People v. Miles ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNNY DUANE MILES,
Defendant and Appellant.
S086234
San Bernardino County Superior Court
FSB09438
May 28, 2020
Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan,
Cuéllar, and Kruger concurred.
Justice Liu filed a dissenting opinion.
PEOPLE v. MILES
S086234
Opinion of the Court by Groban, J.
On March 17, 1999, a jury in San Bernardino County
convicted defendant Johnny Duane Miles of burglary and first
degree murder, first degree forcible rape, second degree robbery,
and false imprisonment by violence of Nancy Willem. The jury
found true the special circumstances that Willem was killed
during the commission of the burglary, rape, and robbery (Pen.
Code, § 190.2, subd. (a)(17))1 and that the murder was
intentional and involved the infliction of torture (§ 190.2,
subd. (a)(18)). The jury also convicted defendant of 10
additional counts related to two separate incidents and found
true the enhancement allegations relating to those counts.
Following the penalty phase, the jury reached a verdict of death.
After denying defendant’s motion to modify the verdicts
(§ 190.4, subd. (e)), the trial court sentenced defendant to death.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the
judgment.
I. FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution Case
This case arises from three separate incidents occurring in
February 1992: (1) the murder, rape, robbery, and false
1
All further statutory references are to the Penal Code
unless otherwise indicated.
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imprisonment by violence of Nancy Willem and the burglary
preceding her death; (2) the rape, robbery, false imprisonment
by violence, and penetration by a foreign object of Christine C.;
and (3) the robbery and false imprisonment by violence of
Melvin Osburn and the rape, robbery, false imprisonment by
violence, and penetration by a foreign object of Carole D.
a. Nancy Willem
On February 4, 1992, Nancy Willem did not come home
from work at the Behavioral Health Services Clinic in Rialto.
That evening, her roommate, Kristen Schutz, started calling the
clinic, but the clinic’s phone lines were busy. When Schutz was
not able to reach Willem, Schutz drove to the clinic. After
entering the building through an unlocked back door, she found
the door to the clinic ajar.
As she entered the clinic, she saw the reception area had
been ransacked. She followed the blood on the floor from the
reception area into one of the offices. There, she found Willem’s
naked body between a couch and a coffee table. There was a
telephone cord tied to her wrist and a sweater wrapped around
her neck. There was also a handwritten note found on top of her
abdomen that read: “Feed the poor. Down with the
goverenment [sic].”
Schutz tried to call the police but realized that the
telephone cords were missing. Once she reconnected one of the
cords, she called 911. The police arrived and pronounced Willem
dead on the scene. After securing the area and obtaining
consent to search the clinic, the police collected blood and other
bodily fluids from the reception area and office where Willem’s
body was found. The police also recorded a video depicting the
crime scene, which was played for the jury.
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Dr. Nenita Duazo subsequently performed the autopsy on
Willem’s body. Willem’s injuries were extensive. She had
multiple lacerations of her scalp and forehead, a fractured jaw,
a missing tooth, redness in her vagina, and a circular area that
appeared to be a cigarette burn on her chest. She had bruising
of her face, chest, back, arms, and legs, which, according to Dr.
Duazo, indicated that Willem was alive when her injuries were
inflicted. Internally, Willem had eight broken ribs, a tear in her
left lung, two lacerations of her liver, and hemorrhage in her
brain. These injuries were likely caused by the application of
substantial and multiple instances of force while Willem was
still alive. Willem also had hemorrhage in her eyes and neck, as
well as a broken bone and broken cartilage in her neck, all of
which indicated that she was manually strangled before her
death. Dr. Duazo testified that Willem was killed by a
combination of blunt force injuries and manual strangulation.
i. Physical evidence
Several witnesses testified regarding the collection and
analysis of blood and other bodily fluids found at the crime
scene. In particular, two criminalists from the San Bernardino
County Sheriff’s Crime Laboratory, David Stockwell and Donald
Jones, testified concerning their analysis.
Stockwell testified that he conducted a serological analysis
on items recovered from the crime scene. He concluded that the
nonvictim blood and semen from the crime scene came from an
individual who was likely African-American and a type AB
secretor, which he defined as someone whose blood type is
secreted into other bodily fluids. He testified that the genetic
markers found in the nonvictim blood and semen would be
expected in approximately one in 333 million African-American
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men. Following this analysis, he received a blood sample from
defendant, who is African-American. Stockwell testified that
defendant is a secretor and his genetic markers matched the
genetic markers found in the nonvictim blood and semen
recovered from the crime scene.
Next, Jones testified that he conducted a DNA analysis on
the samples recovered from the crime scene. He concluded that
defendant’s DNA profile matched the DNA profile from the
crime scene. He testified that the DNA profile from the crime
scene would be expected in approximately one in 180 million
African-Americans (or one in 280 million African-Americans
using his lab’s updated match criteria from around the time of
the trial).
ii. Other evidence
On the night of Willem’s death, her ATM card was used to
withdraw $1,160 from an ATM in Pomona and another $300
from an ATM in Glendora. An employee from the bank’s
investigations unit testified that ATM surveillance photographs
showed an individual wearing glasses and a “Red Dragon” hat
at the time of the transaction in Glendora. The individual’s
features could not be discerned from the photographs.
A couple of months after Willem’s death, the police briefly
stopped an individual who identified himself as defendant and
was walking no more than half of a mile from Willem’s office.
During the stop, the police documented that defendant was an
African-American man who was 25 years old, six feet, six inches
tall, and 210 pounds.
As to the handwritten note found at the crime scene, the
prosecution offered testimony by expert Glen Owens. He
examined the note found on Willem’s body and certain inmate
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forms written by defendant. He concluded that there were some
indications that the writer of the inmate forms may have written
the crime scene note but it was not definitive. An investigator
testified that when defendant was served with a court order
requiring him to provide a handwriting exemplar, he refused to
comply.
An officer at the Rialto Police Department testified that
during a search of defendant’s car, the police found a note in it.
That note read in part: “We’ll be wiped out by the governement
[sic].” The note contained a misspelling of the word government,
which was similar to the misspelling in the note found on
Willem’s body.
b. Christine C.
Christine C. was working alone at the Desert
Communities United Way office in Victorville on the evening of
February 25, 1992 when a man forced his way into the office.
Christine C. described the man as African-American, over six
feet tall, in his twenties, and of “slim build.”2
The man was wearing a ski-type mask and holding a silver
handgun. Pointing the gun at her, he demanded money. She
gave him cash from her purse and said that the office had no
other money. He then ordered her to lie down on the floor while
he searched the office. Once he returned, he directed her into a
conference room, tied her arms behind her back with a telephone
cord, and took her jewelry. When she looked at him, he told her,
“Don’t look at me.” He also took an ATM card from her purse
and asked her for the PIN, to which she said she did not know
it.
2
Christine C. did not identify defendant in her testimony.
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After rummaging through the office, he returned to the
conference room. He proceeded to pull up Christine C.’s skirt
and pull down her pantyhose, while she was lying on her
stomach with her hands tied behind her back. He penetrated
her vagina from behind, initially with his fingers and then with
his penis. He ejaculated on her thighs and wiped her off with a
tissue. He then tied her feet and hands together and tied her to
the conference table with telephone cords, and he left the office.
She untied herself and called 911. The police arrived on the
scene, and she was taken to the hospital for a medical
examination.
The San Bernardino County Sheriff’s Crime Laboratory
analyzed semen on tissues left at the crime scene. Criminalist
Stockwell testified that based on his serological analysis, the
semen profile from the Christine C. crime scene matched the
profile from the Willem crime scene and additionally matched
defendant’s genetic markers. Criminalist Jones testified that
the DNA found on the tissues also matched defendant’s DNA
profile and would be expected in approximately one in 180
million African-Americans.
c. Melvin Osburn & Carole D.
Therapist Melvin Osburn was in his office in San
Bernardino on the evening of February 26, 1992 when a man
later determined by the jury to be defendant entered the office
wearing a ski mask and holding a silver handgun.3 Defendant
demanded Osburn’s wallet, threatening, “Don’t look at me or I’ll
kill you.” After taking money from his wallet, defendant ordered
3
Osburn did not identify defendant in his testimony, but he
described the perpetrator as a Black man who was at least six
feet, one inch tall and in his twenties.
