors in sentencing. See Zant v. Stephens, 462 U.S. 862, 889

8998 SANDERS Vv. WOODFORD

(1983); Williams v. Calderon, 52 F.3d 1465, 1479 (9th Cir.

1995) (holding that California’s pre-1978 death penalty sys-

tem was nokWeighing).

[4] In conttast, in weighing states — including, as we

explain below, California after 1978 — “the finding of aggra-

vating factors is part of the jury’s sentencing determination,

and the jury is required to weigh any mitiga‘ing factors

against the aggravating circumstances.” Clemons, 494 U.S. at

745. In these states, “there is Eighth Amendment error when

the sentencer weighs an ‘invalid’ aggravating circumstance in

reaching the ultimate decision to impose a death sentence.

Sochor, 504 U.S. at 532.

A remand for resentencing is not necessarily required, how-

ever, in order to correct this error. In weighing states, when

a jury has made the sentencing determination, state appellate

courts that have declared an aggravating factor invalid in a

capital case have three options. They may either: (1) remand

for resentencing; (2) independently reweigh the remaining

aggravating and mitigating circumstances under the procedure

set forth in Clemons, in which the “state appellate court

reweighs aggravating and mitigating circumstances that have

been found by a jury to exist,” Valerio v. Crawford,

306 F.3d 742, 757 (9th Cir. 2002) (en banc); or (3) indepen-

dently conclude that the sentencing body’s consideration of

the invalid aggravating circumstance was “harmless beyond a

reasonable doubt” under the standard elaborated in Chapman

v. California, 386 U.S. 18, 23 (1967). See Morales v. Wood-

ford, 336 F.3d 1136, 1147 (9th Cir. 2003). “While federal law

does not require the state appellate court . . . to remand for

resentencing, it must, short of remand, either itself reweigh

without the invalid aggravating factor or determine that

weighing the mvalid factor was harmless error.” Sochor, 504

U.S. at 532.

7In Valerio we concluded that another method of appellate curing of

unconstitutional error in sentencing instruction — the combination of a

narrowing construction of the improper instruction and de novo appellate

review described in Walton v. Arizona, 497 U.S. 639 (1990) — is not

available when the penalty phase factfinder is a jury. 306 F.3d at 758.

OOO eee

SANDERS v. WooDFoRD 8999

Even if a state appellate court has not adhered to these prin-

ciples and thus failed to ensure constitutionally adequate sen-

tencing, such an error does not automatically mean that a

petitioner will receive habeas relief in federal court. Rather,

in habeas cases, we apply a second level of harmless-error

review in order to determine whether the state court’s failure

to conduct the constitutionally mandated review was itself

harmless. See Morales, 336 F.3d at 1148. In doing so, we

apply the standard of Brecht v. Abrahamson, 507 U.S. 619,

638 (1993), which requires us to determine whether, in light

of the record as a whole, the error had substantial and injuri-

ous effect or influence in determining the jury’s verdict.

Morales, 336 F.3d at 1148.

In Sanders’ case, the California Supreme Court invalidated

two of the “special circumstances” that the jury had found at

the guilt phase and was required to weigh in deciding whether

to impose a death sentence. See Cal. Penal Code 190.3(a)

(West 2003) (stating that a sentencing jury shall take into con-

sideration if relevant “[t]he circumstances of the crime of

which the defendant was convicted in the present proceeding

and the existence of any special circumstances found to be

true pursuant to (Cal. Penal Code] Section 190.1”). Sanders

claims that he is entitled to relief because after invalidating

these two special circumstances, the California Supreme

Court neither remanded for resentencing nor conducted an

independent reweighing or a proper harmless-error analysis.

For Sanders to prevail on this claim, he must demonstrate (1)

that California is a weighing state; (2) that the California

Supreme Court did not conduct a proper review; and (3) that

the failure to conduct such a review, in light of the record as °

a whole, had a substantial and injurious effect on his sentenc-

ing. We hold that Sanders has met all three of these require-

ments.

A. California’s Death Sentencing System

We have indicated that California’s post-1978 death pen-

alty law created a “weighing” system. See Allen v. Woodford,

9000 SANDERS V. WOODFORD

366 F.3d 823, 857 (9th Cir. 2004). We have not, however,

explained precisely how the weighing of sentencing factors

operates under California law. Because specific features of

California law are important to our ruling here, we shall do so

now.

We consider a state death penalty regime to be a weighing

system when “the sentencer [is] restricted to a ‘weighing of

aggravation against mitigation” and “the sentencer [is] pre-

vented from considering evidence in aggravation other than

discrete, statutorily-defined factors.” Williams v. Calderon, 52

F.3d 1465, 1477 (9th Cir. 1995).* Both of these elements are

present under California’s post-1978 system. California Penal

Code § 190.3 specifies that the sentencing jury in a capital

case “shall take into account . . . if relevant” any of il factors.

The trier of fact “shall impose a sentence of death if [it] con-

cludes that the aggravating circumstances outweigh the miti-

gating circumstances. If the trier of fact determines that the

mitigating circumstances outweigh the aggravating circum-

stances the trier of fact shall impose a sentence of confine-

ment in state prison for a term of life without the possibility

of parole.” Cal. Penal Code § 190.3. The California Supreme

Court has expressly interpreted § 109.3 as precluding the jury

from considering aggravating factors other than those statu-

torily defined. People v. Boyd, 38 Cal. 3d 762, 773 (1985)

(“By . . . requiring the jury to decide the appropriateness of

the death penalty by a process of weighing the specific factors

listed in the statute, the [post-1978 death penalty law] neces-

sarily implie[s] that matters not within the statutory list are

not entitled to any weight in the penalty determination.”).

*We note that mitigating evidence, unlike aggravating evidence, may

not be confined to discrete, statutorily defined factors, because “the sen-

tencer may not be precluded from considering, and may not refuse to con-

sider, any constitutionally relevant mitigating evidence.” Buchanan v.

Angelone, 522 U.S. 269, 276 (1998); see also Belmontes v. Woodford, 350

F.3d 861, 898 (9th Cir. 2003) (interpreting California Penal Code

§ 190.3(k) as satisfying this requirement within California’s death penalty

scheme).

SANDERS Vv. WOODFORD 9001

Thus, as we have previously indicated, it is clear that Califor-

nia’s post-1978 death penalty system is a weighing system.

See Allen, 366 F.3d at 857.

We note, however, that California’s system has features

that are not present in all weighing states, and that are impor-

tant for understanding the effect of the invalidation of the spe-

cial circumstances in Sanders’ case. A death penalty trial in

California proceeds in two stages. At the initial phase of the

trial, when the trier of fact decides the issue of the defendant’s

guilt or innocence, “a determination must be made as to the

existence of any ‘special circumstances.’” People v. Baciga-

lupo, 6 Cal. 4th 457, 467 (1993). Special circumstances found

at the guilt phase serve to make a defendant eligible for the

death penalty, and are thus the “criteria in the California capi-

tal scheme that define the class of murders for which death is

a potential penalty.” Jd. at 467-68.

The weighing of factors under § 190.3 becomes relevant

only at a subsequent “penalty” or sentencing phase that occurs

once the defendant has been found death-eligible during the

guilt phase.

At this stage in the proceedings, additional evidence

may be offered and the jury is given a list of relevant

factors . . . to guide it in deciding whether to impose

a sentence of life without the possibility of parole or

a sentence of death. . . . |

With the exception of section 190.3’s factor (k),

which invites consideration of any circumstance

which extenuates the gravity of the crime even

though it is not a legal excuse for the crime, the stat-

ute does not explicitly designate any of the factors as

exclusively aggravating or exclusively mitigating. It

simply directs the trier of fact to aspects of the

offense and the defendant’s background that are rele-

vant to the penalty determination.

9002 SANDERS V. WOODFORD

Id. at 814 (internal citation, quotation marks and alterations

omitted). Although the statute plainly instructs that the fact-

finder “shall” at this stage impose death if it finds that the

aggravating circumstances outweigh the mutigating a,

“(t}his weighing is a process that by nature is incapable o

precise description.” /d. at 470 (internal quotation marks

omitted); see also People v. Brown, 40 Cal. 3d 512, 541-45

(1983), reversed on other grounds by California v. Brown,

479 U.S. 538 (1987).

The weighing of aggravating against mitigating cir-

cumstances is a mental balancing process, but not

one that involves a mechanical counting of factors

ee ee aan...

assignment of wei ts to any factor . Rather bee

py faced with making the requisite individual-

ized determination whether a defendant should be

sentenced to life without parole or to death is

entirely free to assign whatever moral or sympathetic

value that juror deems appropriate to each and all of

the relevant factors.

Bacigal 6 Cal. 4th at 470 (internal quotation marks and

ceetann eneat see also Allen, 366 F.3d at 855.

Thus, under California law, = a jury — a =

i , it more

pes so oo factors, and individual jurors may

ascribe varying weight to any single aggravating factor. This

makes it difficult for an appellate court that later reviews the

jury’s sentencing decision to surmise what weight the jury

gave to a particular factor.

Nonetheless, California still qualifies as a weighing state,

because the jury’s sentencing discretion is not boundless —

it must consider the defined list of aggravating factors, and

may not consider other aggravating factors, in making its pen-

alty determination. Therefore, an appellate court's invalida-

SANDERS Vv. WoopFoRD 9003

tion of one or more of the sentencing factors may have a

serious effect on individualized sentencing, because there is a

real risk that the jury’s decision to impose the death penalty

rather than life imprisonment may have turned on the weight

it gave to an invalid aggravating factor. With this sentencing

structure in mind, we turn to the California Supreme Court’s

affirmance of Sanders’ death sentence in light of its invalida-

tion of two of the aggravating factors the jury considered.

B. The California Supreme Court’s Affirmance of the

Death Sentence

The jury found to be true four special circumstance allega-

tions against Sanders: (1) that the murder was committed

while he was engaged in a robbery (see Cal. Penal Code

§ 190.2(a(17)(A)), (2) that it was committed while he was

engaged in a burglary (§ 190.2(a)(17)(G)); (3) that Allen was

killed to prevent her testimony (§ 190.2(a)(10)); and (4) that

the murder was heinous, atrocious and cruel (§ 190.2(a)(14)).

People v. Sanders, 51 Cal. 3d 471, 515 (1990). The California

Supreme Court invalidated the burglary special circumstance

because the jury could have found the requisite mental state

for burglary based on Sanders’ intention to commit assault,

not a murder, and then have impermissibly merged the bur-

glary with the murder to create the burglary-murder special

circumstance. Jd. at 517; see also People v. Wilson, | Cal. 3d

431, 441 (1969) (rejecting “bootstrapping” of burglary and

felony-murder). The court also set aside the heinous-murder

special circumstance because in a prior opinion it had found

that special circumstance to be unconstitutionally vague.

Sanders, 51 Cal. 3d at 520; see People v. Superior Court

(Engert), 31 Cal. 3d 797 (1982).

The California Supreme Court issued its decision shortly

after the United States Supreme Court’s decision in Clemons

v. Mississippi, 494 U.S. 738 (1990), and before the Court’s

decision in Stringer v. Black, 503 U.S. 222, 230 (1992). Thus,

perhaps understandably, the California court did not follow

9004 SanperS Vv. WooproRD

the procedures constitutionally mandated for appellate review

in a weighing state where an aggravating circumstance has

been invalidated. The California court did not remand for

resentencing. It also did not independently reweigh the aggra-

vating and mitigating factors to ensure an individualized sen-

tence. The state does not argue otherwise.

Although the California court did apparently conduct some

type of harmless-error analysis, it did not find, as it was

required to do, that the error was “harmless beyond a reason-

able doubt.” See Morales, 336 F.3d at 1147-48. The court first

focused on the heinous-murder special circumstance and its

effect on the jury in light of the prosecutor's closing argu-

argument, he did not heavily rely on it.” Sanders, 51 Cal. 3d

at 521. It concluded, “[A] reasonable juror would not have

been swayed by abstract concepts of heinous, atrocious or

cruel . . . but would instead have focused on the actual cir-

cumstances of the offense which formed the foundation for

finding those special circumstances to be true.” /d. (internal

quotation marks and alterations omitted). Then, the court

turned to the burglary-murder special circumstance, noting

that “the prosecutor did not focus on the bare number of spe-

cial circumstance findings but urged the jury to consider the

brutality of the crimes.” /d. It determined that “there was little

chance defendant was prejudiced by consideration of the

burglary-murder special circumstance.” /d.

[5] We cannot uphold a state appellate court’s harmless-

error review as adequate when we have substantial uncer-

tainty about whether the state court actually concluded that

the invalid aggravating factor was harmless beyond a reason-

able doubt. In Sochor v. Florida, 504 U.S. 527 (1992), a state

trial court in Florida had found four aggravating circum-

stances and no circumstances in mitigation.‘ /d. at 530. The

‘in Florida, the weighing is done by a judge with an advisory jury ver-

dict. See Sochor, 504 US. at 529-30.

SANDERS Vv. WOODFORD 9005

Supreme Court of Florida invalidated one of the aggravating

circumstances — the “cold, calculated, and premeditated

manner” circumstance — because this factor required a

“heightened” degree of premeditation that was not supported

by the evidence in the case. See id. at 531. Despite the error,

the Florida court affirmed the death sentence and said:

The trial court carefully weighed the aggravating

factors against the lack of any mitigating factors and

concluded that death was warranted. Even after

removing the aggravating factor of cold, calculated,

and premeditated there still remain three aggravating

factors to be weighed against no mitigating circum-

stances. Striking one aggravating factor when there

are no mitigating circumstances does not necessarily

require resentencing.

Sochor v. State, 580 So. 2d 595, 604 (Fla. 1991). The United

States Supreme Court concluded that the Supreme Court of

Florida had not adequately performed a_harmless-error

review. The Court noted that the state court failed “so much

as to mention ‘harmless error.’ ” Sochor, 504 U.S. at 539-40.

It also pointed out that “[o}nly one of the four cases [cited by

the Florida court] contains language giving an explicit indica-

tion that the State Supreme Court had performed harmless-

error analysis. The other three simply do not, and the result

is ambiguity.” Jd. at 540 (citation omitted). The Court thus

held, “Since the Supreme Court of Florida did not explain or

even ‘declare a belief that’ this error ‘was harmless beyond a

reasonable doubt’ in that ‘it did not contribute to the [sen-

tence] obtained, Chapman, [386 U.S. at 24,] the error cannot

be taken as cured by the State Supreme Court’s consideration

of the case.” Sochor, 504 U.S. at 540.

[6] The California Supreme Court’s review in this case is

similar to the Florida Supreme Court’s review in Sochor. The

California court never used the words “harmless error” or

“reasonable doubt” in analyzing the effect of removing the

9006 SANDERS V. WOODFORD

special circumstance. Moreover, it appears that the California

court erroneously believed that it could apply the rule of Zant

v. Stephens, 462 U.S. 862 (1983) — which is applicable only

to nonweighing states — and uphold the verdict despite the

invalidation of two special circumstances because it was

upholding other special circumstances. See Sanders, 51 Cal.

' 3d at 520 (“The United States Supreme Court has upheld a

death penalty judgment despite invalidation of one of several

aggravating factors [citing Zant], and this court is in

accord.”). In these circumstances, we cannot conclude that the

California Supreme Court found that the invalidation of the

special circumstance was harmless beyond a reasonable

doubt. See Clemons, 494 U.S. at 754 (“It is perhaps possible

. . . that the Mississippi Supreme Court intended to ask

whether beyond a reasonable doubt the result would have

been the same .. . . Because we cannot be sure which course

was followed in Clemons’ case, however, we vacate the judg-

ment insofar as it rested on harmless error . . . .” ). We there-

fore hold that Sanders did not receive the individualized death

sentence to which he was entitled because the California

Supreme Court did not conduct an adequate, independent

appellate review.

