# Appendix — Brown v. Sanders

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0066%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 212

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0066%3A03. Public record. Not legal advice.