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Osburn to lie down on the floor. Defendant then tied Osburn’s
hands and feet with telephone cords and proceeded to rummage
around the office, repeatedly asking whether there was a safe.
Defendant also forced Osburn’s ring off his finger and asked
Osburn about his ATM card, to which Osburn told him that
there was no money on it. When it appeared defendant was
getting ready to leave, Osburn’s next client, Carole D., walked
into the office.
She was met by defendant pointing a silver gun at her.4
He directed her into Osburn’s office, where he ordered her to lie
down and not look at him. He asked whether she had any money
or an ATM card, to which she replied that she did not. He took
her wedding ring and tied her up with her purse strap and
telephone cords. Next, he pulled her pants and underwear down
and penetrated her vagina from behind, initially with his fingers
and then with his penis.
Taking Osburn’s keys, defendant left the office and drove
away in Osburn’s car, with his cellphone. Osburn freed himself
and Carole D., and because the telephone cords were torn, he
triggered the burglar alarm and eventually used his next client’s
phone to call the police. The police arrived, and Carole D. was
taken to the hospital for a medical examination. The examining
nurse testified that Carole D. showed signs of sexual assault.
The police later found Osburn’s car abandoned in a nearby
parking lot. His cellphone bill showed calls that he had not
made.
4
She did not identify defendant in her testimony, but she
described the perpetrator as a Black man over six feet tall and
in his twenties.
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The San Bernardino County Sheriff’s Crime Laboratory
analyzed semen found on Carole D.’s underwear. Criminalist
Stockwell testified that this sample contained less serological
information than the samples obtained from the other two crime
scenes, but that the detectable genetic markers from the sample
matched the semen profiles from the Willem and Christine C.
crime scenes. He testified that the detectable genetic markers
from the sample also matched defendant’s genetic markers. As
to the DNA, criminalist Jones was able to form only a partial
DNA profile based on the sample, but he testified that the
partial DNA profile matched defendant’s DNA and would be
expected in approximately one in 920 African-Americans.
2. Defense Case
The defense called three witnesses. First, the defense
called Dr. Thomas Rogers, a pathology expert, who testified that
it was not possible to determine whether Willem’s injuries were
inflicted when she was conscious or unconscious or to determine
from any autopsy whether a deceased individual was tortured.
Second, the defense called Dr. Jonathan Koehler, a research
methodology expert, who testified regarding errors and
probability statistics in DNA analysis. For the third witness,
the defense called one of the investigating detectives, Detective
Chester Lore. He testified that the police did not recover stolen
property, bloody clothing, or a “Red Dragon” hat (which the
individual who used Willem’s ATM card in Glendora appeared
to be wearing) when they searched defendant’s residences and
vehicle. Nor did the police recover any fingerprints from the
crime scenes that matched defendant’s fingerprints. Detective
Lore also testified that the police previously investigated
someone other than defendant in connection with a “Red
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Dragon” hat, but that individual was eventually cleared as a
suspect.
B. Penalty Phase
After the jury returned its guilt phase verdicts, the trial
court declared a doubt as to defendant’s competency, suspended
proceedings, and commenced a competency trial before a
separate jury. (The evidence presented in the competency trial
is described further below [see pt. IV., post].) Once defendant
was found competent to stand trial, the trial proceeded to the
penalty phase.
1. Prosecution Evidence
a. Defendant’s criminal activity and prior
convictions
The prosecution presented evidence in aggravation
concerning defendant’s unadjudicated criminal activity and
prior criminal convictions.
i. January 6, 1992 incident
Paula Yenerall testified that she was working alone at an
accounting firm in Rialto on the evening of January 6, 1992
when defendant broke the window and forced his way into the
office. He was wearing a stocking cap, jacket, and gloves and
appeared “very calm.” He pointed a chrome, semi-automatic
gun at her and demanded money. When she told him that she
had some money in her purse at her desk, he held the gun to her
head and pulled her to her desk to retrieve the money. He
repeatedly said, “Don’t look at me, bitch,” and at one point said,
“I’m a murderer and I’ll kill you, too.” After taking $1,200 from
her, as well as two rings and a gold necklace, he tied her hands
behind her back with a telephone cord. He then instructed her
to stay put and left.
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ii. January 21, 1992 incident
Janet Heynen testified regarding a January 21, 1992
incident in a psychologist’s office in Upland. While she was
working that evening, defendant appeared at the reception
window. She described him as calm and wearing a brown
beanie, jacket, and gloves. He pointed a chrome handgun at her
face and demanded money. He told her not to look at him and
appeared to be “pulling the [telephone] cords out.” After she
gave him some cash, he briefly went into a back office for a
couple of minutes and, once he returned, told her to not call the
police and left.
iii. February 19, 1992 incident
John Kendrick testified about a February 19, 1992
incident in Ontario. That evening, he was working in his
accounting office with his clients Paul and Mary Crawford,
when defendant entered the office. Defendant appeared “[v]ery
calm” and was wearing a gray stocking cap on his head.
Pointing a small chrome handgun at Kendrick, defendant
demanded money. Kendrick and the Crawfords gave defendant
several hundred dollars in cash, while defendant repeatedly
said, “Don’t look at me, man.” Defendant then instructed them
not to call the police for 30 minutes, and he left.
iv. February 21, 1992 incident
Arnold and Sharyn Andersen testified that they were
working together in their insurance and investment office in
San Bernardino on the evening of February 21, 1992.5 After
they heard crashing and shattering sounds, defendant appeared
5
For clarity, we will refer to Arnold and Sharyn Andersen
by their first names.
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in the office, pointing a small chrome, automatic gun at them.
Defendant appeared calm and was wearing a beanie. He
demanded money and told the Andersens to lie down on the
floor, repeatedly telling them not to look at him. He then took
some cash from Arnold’s wallet and Sharyn’s purse and, after
Arnold went into his office to look for more money, defendant
took a money clip with approximately $1,200 from him. As he
was leaving the office, defendant grabbed a bunch of Kleenex
and dabbed his hands where he had cut them from breaking one
of the windows to enter the office.
v. June 16, 1992 crimes
Bridget E. testified about defendant’s June 16, 1992
crimes in Torrance. She was working at an appraisal office that
evening with her boss, Steve H., when defendant entered the
office and pointed a gun at them. Defendant was wearing a red
bandana over his lower face. He demanded money, so Bridget
E. gave him some money from her purse. He proceeded to search
the office, asking for the location of a safe. He repeatedly said,
“Don’t look at me, man. Don’t look at me, man.”
Next, defendant tied Steve H. with telephone cords and
computer cords, unzipped Bridget E.’s pants, and kicked Steve
H. in the ribs a few times. Pointing the gun at Bridget E.’s head,
defendant ordered Bridget E. to orally copulate Steve H. She
told him that she was pregnant and asked him not to hurt her,
so “[h]e said, just do what I say and you won’t get hurt — if you
don’t want to get hurt.” Bridget E. proceeded to orally copulate
Steve H. She could not recall whether she was tied up at that
time. Defendant then penetrated Bridget E.’s vagina, initially
with his fingers and then with his penis. Once he stopped, he
told her to continue copulating Steve H. She recounted that her
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hands and feet were tied up with cords at that time. After
defendant eventually left the office, Steve H. and Bridget E.
untied themselves and called the police.
vi. Defendant’s other criminal convictions
At the prosecution’s request, the trial court took judicial
notice of 14 prior convictions, of which 13 were for first degree
residential burglary and one was for second degree robbery.
b. Victim impact testimony
The prosecution’s penalty phase evidence also included
victim impact testimony from Nancy Willem’s father, mother,
and younger sister. The family members described Nancy’s
personality and interests, including her interest in singing and
playing guitar. During her mother’s testimony, the prosecution
played a videotape for the jury depicting Nancy singing at her
youngest sister’s wedding a couple of years before her death.
The family members further described how Nancy’s death
affected them as a family and as individuals. The prosecution
also offered a photograph of Nancy, which, according to her
father, resembled how she looked around the time of her death.
The prosecution additionally offered victim impact
testimony from Bridget E. She testified that after the June 16,
1992 crimes, she was tested “right away” for any diseases, and
she was diagnosed with and treated for chlamydia. She also
stopped working and by the time of the trial, had not had the
opportunity to “get back into” the appraisal business. She
suffered from nightmares for “a long time” and became “more
suspicious of people” and a “more serious person.”