C. Substantial and Injurious Effect

[7] Before Sanders is entitled to habeas relief, however, we

must also apply our own harmless-error analysis to determine

whether the Eighth Amendment error had a substantial and

injurious effect or influence on the jury’s verdict. “When a

federal judge in a habeas proceeding is in grave doubt about

whether a trial error of federal law had substantial and injuri-

ous effect or influence in determining the jury’s verdict, that

error is not harmless. And, the petitioner must win.” O'Neal

v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation

marks omitted).

Morales v. Woodford, 336 F.3d 1136 (9th Cir. 2003),

another federal habeas case involving California’s post-1978

SANDERS Vv. WooDFORD 9007

death-penalty law, provides a point of contrast. In that case,

applying Brecht v. Abrahamson, 507 U.S. 619, 638 (1993),

we found harmless an invalid special circumstance weighed

by the jury in the penalty phase, where the jury also relied on

another valid special circumstance in deciding to impose the

death penalty. The invalid special circumstance required the

jury to find that “the murder involved the infliction of torture”

(defined as “the infliction of extreme pain”). Morales, 336

F.3d at 1145 & n.20 (internal quotation marks omitted). How-

ever, the special circumstance did not require the jury to find

that the defendant intentionally tortured the victim. Jd. Apply-

ing our prior caselaw, we held that special circumstance con-

stitutionally invalid because the unintentional infliction of

extreme pain might “have nothing to do with the mental state

or culpability of the defendant and would not seem to provide

a principled basis for distinguishing capital murder from any

other murder.” Jd. at 1146; see also Wade v. Calderon, 29

F.3d 1312, 1320 (9th Cir. 1994) (invalidating this special cir-

cumstance), overruled on other grounds, Rohan ex rel. Gates

v. Woodford, 334 F.3d 803, 815 (9th Cir. 2003).

Despite this legal conclusion, we noted that the facts

strongly suggested that the defendant had tortured the victim

and that he had done so intentionally. “There [was] no reason

to doubt that after [the defendant] failed to kill [the victim] by

strangling her with [a] belt, he beat her head in with a ham-

mer, and when she still lived, dragged her out of the car,

raped her, and stabbed her several times.” Morales, 336 F.3d

at 1149. Given this “overwhelming” evidence, the jury would

have reached the unavoidable conclusion that the defendant

intended to inflict extreme pain on the victim as part of the

murder. Id. Because we did not doubt in Morales that the jury

in fact did find that the defendant intended to torture the vic-

tim, we concluded that the constitutional error had no substan-

tial or injurious effect on the defendant’s sentencing.

. [8] Here, in contrast, the jury likely considered the legally

improper aspects of the invalid special circumstances. The

9008 SANDERS Vv. WOODFORD

jury could well have relied on the vague language in the

heinous-murder instruction in finding the murder “heinous,

atrocious, and cruel.” The facts do nothing to cure the prob-

lem with this special circumstance, because the terms of that

circumstancé are “‘so vague that men of common intelli-

gence must necessarily guess at its meaning and differ as to

its application.’” People v. Superior Court (Engert) 31 Cal.

3d 797, 801 (1982) (quoting Connally v. Gen. Constr. Co.,

269 U.S. 385, 391 (1926)).

{9] The jury also easily could have considered the improper

aspect of the burglary-murder special circumstance. Accord-

ing to the California Supreme Court, the flaw in the burglary-

murder special circumstance was that the trial court’s felony-

murder jury instructions during the guilt phase had “improp-

erly permitted the jury to find a burglary based on (Sanders’]

intent to commit an assault.” Sanders, 51 Cal. 3d at 517.

Because the jury could have improperly found first degree fel-

ony murder by “bootstrapping” — finding burglary based on

intent to assault and then using the finding of burglary to con-

vict Sanders of “first degree murder without proof of malice

aforethought and premeditation” — the California Supreme

Court held the burglary-murder special circumstance instruc-

tion generally invalid.’ Jd. at 509, 517. Given that it was

unclear from the evidence presented at trial whether Sanders

or Cebreros actually killed Allen, and that at least one of the

defendants, who may have been Sanders, said that he wanted

to leave before the murder began, it is realistic to conceive

that a juror could have concluded that Sanders entered

Boender’s apartment intending only to commit assault, not

murder. If the jury had concluded that Sanders’ burglary was

committed with only an intent to commit assault, the jury’s

SAt trial, the jury had been instructed that “it could return a verdict of

first degree murder if it found the murder was committed during a bur-

glary in which [the] defendant entered Boender’s home with the intent to

(1) steal, (2) commit an assault, (3) falsely imprison the victims, or (4) dis-

suade the victims from testifying.” Sanders, 51 Cal. 3d at 508.

SANDERS V. WOODFORD 9009

finding of the burglary-murder special circumstance was

improper. Therefore, we cannot conclude that the facts of the

case made the legal problems in the aggravating circumstance

instructions harmless.

We may not conclude that the jury’s consideration of these

aggravating circumstances did not substantially influence the

jury’s assessment of Sanders’ suitability for the death penalty.*

As outlined above, California’s weighing process differs from

that of other weighing states. Under California law, “ “weigh-

ing’ . . . connotes a mental balancing process, but certainly

not one which calls for a mere mechanical counting of factors

... or the arbitrary assignment of ‘weights’ to any of them.”

Brown, 40 Cal. 3d at 542. We cannot know as an appellate

court what individual weight a juror assigned to a finding of

an aggravating special circumstance. Thus we may not simply

assume harmless error because of the presence of other aggra-

vating circumstances or the absence of mitigating ones.

*In Allen, another California death penalty case, we concluded that a

jury’s consideration of improperly “inflated” special circumstances and its

erroncous double-counting of prior crimes as sentencing factors had no

substantial and injurious effect on the verdict. 366 F.3d at 855-58. Even

disregarding the errors in counting of special circumstances and evidence

of prior crimes, the jury in Allen had before it “extraordinarily damaging

aggravating evidence” based on a defendant “orchestrating — from jail —

a conspiracy to murder seven people, and succeeding in the actual killing

of three, all to retaliate for their prior testimony against him and to prevent

future damaging testimony.” /d at 828. In our independent review of

aggravating and mitigating factors in that case, we held that “[a)fter

weighing the total potential mitigating evidence against the evidence in

aggravation, we are compelled to conclude that every juror would have

reached only one result,” and noted that “[t}he especially aggravating cir-

cumstances of Allen’s triple murder and conspiracy [i.e., multiple murders

orchestrated from prison with no showing of remorse] are those for which

the Supreme Court envisions the harshest penalty.”

As explained below, the facts of Sanders’ case are not comparable.

Whereas in Allen we could easily ascertain what led the jury to impose

death regardless of its consideration of improper aggravating factors, here

we have no such certainty.

9010 SANDERS V. WOODFORD

On the facts here, we cannot say with sufficient certainty

that the jury’s consideration of the two improper special cir-

cumstances did not substantially influence its sentencing

determination. There is good reason to believe that the jury

may have had doubts about Sanders’ role in the murder and

‘that it may thus have been only marginally inclined to impose

the death penalty. There was no physical or overwhelming

circumstantial evidence indicating who, as between Sanders

and Cebreros, delivered the fatal blow to Allen’s head.

There was also considerable uncertainty about the extent to

which the murder had been pre-planned by Sanders. On the

one hand, Maxwell testified that after the first attempted rob-

bery, Sanders had expressed concern that Boender could iden-

tify him. On the other hand, Thompson told Maxwell after the

murder that Allen “wasn’t supposed to be dead” and “that

wasn’t what was planned.”

[10] Similarly, the existence of other factors did not over-

whelmingly compel a death sentence to the point where we

can state with confidence that these circumstances, and not

the invalid heinous-murder or burglary-murder special cir-

cumstances, were decisive determinants of the death sentence.

Certainly, Sanders’ prior violent robberies and felony convic-

tion were aggravating. However, the last robbery he commiut-

ted was 11 years before the robbery of Boender and Allen. As

for the robbery-murder and witness-killing aggravating cir-

cumstances, it is not clear they would have made tiie heinous-

murder circumstance merely superfluous, because the

heinous-murder circumstance may have particularly empha-

sized the brutal nature of Allen’s murder and thus have com-

pelled the jurors to vote for death. The jury might have chosen

to be more lenient because the means by which the victim was

killed, beating rather than shooting or stabbing, do not neces-

sarily imply an intention to cause death. The jury might also

have chosen to be lenient with Sanders because Maxwell,

despite her initiative in bringing about the murder, was not

even charged. We cannot, of course, reconstruct the jury's

SANDERS Vv. WOODFORD 9011

penalty determination, but there is enough uncertainty in this

case to cause us to believe that consideration of the improper

circumstances may well have had a substantial effect or influ-

ence on the jury’s determination.

The state contends that consideration of the two invalid

special circumstances was harmless because when the “title

special circumstance is removed from the evidence” the sub-

stance of that evidence remains intact. Even assuming that the

state is correct that on the facts of this case, the jury could still

have considered the “substance of the evidence” that led it to

find true the invalid special circumstances, we have grave

doubt as to whether it would have imposed death absent the

special-circumstance label. This was a close case, for the rea-

sons we have already discussed, including the uncertainty as

to who struck the fatal blow and which assailant wanted to

leave before Allen was killed. We also note that the first jury

hung on guilt. In such a situation, unlike in Morales and Allen

where we could easily ascertain what led the jury to impose

death, in this case the jury’s improper weighing of special cir-

cumstances may well have mattered.

[11] In sum, the jury was told to weigh two special circum-

stances that were improperly deemed special circumstances.

In a weighing state, if the trier of fact is erroneously directed

to weigh certain aggravating factors due to an invalid jury

instruction, and that misdirection substantially affects the

jury’s sentencing determination, then the defendant has not

received a properly individualized sentence and the error is

not harmless. In these circumstances, we are required to grant

habeas relief. Here, the jury was erroneously instructed on

two special circumstances that it may have applied in an

invalid manner, and we have grave doubt about whether that

error had substantial and injurious effect or influence in deter-

mining the jury’s verdict. Accordingly, applying the standards

of Brecht, 506 U.S. at 638, and O'Neal, 513 U.S. at 440, we

hold the error to be not harmless.

9012 SANDERS V. WOODFORD

D. Remedy

{12] When there has been a failure of adequate appellate

review of an erroneous sentencing instruction in the penalty

phase of a capital case, the proper remedy is to grant the wnt

unless there is either a new penalty trial or the death sentence

is vacated and a lesser sentence imposed. Valerio, 306 F.3d

at 763 (imposing this remedy in a capital case where the

Nevada Supreme Court failed to conduct adequate appellate

review). We therefore reverse the district court and remand

with instructions that it shall grant the petition for the writ of

habeas corpus as to the penalty phase, unless the state within

a reasonable period of time either grants a new penalty trial

or vacates the death sentence and imposes a lesser sentence

consistent with law.

Because we are remanding for a new penalty trial, we do

not consider Sanders’ other challenges to his sentencing or to

the process of appellate re-weighing of sentencing factors in

California.

Il. Guilt-Phase Challenge to Jury Venire

[13] Sanders also argues that the under-representation of

Hispanics on his jury violated his Sixth Amendment right to

an impartial jury drawn from a representative cross-section of

the community. In Taylor v. Louisiana, 419 U.S. 522 (1975),

the United States Supreme Court recognized that “the selec-

tion of a petit jury from a representative cross section of the

community is an essential component of the Sixth Amend-

ment right to a jury trial.” Jd. at 528.

[14] To state a prima facie violation of the representative

cross section requirement, a defendant must show that (1) the

group alleged to have been excluded is a “distinctive group

in the community; (2) the representation of this group in veni-

res from which juries are selected is not fair and reasonable

in relation to the number of such persons in the community,

SANDERS Vv. WOODFORD 9013

and (3) this under-representation is due to systematic exclu-

sion of the group in the jury-selection process. Duren v. Mis-

souri, 439 U.S. 357, 364 (1979). If the petitioner makes a

prima facie showing under Duren, the burden shifts to the

state to justify the under-representation “by demonstrating

that attainment of a fair cross section is incompatible with a

significant state interest.”-Thomas v. Borg, 159 F.3d 1147,

1150 (9th Cir. 1998); see also Duren, 439 U.S. at 367-68.

{15] It is undisputed that Sanders has met the first prong

because “Hispanics are a ‘distinctive’ group for purposes of

Sixth Amendment analysis.” United States v. Nelson, 137

F.3d 1094, 1101 (9th Cir. 1998). We hold, however, that he

has not met the second prong.

“The second prong . . . requires proof, typically statistical

data, that the jury pool does not adequately represent the dis-

tinctive group in relation to the number of such persons in the

community.” United States v. Esquivel, 88 F.3d 722, 726 (9th

Cir. 1996). In determining whether a particular group is

underrepresented in a jury venire, we use an absolute disparity

analysis. Borg, 159 F.3d at 1150. “We determine absolute dis-

parity by taking the percentage of the group at issue in the

total population and subtracting from it the percentage of that

group that is represented on the master jury wheel.” United

States v. Sanchez-Lopez, 879 F.2d 541, 547 (9th Cir. 1989).

[16] Here, Sanders is “unable to provide the statistics nec-

essary for this court to determine the absolute disparity in his

case,” Borg, 159 F.3d at 1150, because the statistics he offers

fail to take any account of undocumented immigrants and

other legitimately ineligible jurors within the total Hispanic

population. Sanders’ argument for disparity comes from testi-

mony of Dr. Terry Newell, based on Newell’s study of jury

venires in Kern County, California (where Sanders’ trial was

held) from 1980 to 1981. At that time, Kern County compiled

its master jury list from voter registration records.

9014 SANDERS Vv. WOODFORD

Dr. Newell used the following method to determine under-

representation on the jury venire. First, he relied on the 1980

census figures for the total population and total Hispanic pop-

ulation of Kern County.’ The census listed a total population

of 402,089 individuals in Kern County, including 87,025 His-

panic individuals, from which Newell calculated the Hispanic

percentage of the total population to be 21.59 percent. Rec-

ognizing that the census numbers for total population and

total Hispanic population included noncitizens — persons

presumptively ineligible to serve on a jury ~~ Newell

attempted to estimate the number of Hispanic citizens in Kern

county. In that calculation, however, he used a method that is

insufficient on its face. Using data from the Immigration and

Naturalization Service, he obtained both the total number of

legal, registered aliens in Kern County (14,387) and the num-

ber of legal, registered aliens in Kern County whose country

of origin was Mexico (10,230). He then subtracted the total

number of legal, registered aliens from the census count of the

Mexico from the total number of Hispanics in Kern County

(87,025 minus 10,230, or 76,795). He compared those two

numbers to produce an estimate of the percentage of the citi-

zen population that was Hispanic, which he put at 19.81 percent.

He then used a statistical technique that we need not describe

here to account for the percentage of that pepulation who

were adults, ultimately estimating the total adult-and-citizen

™The 1980 census numbers included both legal, documented immigrants

and an unknown number of undocumented immigrants. See Dav L.

Worn, Nat’c BUREAU OF THE CENSUS, Tue Census BurEAU APPROACH FOR

ALLOCATING INTERNATIONAL MIGRATION TO States, COUNTIES, AND PLACES:

1981-1991 (1992) at 2.1.2, pee ny ry http://www.census.gov/

population/www/documentation/twps000 ,

"Dividing the same numbers used by Newell (87,025 by 402,089), the

correct number would appear to be 21.64 percent.

*Thus, Newell divided (87,025 minus 10,230) by (402,089 minus

14,387) to get his estumate of the percentage (19.81 percent) of Hispanic

citizens in Kern County.

SANDERS V. WOODFORD 9015

Hispanic population in Kern County at 16.3 percent of the

total adult-and-citizen population. He compared this estimate

of the adult-and-citizen Hispanic population with the percent-

age of Hispanics in the jury venire (which he estimated as 8.3

percent) to find an absolute disparity of 8 percentage points

between the percentage of adult Hispanic citizens in the gen-

eral population and the percentage of Hispanics in the jury

venire.

The flaw in Newell’s methodology is his assumption that

every adult Hispanic person in Kern County who was not a

legal, registered immigrant from Mexico was a jury-eligible

United States citizen. This assumption ignored the probability

that some Hispanic noncitizens were either illegal immigrants

or did not originally come from Mexico. We need not engage

in sophisticated statistical analysis to conclude that Newell’s

assumption is highly likely to have substantially overstated

the number of Hispanic jury-eligible citizens, and thus to have

substantially overstated the disparity between the percentage

of Hispanics in the county and the percentage of Hispanics in

the jury venire.” Dr. Newell made no attempt to control for

the effects of illegal immigration.

In United States v. Artero, 121 F.3d 1256, 1262 (9th Cir.

1997), we rejected a challenge based on the underrepresenta-

tion of Hispanics in the jury venire when the challenge was

based only on a comparison between the number of Hispanics

in the total population and those in the jury wheel, instead of

between the population of Hispanics who were jury-eligible

citizens and those in the jury wheel. Although Sanders, unlike

the defendant in Artero, has made some attempt to separate

This is true because it is highly likely that Hispanic illegal immigrants

accounted for substantially more than 19.81 percent of the total number

of illegal immigrants in Kern County at the time. Immigrants from Mexico

alone made up a substantial majority (10,230/14,387, or 71.1 percent) of

the legal immigrant population in Kern County, and there seems good rea-

son to believe that the percentage of Mexicans and other Hispanics among

the total number of illegal immigrants would be comparable.

9016 SANDERS Vv. WOODFORD

out citizens from noncitizens, the methodology employed is

so inadequate that it cannot answer the “right question,”

which is “whether Hispanics eligible to serve on . . . juries

were unreasonably underrepresented because of systematic

exclusion.” /d. at 1261. Rather, it addresses a “different ques-

tion, whether Hispanics, whether eligible to serve on. . .

juries or not, were represented in jury wheels at a lower rate

than their proportion of the population as a whole.” Jd.

[17] We take no position as to what statistical methods may

be more appropriate in estimating the percentage of undocu-

mented immigrants or other noncitizens within a total popula-

tion, and recognize that it may be difficult to calculate such

numbers with precision. However, where no attempt whatso-

ever has been made to account for the percentage of undocu-

mented immigrants within a total population that is likely to

contain such persons, we are unable to perform the necessary

inquiry in a prima facie Sixth Amendment jury-venire chal-

lenge: discovering whether the systematic exclusion of a dis-

tinctive group has prevented the group from being fairly and

reasonably represented in the jury venire."" As we noted in

rejecting similarly flawed statistics in Artero, “A statistical

study that fails to correct for salient explanatory variables, or

even to make the most elementary comparisons, has no value

as causal explanation.” /d. at 1262 (internal quotation marks

and alteration omitted). Therefore, we hold that Sanders has

not established a prima facie Sixth Amendment violation.

CONCLUSION

We reverse the district court and remand with instructions

"For example, in order to determine whether a prima facie claim of an

exclusionary jury venire in violation of the Sixth Amendment has been

stated, we must determine whether the absolute disparity is of sufficient

extent to create a constitutional violation. See, e.g., United States v. Sut-

tiswad, 696 F.2d 645, 649 (9th Cir. 1982) (finding insubstantial an abso-

lute disparity of 7.7 percent).

SANDERS Vv. WOODFORD 9017

to grant the petition for the writ of habeas corpus as to the

penalty phase, unless the state within a reasonable period of

time either grants a new penalty trial or vacates the death sen-

tence and imposes a lesser sentence consistent with law. We

affirm the district court’s denial of Sanders’ habeas petition

with regard to the guilt phase.”

AFFIRMED in part, REVERSED in part and

REMANDED.

“We also deny Sanders’ motion to expand the certificate of appeala-

APPENDIX B

Judges Kleinfled and Fisher voted to deny appellee's petition

for rehearing en banc, and Judge D. Nelson recommended

denying the petition for rehearing en bane.

The full court has been advised of the petition for rehearing

en banc and no judge of the court has requested a vote on

whether to rehear the matter en banc. Fed. R.App.P. 35.

The petition for rehearing en banc, filed September 20, 2004,

Peopie v. Sanders

51 Cal.3d 471. 273 Cal.Rptr. 537; 797 P.2d 561 [Sept. 1990]

(No. $004439, Crim. No. 22512. Sept. 27, 1990.]

THE PEOPLE, Plaintiff and Respondent, v.

RONALD LEE SANDERS, Defendant and Appellant

SUMMARY

A jury convicted defendant of first degree murder, attempted

murder, robbery, burglary, and attempted robbery. It also found

true four special circumstance allegations: the murder was

committed while defendant was engaged in the commission or

the attempted commission of the robbery and burglary (Pen.

Code, §§ 190.2, subd. (a)(17)(i) & (vii)); the victim was

intentionally killed to prevent her testimony in a criminal

proceeding (Pen. Code, § 190.2, subd. (a)( 10)); and the murder

was especially heinous, atrocious, and cruel (Pen. Code, §

190.2, subd. (a)(14)). After the penalty phase of the triai, the

jury set the penalty at death. Defendant had been involved in a

scheme to attempt to rob two individuals. The robbery was

botched, and defendant and an accomplice returned to the

individuals’ apartment, stole money and drugs, and eventually

struck each individual on the head. One victim died. The other

victim testified at trial, identifying both defendant and the

accomplice. Another person who was involved in the botched

robbery attempt, but not in the homicide, also identified

defendant and the accomplice. At trial, the jury panel consisted

of persons drawn from voter registration rolls. Defendant

introduced evidence that Hispanics were underrepresented in the

jury venire, but the trial court denied defendant's motion to

quash the petit jury. After challenges for cause had been

completed, there were only four people with Hispanic surnames

on the panel, and the prosecution peremptorily challenged each

of them with peremptory challenges. During the penalty phase

of the trial, defendant chose not to present evidence of

mitigating factors. (Superior Court of Kern County, No. 22079,

Gerald K. Davis, Judge.)

The Supreme Court set aside the heinous, atrocious, and cruel

special circumstance and the burglary-murder special

circumstance, but otherwise affirmed the judgment as to both

guilt and penalty. It held that defendant had not met his burden

of showing that the procedure to select potential jurors was

constitutionally impermissible. It held that the prosecution's use

of peremptory challenges was not improper. It held that the

heinous, atrocious, and cruel special circumstance was

unconstitutionally vague. It held that the jury instructions

improperly permitted the jury to find a burglary based on

defendant's intent to commit an assault. It also held that a

witness-killing special circumstance may be found true whether

or not an actual criminal proceeding was pending or about to be

initiated at the time of the crime, and that the two invalid

special- circumstance findings did not require reversal of the

sentence. It further held that it was not incompetence for

defendant's attorney to accede to defendant's wish not to present

mitigating evidence at the penalty trial. (Opinion by Lucas, C.

J., with Panelli, Eagleson, Kennard and Arabian, JJ., concurring.

Separate dissenting opinions by Mosk, J., and Broussard, J.)

HEADNOTES

Classified to California Digest of Official Reports, 3d Series

(la-lc)Jury §30.5—Selection and Formation of

Jury—Exciusion of Certain Persons and

Classes—Underrepresentation of Hispanics in Jury Venire

Selected From Voting Registration List.—In a homicide

prosecution, the trial court did not err in denying defendant's

motion to quash the petit jury on the ground that the manner in

which the county assembled its master jury list violated his right

to an impartial jury drawn from a fair cross-section of the

community. Although defendant presented refined statistics

that Hispanics, a distinct group for purposes of analyzing

whether a jury reflects a fair cross-section of the community,

were underrepresented in the panel, he did not satisfy his burden

of making out a prima facie case that the underrepresentation

was due to a systematic exclusion of Hispanics. Evidence that

a race-neutral selection process operates to permit the de facto

exclusion of a higher percentage of a particular class of juror

than would occur from a random draw is not sufficient. The

defendant must identify an aspect of the selection process that

is the probable cause of the disparity and constitutionally

impermissible. When the prosecution occurred, the county

assembled its master jury list by randomly drawing names from

voter registration lists, and this method has not been judicially

determined to be constitutionally impermissible. [Proof as to

exclusion of or discrimination against eligible class or race in

respect to jury in criminal case, note, 1 A.L.R.2d 1291; see also

5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) § 2637.]

(2)Jury §30—Selection and Formation of

Jury—Exclusion of Certain Persons and

Classes—Defendant's Showing of Prima Facie Case of

Exclusion—Prosecution's Rebuttal.—Should a defendant

make out a prima facie case, using statistics, that the number of

a certain racial group in a county is systematically

underrepresented in jury panels, the People may rebut that

showing with statistics that take into account additional persons

who are jury ineligible, such as noncitizens or ex-felons.

(3) Jury §28—Selection and Formation of Jury—Drawing,

Summoning, and Impaneling Jurors—Right to

Representative Cross-section of Community.—In California,

the right to trial by jury drawn from a representative

cross-section of the community is guaranteed equally and

independently by U.S. Const., 6th Amend., and Cal. Const., art.

I, § 16. In order to establish a prima facie showing of violation

of the fair cross-section requirement, the defendant must show:

that the group alleged to be excluded is a distinctive group in

the community; that the representation of this group in venires

from which juries are selected is not fair and reasonable in

relation to the number of such persons in the community, and

that this underrepresentation is due to systematic exclusion of

the group in the jury selection process. If a defendant

demonstrates a prima facie case of systematic

underrepresentation under this tripartite test, the burden shifts

to the state to come forward with either a more precise statistical

showing that no constitutionally significant disparity existed, or

that there was a compelling justification for the procedure that

results in the disparity in the jury pool.

(4)Constitutional Law §25—Constitutionality of

Legislation—Rules of Interpretation—Presumption of

Constitutionality.—In considering the constitutionality of a

legislative act, the court presumes its validity, resolving all

doubts in favor of the act. Unless conflict with a provision of

the state or federal Constitution is clear and unquestionable, the

court must uphold the act.

(5)Jury §30—Exclusion of Certain Persons and

Classes—Violation of Statute.—In a homicide prosecution,

defendant did not satisfactorily show that the method in which

the county selected jurors violated former Code Civ. Proc., §

204.7 (random selection of jurors; appropriate source lists)

(supplanted by Code Civ. Proc., § 197). Thus, the trial court

properly denied defendant's motion to quash the jury venire.

The county's jury list relied exclusively on voter registration

polls and was assembled once a year. The list in use at the time

of defendant's motion had been compiled the previous year.

Although the county intended to complete a project in which it

also selected prospective jurors from Department of Motor

Vehicles records, the panel for that year had already been

selected and the cost to modify the list would have been

prohibitive to the county.

(6a,6b)Jury §47.5—Chalienges—Group Bias—Hispanic

Persons—Satisfactory Proof of Wrongful Use of Peremptory

Challenges.—In a homicide prosecution, defendant did not

meet his burden of showing a strong likelihood the prosecution

wrongfully used peremptory challenges to exclude Hispanics

from the jury. Although the prosecution dismissed the only four

Hispanic prospective jurors remaining after other jurors had

been challenged and excused for cause, three of the four had

expressed doubts during voir dire questioning about the ability

to apply the death penalty and the fourth had admitted past

arrests. Thus, there were sufficient reasons for the prosecution

to dismiss the jurors other than their ethnicity. Also, the record

showed that the trial judge, in ruling on defendant's objections,

was aware of its duty to ensure that jurors were not excused due

to a perceived group bias.

(7)Jury §47.5—Challenge—Peremptory—Group

Bias.—Peremptory challenges may not be used to exclude from

a jury, solely because of a presumed group bias, all or most

members of an identifiable group of citizens distinguished on

racial, religious, ethnic, or similar grounds. Such improper

exercise of peremptory challenges violates Cal. Const., art. L§

16, as well as the equal protection clause of the United States

Constitution. If a party believes his opponent is using his

peremptory challenges to strike jurors on the grounds of group

bias alone, he must raise the point in timely fashion and make

a prima facie case of such discrimination to the satisfaction of

the court. First, he should make as complete a record of the

circumstances as is feasible. Second, he must establish that the

persons excluded are members of a cognizable group within the

meaning of the representative cross-section rule. Third, from all

the circumstances of the case he must show a strong likelihood

that such persons are being challenged because of their group

association rather than because of any specific bias. If the trial

court finds the moving party has made a prima facie case, the

burden shifts to the opponent to explain its peremptory

challenges.

(8)Jury §48—Challenges—Peremptory—Examination as

Basis—Inquiry as to View on Capital

Punishment—Questioning of Hispanic Prospective

Jurors.—In a homicide prosecution, the trial court did not err

in finding that defendant had not made a prima facie showing a

strong likelihood that the prosecution was motivated by group

bias rather than specific bias in excusing by way of peremptory

challenges the only four Hispanic prospective jurors. Although

the excused jurors may have been otherwise as heterogenous as

the community as a whole, and this fact may under some

circumstances support a finding of a prima facie case,

comparisons between jurors is not often a fruitful exercise. The

very dynamics of the jury selection process makes it difficult, if

not impossible, on a cold record, to evaluate or compare the

peremptory challenges of one juror with the retention of another

juror that on paper appears to be substantially similar. Such a

comparison is highly speculative and less reliable than the

determination made by the trial judge who witnessed the

process by which the defendant's jury was selected.

(9)Jury §47—Use of Peremptory Challenges in Violation

of Right to Equal Protection—Analysis Under State and

Federal Constitutions.—The procedure for establishing a

prima facie case of wrongful use of peremptory challenges in

violation of a criminal defendant's federal constitutional nght to

equal protection of the laws is similar to that procedure

addressing state constitutional concerns.

(10)Jury §43—Challenges—For Cause—Voir

Dire—Inquiry as to View on Capital Punishment—Trial

Court's Duty to Instruct Juror.—In a homicide prosecution,

the trial court did not err in excusing for cause a venireman who

stated that he did not believe in the death penalty in every

instance. In such circumstances, the trial court must determine

whether the juror's views would prevent or substantially impair

the performance of his duties as a juror in accordance with his

instruction and his oath. The appellate court's duty is to

examine the context surrounding the juror's exclusion to

determine whether the trial court's decision, that the juror’s

belief would substantially impair the performance of his duties,

was fairly supported by the record. The venireman's expressed

antipathy to the death penalty would have undoubtedly

substantially impaired the performance of his duties as a juror.

Also, the trial court had no obligation to instruct the juror to set

aside his personal feelings and obey the law.

(lia,lib)Criminal Law (1984)

§408—Evidence—Admissibility—Opinion

Evidence—Expert Witnesses—Subjects of Expert

Testimony—Reliability of Eyewitness—Erroneous

Exclusion of Testimony—Other Evidence Corroborating

Eyewitness.—In a prosecution for murder and attempted

murder, the trial court's error, if any, in excluding expert

psychological testimony on the reliability of an eyewitness (the

victim) who identified defendant, was harmless. Although the

witness was qualified on the subject and the eyewitness's

identification was a key element of the People's case, there was

other corroborative evidence supporting the eyewitness

identification of defendant. The eyewitness had positively

recognized defendant from a botched robbery attempt that had

occurred two days earlier; an accomplice's statement to police

dovetailed with the eyewitness's description of the crimes and

gave defendant a motive to kill the victims; the accomplice's

description of defendant and another accomplice matched the

eyewitness's description; and physical evidence linked

defendant with the crimes.