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2. Defense Evidence
a. Defendant’s testimony
Against the advice of counsel, defendant testified during
the penalty phase, largely in a narrative form. He began by
describing a time when he approached two people who had
supposedly killed his cousin and his neighbor. He explained
that the man who had killed his neighbor told him to testify
about “Wilhelmena’s murder.” Defendant testified that by
“Wilhelmena,” he meant Nancy Willem, and that Wilhelmena
was “able to reveal the things that happened at the time of the
crime.”
He then testified that ever since undergoing foot surgery
when he was a teenager, he suffered from hallucinations and “ill
angels,” which controlled his actions. He said that he suffered
from these “ill angels” at the time of Willem’s death. As to her
death, he said that “[t]here was one rape” and a beating of her
head with an object, but there was no strangulation. He said
that after he took her money and bank information, he raped
her because the voices in his head told him that she wanted it.
He described that the voices then grew louder and, in order to
stop them, he beat, kicked, and stomped her. The voices next
took over the left side of his body, causing him to write the note,
saying, “Wake up goverenment [sic].” He testified that since
that night, “Wilhelmena” helped him to control the “ill angels”
and intervened to “save the lives of other females that were
involved in this case.”6
6
On cross-examination, defendant testified that the voices
told him to rape Christine C. and Carole D. as well. He said that
the voices “were there continuously through the robberies,” and
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b. Evidence regarding defendant’s mental health
Much of the defense’s penalty phase evidence concerned
defendant’s mental health. Clinical psychologist Dr. Joseph
Lantz testified that defendant’s intelligence fell within the
borderline range, between mental deficiency and low-average,
and in his opinion, defendant suffered from schizophrenia.
Psychiatrist Dr. Richard Dudley testified that in his opinion,
defendant suffered from schizo-affective disorder, which he
defined as a combination of schizophrenia and a mood disorder.
He further testified that defendant suffered from cognitive
deficits and problems related to an invasive mass, which was
near his brain and removed after his arrest. A social worker
also testified about defendant visiting a psychiatric clinic in
1992.
In addition, Dr. Joseph Wu testified regarding a positron
emission tomography (PET) scan of defendant’s brain, of which
photographs and a video were displayed to the jury. Dr. Wu
testified that while a PET scan cannot alone lead to a diagnosis,
defendant’s brain exhibited abnormalities consistent with a
schizophrenia diagnosis. Dr. Ernie Meth testified regarding a
SPECT (single-photon emission computed tomography) scan of
defendant’s brain, of which photographs and a video were
likewise displayed to the jury. Dr. Meth testified that based on
this scan, defendant’s brain exhibited abnormalities that were
consistent with the results of Dr. Wu’s PET scan.
when asked by the prosecutor about specific robberies,
defendant recalled raping Bridget E., robbing Yenerall, and
robbing the Andersens, although he denied robbing Heynen
(and was not asked specifically about robbing Kendrick or the
Crawfords).
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c. Other testimony
One of defendant’s childhood friends, Dwayne
Washington, described defendant as a “great kid” with a tough
home life and a love for basketball. He testified that defendant
became depressed during his teenage years after he underwent
foot surgery and was no longer able to play basketball. He
testified that on a few occasions around 1984 or 1985, defendant
acted strangely and appeared to believe that people were trying
to get him. Washington’s mother, Sharon Mitchell, described
defendant as a good kid with an “extremely negative” home life.
She, too, recalled that defendant began suffering from
headaches and memory lapses during his teenage years and
recounted a few incidents in which defendant tried to hide under
the table to prevent people from getting him. Washington’s
aunt, Serette Mitchell-Hughes, testified about one of those
incidents as well. These witnesses also testified about
defendant later getting married and having a daughter.
Defendant’s former girlfriend, Terry Sylvester, testified
that defendant lived with her and her three children around the
late 1980’s in Atlanta. She said that during that time,
defendant worked and participated in family activities, but one
day, he left for work and never returned. He later told her that
he went back to California.
A retired correctional officer testified that should
defendant be sentenced to life imprisonment, he could function
within the constraints of the prison facilities and be safely
imprisoned.
3. Prosecution’s Rebuttal
In rebuttal, the prosecution offered testimony from two
additional witnesses. First, Deputy Jonathan Billings testified
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about a videotape that he said reflected defendant’s “normal”
behavior in jail. The videotape, a portion of which was played
for the jury, showed defendant watching television and playing
chess with other inmates. Second, psychiatrist Dr. Rajesh Patel
testified that when defendant claimed to be suicidal in jail, Dr.
Patel examined him and concluded that he was malingering
mental illness.
II. PRETRIAL ISSUES
A. Prosecutor’s Use of Peremptory Challenges
Defendant contends that the prosecutor improperly
exercised peremptory challenges to excuse two prospective
jurors, who were African-American, in violation of Batson v.
Kentucky (1986) 476 U.S. 79, 89 (Batson) and People v. Wheeler
(1978) 22 Cal.3d 258, 276–277 (Wheeler). The prosecutor’s
exercise of these peremptory challenges, defendant argues,
warrants close scrutiny because there are heightened concerns
about racial discrimination in this case given that he was
charged with raping and murdering a White woman. We will
examine the prosecutor’s exercise of the peremptory challenges
in light of these and all other relevant circumstances.
1. Background
Jury selection for defendant’s trial began on November 18,
1998. Following hardships and other dismissals, the remaining
prospective jurors filled out a 31-page questionnaire. Based on
the completed questionnaires, the parties questioned some of
the prospective jurors on their views regarding the death
penalty pursuant to People v. Hovey (1988) 44 Cal.3d 543. Once
Hovey questioning concluded, and the trial court excused
prospective jurors for cause or by stipulation, 72 prospective
jurors remained. The trial court called the first 12 prospective
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jurors to the main panel. They included three African-American
jurors, three Hispanic jurors, five White jurors, and one
“American Indian / Caucasian” juror.
The parties then commenced general voir dire. After the
defense challenged an African-American prospective juror for
cause and that prospective juror was replaced, the prosecutor
proceeded to exercise peremptory strikes against Malinda M. (a
Hispanic woman), Kevin C. (an African-American man),
Michelle G. (a White woman), Simeon G. (an African-American
man), and Ronald W. (a White man). After the prosecutor twice
passed on exercising any peremptory strikes and the defense
exercised three peremptory strikes, the prosecutor next struck
Isabella B. (an African-American woman).
At this time, the defense raised a Batson/Wheeler
objection and moved to quash the panel. The defense noted that
the prosecutor had used three of his six strikes up to that point
on African-American prospective jurors. The trial court found
that a prima facie case had been established. The court stated
that it understood the basis for striking Isabella B. based on her
answers during Hovey questioning, but asked the prosecutor to
explain the basis for striking Kevin C. and Simeon G. After
hearing the prosecutor’s reasons, the court found, “As to [Kevin
C.] and [Simeon G.], I think it’s certainly not as obvious, but I
cannot say it is not legitimate. [¶] So, at this point in time, I will
make a finding that there have been valid reasons to justify
excusing those three prospective jurors pursuant to a
peremptory challenge.”
After the court denied the motion, the 12 prospective
jurors seated in the jury box included nine White jurors, two
Hispanic jurors, and one “American Indian / Caucasian” juror.
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The prosecutor twice passed on exercising any peremptory
strikes, and the defense exercised four peremptory strikes. The
prosecutor then exercised a peremptory strike against Mary B.
(an African-American woman). At this time, the defense
renewed its Batson/Wheeler objection and motion to quash the
panel, arguing that, although Mary B. expressed reservations
about the death penalty, the prosecutor had exercised his
peremptory strikes to compose an all-White jury panel. The
trial court denied the motion, finding that Mary B.’s
reservations about the death penalty justified the strike.
After the prosecutor peremptorily struck Richard L. (a
Hispanic man), and the defense exercised one more peremptory
strike, the parties accepted the main jury panel. The panel
included 10 White jurors, one Hispanic juror, and one “American
Indian / Caucasian” juror. The trial court then proceeded to the
selection of six alternate jurors. The prosecutor repeatedly
declined to exercise any peremptory strikes, except to strike
Lynia B. (a White woman). The sworn alternate jurors included
one African-American and five White individuals. Before the
penalty phase of the trial, the African-American alternate juror
replaced an excused juror and served on the jury.