(12)Criminal Law (1984) §657—Appellate

Review—Harmless and Reversible

Error—Evidence—Opinion Testimony on Reliability of

Eyewitness.— When an eyewitness identification of the

defendant is a key element of the prosecution's case but is not

substantially corroborated by evidence giving it independent

reliability, and the defendant offers qualified expert testimony

on specific psychological factors shown by the record that could

have affected the accuracy of the identification but are not likely

to be fully known to or understood by the jury, it will ordinarily

be error to exclude that testimony. However, exclusion of such

evidence requires reversal only if it results in a miscarriage of

justice.

(13a,13b)Jury §42—Challenges—For Cause—Voir

Dire—Inquiry as to Bias, Prejudice, and Opinion—Inquiry

into Jurors' Opinions of Witnesses’ Perceptions.—In a

homicide prosecution, the trial court did not abuse its discretion

by, during voir dire, sustaining the prosecutor's objection to

defense questions that sought to elicit the opinions of potential

jurors concerning the effects of stress on perception. Defendant

planned to demonstrate with the challenged questions that the

jurors did not have common knowledge of the effects of stress

on perception and intended to lay the groundwork for the

introduction of expert testimony on that subject. Since the

challenged questions at voir dire were not related to aiding the

exercise of peremptory challenges, but instead were intended to

support defendant's position on an evidentiary question, the

court did not abuse its discretion in excluding them.

(14) Jury §39—Challenges—For Cause—Purpose of Voir

Dire—Aiding Counsel in Exercising Peremptory

Challenges.—The purpose of questioning at voir dire is to

assist the attorneys in the exercise of their peremptory

challenges, not to provide foundational support for their

evidentiary motions. Counsel should be allowed to ask

questions reasonably designed to assist in the intelligent

exercise of peremptory challenges, whether or not such

questions are also likely to uncover grounds sufficient to sustain

a challenge for cause.

(15a,15b)Criminal Law (1984)

§330—Evidence—Admissibility—Identification of

Defendant—Pretrial Photographic Identification—Not

Suggestive—Witness- victim's Identification of Defendant

Bolstered by His Identification of Accomplice.—In a

prosecution for murder of one person and the attempted murder

of another, the identification of defendant by a victim-witness

was not invalid notwithstanding the victim-witness's

identification of an accomplice in a photographic lineup in

which the accomplice's picture was the only one that matched

the victim-witness's description of the accomplice. The victim-

witness had also testified that he clearly viewed his assailants

and focused on his attackers’ faces in order to identify them if he

survived the attack; he was certain of his identification of the

accomplice who matched both his and another witness's

description; and only two days passed between the crime and

the victim-witness's selection of the picture from the

photographic array. Although the photographic array was

somewhat suggestive, under the totality of the circumstances it

did not demonstrate that there was a very substantial likelihood

of irreparable misidentification.

(16)Criminatl Law (1984)

§316—Evidence—Admissibility—Identification of

Defendant—Violation of Due Process.—A violation of due

process occurs if a pretrial identification procedure is so

impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification. Whether due

process has been violated depends on the totality of the

circumstances surrounding the confrontation. The burden is on

the defendant to show that the identification procedure resulted

in such unfairness that it abridged his rights to due process.

(17)Criminatl Law (1984)

§321—Evidence—Admissibility—Identification of

Defendant—Police Lineup Prior to Trial—Factors Showing

Impermissibly Suggestive Lineup.—The factors to be

considered in determining whether a lineup is impermissibly

suggestive include the opportunity of the witness to view the

criminal at the scene of the crime, the witness's degree of

attention, the accuracy of the prior description of the criminal,

the level of certainty demonstrated at the confrontation, the time

between the crime and the confrontation, and the suggestiveness

of the procedure employed.

(18a-18c)Homicide §85—Instructions—Felony

Murder—Homicide Committed During Burglary in Which

Defendant Intended to Commit Assault.—In a homicide

prosecution, the trial court erred in instructing the jury that it

10

might convict defendant of first degree murder if it found that

the killing occurred during a burglary in which defendant's

intent was to commit an assault. The court may not bootstrap

by instructing the jury that the intent to assault makes the entry

burglary and that the burglary raises a homicide resulting from

the assault to first degree murder without proof of malice

aforethought and premeditation. However, the error was not

prejudicial, since the jury was presented with other legally

permissible alternative theories of guilt along with the legally

impermissible theory, and the jury necessarily found the

commission of first degree murder under at least one of the

permissible theories.

(19)Homicide §16—Felony Murder—Felony Burglary

Based on Intent to Assault.—A burglary based on an intent to

assault cannot support a felony-murder jury instruction.

(20)Homicide §110—Appeal—Harmless and Reversible

Error—Instructions—Multiple Theories of Murder—One

impermissible Theory.— Where a jury in a homicide

prosecution is presented with multiple legally permissible

theories of guilt and one legally impermissible theory, the

applicable rule on appeal is clear: reversal is required only if

the reviewing court cannot determine from the record on which

theory the jury relied.

(21a,21b)Homicide §87—Instructions—lIdentity and

Participation in Offense—Accomplice to Other Crimes

Committed Prior to Homicide.—In a prosecution for murder,

attempted murder, and robbery, the trial court's error, if any, in

submitting to the jury the question of whether a testifying

witness was an accomplice to the crimes was harmless.

Although the witness admitted to being an accomplice to a

bungled robbery attempt perpetrated against the same victims

two days prior to the incident which resulted in the crimes at

issue, the evidence was not strong that she was an accomplice

to the subject crimes. Also, even if the trial court should have

instructed the jury that all of the witness's testimony was subject

to the corroboration requirement of Pen. Code, § 1111

11

(accomplice's testimony requires corroboration), there was

corroboration: her descriptions of defendant and another

accomplice were accurate and very similar to a surviving

victim's descriptions, and physical evidence supported her

testimony. Thus, it was not reasonably probable that the jury

would have reached another result in the absence of any error.

(22)Criminal Law (1984) §241—Trial—Province of Court

and Jury—Determination Whether Witness

Accomplice.—When the evidence concerning whether a

witness was an accomplice to a crime is undisputed, it is a

question of law for the trial judge to decide. However, if the

facts are disputed or susceptible of different inferences, the

question whether the witness is an accomplice should be

submitted to the jury.

(23)Criminal Law (1984) §1 28—Interrogation; Advice as

to Constitutional Rights—Waiver of Rights—Requirement

That Waiver Be Knowing and Voluntary.—A defendant may

waive effectuation of the constitutional rights conveyed in an

interrogating officer's warnings that the defendant may remain

silent and seek an attorney, provided the waiver is made

voluntarily, knowingly, and intelligently. The inquiry has two

distinct dimensions. First, the relinquishment of the right must

have been voluntary in the sense that it was the product of a free

and deliberate choice rather than intimidation, coercion, Or

deception. Second, the waiver must have been made with a full

awareness both of the nature of the right being abandoned and

the consequences of the decision to abandon it. Only if the

totality of the circumstances surrounding the interrogation

reveals both an uncoerced choice and the requisite level of

comprehension may a court properly conclude that these rights

have been waived.

(24)Criminal Law (1984) §129—Interrogation; Advice as

to Constitutional Rights—Determination by Trial

Court—Waiver of Rights Where Defendant Was Not

Apprised of Charges Against Him.—lIn a homicide

prosecution, defendant's waiver of his constitutional right to

12

remain silent was not invalid, notwithstanding that police did

not advise him before interrogation that he was being charged

with murder. A valid waiver does not require that an individual

be informed of all information useful in making his decision or

all information that might affect his decision to confess. The

Constitution does not require that the police supply a suspect

with a flow of information to help him calibrate his self- interest

in deciding whether to speak or stand by his rights.

(25)Criminal Law (1984)

§397—Admissibility—Demonstrative

Evidence—Photograph of Victim.—In criminal prosecutions,

the admission of photographs of a victim lies in the discretion

of the trial court, and the exercise of that discretion will not be

disturbed on appeal unless the probative value of the

photographs is clearly outweighed by their prejudicial effect.

(26)Homicide §59—Admissibility—Demonstrative

Evidence—Photograph of Homicide Victim.—In a homicide

prosecution, the trial court's error, if any, in admitting

photographs of the homicide victim, taken at the crime scene

and during the autopsy, was harmless. Although the

photographs may have been offered to support the prosecution's

impermissible theory (as a special circumstance) that the murder

was particularly “heinous, atrocious and cruel," they were also

offered to indicate the manner the crime had been committed

and to corroborate the testimony of the medical expert regarding

the nature of the fatal blow. Also, the trial court found tbe.

photographs neither outrageous nor inflammatory. Since there

was other strong evidence of guilt, it was not reasonably

probable a result more favorable to defendant would have

occurred in the absence of any error.[Admissibility of

photograph of corpse in prosecution for homicide or civil action

for causing death, note, 73 A.L.R.2d 769.]

(27)Homicide §78—Instructions—Nature and Elements

of Offense—Intent—Felony-murder Special

Circumstance.—The jury may sustain a felony-murder

special-circumstance allegation against the actual killer without

13

finding the killer acted with the intent to kill.

(28)Homicide §78—Instructions—Nature and Elements

of Offense—Intent—Felony-murder Special

Circumstance—A pplication to Aider and Abettor.— In order

to sustain a felony-murder special-circumstance allegation

against an aider and abettor, the jury must find the aider and

abettor acted with the intent to kill.

(29)Homicide §78—Instructions—Nature and Elements

of Offense—Intent—Felony-murder Special

Circumstance—Possibility That Accomplice Other Than

Defendant Committed Killing.—In a homicide prosecution in

which it was not proved whether defendant or his codefendant

was the actual killer of the victim, the trial court did not err in

instructing the jury on the felony-murder special circumstance

without requiring a finding of intent to kill. The jury was

instructed on two different theories of aiding and abetting: one

stated that a person aids and abets if he intentionally aids the

commission of a crime; the other instruction stated that if

defendant was an aider and not the actual killer, to find first

degree murder the jury must find beyond a reasonable doubt that

defendant aided and abetted the actual killer in the commission

of a murder in the first degree. Under these instructions, the

jury necessarily found that if defendant was an aider and not the

actual killer, he acted with intent to kill.

(30)Homicide §101—Punishment—Death

Penalty—Special Circumstance—Felony

Murder—Burglary.—A burglary-felony-murder special

circumstance is improper and must be set aside where the

instructions permit the jury to find a burglary based on the

defendant's intent to commit an assault. [See Cal.Jur.3d (Rev),

Criminal Law, §§ 3341, 3343.]

(31)Homicide §101—Punishment—Death

Penalty—Witness-killing Special Circumstance.—If an

accused believes himself to be exposed to criminal prosecution

and intentionally kills another to prevent that person from

testifying in an anticipated or pending criminal proceeding, a

witness-killing special circumstance (Pen. Code, § 190.2, subd.

(a)(10)), may be found true whether or not an actual criminal

proceeding was pending or about to be initiated. Thus, in a

homicide prosecution, a jury may sustain a witness-killing

special-circumstance allegation, notwithstanding that the

absence of any pending criminal proceeding at the time of the

killing. [See 3 Witkin & Epstein, Cal. Criminal Law (2d ed.

1989) § 1576.]

(32)Homicide §101—Punishment—Death Penalty—Order

of Instructions.—In a prosecution for first degree murder, the

trial court did not impermissibly confuse the jury by delivering

an instruction defining the crime of dissuading a witness (Pen.

Code, § 136.1) immediately before instructing the jury on the

witness-killing ypvecial circumstance (Pen. Code, § 190.2, subd.

(a)(10)). Even though defendant was not charged with violating

§ 136.1, the jury was also instructed on burglary, a charged

offense. In addition to robbery, assault, and false imprisonment,

dissuading a witness was listed as a possible felony that

defendant intended to commit when he entered the victim's

apartment. Thus, the challenged instructions explained a

general principle of law relevant to the issues raised by the

evidence and was necessary for the jury's understanding of the

case. Also, any potential confusion between the crime of

dissuading a witness and the witness-killing special

circumstance was dispelled by the explicit instruction on the

special circumstance.

(33)Criminal Law (1984) §244—Trial—Order of

Instructions.—The general rule is that the order in which jury

instructions are given is immaterial. [See Cal.Jur.3d (Rev),

Criminal Law, § 3052.!

(34)Homicide §101—Punishment—Death

Penalty—Witness-killing Special Circumstance—Intent

Requirement.—Pen. Code, § 190.2, subd. (a)(10)

(witness-killing special circumstance), does not require the jury

to find that but for the intent to prevent the victim from

testifying, the victim would not have been killed.

15

(35)Homicide §101—Punishment—Death

Penalty—Sufficiency of Evidence—Witness-killing Special

Circumstance.—In a homicide prosecution, there was

sufficient evidence from which the jury could infer that

defendant intended to kill the victims due to their ability to

identify him as the perpetrator of an earlier robbery attempt on

the victims, where the evidence showed that shortly after the

prior robbery attempt defendant expressed concern that the

intended victims could identify him; defendant sought an

accomplice to accompany defendant to the victims’ apartment;

and defendant and his accomplice bound and blindfolded the

victims, moved them to separate rooms, and struck each

savagely on the back of the head. Thus, the evidence supported

the jury's finding true an allegation of witness-killing special

circumstance (Pen. Code, § 190.2, subd. (a)(10)).

(36)Homicide §101—Punishment—Death

Penalty—Constitutionality—Heinous, Atrocious, and Cruel

Special Circumstance.—Pen. Code, § 190.2, subd. (a)(14)

(special circumstance for murder that was heinous, atrocious,

and cruel), is unconstitutionally vague.

(37)Criminal Law (1984) §520—Punishment—Penalty

Trial—Excessive Special Circumstances Allegations.—The

jury's determination that four special circumstance findings

were true did not require reversal, notwithstanding that two of

the special circumstances findings (heinous, atrocious, and cruel

murder; burglary- murder), were invalid. The jury properly

considered the two valid special circumstances

(robbery-murder; witness-killing). The prosecutor did not urge

the jury to impose the death penalty merely because of the

invalid special circumstances. Instead, he described and

emphasized the circumstances of the crime generally.

(38)Criminal Law (1984) §523—Punishment—Penalty

Trial—Instructions—Weighing of Aggravating and

Mitigating Factors—Use of Word "Shall" Directing Jury to

Impose Sentence of Death.—In the penalty phase of a

homicide prosecution, the trial court did not err in the use of the

word "shall" in instructing the jury that if aggravating

circumstances outweighed the mitigating circumstances, the

jury "shall" impose a sentence of death. Whether the unadorned

"shall" instruction requires reversal depends upon the facts of

each individual case. The issue is whether the instructions in

conjunction with the prosecutor's arguments adequately

informed the jury of its weighing and decision-making

responsibility. In this prosecution, the jury was instructed with

the pattern jury instruction that detailed the various aggravating

and mitigating factors in the language of the statute and

instructed the jury to consider, take into account, and be guided

by the factors. There was nothing in the instructions, or in the

prosecutor's argument, that stated the jury must merely count the

various factors instead of evaluating the moral weight of each

factor. The prosecutor's contention that this was a proper case

to impose the death penalty did not divest the jury of its

discretion or lead the jurors to believe they had no choice but to

impose the death penalty.