On appeal, defendant renews his challenge to the
prosecutor’s peremptory strikes of Kevin C. and Simeon G. from
the main jury panel. Defendant states that he “is not
challenging” the peremptory strikes of Isabella B. or Mary B. As
we examine defendant’s Batson/Wheeler arguments with
regard to Kevin C. and Simeon G., we bear the above record in
mind.
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a. Prospective Juror Kevin C.
Kevin C., who was African-American, was 32 years old at
the time of jury selection. He was divorced with three children
and worked as a coach operator. He had previously served in
the military and had previously applied, but had not been
selected, for other law enforcement positions. His former spouse
was a correctional officer.
In his questionnaire, he revealed a degree of skepticism
regarding the criminal justice system. He believed that people
accused of crimes were treated “leniently if you rich harshly if
poor.” He previously served as an alternate juror in a criminal
case involving murder charges, and when asked how his jury
service experience affected his views on the court system, he
said, “It let me know that no matter the crime or defendant the
community selected [as jurors] is both white and blue collar
workers.” He believed the biggest problem with the system was
“racial coded prison[s] keep racism alive and create even larger
bias.” And when asked whether he, any relative, or any close
friend had ever been mistreated by a law enforcement officer, he
checked “yes” and said, “pull[ed] over several times no good
reason given no ticket given.”
Asked whether he was upset by the O.J. Simpson verdict,
he checked “no” and commented, “To [sic] hard to believe one
man did it all, I believe biases created a lot of the circumstance
[sic] evidence.” Also regarding the Simpson case, he said,
“watch[ed] several days of the O.J. Simpson trial taught me [a
lot] about law” in response to whether he had read about,
watched, or listened to any testimony regarding DNA evidence.
Asked about his opinion on using DNA evidence in criminal
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cases, he said, “I think it’s like a polygraph not a for sure
certain.”
His questionnaire responses also suggested some
hesitancy about the death penalty. Asked his opinion on it, he
said, “there are members of society who do bad things and don[’t]
deserve to be here, can I kill them? unknown at this time.”
Asked whether he had a moral, philosophical, or religious
objection to the death penalty, he checked “yes,” commenting,
“God should decide life or death, but some don’t deserve[] life.”
He identified himself as Christian and described his religion’s
view as “thou should not kill.” He said that he agreed with that
view, although he added, “but if my child was being attack[ed]
someone might die[].” As to whether he would vote to keep or
abolish the death penalty, he said that he would not vote and
remarked, “I like to decide who could stay in society but not
decide who stays on earth (I’d like to sleep).” He believed that
the death penalty was unfair but admitted, “mainly because I
don’t know it completely.”
In spite of this, he said that his views on the death penalty
had changed in the last 10 years, commenting, “at first against
but now feel it is needed in special circumstances.” He identified
himself as belonging to Group 3, which was defined as “I neither
favor nor oppose the death penalty.” He said that his views on
the death penalty were not such that he would never be able to
personally vote for the death of the defendant under any
circumstance. Nor would he be reluctant to vote for a sentence
of death. But he said that he would be reluctant to sign the
verdict form or state the verdict in court, commenting, “to look
at someone not knowing why he did it would be hard.”
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During Hovey questioning, the prosecutor asked Kevin C.
about his moral, philosophical, or religious objections to the
death penalty. Kevin C. responded, “I feel where I live I should
decide. Where I’m a Christian. I go to church, so I think, you
know, I can’t. I think God should decide. But, you know, I think
I should decide if I live in the community.” Following up on this
response, the prosecutor asked, “Then you made a comment,
though, on the next page. ‘I’d like to decide who could stay in
society, but not decide who stays on earth.’ That means you feel
comfortable [with] making a decision if somebody should be
maybe incarcerated, but you feel less comfortable making a
decision as far as life or death on an individual?” Kevin C.
responded, “Well, of course I feel uncomfortable about life or
death, but incarcerated for the rest of their life, if they don’t
believe, I would probably go that way, you know. Just an
assumption. But, again, I don’t think I’d have a big problem,
depending on evidence of what is in front of me. If someone
killed my daughter, then I could see it.” The prosecutor clarified
that “of course we have a victim that you weren’t acquainted
with” and “[y]ou don’t know her at all.” Kevin C. said, “Right,
I’m just saying —”
The prosecutor then defined aggravating and mitigating
evidence and asked, “But you’re going to hear, like you may hear
some bad evidence, and you may hear some good evidence. But
basically, if the bad outweighs the good — ” Kevin C. responded,
“If the bad outweighs the good, then I don’t have a problem doing
my job.” Asked “[w]hich means you could, you could vote for a
death verdict,” Kevin C. responded, “Yeah.”
When the trial court subsequently called the first 12
prospective jurors, including Kevin C., to the jury box, the court
and the parties asked a series of questions to the jurors as a
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group. Neither the prosecutor nor the defense asked Kevin C.
any individual questions during general voir dire.
Following defendant’s Batson/Wheeler objection, the
prosecutor stated his reasons for striking Kevin C.: “[Kevin C.]
in his questionnaire compared DNA to a polygraph. That it
wasn’t a for sure thing. His answers on the questionnaire
regarding the death penalty were much more tentative. He
indicated questions like he wants to decide who is in society, but
not [who’s] on earth. He was very skeptical of the O.J. Simpson
case. He stated biases created the circumstantial evidence in
the O.J. Simpson case. This is a DNA case very much like that.
It’s a circumstantial case. It’s a DNA case. Those, those are the
main concerns that I had.” The prosecutor added, “I think that
in person his, his statements about the death penalty didn’t rise
to a level for cause; but, however, I think when you take the
totality of his responses, I think, I mean those are essentially
the reasons that I’m stating.” The court found that the
prosecutor’s reasons for striking Kevin C. were legitimate and
valid.
b. Prospective Juror Simeon G.
Simeon G. was an unmarried, 24-year-old
African-American man with no children at the time of jury
selection for defendant’s trial. He worked as a forklift driver.
He had previously considered working in law enforcement to
help others, and his father worked for the DEA.
In his questionnaire, he described himself as a leader
rather than a follower and remarked, “I like my opinion over
other peoples [sic].” He said that he had not previously worked
with a group of people to make a decision, although he believed
“it would be very interesting” to work with other jurors to reach
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a verdict. He had not previously served on a jury. Asked
whether he believed the jury system to be a fair method to judge
a defendant charged with a crime, he replied affirmatively,
commenting, “12 people have to come together to accuse
someone. That[’]s 12 different opinions. Pretty impressive.”
He considered the biggest problems with the criminal
justice system to be “A. The Court Backlog. B. Better ways of
getting people through the judicial system.” He believed he
could be a fair and impartial juror, stating, “I’m open to
objectively listening to evidence from both sides to decide a fair
verdict.” He did not believe that testimony by law enforcement
officers would be more truthful or accurate than testimony by
civilians; he would not automatically accept the opinion of a
psychiatrist or psychologist; and he could follow an instruction
that if a defendant does not testify, jurors are not supposed to
draw any conclusions from that fact.
Asked whether he could follow an instruction “that a
defendant is presumed innocent unless proven guilty beyond a
reasonable doubt,” he checked “yes” but commented, “If I have
any feeling that he might not have done it, hes [sic] innocent.”
In that response, it appears that he crossed out the word “doubt”
and replaced it with the word “feeling.” Elsewhere, he indicated
that he was not upset by the O.J. Simpson verdict (without
providing any explanation); that people accused of crimes are
treated fairly; and that he “really [didn’t] know anything about”
DNA evidence in criminal cases. He also favored the death
penalty and said that he could vote for a death sentence.
During general voir dire, Simeon G. and two other
prospective jurors did not arrive at the courthouse that morning,
possibly due to a miscommunication. The defense insisted on
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trying to locate these missing prospective jurors. The prosecutor
objected to doing so, arguing that other prospective jurors in
their group were present in court and thus inferring that the
missing prospective jurors “voluntarily absented themselves.”