(39a,39b)Criminal Law (1984)

§521—Punishment—Penalty Trial—Defendant's Failure to

Present Mitigating Evidence.—In a homicide prosecution, the

fact that defendant decided to forgo presentation of mitigating

evidence at the penalty phase did not require reversal of a death

penalty. Although the absence of mitigating evidence may

undermine the state's interest in a reliable penalty determination,

defendant cannot be forced to present evidence. The reliability

is attained when the prosecution has discharged its burden of

proof at the guilt and penalty phases pursuant to the rules of

evidence and within the guidelines of a constitutional death

penalty statute, the death verdict has been returned under proper

instructions and procedures, and the trier of penalty has duly

considered the relevant mitigating evidence, if any, which the

defendant has chosen to present. Also, defendant's decision not

to present evidence at the penalty trial was not tantamount to a

guilty plea without consent of his counsel in violation of Pen.

Code, § 1018. His choice did not amount to an admission that

he believed death was the appropriate penalty, nor did he give

up his right to confront or cross-examine those testifying against

him at the penalty trial.

(40)Criminal Law (1984) §101—Rights of

Accused—Competence of Defense Counsel—Defendant's

Failure to Present Mitigating Evidence at Penalty Trial of

Homicide Prosecution.—A defendant is not unconstitutionally

denied adequate representation by his counsel's acceding to his

wishes to decline to present available mitigating evidence at the

penalty phase of a capital trial. Thus, defendant's knowing and

voluntary decision to forgo his right to present mitigating

evidence, cross-examine adverse witnesses, and present closing

argument at the penalty phase of his trial estopped him from

claiming an entitlement to a reversal of the death judgment

based on those decisions.

(41)Criminal Law (1984) §523—Punishment—Penalty

Trial—Dual Use of Underlying Crimes.—In the penalty phase

of a capital prosecution, the trial court did not err in failing to

modify the standard penalty phase instruction to make clear that

Pen. Code, § 190.3, factor (b) (permits the jury to consider, as

an aggravating or mitigating factor, the presence or absence of

criminal activity by the defendant which involved the use or

attempted use of violence or the express or implied threat to use

force or violence), pertained to criminal activity other than that

for which defendant was convicted in the capital case.

Notwithstanding the failure to modify the instruction, there was

no possibility the jury was misled into "double counting” the

circumstances of defendant's crimes when weighing the various

factors during the penalty phase deliberations.

(42)Criminal Law (1984) §523—Punishment—Penalty

Trial—Instructions—Multiple Special Circumstances.—In

the penalty phase of a capital prosecution, the trial court did not

err in permitting the jury to consider both the robbery-murder

special circumstance and the burglary-murder special

circumstance in its penalty deliberation. Even if a robbery and

burglary were committed as part of an indivisible transaction,

any robbery and burglary committed by the defendant in the

course of his homicidal conduct may properly be considered an

independent aggravating factor. Each involves violation of a

distinct interest that society seeks to protect, and a defendant

who commits both offenses in the course of a murder may be

deemed more culpable than a defendant who commits only one.

(43)Homicide §104—Appeal—Intercase and Intracase

Proportionality Reviews.—On an appeal of a sentence of

death, defendant was not entitled to either intercase or intracase

proportionality review of his punishment. Neither the federal

nor the state Constitution compels a comparative (intercase)

sentence review. Also, even though defendant's accomplice did

not receive the death penalty, the imposition of a death sentence

involves a peculiarly normative and individualized

determination making intracase review inappropriate.

COUNSEL

Dennis P. Riordan, under appointment by the Supreme Court,

Nina Rivkind and B. E. Bergesen III for Defendant and

Appellant.

John K. Van de Kamp, Attorney General, Daniel J. Kremer,

Steve White and Richard B. Iglehart, Chief Assistant Attorneys

General, Arnold O. Overoye, Assistant Attorney General,

Willard F. Jones, Eddie T. Keller, Ward A. Campbell and Jane

N. Kirkland, Deputy Attorneys General, for Plaintiff and

Respondent.

Christopher N. Heard as Amicus Curiae on behalf of Plaintiff

and Respondent.

OPINION

19

LUCAS, C. J.—Ronald Lee Sanders was convicted of first

degree murder, attempted murder, robbery, burglary, and

attempted robbery. Two allegations that he was armed with a

firearm were found true. The jury also found true four special

circumstance allegations: the murder was committed while

defendant was engaged in the commission or the attempted

commission of the robbery and burglary (Pen. Code, § 190.2,

subd. (a)(17)(i) & (vii));” the victim was intentionally killed to

prevent her testimony in a criminal proceeding (§ 190.2, subd.

(a)(10)); and the murder was especially heinous, atrocious and

cruel (§ 190.2, subd. (a)(14)). After the penalty phase of the

trial, the jury set the penalty at death. This appeal is automatic.

(§ 1239, subd. (b).)

For the reasons stated below, we set aside the special

circumstance findings based on the commission of a burglary

and on the jury's conclusion that the murder was heinous,

atrocious and cruel, but otherwise affirm the judgment in its

entirety.

1. Facts

Guilt Phase

In 1981, Dale Boender and Janice Allen moved to Bakersfield

from Oildale. Boender supported the couple by selling cocaine

and marijuana. One of his customers was Brenda Maxwell, but

he stopped selling to her because she owed him money from

prior transactions. On the morning of January 21, 1981,

Maxwell's aunt, Donna Thompson, and defendant Ronald Lee

Sanders visited Maxwell. The three decided to rob Boender of

drugs and money and agreed to the following plan: Maxwell

would entice Boender to her home by claiming she had a friend

who wanted to buy a large quantity of cocaine. When Boender

1. All further statutory references are to the Penal Code unless

ee ee

20

arrived, defendant would knock him out and they would rob

him. Defendant would then bind Boender with duct tape before

leaving. According to their plan, defendant would similarly

bind Maxwell so she would appear to also have been a victim.

Thompson would arrive later to "discover" and free the pair.

Maxwell's friend, Glen Blackford, was also visiting her at the

time but was left in the living room while Maxwell, Thompson,

and defendant planned the crime in the bedroom. When they

returned to the living room after their planning session,

Maxwell told Blackford "[s]omething is going to happen [so]

get out of here." Blackford and Thompson then left (as

planned) and Maxwell placed several calls to Boender to

arrange the deal.

Enticed by the promise of a large cocaine sale, Boender and

Allen drove to Maxwell's mobilehome. Allen entered the home

and began to sit down next to Maxwell. As Boender stepped

through the doorway, defendant emerged from the kitchen and

began beating Boender with a two-foot long piece of a pool

stick. A struggle ensued but Boender and Allen eventually

managed to exit the mobilehome, at which point defendant fled.

Boender and Allen then drove off, first to a friend's house but

later to a hospital to attend to Boender's injuries. They stayed

at a relative's home until Friday, January 23,1981.

Meanwhile, Thompson and defendant returned to Maxwell's

mobilehome to discuss the aftermath of the botched robbery

attempt. Maxwell was concerned that Boender would realize

she had "set him up," and defendant was worried Boender could

identify him. The three drove to a house on Jefferson Street

where defendant engaged the assistance of John Cebreros. The

group then went to Thompson's house where Maxwell called

mutual friends of hers and Boender's to tell them she had been

robbed and raped so as to enhance her claim that she had been

victimized along with Boender.

On Friday, Boender and Allen decided to return to Boender's

apartment. They arrived in the afternoon and told Boender’s two

roommates, Haney and Weinman, about the earlier assault.

21

Later, Boender and Allen met Boender's former roommate,

George Littleton, at a bar; the three of them went to Littleton’s

apartment around 7 p.m. and shared a small bottle of wine.

After shopping for groceries, Boender and Allen returned home.

Haney and Weinman were gone for the evening.

While Boender and Allen were preparing dinner, there was a

knock at the door. Leaving Allen in the kitchen, Boender went

to the front door and opened it, finding Cebreros and defendant

standing there, the latter armed with a gun. Although he

believed he had only seconds to live, Boender concentrated on

their faces so he could remember them if he should see them

again. Defendant spun Boender around and pushed him to the

floor, face down. He felt someone's knee in his back and

something pressed against his neck. Allen emerged from the

kitchen and was also made to lie on the floor. Boender's glasses

were ripped from his face and both he and Allen were bound

and blindfolded.

One of the assailants demanded that Boender tell them where

he kept his cocaine, and he directed them to Allen's purse. After

he told them his money was in his shirt pocket, someone

removed it. Boender heard the two assailants rummaging

through the apartment but could not tell what was going on.

After a few minutes, he was dragged to what seemed like his

bedroom. He heard more footsteps, muffled talking, and more

banging around the apartment. One of the assailants said he

wanted to leave but the other said he wanted to stay. Boender

then heard someone approach, felt a blow to the head, and

recalled nothing further.

Boender's roommates returned to the apartment in the early

morning and discovered the apartment full of smoke. A search

revealed food burning in the oven. On further investigation,

they discovered Boender in his bedroom, lying in a pool of

blood. After calling an ambulance, they noticed that the

apartment was in disarray, there were spots of blood around, and

a baggie of marijuana was missing. When F aney found Allen's

body in his bedroom, he called the police.

Both Boender and Allen had been bound by lengths of

electrical cord cut from Boender's vacuum cleaner. Allen

sustained a fatal head wound which fractured her skull and

lacerated her brain. Boender suffered a skull fracture but was

conscious and semicoherent when police arrived. He was not

questioned until the next day.

Haney and Weinman told police about Boender’s story of the

attempted robbery two days earlier, prompting police to contact

Maxwell. She falsely told police that Cebreros came to her

home, forced her to call Boender, and then beat him up when he

arrived. However, she gave them accurate descriptions of

defendant and Cebreros as well as the address of the Jefferson

Street house where defendant met Cebreros. From his hospital

bed, Boender gave descriptions of defendant and Cebreros that

matched Maxwell's descriptions.

Cebreros was arrested the next day in front of the Jefferson

Street house. In his car, police found a gun similar to that which

Boender described as the one used in the attempt to murder him.

In Cebreros's boot, police found a baggie of marijuana which

was identical to the one taken in the robbery. Both Maxwell and

Boender positively identified Cebreros as one of the assailants.

A few days later, Maxwell recanted her story and told police

the truth about the bungled robbery attempt. She also told

police about the duct tape defendant intended to use to bind

Boender. Police found a roll of such tape in Maxwell's home

and tests revealed defendant's fingerprints on it. He was

arrested and positively identified by Boender in a photographic

lineup later that week.

Defendant and Cebreros were tried jointly and they presented

an alibi defense. Three defense witnesses testified that on the

night of the murder, both defendant and Cebreros were at the

home of Cebreros's brother, Salvador, talking, playing chess,

and drinking beer. There was also evidence from Boender's

neighbors that although two men were seen outside Boender's

apartment on the night of the murder, neither one looked like

Cebreros or defendant. Finally, there was evidence that

defendant had used Maxwell's roll of duct tape for an innocent

purpose a few days earlier.

Defendant's first trial ended in a mistrial when the jury could

not reach a verdict. On retrial, both he and Cebreros were

convicted on all counts. The prosecutor declined to seek the

death penalty against Cebreros and he was sentenced to life

without the possibility of parole.

Penalty Phase

The prosecution produced several witnesses at the penalty

phase who described five armed robberies defendant committed

in Orange County in 1970. Although none of the witnesses

could positively identify defendant at trial, a police expert

testified that the fingerprints of the gunman in the five Orange

County robberies matched defendant's fingerprints.

James Quinn testified that on October 1, 1970, he was

working late at the Allstate Motel in Santa Ana when defendant

and a crime partner robbed him at gunpoint. Thomas Ferguson

testified that defendant, brandishing a revolver, robbed him on

September 12, 1970, while Ferguson was employed as a clerk

at the Station Liquor Store in Tustin. Defendant committed an

armed robbery in the same establishment on November 20,

1970, this time robbing clerk Fred Turnbull.

Sammy Mitchell testified that he was working in Mitchell's

Market in Tustin on October 6, 1970, when defendant robbed

him at gunpoint. Defendant was finally arrested after this crime

spree while fleeing from yet another armed robbery, this one

occurring in a 7-Eleven convenience store, also in Tustin.

Defendant confessed his guilt to all five robberies and the police

officers to whom he confessed testified at the penalty phase.

Defendant was sentenced to state prison and was granted parole

in 1973.

Defendant declined to present any evidence in mitigation or

make a closing argument. The jury returned a verdict of death

within a few hours.

24

II. Discussion

A. Jury Selection Issues

1. Systematic Underrepresentation in the Jury Pool

(1a) Before trial, defendant moved to quash the petit jury,

arguing that the manner in which Kern County assembled its

master jury list violated his right to an impartial jury drawn

from a fair cross-section of the community.” In support, he

presented evidence that he claimed demonstrated a prima facie

case that Hispanics were systematically underrepresented in the

jury pool. The trial court denied the motion, and defendant now

renews the contention.

a. The Evidence Supporting the Motion to Quash

At the time of defendant's trial, Kern County assembled its

master jury list by randomly drawing names from the county's

voter registration list. Questionnaires were then sent to those

chosen to determine eligibility to serve as jurors. There was no

attempt to ensure that the ethnic composition of the group

selected for jury service approximated that of the county as a

whole. Although there were plans in the future to use names of

those holding driver's licenses to supplement those names from

the voter registration lists when assembling the master jury list,

such plans had not yet been implemented at the time defendant

was tried.

The parties stipulated that defendant could rely, in support of

his motion to quash, on the expert testimony presented in three

2. Although defendant initially frames this issue in terms of a

challenge to the assembly of the master jury list, it appears that, either by

stipulaion or acquiescence, he, the People, and the trial court understood the

basis of the motion to be a challenge to the composition of the jury venires

in the county, because defendant's evidence went to the racial composition

of those appearing for jury duty.

25

other recent Kern County Superior Court cases.(See People v.

Cantu, Nos. 21891, 22229 (Cantu); People v. Robinson, No.

21518 (Robinson); People v. Streeter, Nos. 22346, 22056,

21910, 21368 (Streeter).) Dr. Newell, an expert in psychology

and statistics, testified in the Cantu and Robinson cases (and his

testimony was admitted in the Streeter case). He stated that he

had scrutinized the available data from the 1980 census and had

analyzed jury panels in Kern County between October 1980 and

February 1981, as well as panels in May 1981. In Cantu, he

testified that the government census reported that Kern County

was 21.59 percent Hispanic, and estimated that 17.76 percent of

the county was both Hispanic and at least 18 years old, i.e.,

presumptively jury eligible.” To determine the ethnic makeup

of the group summoned for jury duty during the period in

question, Dr. Newell scrutinized the master jury list, presumably

noting those with Spanish surnames. He also conducted

telephone surveys to confirm the number of those on the list

who were Hispanic. He concluded that 8.3 percent of those

appearing for jury duty were Hispanic.

In the Robinson case a few months later, Dr. Newell

presented even more refined statistics. From the Immigration

and Naturalization Service, he obtained the information that

14,387 Hispanic resident aliens resided in Kern County in 1978.

(Such evidence was not available for 1980.) Deducting that

number from the total number of Hispanics in the county (based

on 1980 census figures), Dr. Newell opined that 19.81 percent

of Kern County residents were Hispanic. (2)(See fn. 4.)* Using

3. To arrive at the 17.76 percent figure, Dr. Newell derived a ratio

using the available data from the 1970 census. In that year, 16.9 percent of

the county was Hispanic and 13.9 percent was both Hispanic and at least 18

years old. Dr. Newell testified that, if anything, this method underestimated

the number of jury-eligible Hispanics in the county because of a trend during

the 1970's toward smaller families.

4. By using such refined statistics, defendant’s case does not

present the question whether use of total population figures is permissible.

Previously, a three-justice plurality of this court concluded a defendant could

26

the same methodology as in the Cantu case (see fn. 3, ante), he

estimated that 16.3 percent of the county was made up of adult

Hispanics.4 He reiterated that 8.3 percent of those appearing for

jury duty were Hispanic. He concluded that the likelihood the

exhibited disparity would occur by chance was one in one

million.

After reading the transcripts of the Cantu, Robinson, and

Streeter cases and hearing argument on the issue, the trial court

denied without prejudice defendant's motion to quash, stating,

"I do believe that there has been a prima facie showing that

there is a disproportionate number of people with Hispanic

surnames Called for jurors, but I am not sure that that means a

thing, and everybody knows by reading the Los Angeles Times

and any other publication that there are an enormous number of

use total countywide population numbers in making his prima facie case of

a constitutional violation. (People v. Harris (1974) 36 Cal.3d 36, 54-55

(201 Cal.Rptr. 782, 697 P.2d 433].) However, we later held "Harris should

not be applied retroactively to cases in which juries were selected before the

Harris decision was rendered." (People v. Myers (1987) 43 Cal.3d 250, 269

[233 Cal.Rptr. 264, 729 P.2d 698].) And recently, this court held that

henceforth, "a defendant who has access to census or other demographic

data that reflect adult population figures must base his challenge on that

date." (People v. Bell (1989) 49 Cal.3d 502, 526, fn. 12 [262 Cal.Rptr. 1,

778 P.2d 129]; see also id. at p. 556 [conc. opn. by Kaufman, J.].)

Because defendant provided refined statistical data and did not rely

on Harris's holding permitting reliance on total population figures, we need

not resolve the question of whether this court violated equal protection

principles by holding, in Myers, supra, 43 Cal.3d 250, that the Harris

holding should not be applied retroactively. (See Myers v. Yist (9th Cir.

1990) 897 F.2d 417.)

Defendant and the People engage in extended argument concerning

whether the record indicates Dr. Newell had calculated the number of

noncitizens in the county before arriving at the 16.3 percent figure. We need

not decide this peint since he clearly presented statistics based on the

number of Hispanics in the county over the age of 18 and this refinement is

sufficient. (Bell, supra, 49 Cal.3d at p. 526, fn. 12.) Should a defendant

make out a prima facie case, however, the People may rebut that showing

with statistics which take into account additional persons “who are jury

ineligible--noncitizens, ex-felons, etc." (Ibid., italics added.)

27

people in this country illegally or green card-wise [sic] who are

not even citizens. [$] So, I don't think that really in and of itself

means anything." Defendant renewed the motion later and it

was again denied.

b. The Fair Cross-section Principle

(3) “In California, the right to trial by jury drawn from a

representative cross-section of the community is guaranteed

equally and independently by the Sixth Amendment to the

federal Constitution (Taylor v. Louisiana (1975) 419 U.S. 522,

530 [42 L.Ed.2d 690, 698, 955 S.Ct. 692]) and by article I,

section 16 of the California Constitution. (People v. Wheeler

(1978) 22 Cal.3d 258, 272 [148 Cal.Rptr. 890, 583 P.2d 748].)"

(Williams v. Superior Court (1989) 49 Cal.3d 736, 740 [263

Cal.Rptr. 503, 781 P.2d 537].) “In order to establish a prima

facie violation of the fair-cross-section requirement, the

defendant must show (1) that the group alleged to be excluded

is a ‘distinctive’ group in the community; (2) that the

representation of this group in venires from which juries are

selected is not fair and reasonable in relation to the number of

such persons in the community; and (3) that this

underrepresentation is due to systematic exclusion of the group

in the jury selection process." (Duren v. Missouri (1979) 439

U.S. 357, 364 [58 L.Ed.2d 579, 99 S.Ct. 664]; see also Bell,

supra, 49 Cal.3d at p. 525; People v. Morales (1989) 48 Cal.3d

527, 543 [257 Cal.Rptr. 64, 770 P.2d 244].) If a defendant

demonstrates a prima facie case of systematic

underrepresentation under this tripartite test, the burden shifts

"to the state to come forward with either a more precise

statistical showing that no constitutionally significant disparity

existed or that there was a compelling justification for the

procedure which results in the disparity in the jury pool."

(Harris, supra, 36 Cal.3d at p. 50.)

c. Application

28

(1b) The first prong of the Duren test is clearly satisfied;

Hispanics, or those with Spanish surnames, constitute a

distinctive group for purposes of a fair cross-section analysis.

(Morales, supra, 48 Cal.3d at p. 543.)

The second prong may be satisfied by showing “that the

number of members of the cognizable group is not fair and

reasonable in relation to the number of members in the relevant

community." (Bell, supra, 49 Cal.3d at p. 526.) Working from

defendant's most refined statistics, adult Hispanic citizens made

up 16.3 percent of Kern County, whereas only 8.3 percent of

those appearing for jury duty were Hispanic. Thus, there was an

8 percent absolute disparity and a 49 percent comparative

disparity.”

We have previously noted that "the [United States] Supreme

Court has not yet spoken definitively on either the means by

which disparity may be measured or the constitutional limit of

permissible disparity." (Bell, supra, 49 Cal.3d at pp. 527-528,

5. "The ‘absolute disparity’ test measures representativeness by the

difference between the proportion of the population in the underrepresented

category, and the proportion of those persons in the source or pool in the

underrepresented category." (Bell, supra, at p. 527, fn. 14; see also

Kairys et al., Jury Representativeness: A Mandate for Multiple Source Lists

(1977) 65 Cal.L.Rev. 776, 789-790.) It is “obtained by subtracting the jury

representation percentage from the community percentage." (Morales,

supra, 48 Cal.3d at p. 544.)

The comparative disparity standard is obtained by the following

formula:

A-B

A __X100 = the comparative disparity,

where: A = the percentage of the community that makes up the

cognizable group in question, here adult Hispanic

citizens, and

B = the percentage of the jury venire which is composed

of the cognizable group in question.

(See Kairys, supra, 65 Cal.L.Rev. at pp. 790-791.)

29

fns. omitted.)® As in Bell, however, we need not resolve this

difficult line-drawing question because defendant fails to

establish a prima facie case under Duren's third prong by

showing the disparity is caused by "systematic" exclusion of

Hispanics from Kern County juries.

By basing his motion to quash on the expert statistical

evidence given in the Cantu, Robinson, and Streeter cases,

defendant sought to show a statistical disparity occurred over

time and was thus the result of a “systematic exclusion" of

Hispanics. As we recently explained in Bell, supra, however,

such a showing is insufficient, standing alone, to make out a

prima facie case of a Sixth Amendment violation. When, as

here, "a county's jury selection criteria are neutral with respect

to race, ethnicity, sex, and religion, more is required to shift the

burden to the People. The defendant must identify some aspect

of the manner in which those criteria are being applied that is:

(1) the probable cause of the disparity, and (2) constitutionally

impermissible." (Bell, supra, 49 Cal.3d at p. 524.) Evidence

that "race/class neutral jury selection processes may nonetheless

operate to permit the de facto exclusion of a higher percentage

of a particular class of jurors than would result from a random

draw" is insufficient to make out a prima facie case. (Morales,

supra, 48 Cal.3d at p. 546, italics in original.)

Defendant claims he has satisfied this requirement in Bell

(supra, 49 Cal.3d 502) by relying not only on the statistical

disparity, but on the fact that at the time of defendant's trial,

Kern County assembled its master jury list solely from the voter

registration list. Not only does he argue this is the "probable

source" of the disparity, he contends the practice is

"constitutionally impermissible," citing People v. Harris,

6. Some courts and commentators have expressed the opinion that

the comparative disparity approach is superior to the absolute disparity

standard. (Bell, supra, at pp. 565-566, and cases cited (dis. opn. by

Broussard, J.]; Kairys, supra, 65 Cal.L.Rev. at pp. 793-799.) This court,

however, has declined to adopt one approach to the exclusion of the other.

(Bell, supra, at p. 527, fn. 14.)

30

supra, 36 Cal.3d 36. Our concern here is with the latter

requirement: because the county's juror selection procedures

were facially neutral, has defendant shown that procedure is

nevertheless “constitutionally impermissible" within the

meaning of Bell?

There is some language in the lead opinion in Harris

suggesting that sole reliance on voter registration lists in

assembling the master jury list is constitutionally prohibited.

We do not, however, read Harris so broadly. In that divided

opinion, a three-justice plurality held the defendant made a

prima facie showing of a fair cross-section violation based on a

statistical showing of racial disparity and the fact that the county

assembled its master jury list using only voter registration lists.

(36 Cal.3d at p. 58 [plur. opn. by Broussard, J., joined by Bird,

C. J., & Reynoso, J.].)Although the trial court did not find the

defendant made a prima facie case — and thus the People were

never asked to present any rebuttal evidence — the plurality

reversed the judgment. Three other justices dissented on this

point. (/d. at pp. 72 [dis. opn. by Mosk, J., joined by

Richardson, J.], 75 [dis. opn. by Kaus, J.].)

In a pivotal separate opinion, Justice Grodin provided a

reluctant fourth vote to reverse. He expressly agreed with the

plurality that defendant made a prima facie case, despite relying

on total population statistics. Justice Grodin further stated that

"in light of published studies which point to the exclusive

reliance upon voter registration lists as a likely source of racial

and ethnic disparity in the composition of juries, | am prepared

to say that defendant's showing should be regarded as sufficient

to trigger further inquiry." (Harris, supra, 36 Cal.3d at p. 71

{conc. opn. by Grodin, J.].)

Significantly, he further explained that he "would not reverse

the judgment on that account." (Harris, supra, 36 Cal.3d at p.

71, italics added.) Because the People had no occasion to

present rebuttal evidence, he opined the case should be

remanded to allow them to do so. (/d. at pp. 71-72.) "Upon full

consideration of the relevant evidence it might be concluded

31

that 'no disparity of constitutional significance exists," or that

‘even with the use of multiple sources and all other practical

means, a certain level of disparity is unavoidable,' or that the

underrepresentation which does exist is justified by a showing

of overriding state interest." (/d. at p. 72, quoting plur. opn. at

p. 59.) Justice Grodin then explained that although he preferred

the remand option, there would be no disposition of the case

were he to insist on that alternative. Finding this an

"intolerable" result, and concluding that he "fundamentally"

disagreed with the dissenting opinions, he reluctantly joined the

plurality opinion's disposition to reverse. (/bid.)

As is clear, Justice Grodin did not join the Harris plurality's

far-reaching conclusion that sole reliance on voter registration

lists was itself constitutionally prohibited.” Indeed, he twice

stated his position that identification of that fact, coupled with

an adequate statistical showing of racial disparity, merely

established a prima facie case of a constitutional violation, and

should not itself require reversal.

Since Harris, supra, 36 Cal.3d 36, however, this court has

refined the procedure by which a criminal defendant can

establish a prima facie case of a fair cross-section violation.

7. The Harris plurality opinion is far from clear on this point as

well. That opinion first noted our decision in People v. Sirhan (1972) 7

CAL.3d 710 [102 Cal.Rptr. 385, 497 P.2d 1121], in which we held that

"(t]he use of voter registration lists as the sole source of jurors is not

constitutionally invalid [citations], at least in the absence of a showing that

the use of those lists resulted ‘in the systematic exclusion of a “cognizable

group or class of qualified citizens."’" (/d. at pp. 749-750.) Although the

Harris plurality then suggested that the defendant was trying to make just

such a showing, it did not overrule Sirhan on this point. It is thus arguable

that Harris did not “hold" sole reliance on voter registration lists was itself

impermissible, even with Justice Grodin’s vote.

It appears, however, that the plurality’s opinion has been

interpreted as holding that sole reliance on voter registration lists is

impermissible. (Harris, supra, 36 CAL.3d at pp. 72-73 (Mosk, J., dis.]; see

also United States v. Underwood (N.D.Ala. 1985) 617 F.Supp. 713, 716;

Waller v. Butkovich (M.D.N.C. 1984) 593 F.Supp. 942, 958.)

32

Unlike in Harris, a defendant attacking facially neutral

procedures as the "probable cause" of the statistical disparity

must now demonstrate that such procedures are either

"constitutionally impermissible" or are being implemented in a

constitutionally objectionable manner. (Bell, supra, 49 Cal.3d

at p. 524.) As explained above, Harris does not constitute

controlling authority for this latter point. Resort to other

authority is similarly unhelpful to defendant's position.

We begin our analysis by noting that, at the time of

defendant's trial, our state Legislature permitted sole reliance on

voter registration lists to assemble the master jury list. As

explained below, former Code of Civil Procedure section 204.7

stated that source lists for jurors "shall include those who are

registered voters." The section also provided that the list should

be supplemented from lists from the Department of Motor

Vehicles (DMV) in those counties where such supplementation

was practical and would not entail "significant cost." The

negative implication of this statutory language was that sole

reliance on voter registration lists was permissible where

supplementation was impractical or costly.

(4) We presume this statute was constitutional. "In

considering the constitutionality of a legislative act we presume

its validity, resolving all doubts in favor of the Act. Unless

conflict with a provision of the state or federal Constitution is

clear and unquestionable, we must uphold the Act.

[Citations.]"" (County of Sonoma v. State Energy Resources

Conservation etc. Com. (1985) 40 Cal.3d 361, 368 [220

Cal.Rptr. 114, 708 P.2d 693], quoting California Housing

Finance Agency v. Elliot (1976) 17 Cal.3d 575, 594 [131

Cal.Rptr. 361, 551 P.2d 1193].)

(ic) Our past decisions, and those of other courts, are in

accord. As discussed, ante, at page 494 footnote 7, we held in

1972 that sole reliance on voter registration lists was not itself

constitutionally invalid. (Sirhan, supra, 7 Cal.3d at pp.

749-750.) Moreover, the federal circuits are unanimous on this

33

point. Interpreting the Jury Selection and Service Act of 1968

(28 U.S.C. §§ 1861-1867), circuit courts of appeal have

routinely held sole reliance on voter registration lists does not

violate the fair cross-section rule absent some evidence of active

discrimination.

United States v. Cecil (4th Cir. 1988) 836 F.2d 1431 (cert.

den. (1988) 487 U.S. 1205 [101 L.Ed.2d 883, 108 S.Ct. 2846)),

is illustrative. In that case, the United States Court of Appeals

for the Fourth Circuit opined that sole use of voter registration

lists “cannot be described ‘as "systematically" excluding classes

that do not register in proportion to their numbers’; it is a

process that comports with the ‘need for efficient jury selection’

even though it may not ‘perfectly reflect population.’ Nor does

it follow that the voter registration lists do not satisfy the fair

cross-section ... [requirement] simply because ... members of

one group neglected to register in the same proportion as was

their share in the overall population. the Constitution and the

[federal] statute do not require such perfection. It is sufficient

that the system adopted provides a fair cross-section and we find

both common sense and precedent establish that if the voter

registration lists do this they are not tainted by some affirmative

form of discrimination." (/d. at pp. 1448-1449; see generally

id. at pp. 1444-1451, and cases cited; Annot., Construction and

Application of Provisions of Jury Selection and Service Act of

1968 (28 USCS §§ 1861-1867) Governing Plans for, and

Manner of, Selecting Federal Grand and Petit Jurors (1973) 17

A.L.R.Fed. 590, 608, § 7[a] and cases cited.)