It appears that the trial judge, seeing from Simeon G.’s
questionnaire that he worked for Kmart Corporation, “called
information and got the numbers of two Kmart stores in the
Ontario area and [called] to try to locate Simeon [G.].” Simeon
G. then called and spoke to the bailiff, and at the bailiff’s
request, Simeon G. came to court that afternoon.
That afternoon, the prosecutor explained to the
prospective jurors who were seated in the jury box, including
Simeon G.: “[O]ne of the instructions you’re going to get in the
case has to do with, essentially, reasonable doubt. There will be
a definition that you’re going to get at the end of the case. It’s
basically a doubt based on reason. And the duty is that if the
case has been proved by the prosecution beyond a reasonable
doubt, your duty is to return a guilty verdict. There’s [sic] also
other principles that are, I don’t know how deeply we touched
on them in the questionnaire, but the presumption of innocence.
Of course, everybody who is charged with a crime is entitled to
the presumption of innocence, and that is in existence right now.
[¶] The question is, is if it [sic] at the conclusion of the case if the
case has been proved beyond a reasonable doubt whether we can
expect everybody to come back with a guilty verdict.”
Immediately following this explanation, the prosecutor
asked Simeon G., “[I]n your questionnaire you mentioned
something — and keep in mind I’m not intending to, you know,
embarrass anybody or anything like that. It’s just, like I said,
this is the only way we can get information quickly is to kind of
be in a group at this point. [¶] You mentioned that if — [Simeon
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G.], you mention in your questionnaire that if you had any
feeling that maybe the defendant was [not] involved, then he’d
be not guilty.”7 Simeon G. replied, “I’m sorry?” The prosecutor
explained, “In your questionnaire, you used the phrase that if
you have a feeling that the defendant was [not] involved, that
you’d find him not guilty. And you used the word ‘feeling’
instead of the word ‘doubt.’ You’d written ‘doubt’ and crossed
out and written the word ‘feeling.’ Do you remember that?”
Simeon G. replied, “I don’t quite remember it, but I’m trying to
understand your question. You’re saying if I had a reasonable
doubt?”
The prosecutor responded, “Well, I’m not sure. I’m trying
to understand what you meant by that. You indicated that if
you had a feeling that he might not be involved, then he would
be not guilty?” Simeon G. replied, “Well, I think what I was
trying to say, if I’m correct, is that if the evidence showed that
there wasn’t — that there was some reasonable doubt, then I
probably would not accuse him, because of the fact that, myself
being in the same situation or anybody, I think that if the
evidence didn’t totally prove that I did it, then there is some
doubt. You know what I’m saying?” The prosecutor said,
“Okay.” Simeon G. added, “So it wasn’t so much a feeling as it
was if the evidence didn’t show.” When the prosecutor sought to
clarify the answer, asking, “Okay. So you would base it on
evidence?” Simeon G. replied, “Basically, yes. I’m sorry.” The
prosecutor commented, “I wanted to make sure,” and Simeon G.
7
It appears that the prosecutor initially misspoke and
meant to say “if you had any feeling that maybe the defendant
was [not] involved, then he’d be not guilty.” The prosecutor
subsequently clarified his question.
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Opinion of the Court by Groban, J.
added, “I couldn’t tell you, tell you what I said, because I don’t
have the paper to look at what I actually meant totally.” The
prosecutor concluded, “Okay. Thank you.”
Following defendant’s Batson/Wheeler objection, the
prosecutor stated his reasons for striking Simeon G.: “[Simeon
G.] made statements on his questionnaire how he likes his
opinions over others. He did make a statement, although he
explained it differently in court, he made a statement on his
questionnaire basically saying if I have a feeling he didn’t do it,
he’s not guilty. And he had crossed out the word doubt, which
led me to believe that he certainly wasn’t going to base it on
evidence. [¶] And I, also, would note that this is an individual
who the Court personally tracked down this morning. He didn’t
have — he, unlike others in his group, didn’t show up for court
this morning. I would be concerned about his responses in light
of the fact that he was, he was single-handedly hunted down to
be here this afternoon. So, I’m not sure that his responses in
court should prevail over the answers he gave on his
questionnaire. But certainly those statements on his
questionnaire cause me some significant concerns.”
Seeking clarification, the court asked, “His answer being
that if he had a feeling the defendant was not guilty, that was
the answer that bothered you?” The prosecutor responded, “Yes,
based on — and he had crossed out the word doubt. And to me
that made it sound like he was going to be basically basing it on
a hunch, or a feeling, which was, as the presenter of evidence,
I’m powerless to overcome. And that was the main concern on
that.” The prosecutor then added, “Also, he was not upset by
the O.J. Simpson verdict. If you’ll notice across the board, I’ve
excused jurors I believe of Hispanic origin and Caucasian origin,
and the common denominator, essentially, is that they were not,
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Opinion of the Court by Groban, J.
were not upset by the O.J. Simpson verdict, which was a DNA,
circumstantial case. And I think those, those raise significant
concerns in my mind as a guilt phase juror and the type of case
that I’m dealing with.”
Following the prosecutor’s reasons, defense counsel stated
that Simeon G. misunderstood whether “he was supposed to be
here today or tomorrow” and, once it was clarified, he appeared.
Defense counsel continued, “[Simeon G.] checked on his
questionnaire with regard to the death penalty that he’s a Group
2, that he favors the death penalty, but would weigh and
consider aggravating circumstances. [¶] He really doesn’t give
any answers that suggest that he couldn’t be fair and impartial.
He indicates that his father was a D.E.A. agent. [¶] With regard
to DNA, he said he didn’t know anything about it.”
The court responded, “Well, I understand that there’s
certainly not enough there to excuse him for cause, but that’s
not the test that I have to utilize in this situation. I have to
determine whether or not there are valid, legitimate reasons for
the District Attorney dismissing three of the four Blacks that
were called to the box. [¶] As I indicated, as to [Isabella B.], I
understand his concern there. As to [Kevin C.] and [Simeon G.],
I think it’s certainly not as obvious, but I cannot say it is not
legitimate. [¶] So, at this point in time, I will make a finding
that there have been valid reasons to justify excusing those
three prospective jurors pursuant to a peremptory challenge.
But I don’t need to remind counsel that we’re treading on thin
ice in this area, and the consequences of falling through means
we start all over again.”
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Opinion of the Court by Groban, J.
2. Discussion
a. Applicable law
The United States and California Constitutions prohibit
the discriminatory use of peremptory challenges. (Batson,
supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276–
277.) A three-step inquiry governs the analysis of
Batson/Wheeler claims. “First, the defendant must make out a
prima facie case ‘by showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose.’
[Citation.] Second, once the defendant has made out a prima
facie case, the ‘burden shifts to the State to explain adequately
the racial exclusion’ by offering permissible race-neutral
justifications for the strikes. [Citations.] Third, ‘[i]f a
race-neutral explanation is tendered, the trial court must then
decide . . . whether the opponent of the strike has proved
purposeful racial discrimination.’ ” (Johnson v. California
(2005) 545 U.S. 162, 168, fn. omitted.)
“ ‘The proper focus of a Batson/Wheeler inquiry, of course,
is on the subjective genuineness of the race-neutral reasons
given for the peremptory challenge, not on the objective
reasonableness of those reasons. . . . All that matters is that the
prosecutor’s reason for exercising the peremptory challenge is
sincere and legitimate, legitimate in the sense of being
nondiscriminatory.’ ” (People v. O’Malley (2016) 62 Cal.4th 944,
975 (O’Malley).) “ ‘At the third stage of the Wheeler/Batson
inquiry, “the issue comes down to whether the trial court finds
the prosecutor’s race-neutral explanations to be credible.
Credibility can be measured by, among other factors, the
prosecutor’s demeanor; by how reasonable, or how improbable,
the explanations are; and by whether the proffered rationale has
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some basis in accepted trial strategy.” ’ ” (People v. Jones (2011)
51 Cal.4th 346, 360 (Jones).)
“ ‘ “ ‘[T]he trial court is not required to make specific or
detailed comments for the record to justify every instance in
which a prosecutor’s race-neutral reason for exercising a
peremptory challenge is being accepted by the court as
genuine.’ ” ’ ” (People v. Vines (2011) 51 Cal.4th 830, 848
(Vines).) However, “ ‘[w]hen the prosecutor’s stated reasons are
either unsupported by the record, inherently implausible, or
both, more is required of the trial court than a global finding
that the reasons appear sufficient.’ ” (People v. Gutierrez (2017)
2 Cal.5th 1150, 1171 (Gutierrez).)
Where, as here, the trial court ruled pursuant to the third
stage of the analysis, we skip to that stage to examine whether
the trial court properly credited the prosecutor’s reasons for the
challenges. “Review of a trial court’s denial of a Wheeler/Batson
motion is deferential, examining only whether substantial
evidence supports its conclusions. [Citation.] ‘We review a trial
court’s determination regarding the sufficiency of a prosecutor’s
justifications for exercising peremptory challenges “ ‘with great
restraint.’ ” [Citation.] We presume that a prosecutor uses
peremptory challenges in a constitutional manner and give
great deference to the trial court’s ability to distinguish bona
fide reasons from sham excuses. [Citation.] So long as the trial
court makes a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered, its conclusions are
entitled to deference on appeal.’ ” (People v. Lenix (2008)
44 Cal.4th 602, 613–614 (Lenix); accord, People v. Winbush
(2017) 2 Cal.5th 402, 435 (Winbush).)
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Opinion of the Court by Groban, J.
Defendant, however, argues that the trial court’s findings
are not entitled to deference here because the prosecutor’s
reasons were “suspicious” and, after hearing them, the court
credited them without much discussion on the record. We
disagree. The trial court found that a prima facie case had been
established and asked the prosecutor to explain the basis for
striking Kevin C. and Simeon G. The prosecutor’s stated
reasons were largely self-evident: It requires “little additional
explication” (Gutierrez, supra, 2 Cal.5th at p. 1171) to
understand why an advocate would harbor a concern about a
prospective juror’s stated preference for his own opinion over
others’ or a prospective juror’s opinion on DNA evidence, the
death penalty, or the O.J. Simpson verdict. Moreover, the
prosecutor articulated why, specifically, some of the prospective
jurors’ responses concerned him. The court also asked the
prosecutor a question about one of his stated reasons for striking
Simeon G. (See ante, at p. 26 [“His answer being that if he had
a feeling the defendant was not guilty, that was the answer that
bothered you?”].) And the court listened to defense counsel’s
comments on the prosecutor’s striking of Simeon G.8 The trial
8
Disagreeing, the dissent argues that the prosecutor’s
reasons were not self-evident and, in turn, that the trial court
was required to do more than what it did here. The dissent
relies on Gutierrez, supra, 2 Cal.5th 1150. (Dis. opn., post, at
pp. 2–3.) In Gutierrez, we found that it was not self-evident why
a prospective juror’s mere unawareness of gang activity in a
specific city would indicate a bias against a witness who was a
gang member in the city. (Gutierrez, at p. 1169.)
The dissent asserts that the trial court here “expressly
acknowledged that the prosecutor’s proffered reasons for
striking Kevin C. and Simeon G. were not self-evident.” (Dis.
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Opinion of the Court by Groban, J.
court acknowledged that “there’s certainly not enough there to
excuse [Simeon G.] for cause,” but the trial court accurately
explained that “that’s not the test” and instead it must
determine whether there were “valid, legitimate” reasons to
justify the prosecutor’s peremptory challenges.
The court then acknowledged that the prosecutor’s stated
reasons for striking Kevin C. and Simeon G. were not as
“obvious” (as the reasons for striking another prospective juror,
Isabella B.). The court, however, concluded that the prosecutor’s
reasons for striking Kevin C. and Simeon G. were legitimate and
valid. The court added, “I don’t need to remind counsel that
we’re treading on thin ice in this area, and the consequences of
falling through means we start all over again.” While the
discussion was brief, and while the trial court could have done
more to make a fuller record and itself acknowledged it was
making a somewhat close call, the record shows that the court
considered the prosecutor’s reasons and, as discussed below,
those reasons were plausible and supported by the record. In
these circumstances, while a more detailed colloquy may well
have been helpful, the prosecutor and the trial court adequately
developed the record, and on this record, we conclude that the
trial court’s findings are entitled to deference. (See People v.
opn., post, at p. 2.) We disagree. The fact that the trial court
did not “understand” the strikes as to Kevin C. and Simeon G.
— before the prosecutor provided his reasons for them — and
asked the prosecutor to explain those strikes does not mean that
the prosecutor’s reasons, once provided, were not self-evident.
Nor do we require that the prosecutor’s reasons be “obvious.”
Rather, the prosecutor’s reasons, once provided, “were either
self-explanatory or were explained at the hearing.” (People v.
Smith (2018) 4 Cal.5th 1134, 1162 (Smith).) For this reason,
Gutierrez’s reasoning is “inapplicable here.” (Ibid.)
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Hardy (2018) 5 Cal.5th 56, 76 (Hardy) [“ ‘ “When the
prosecutor’s stated reasons are both inherently plausible and
supported by the record, the trial court need not question the
prosecutor or make detailed findings” ’ ”].)
i. Comparative juror analysis
“Also relevant here, in light of defendant’s appellate
arguments, are principles pertaining to comparative juror
analysis, which, on a claim of race-based peremptory challenges,
compares the voir dire responses of the challenged prospective
jurors with those of similar jurors who were not members of the
challenged jurors’ racial group, whom the prosecutor did not
challenge. [Citation.] ‘[C]omparative juror analysis is but one
form of circumstantial evidence that is relevant, but not
necessarily dispositive, on the issue of intentional
discrimination.’ ” (O’Malley, supra, 62 Cal.4th at pp. 975–976.)
Comparative juror analysis is appropriately confined to the
jurors defendant has specifically discussed in his appellate
briefing. (Winbush, supra, 2 Cal.5th at pp. 442–443.)
“Where, as here, the comparative analysis was not made
at trial, ‘the prosecutor generally has not provided, and was not
asked to provide, an explanation for nonchallenges.’ [Citation.]
Therefore, ‘an appellate court must be mindful that an
exploration of the alleged similarities at the time of trial might
have shown that the jurors in question were not really
comparable.’ [Citation.] When a defendant asks for
comparative juror analysis for the first time on appeal, we have
held that ‘such evidence will be considered in view of the
deference accorded the trial court’s ultimate finding of no
discriminatory intent.’ ” (O’Malley, supra, 62 Cal.4th at p. 976.)
We have also held that under these circumstances, “ ‘a
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reviewing court need not, indeed, must not turn a blind eye to
reasons the record discloses for not challenging other jurors even
if those other jurors are similar in some respects to excused
jurors.’ ” (Id. at p. 977.)
In supplemental briefing, defendant takes issue with our
approach to conducting comparative juror analysis for the first
time on appeal. He argues that we should ignore some of the
Attorney General’s efforts to distinguish challenged prospective
jurors from those purportedly similar jurors whom the
prosecutor did not challenge. Considering such distinctions,
defendant argues, is inconsistent with recent decisions by the
high court and “increases the risk that racial discrimination will
persist in the criminal justice system.”
Defendant’s argument rests primarily on Miller-El v.
Dretke (2005) 545 U.S. 231 (Miller-El). There, the high court
made clear that “a prosecutor simply has got to state his reasons
[for a peremptory challenge] as best he can and stand or fall on
the plausibility of the reasons he gives.” (Id. at p. 252.) The
high court also cited this portion of its opinion in a footnote
criticizing the dissent for “focus[ing] on reasons the prosecution
itself did not offer” when the dissent explained why the
nonchallenged jurors “were otherwise more acceptable to the
prosecution than [the challenged prospective juror].” (Id. at
p. 245, fn. 4.) Relying on these two excerpts, defendant observes
that, in response to his comparative juror analysis, the Attorney
General offers “new reasons for why the white jurors were not
discharged” and argues that this “approach is barred by Miller-
El’s stand or fall principle because it is simply the flip side of the
same coin of offering new reasons for the discharge of the black
jurors” and, moreover, is explicitly rejected by Miller-El’s
footnote four. Defendant further argues that this approach is
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inconsistent with Snyder v. Louisiana (2008) 552 U.S. 472(Snyder) and Foster v. Chatman (2016) 578 U.S. ___
[136 S.Ct. 1737] (Foster) because the state in those cases offered
new reasons for why the White jurors were not discharged and,
without discussing those reasons, the high court concluded that,
for a multitude of reasons, the peremptory strikes were
motivated in substantial part by discriminatory intent.