Significantly, the rule laid down in Sirhan, supra, 7 Cal.3d

at pages 749-750, as well as the complementary rule of law in

numerous federal cases, existed before and during defendant's

trial. Former Code of Civil Procedure section 204.7 was also in

force at that time. In light of these persuasive authorities, we

conclude defendant fails to demonstrate the county's race neutral

procedures for using voter registration lists to assemble the

county's master jury list was constitutionally impermissible and,

accordingly, we conclude the trial court correctly denied the

motion to quash.”

2. Former Code of Civil Procedure Section 204.7

(5) In conjunction with his pretrial challenge to the

composition of the jury venire, defendant also claimed the

master jury list was assembled in violation of former Code of

Civil Procedure section 204.7, at the time a relatively new

statute. (Stats. 1980, ch. 81, § 35, p. 207, eff. July 1, 1981.)”

The evidence produced in support of the motion showed that at

the time of his 1981 trial, Kern County relied solely on voter

registration rolls to compile its jury lists. Although an attempt

was made to incorporate and integrate the names of those

holding driver's licenses and identification cards from the DMV,

the county intended to complete this project only in time to

select the 1982 master jury list. The jury list was assembled

once a year and the list in use at the time of defendant's motion

(November 1981) had been compiled the previous year. For

Kern County to expand and use multiple source lists any sooner

would have cost between $15,000 and $40,000 for a computer

program to eliminate duplicate names (in order to maintain the

randomness of the selection procedure).

At the time of defendant's trial, former Code of Civil

Procedure section 204.7 provided that "(a) Source lists of jurors

8. The trial court apparently denied defendant's motion to quash

because his supporting evidence failed to take account of the number of

illegal aliens of Hispanic descent living in Kern County. As discussed ante,

at page 490, footnote 4, a defendant need not present such refined statistics

to establish a prima facie case. Albeit for the wrong reason, the trial court

reached the correct result.

9. Former Code of Civil Procedure section 204.7 has since been

repealed. (Stats. 1988, ch. 1245, § 1.) Ithas been supplanted by section 197

of the same code, which states that a master jury list assembled from lists of

registered voters and driver’s license holders, “when substantially purged of

duplicate names, shall be considered inclusive of a representative cross

section of the population." ~

35

shall identify persons who reside in the county, and who are 18

years of age or older, shall include those who are registered

voters, and to the extent that systems for producing jury lists can

be practically modified, without significant cost, shall also

include those who have been licensed or issued an identification

card pursuant to Article 3 ... and Article 5 ... of Chapter | of

Division 6 of the Vehicle Code. Qualified jury lists and master

jury lists derived from the source lists shall be prepared so as to

reasonably minimize duplication of names." (Italics added.)

The trial court denied defendant's motion at a November

1981 hearing, concluding that the section did not become

effective until January 1982, “if then." In addition, the court

specifically declined to make a finding on the financial

feasibility of the immediate use of multiple source lists.

Although the trial court did not explain its decision regarding

the effective date of the newly enacted statute, it appears the

court believed that because Kern County assembled its master

jury list only once each year and the list for 1981 had already

been chosen, the new statute would affect only. the master jury

list for 1982, which would supplant the previous year's jury list

in January 1982.

The trial court did not cite any authority for its interpretation

of the former code section, making it difficult to evaluate the

correctness of its ruling. However, even assuming arguendo the

trial court erred, defendant cannot prevail. As the evidence

below made clear, Kern County was, at the time defendant made

his motion, in the process of complying with the statutory

requirement to integrate DMV lists into the master jury list.

Recognizing that mandating overnight changes was unwise, the

Legislature only required that "systems for producing jury lists"

be modified to include DMV lists if such changes could be done

“without significant cost." Because the record shows the cost of

immediate compliance would have been several thousand

dollars, and that compliance would occur shortly, we conclude

the motion was properly denied because the record shows the

master jury list could not be “practically modified, without

36

significant cost ...." (Former Code Civ. Proc., § 204.7.)

3. Wheeler Error

(6a) During voir dire, all but four Spanish surnamed persons

were excused for cause by either the prosecution or the defense.

When the remaining four were peremptorily challenged by the

prosecutor, defendant objected, claiming the prosecutor was

exercising his peremptory challenges to improperly exclude

Spanish surnamed persons from the jury. (People v. Wheeler

(1978) 22 Cal.3d 258 [148 Cal Rptr. 890, 583 P.2d 748].) The

trial court denied the motion, finding defendant failed to

demonstrate a prima facie showing that the prosecutor was

relying on group rather than specific bias. We agree the court

properly denied the motion.

(7) It is now well established that “peremptory challenges

may not be used to exclude from a jury, solely because of a

presumed ‘group bias,' all or most members of an identifiable

group of citizens distinguished on racial, religious, ethnic, or

similar grounds." (People v. Snow (1987) 44 Cal.3d 216, 222

[242 Cal.Rptr. 477, 746 P.2d 452].) Such improper exercise of

- peremptory challenges violates article I, section 16, of the

California Constitution (People v. Turner (1986) 42 Cal.3d 711,

716 (230 Cal.Rptr. 656, 726 P.2d 102]; Wheeler. supra, 22

Cal.3d at pp. 276-277), as well as the equal protection clause of

the United States Constitution. (Batson v. Kentucky (1986) 476

U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712].)

"If a party believes his opponent is using his peremptory

challenges to strike jurors on the ground of group bias alone, he

must raise the point in timely fashion and make a prima facie

case of such discrimination to the satisfaction of the court.

First, ... he should make as complete a record of the

circumstances as is feasible. Second, he must establish that the

persons excluded are members of a cognizable group within the

meaning of the representative cross-section rule. Third, from all

the circumstances of the case he must show a strong likelihood

37

that such persons are being challenged because of their group

association rather than because of any specific bias." (Wheeler,

supra, 22 Cal.3d at p. 280; see also Snow, supra, 44 Cal.3d at

p. 222.) If the trial court finds the moving party has made a

prima facie case, the burden shifts to the opponent to explain its

peremptory challenges. (People v. Johnson (1989) 47 Cal.3d

1194, 1216 [255 Cal.Rptr. 569, 767 P.2d 1047}.)

(6b) Defendant clearly raised the issue in timely fashion and

made as complete a record as possible. Moreover, contrary to

the People's argument, defendant's reliance on Spanish

surnamed persons as a category of excluded jurors is

permissible. (See Morales, supra, 48 Cal.3d at p. 543.) We

conclude, however, that the trial court properly found defendant

failed to demonstrate "from all the circumstances of the case" a

"strong likelihood" that the prosecutor's use of peremptory

challenges to excuse the four Spanish surnamed jurors was

based on group, rather than specific, bias. Because defendant

thus failed to make a prima facie showing of a constitutional

violation, the prosecutor's burden of justification never arose.

An examination of the voir dire proceedings supports this

conclusion. Mrs. Sosa was the first Spanish surnamed person

peremptorily challenged by the prosecutor. She stated she was

a cook for the Child Development Center and that her husband

was director of maintenance and transportation at a local school.

She had three adult children and had lived in Kern County for

eleven years. When asked about the death penalty, she replied,

"That is kind of scary" and that she was "absolutely" opposed to

the death penalty on religious grounds. On later questioning,

she was asked whether she would impose the death penalty in

a proper case under proper instructions; she said, "Yes, I guess."

Mr. Arrambide was questioned shortly after Mrs. Sosa. He

was a labor contractor, married, and had five children. He had

lived in Kern County since 1948 and did not read a newspaper.

He seemed distracted because he had lost a job that day due to

his jury duty and was concerned that he would lose more jobs.

He operated five work crews and explained that "if 1 am not

38

there, well, they say that guy is not interested in the job ....

Some farmers understand, but some don't." Later, when asked

whether he would lose many jobs by serving on defendant's

jury, he admitted he did not know. When asked about the death

penalty, Mr. Arrambide stated his belief that only God could

take a man's life, but that he could vote to impose the death

penalty. Later, he said he could not, and appeared confused by

the questioning. There was some suggestion of a language

problem.

Defendant firrt raised the Wheeler issue after Sosa and

Arrambide were excused. The trial court denied the motion,

stating, "I certainly don't think there is at this particular point an

indication that there is an intention to rid this jury of all Spanish

surnamed individuals. [{] I tell you now that I do not know the

reason for the excusing of [Mrs.] Sosa but it's very obvious why

Mr. Arrambide was excused. Motion is denied at this point.

But I want to find that there is no obvious reason for the

excusing of Mrs. Sosa."

A few days later, Mr. Lara was questioned. A mechanic, Lara

was married, had no children, and had lived in the county for 19

years. He initially stated he would always choose life over

death and was absolutely opposed to the death penalty. The

prosecutor interposed a challenge for cause which was

ultimately denied after Lara was questioned by defense counsel.

Lara admitted he could conceive of a crime for which death

might be appropriate and, after some pointed questioning, he

eventually conceded he could vote for the death penalty if he

were retained on the jury.

After Mr. Lara was questioned, counsel for both defendant

and Cebreros announced they were satisfied with the panel. The

prosecutor then exercised one of his remaining peremptory

challenges to excuse Juror Lara. Defendant renewed his

Wheeler motion but the trial court again denied it, stating, "I am

keeping [track] of it and I made a finding that I couldn't see any

reason with Mrs. Sosa. But with Mr. Lara, it's very obvious

when I first asked him about the death penalty he indicated he

39

was opposed to it. I don't think [the prosecutor's challenge] was

done for any racist reason whatsoever and the court will make

such a finding.” Counsel argued briefly but to no avail that

although Mr. Lara initially expressed personal opposition to the

death penalty, his later responses on voir dire showed he had

modified his position in that regard.

Mr. Mercado was the final Spanish surnamed person on the

panel. At the beginning of the voir dire, the trial judge admitted

that he knew Mr. Mercado due to a prior association between

the judge's wife and Mercado's mother. Mr. Mercado affirmed

that the connection would not affect his ability to be impartial.

Mr. Mercado was a high school math teacher, having

graduated from Fresno State. His wife was a junior high school

teacher and they had one child, then two years old. He stated he

read the local paper regularly but not thoroughly, and had no

recollection of defendant's case, although he knew the brother

of one of the witnesses (Glen Blackford). He stated he was in

favor of the death penalty but could keep an open mind.

Although his cousin worked for the California Highway Patrol

and he had a few friends who were deputy sheriffs, he claimed

that he would not accord a law enforcement officer's testimony

undue weight. He admitted that while sitting as an alternate, he

might be thinking about his high school baseball team because

they were due to begin preconditioning, but he would probably

be able to set those thoughts aside.

Mr. Mercado then admitted he had suffered two arrests in his

life. In the first, he was arrested for"grand theft auto" when he

was 18 years old. The matter was reduced to misdemeanor

joyriding and he received probation. In the second, he

recounted that while in college, he and a Black friend were

confronted by eight college football players. The players made

some racially derogatory remarks and a fight ensued. When the

police arrived, the eight players had fled but police arrested

Mercado's friend for being drunk in public. When Mercado

attempted to intervene by offering to drive his friend home, he

was arrested for obstructing an officer in the performance of his

duties. The charges were later dropped.

After the prosecutor used a peremptory challenge to remove

Mr. Mercado, the fourth and final Spanish surnamed juror,

defendant renewed his Wheeler motion a second time. The trial

judge stated "Gentlemen, this young man, and I have known

[Mercado] a long time. I was shocked to hear about his run ins

with the police. I was unaware of it. I think the district attorney

has ample grounds under those circumstances."

Defendant first contends that the fact that the prosecutor

struck all four of the remaining Spanish surnamed potential

jurors from the panel demonstrates a strong likelihood of an

impermissible motivation. Although the removal of all

members of a certain group may give rise to an inference of

impropriety (Wheeler, supra, 22 Cal.3d at p. 280), we cannot

say this factor was dispositive on this record. It is clear the trial

court was "aware of [its] duty under Wheeler to be sensitive to

the manner in which peremptory challenges were used."

(Johnson, supra, 47 Cal.3d at p. 1221.) After carefully

scrutinizing the voir dire proceedings, the trial court — clearly

aware the prosecutor had removed the remaining Spanish

surnamed venire persons — held defendant failed to

demonstrate a strong likelihood based on "all the circumstances

of the case" that the prosecutor's exercise of his peremptory

challenges were based on group bias.

We reiterate that ruling on Wheeler motions "requires trial

judges to make difficult and often close judgments. They are in

a good position to make such determinations, however, on the

basis of their knowledge of local conditions and of local

prosecutors.’ [Citation.] They are also well situated to bring to

bear on this question their powers of observation, their

understanding of trial techniques, and their broad judicial

experience. We are confident of their ability to distinguish a

true case of group discrimination by peremptory challenges

from a spurious claim ...." (Wheeler, supra, 22 Cal.3d at p. 281,

quoting Kuhn, Jury Discrimination: The Next Phase (1968) 41

So. Cal.L.Rev. 235, 295, fn. 5; see also Johnson, supra, 47

41

Cal.3d at pp. 1219-1222.) Applying this standard of giving

considerable deference to the determination of the trial court,

"we see no good reason to second-guess [the trial court's]

factual determination" (Johnson, supra, at p. 1221) that the

prosecutor was not motivated by bias against Hispanics.

(8) Defendant also contends the trial court should have found

he made a prima facie showing because aside from their

ethnicity, the four excused jurors were otherwise "as

heterogeneous as the community as a whole." (Wheeler, supra,

22 Cal.3d at p. 280.) While this fact may, under some

circumstances, support a finding of a prima facie case,

comparisons between jurors is not often a fruitful exercise.

"(T]he very dynamics of the jury selection process make it

difficult, if not impossible, on a cold record, to evaluate or

compare the peremptory challenge of one juror with the

retention of another juror which on paper appears to be

substantially similar." (Johnson, supra, 47 Cal.3d at p. 1221.)

Such a comparison "is highly speculative and less reliable than

the determination made by the trial judge who witnessed the

process by which the defendant's jury was selected." (/bid.)

Although defendant argues the prosecutor's voir dire of the

jurors in question was “superficial if not exactly desultory" (see

Wheeier, supra, 22 Cal.3d at p.281), the record does not support

this assertion; our independent examination of the record does

not reveal the voir dire of the four potential jurors was either

limited or desultory, or was in any way different from the other

jurors on the panel.

Defendant thus fails to convince us that our traditional

deference to a trial court's ruling on a Wheeler motion is

inappropriate. (9)(See fn.10.) We conclude the trial court

properly found defendant failed to make a prima facie showing

of a strong likelihood that the prosecutor's challenges were

motivated by group, rather than specific, bias.

10. In supplemental briefing, defendant claims the prosecutor's use

of peremptory challenges violated defendant’s right to equal protection of

42

4. Witherspoon/Witt Error

During routine questioning on voir dire, venireman

Giangregorio volunteered that he did not believe in capital

punishment. Later, when questioned about that topic by the trial

judge, the following colloquy occurred:

"Q: How do you feel about the death penalty?

"A: I am against it, your Honor.

"Q: Are you against it in every case?

"A: Every instance. I do not believe in it." The prosecutor's

motion to exclude for cause was thereafter granted over a

defense objection. -

(10) Defendant now contends Giangregorio's excusal

violated the precepts laid down in Witherspoon v. Illinois

(1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]

(Witherspoon). As he recognizes, however, the high court

limited Witherspoon, establishing a less stringent standard, in

part because of the modern trend against permitting a capital

jury to act with unfettered discretion. (Wainwright v. Witt

(1985) 469 U.S. 412, 422 [83 L.Ed.2d 841, 850, 105 S.Ct. 844]

(Witt).) Witt requires that the trial court determine "whether the

juror's views would ‘prevent or substantially impair the

performance of his duties as a juror in accordance with his

instructions and his oath." (/d. at p. 424 [83 L.Ed.2d at pp.