We have recognized that “in judging why a prosecutor
exercised a particular challenge, the trial court and reviewing
court must examine only the reasons actually given. ‘If the
stated reason does not hold up, its pretextual significance does
not fade because a trial judge, or an appeals court, can imagine
a reason that might not have been shown up as false.’ ” (Jones,
supra, 51 Cal.4th at p. 365, quoting Miller-El, supra, 545 U.S.
at p. 252.) However, we have rejected the further argument that
in conducting comparative juror analysis for the first time on
appeal, “we may not consider reasons not stated on the record
for accepting other jurors.” (Jones, at p. 365.) In rejecting that
argument, we have observed that “no authority has imposed the
additional burden [on the prosecution] of anticipating all
possible unmade claims of comparative juror analysis and
explaining why other jurors were not challenged.” (Ibid.)
Absent further explanation from the high court, we do not
read Miller-El to require us when conducting comparative juror
analysis for the first time on appeal, to turn a blind eye to
reasons the record discloses for not challenging other jurors even
if those jurors are similar in some respects to excused jurors.
Reading Miller-El to restrict our review of the record in this
manner would seem inconsistent with the high court’s
subsequent statement that the high court in Miller-El “made it
clear that in considering a Batson objection, or in reviewing a
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ruling claimed to be Batson error, all of the circumstances that
bear upon the issue of racial animosity must be consulted.”
(Snyder, supra, 552 U.S. at p. 478.) Nor do we read Snyder and
Foster, supra, 578 U.S. ___ [136 S.Ct. 1737] to expressly prohibit
us from considering such reasons the record discloses for not
challenging other jurors in these circumstances.
That said, we take the opportunity to clarify and to
emphasize the following two points about our approach to
comparative juror analysis.
First, comparative juror analysis is a form of
circumstantial evidence that is relevant on the issue of
purposeful discrimination. “If a prosecutor’s proffered reason
for striking a black panelist applies just as well to an otherwise-
similar nonblack who is permitted to serve, that is evidence
tending to prove purposeful discrimination to be considered at
Batson’s third step.” (Miller-El, supra, 545 U.S. at p. 241.)
When a prosecutor states multiple reasons for challenging a
juror, a comparison between the challenged juror and a similar
nonchallenged juror in regard to any one of the prosecutor’s
stated reasons is relevant, but not necessarily dispositive, on the
issue of purposeful discrimination. (See id. at p. 247, fn. 6 [“The
dissent contends that there are no white panelists similarly
situated to [the challenged jurors] because ‘ “ ‘[s]imilarly
situated’ does not mean matching any one of several reasons the
prosecution gave for striking a potential juror — it means
matching all of them.” ’ [Citation.] None of our cases announces
a rule that no comparison is probative unless the situation of the
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PEOPLE v. MILES
Opinion of the Court by Groban, J.
individuals compared is identical in all respects, and there is no
reason to accept one”].)9
Second, when conducting comparative juror analysis for
the first time on appeal, we need not turn a blind eye to reasons
the record discloses for not challenging other jurors. “This is so
because a party legitimately may challenge one prospective
juror but not another to whom the same particular concern
applies. [Citation.] ‘Two panelists might give a similar answer
on a given point. Yet the risk posed by one panelist might be
offset by other answers, behavior, attitudes or experiences that
make one juror, on balance, more or less desirable. These
realities, and the complexity of human nature, make a formulaic
comparison of isolated responses an exceptionally poor medium
to overturn a trial court’s factual finding.’ ” (People v. Chism
9
The dissent emphasizes that recent decisions by the high
court found “single-issue comparisons among jurors to be highly
probative of discrimination.” (Dis. opn., post, at p. 16.) As
stated, we agree that a single-issue comparison among jurors is
a form of circumstantial evidence that is relevant. However,
such comparisons are not necessarily dispositive on the issue of
purposeful discrimination but rather, must be considered within
all of the relevant circumstances. (See Flowers v. Mississippi
(2019) 588 U.S. __, __ [139 S.Ct. 2228, 2250] [“[i]n a different
context, the [challenged juror’s] strike might be deemed
permissible,” but “we must examine the whole picture” and the
comparisons between the challenged and nonchallenged jurors
“cannot be considered in isolation”].) The fact that the high
court found single-issue comparisons to be highly probative of
discrimination within the circumstances of a particular case is
not inconsistent with our analysis here, which, as discussed
below, recognizes that such comparisons are relevant but
ultimately concludes, within all of the relevant circumstances,
that substantial evidence supports the trial court’s denial of
defendant’s Batson/Wheeler motion.
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Opinion of the Court by Groban, J.
(2014) 58 Cal.4th 1266, 1319 (Chism); accord, People v. Krebs
(2019) 8 Cal.5th 265, 293–294.)
However, “we bear in mind that comparative juror
analysis is not simply an exercise in identifying any conceivable
distinctions among prospective jurors. ‘A per se rule that a
defendant cannot win a Batson claim unless there is an exactly
identical white juror would leave Batson inoperable; potential
jurors are not products of a set of cookie cutters.’ [Citation.]
Rather, because the ultimate question before us concerns the
prosecutor’s motivations in exercising the challenge in question,
we must ask whether there were any material differences
among the jurors — that is, differences, other than race, that we
can reasonably infer motivated the prosecutor’s pattern of
challenges.” (O’Malley, supra, 62 Cal.4th at p. 977.) In
determining whether there were any material differences
among the jurors, we note that differences among the jurors
generally will be more probative if they closely relate to reasons
the prosecutor has stated for a peremptory challenge. Because
in this case we rely on differences among the jurors that closely
relate to reasons the prosecutor has stated for a peremptory
challenge, we need not opine on whether differences among the
jurors can be material even if they are wholly unrelated to
reasons the prosecutor has stated for a peremptory challenge.
b. Prospective Juror Kevin C.
As a preliminary matter, defendant accurately points out
that the prosecutor questioned Kevin C. regarding the death
penalty but did not question Kevin C. regarding DNA evidence
or the O.J. Simpson verdict. (See Smith, supra, 4 Cal.5th at
p. 1152 [“an attorney’s failure to meaningfully examine a
prospective juror about a subject about which the attorney
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claims to be concerned can constitute evidence of pretext”].) The
prosecutor’s failure to question Kevin C. about “each and every
area of articulated concern,” however, does not necessarily
demonstrate that those concerns were pretextual. (People v.
Cowan (2010) 50 Cal.4th 401, 451 (Cowan).) That the
prosecutor failed to engage Kevin C. in voir dire is also less
significant where, as here, the prosecutor received before voir
dire, Kevin C.’s responses to the 31-page written questionnaire
containing 130 questions. (See People v. Melendez (2016)
2 Cal.5th 1, 19 (Melendez) [“ ‘plac[ing] little weight on the
prosecutor’s failure to individually or more thoroughly question
a prospective juror before exercising a peremptory challenge’ ”
where the prosecutor reviewed a “detailed” jury questionnaire
and heard defense counsel question the prospective juror];
Jones, supra, 51 Cal.4th at p. 363.) Indeed, the prosecutor’s
concerns about Kevin C.’s views regarding DNA evidence and
the O.J. Simpson verdict “arose from a pair of questionnaire
responses that spoke for themselves; no additional clarification
was needed to ascertain [Kevin C.’s] meaning.” (Smith, supra,
4 Cal.5th at p. 1152; cf. People v. Lewis and Oliver (2006)
39 Cal.4th 970, 1018, fn. 14 [“One inference that may be drawn
from any such decision to ask few or no questions is that the
prosecutor had already properly determined that a challenge
was warranted based on the questionnaire or existing voir dire
answers, and that further questioning was unnecessary”].)
Defendant also accurately points out that the prosecutor
did not question other prospective jurors regarding DNA
evidence or the O.J. Simpson verdict during voir dire.
Defendant argues that this circumstance suggests that the
prosecutor was not sincerely concerned about jurors’ views
regarding these topics. Our review of the record confirms that
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Opinion of the Court by Groban, J.
both the prosecutor and the defense asked very few questions
during voir dire.10
However, our review of the record also indicates that,
contrary to defendant’s argument, the prosecutor appeared
interested in jurors’ views regarding DNA evidence and the O.J.