851-852].) “Under Witt, therefore, our duty is to ‘examine the

context surrounding [the juror's] exclusion to determine whether

the trial court's decision that [the juror's] beliefs would

the laws. (See Batson v. Kentucky, supra, 476 U.S. 79.) Although the rule

in Batson vindicates a federal constitutional right, whereas Wheeler

addressees a state constitutional concern, the procedure for establishing a

prima facie case under both cases is similar. (See Johnson, supra, 47 Cal.3d

at p. 1216 [jointly analyzing the issue under both cases].) For the reasons

discussed above, we conclude defendant fails to show the “facts and other

relevant circumstances raise an inference that the prosecutor used [his

peremptory challenges] to exclude the veniremen from the petit jury on

account of their race." (Batson, supra, at p. 96 [90. L.Ed.2d at pp. 87-89].)

43

“substantially impair the performance of his duties ..." was fairly

supported by the record." (People v. Miranda (1987) 44 Cal.3d

57, 94 [241 Cal.Rptr. 594, 744 P.2d 1127], quoting Darden v.

Wainwright (1986) 477 U.S. 168, 176 [91 L.Ed.2d at p. 154.)

Defendant first contends we should retain the stricter

Witherspoon standard as a matter of state constitutional law.

(See Cal. Const., art. I, § 16 [right to trial by jury].) However,

we have already adopted the Witt standard, because it "'make{s]

good sense, and because California courts have generally

followed the teachings of the high court in determining when a

prospective juror properly may be excused for cause because of

his views regarding capital punishment ...." (People v. Guzman

(1988) 45 Cal.3d 915, 955 [248 Cal.Rptr. 467, 755 P.2d 917],

quoting People v. Ghent (1987) 43 Cal.3d 739, 767 (239

Cal.Rptr. 82, 739 P.2d 1250].

He next argues that Giangregorio's excusal was improper

even under the Witt standard. Giangregorio's expressed

antipathy to the death penalty in "every instance," however,

would undoubtedly"substantially impair the performance of his

duties as a juror ...." (Witt, supra, 469 U.S. at p. 424 [83

L.Ed.2d at p. 851].) Although defendant submits the trial court

11. Defendant contends that adoption of the Witt standard over the

Witherspoon standard does not comport with this state’s expressed

preference for “strict standards in death penalty cases." (See, e.g., People

v. Bigelow (1984) 37 Cal.3d 731, 743, fn. 7 [209 Cal.Rptr. 328, 691 P.2d

994, 64 A.L.R. 4th 723].) We agree with the high court, however, that

"there is nothing talismanic about juror exclusion under Witherspoon merely —

because it involves capital sentencing juries. Witherspoon is not grounded

in the Eight Amendment’s prohibition against cruel and unusual punishment,

but in the Sixth Amendment. Here, as elsewhere, the quest is for jurors who

will conscientiously apply the law and find the facts. That is what an

‘impartial’ jury consists of, and we do not think, simply because a defendant

is being tried for a capital crime, that he is entitled to a legal presumption or

standard that allows jurors to be seated who quite likely will be biased in his

favor." (Witt, supra, 469 U.S. at p. 423 (83 L.Ed.2d at p. 851] quoted with

approval in People v. Howard (1988) 44 Cal.3d 375, 417 (243 Cal. Rptr.

842, 749 P.2d 279[.)

should have explained to Giangregorio that it was his civic duty

to set aside his personal feelings and obey the law, we have

previously rejected that notion, finding nothing in Witherspoon

that obligates a trial court to so instruct a juror. (Miranda,

supra, 44 Cal.3d at p. 96.)

We conclude prospective juror Giangregorio was properly

excused from the jury.”

B. Guilt Phase Issues

1. Exclusion of Expert Testimony Regarding Eyewitness

Identification

(lla) At trial, defendant offered the testimony of Dr.

Elizabeth Loftus, an expert on eyewitness identifications. Dr.

Loftus would have testified to the following: To provide a

basis for her expert opinion, she read the police reports in the

case as well as the transcript of the preliminary examination. In

addition, she viewed the photographic lineup and discussed the

case with defense counsel. Based on this information, she

determined the following factors could have influenced the

eyewitness identification in this case: (1) stress or fear; (2)

violence; (3) weapon focus; (4) retrograde amnesia; (5)

ingestion of drugs or alcohol; and (6) a photo-biased

identification. She did not intend to give an opinion as to

12. Although defendant originally challenged the excusal of two

other venire persons (Shepard and Boston) in addition to Giangregorio, he

fails to mention that these two jurors in his supplemental briefs and we

assume he is conceding that, in light of the different standard established in

Will, the record no longer supports his claims that their excusal was

improper. Our review of the record supports such a determination.

13. Dr. Loftus testified outside the jury’s prsence at defendant’s

first tiral. The parties stipulated that the transcript of this testimony, together

with a copy of the prosecutor’s legal memorandum on this point, could be

considered by the trial court before ruling on the admissibility of Dr.

Loftus’s testimony in defendant’s second trial.

45

whether any particular identification was accurate but only that

these six factors are known to affect the accuracy of eyewitness

identifications in general. Moreover, she opined that the

information she would provide was beyond the common

experience of most jurors and that her testimony could be of

assistance to the jury.

The prosecutor objected to Dr. Loftus's proposed testimony,

contending that the accuracy of eyewitness identifications was

a matter of common sense for the jury, that Dr. Loftus could not

testify as to the accuracy of any particular identification, and

that cross-examination coupled with appropriate jury

instructions would form an adequate basis from which the jury

could decide whether or not to rely on Boender's identification

of defendant. In addition, the prosecutor cited several cases in

which the type of expert testimony the defense offered had been

excluded. The trial court, although finding Dr. Loftus qualified

to testify as an expert and that her testimony would not consume

an undue amount o/ time, sustained the prosecution's objection.

As both defendant and the People acknowledge, the

resolution of this issue is controlled by People v. McDonald

(1984) 37 Cal.3d 351 [208 Cal.Rptr. 236, 690 P.2d 709, 46

A.L.R.4th 1011], filed after defendant's trial. McDonald

involved the murder of Jose Esparza on a public sidewalk,

viewed from varying distances by seven witnesses who

identified McDonald as the killer. McDonald offered the

testimony of Dr. Shomer, who "proposed to inform the jury of

various psychological factors that may affect the reliability of

eyewitness identification, and to ‘help to counter some common

misconceptions’ about the process." (/d. at p. 361.) Specifically,

Dr. Shomer would have testified that the following factors

affected the reliability of eyewitness identifications: "the

observer's state of mind, his expectations, his focus of attention

at the time, the suddenness of the incident, the stressfulness of

the situation, and the differences in the race and/or age of the

observer and the observed." (/bid.) Following a line of appellate

decisions that upheld the exclusion of such evidence,” the trial

court in McDonald excluded Dr. Shomer's testimony. The

defendant was convicted of murder and sentenced to death.

We reversed. (12) "When an eyewitness identification of the

defendant is a key element of the prosecution's case but is not

substantially corroborated by evidence giving it independent

reliability, and the defendant offers qualified expert testimony

on specific psychological factors shown by the record that could

have affected the accuracy of the identification but are not likely

to be fully known to or understood by the jury, it will ordinarily

be error to exclude that testimony." (McDonald, supra, 37

Cal.3d at p. 377.) However, exclusion of such evidence

requires reversal only if it results in a miscarriage of justice.

(People v. Brown (1985) 40 Cal.3d 512, 526-527 [220 Cal.Rptr.

637, 709 P.2d 440]; McDonald, supra, at p. 376; see also

People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

(11b) Although an appellate court should, in the usual case,

defer to a trial court's decision. admitting or excluding expert

testimony (McDonald, supra, 37 Cal.3d at p. 377), the trial in

defendant's case took place prior to our decision in McDonald

and the trial court took no guidance from the reasoning therein.

Even assuming arguendo the trial court erred in excluding the

proffered expert testimony, however, we find the error was

harmless. ,

We begin by noting that several of the critical factors

identified in McDonald are present in this case. Boender's

identification of defendant was indisputably a "key element" of

the People's case. Also, there is no dispute that Dr. Loftus was

a qualified expert on the subject of eyewitness identifications.

14. The trial court in McDonald cited four cases in support of its

decision: People v. Johnson (1974) 38 Cal.App.3d 1 [112 Cal. Rptr. 384];

People v. Guzman (1975) 47 Cal.App.3d 380 [121 Cal.Rptr. 69]; People v.

Brooks (1975) 51 Cal.App.3d 602 [124 Cal.Rptr. 492]; and People v.

Bradley (1981) 115 Cal.App.3d 744 [171 Cal.Rptr. 487]. (McDonald,

supra, 37 Cal.3d at p. 362 & fn. 8.) The trial court in the instant case also

relied on some of these cases in excluding Dr. Loftus’s testimony.

47

We thus must examine whether Boender's identification was

"substantially corroborated" such that it had "independent

reliability." Once again, McDonald is instructive.

In McDonald, supra, 37 Cal.3d 351, no evidence linked the

defendant to the crime other than the eyewitness identifications.

The eyewitnesses in McDonald were equivocal, voicing various

degrees of certainty, with one actually asserting that the

defendant was definitely not the killer. Finally, the defendant

had a strong alibi defense: several witnesses testified that he

was in Alabama on the day of the killing and their testimony

was supported by physical evidence in the form of dated

postcards and phone bills. The identifications therefore were

not corroborated by evidence giving them independent

reliability.

In the present case, by contrast, Boender was positive that

defendant was one of the two assailants and his identification

was bolstered by (1) his recognition of defendant from the

botched robbery attempt two days earlier; (2) Maxwell's

statement to police, which dovetailed with Boender's

description of the crimes and gave defendant a motive to kill

Boender; and (3) Maxwell's descriptions of defendant and

Cebreros, which matched Boender's descriptions of the

assailants given to police the day after Allen's murder. Although

Maxwell was admittedly not the most veracious witness, we

cannot agree with defendant that her testimony must be wholly

disregarded. To the extent Maxwell's testimony was consistent

with Boender's version of events, it provides some

corroboration for Boender's eyewitness identification of

defendant.

Moreover, unlike in McDonald, physical evidence linked

defendant to the crime. The baggie of marijuana found in

Cebreros's possession was identical to that taken from Boender's

apartment. In addition, the gun found in his possession was

similar to the one that Boender described as having been

wielded by defendant. Finally, the roll of duct tape bore

defendant's fingerprints, thus supporting Maxwell's story that

defendant planned to use it to bind Boender during the January

21st robbery attempt. Although none of these items points

unerringly towards defendant's guilt, they constitute links in the

chain of evidence against him and thus provide some

corroboration of Boender's identification of defendant as the

guilty party.

Due to the strength of the ei uence corroborating Boender's

eyewitness identification of defendant, we cannot conclude the

trial court's exclusion of his proffered expert evidence resulted

in a miscarriage of justice. (McDonald, supra, 37 Cal.3d at p.

376.) Even assuming error, it was harmless.

(13a) In a related claim, defendant contends the trial court

abused its discretion when, during voir dire, it sustained the

prosecutor's objection to defense questions that sought to elicit

the opinions of potential jurors concerning the effects of stress

on perception. Defendant argues that these questions would

have demonstrated that the information Dr. Loftus sought to

impart was not within the common knowledge of the jury,

thereby undercutting a potential justification for excluding her

testimony.

(14) The purpose of questioning at voir dire, however, is to

assist the attorneys in the exercise of their peremptery

challenges, not to provide foundational support for their

evidentiary motions. "[C]ounsel should be allowed to ask

questions reasonably designed to assist in the intelligent

exercise of peremptory challenges whether or not such

questions are also likely to uncover grounds sufficient to sustain

a challenge for cause." (People v. Williams (1981) 29 Cal.3d

392, 407 [174 Cal.Rptr. 317, 628 P.2d 869], italics added.)

(13b) Because the challenged questions at voir dire were not

related to aiding the exercise of peremptory challenges but

instead were intended to support defendant's position on an

evidentiary question, no abuse of discretion occurred.

Defendant apparently recognizes the weakness of his

argument by suggesting that responses to his voir dire questions

would have helped him decide which jurors to challenge by

49

exposing whether they were aware of the information Dr. Loftus

would have offered. Although defendant thus claims the

questions would have assisted in the exercise of his peremptory

challenges, he is basically asserting that if the trial court

excluded Dr. Loftus's testimony on the ground that it was within

the common experience of the jury, then he was entitled to

prove through questioning of the jurors that the trial court's

assumption was incorrect. As we have explained, this is not a

proper subject of questioning on voir dire.

2. Boender's Identification of Cebreros

The day after the murder, police questioned Boender at the

hospital. He described the larger of his assailants as over six

feet tall, weighing over two hundred pounds, with dark hair

thinning on top and combed straight back. Boender also noticed

the man carried his arms noticeably away from his body and

looked like a "biker." This description was very similar to

Maxwell's description of Cebreros, given to police the night

before. After Cebreros was arrested, police displayed a stack of

photographs to Boender, who, upon seeing the picture of

Cebreros, exclaimed, “This is the big guy; I'm sure of it."

Maxwell also identified Cebreros from a photographic lineup.

Cebreros is six feet, five inches tall, weighs two hundred and

twenty pounds, and has hair as described by Boender. After

Cebreros was arrested, Boender identified defendant from a

separate photographic lineup.

Defendant moved to suppress Boender's out-of-court

identification of him, claiming the circumstances under which

Boender selected his photograph were unduly suggestive.

Cebreros made a similar motion as to Boender’s identification

of him. The trial court denied both motions, although it noted

that the photographic array that included Cebreros left "a great

deal to be desired" because his picture was the only one in the

display that matched Boender's description of the larger

assailant. The court stated, however, that, after considering all

the facts and circumstances of the case, it could not conclude

that there was "a very substantial likelihood of irreparable

misidentification."” (Simmons v. United States (1968) 390 U.S.

377, 384 [19 L.Bd.2d 1247, 1253, 88 S.Ct. 967].)

(15a) Defendant now attacks the validity of the pretrial

identification of Cebreros, arguing that because other evidence

linked the two men in the commission of the crimes, the

prosecution was able to unfairly bolster its case against

defendant by using Boender's questionable identification of

Cebreros. Defendant's claim fails at the threshold because it

does not appear he joined in Cebreros's motion to suppress in

the trial court or otherwise objected to the introduction of

Boender's identification of Cebreros. (Evid. Code, § 353.)

Because the alleged flaw in Cebreros's photographic lineup was

that his picture was the only one that matched the witnesses’

description, defendant's own motion to suppress cannot be fairly

read to encompass the theory on which Cebreros's motion was

made.

Even assuming the issue was properly preserved for appeal,

reversal is not required. (16) "[A] violation of due process

occurs if a pretrial identification procedure is 'so impermissibly

suggestive as to give rise to a very substantial likelihood of

irreparable misidentification.' [Citations.] "Whether due process

has been violated depends on"the totality of the circumstances"

surrounding the confrontation. [Citation.]' The burden is on the

defendant to show that the identification procedure resulted in

such unfairness that it abridged his rights to due process.

[Citation.]" (People v. Sequeira (1981) 126 Cal.App.3d 1, 12

[179 Cal.Rptr. 249]; see also People v. Blair (1979) 25 Cal.3d

640, 659 [159 Cal.Rptr. 818 [602 P.2d 738].)

(17) "The factors to be considered in determining whether a

lineup is im

This text is long and has been trimmed here. Open the source document for the complete record.