Simpson verdict. For the questionnaire, the prosecutor
proposed various questions regarding scientific evidence, even
leading defense counsel to request modifications to those
10
This may have been in part due to the circumstances
leading up to voir dire. Before jury selection, defense counsel
proposed that the parties should ask any questions of the
prospective jurors — even questions that did not pertain to the
death penalty — during Hovey questioning. Defense counsel
and the prosecutor had “some confusion or disagreement” in this
regard because the prosecutor anticipated asking questions
pertaining only to the death penalty or to confidential matters
during Hovey questioning and thus was “only selecting
[prospective jurors] for possible Hovey voir dire who have
questionable answers that need further questioning as to [the]
death penalty.” The trial court ultimately agreed to follow the
prosecutor’s approach for Hovey questioning and to provide the
opportunity for the parties to question the prospective jurors
regarding other matters during voir dire. The court, however,
expected that “there’s not going to be a lot of questions” during
voir dire since the parties had received “most of the information
from the questionnaire.” Then, during Hovey questioning, the
parties primarily questioned the prospective jurors regarding
the death penalty but, at times, questioned the prospective
jurors regarding other matters. After Hovey questioning, the
court said, “I’m gathering that there’s not going to be a whole lot
of individual questioning of these jurors, that you’ve pretty
much covered those that you — the questions that you had from
the questionnaires.” Defense counsel responded that he did not
“have a need to ask any further questions at all,” but if the
prosecutor planned to ask any further questions, defense
counsel might “do a couple things.”
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Opinion of the Court by Groban, J.
questions because defense counsel “really [didn’t] like having
blood and semen, DNA, and all that stuff repeated over, and over
again in the questions as though it’s an important thing for [the
prospective jurors] to be worried about in the case before they
even hear what the evidence is.” During voir dire, the
prosecutor also asked the prospective jurors as a group whether
they would “have a problem applying basically the law, and
finding circumstantial evidence is every bit as important as
direct evidence.” The prosecutor later explained that he
considered O.J. Simpson’s case to be similar to defendant’s case
given that both relied on DNA evidence and circumstantial
evidence. Keeping these and all relevant circumstances in
mind, we proceed to examine each of the prosecutor’s stated
reasons for striking Kevin C.
Regarding the prosecutor’s first reason, the prosecutor
stated, “[Kevin C.] in his questionnaire compared DNA to a
polygraph. That it wasn’t a for sure thing.” The prosecutor’s
case relied heavily on DNA evidence. The prosecutor’s reason
for striking Kevin C. is plausible, supported by the record, and
race neutral. However, defendant argues that five other jurors
(Jurors Nos. 10 and 11 and Alternate Jurors Nos. 1, 4, and 5)
expressed similar reservations about DNA evidence yet were
neither questioned nor excused by the prosecutor. Not so.
Unlike Kevin C., these other jurors did not express a
negative opinion on DNA evidence. Rather, when asked about
DNA evidence, Juror No. 10 replied, “should be admitted if can
show + prove accuracy;” Alternate Juror No. 1 replied, “All
evidence if more conclusive than not should be considered;” and
Alternate Juror No. 4 replied, “No opinion.” In addition,
although Alternate Juror No. 5 replied, “It[’]s ok but shouldn’t
be only evidence used” and stated elsewhere, “seems it could be
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PEOPLE v. MILES
Opinion of the Court by Groban, J.
accurate,” this response merely emphasized his preference to
consider all evidence, a concept that he repeated elsewhere in
his questionnaire. Lastly, Juror No. 11 responded, “OK if it[’]s
true evidence.” This response might suggest that some DNA
evidence may not be “true” evidence, but even if so, this response
was less negative than Kevin C.’s response, which characterized
all DNA evidence as “like a polygraph not a for sure certain.”
Thus, the prosecutor “could plausibly have distinguished”
among these views regarding DNA evidence in deciding to strike
only Kevin C. (People v. Mills (2010) 48 Cal.4th 158, 183 (Mills)
[comparative juror analysis unpersuasive where prosecutor
distinguished among prospective jurors’ views on scientific
evidence]; see also People v. Wilkinson (2004) 33 Cal.4th 821,
850 [discussing “the deep division in the scientific and legal
communities regarding the reliability of polygraph evidence”].)
As to the second reason, the prosecutor accurately
characterized Kevin C.’s questionnaire responses regarding the
death penalty as “tentative.” “A prospective juror’s views about
the death penalty are a permissible race- and group-neutral
basis for exercising a peremptory challenge in a capital case.”
(People v. McDermott (2002) 28 Cal.4th 946, 970–971; see e.g.,
Winbush, supra, 2 Cal.5th at p. 436 [a juror’s religious
reservations about the death penalty can justify a peremptory
challenge]; People v. Garcia (2011) 52 Cal.4th 706, 749 [a juror’s
“mixed and vague” views about the death penalty can justify a
peremptory challenge]; People v. Lomax (2010) 49 Cal.4th 530,
572 (Lomax) [a juror’s reluctance to impose the death penalty
can justify a peremptory challenge].)
Kevin C.’s questionnaire responses indicated that he was
uncertain whether he could vote for a death sentence and that
he had religious reservations about the death penalty. He
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Opinion of the Court by Groban, J.
wrote, “there are members of society who do bad things and
don[’]t deserve to be here, can I kill them? unknown at this
time.” He believed that the death penalty was unfair and said
that he would be reluctant to sign a verdict form for a sentence
of death or state the verdict in court. He identified himself as a
Christian who generally agreed with his religion’s view that
“thou should not kill.” Asked whether he had a moral,
philosophical, or religious objection to the death penalty, he
checked “yes,” commenting, “God should decide life or death, but
some don’t deserve[] life.” He also wrote, “I like to decide who
could stay in society but not decide who stays on earth (I’d like
to sleep).”
It is true that Kevin C. said during Hovey questioning that
he could vote for a death sentence, and when asked about his
religious objection to the death penalty, he explained, “I feel
where I live I should decide. Where I’m a Christian. I go to
church, so I think, you know, I can’t. I think God should decide.
But, you know, I think I should decide if I live in the
community.” But the prosecutor acknowledged this, stating, “I
think that in person his, his statements about the death penalty
didn’t rise to a level for cause; but, however, I think when you
take the totality of his responses, I think, I mean those are
essentially the reasons that I’m stating.” Given “[t]he totality
of” Kevin C.’s responses regarding the death penalty, the record
amply supports the prosecutor’s stated concern. (See Lomax,
supra, 49 Cal.4th at p. 572 [“[If] statements or attitudes of the
juror suggest that the juror has ‘reservations or scruples’ about
imposing the death penalty, this demonstrated reluctance is a
race-neutral reason that can justify a peremptory challenge,
even if it would not be sufficient to support a challenge for
cause”].)
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PEOPLE v. MILES
Opinion of the Court by Groban, J.
Defendant nevertheless contends that the prosecutor’s
reason was pretextual because Kevin C.’s reservations about the
death penalty mirrored those of Jurors Nos. 2, 5, 6, 8, and 9 and
Alternate Jurors Nos. 1 and 4, whom the prosecutor did not
strike. Unlike Kevin C., none of the jurors identified by
defendant expressed a religious objection to the death penalty.
(Cf. Winbush, supra, 2 Cal.5th at p. 436 [upheld peremptory
challenge where “[t]he trial court observed [the prospective
juror’s] statement that only God can take a life expressed a
‘startling and dramatic’ reservation about the death penalty
based on what appeared to be the juror’s strongly held religious
beliefs [and] [t]he court observed that no other juror had
expressed such a strongly held view”].)
Instead, most of these jurors merely expressed a degree of
unfamiliarity or slight discomfort with the death penalty. For
example, Alternate Juror No. 4 appeared unfamiliar with the
death penalty, indicating that she did not know whether the
death penalty was used too often or too seldom or whether it was
fair or unfair, and stating, “I would have to decide based on the
evidence + the judge[’]s instructions regarding [the] death
penalty.” Juror No. 5 had “mixed emotions” about the death
penalty, but she believed the death penalty was fair, she would
vote to keep it “[j]ust in case,” and she would not be reluctant to
vote for a sentence of death, sign the verdict form, or state the
verdict in court. Juror No. 9 stated, “I have mixed emotions. I
must know that someone is actually guilty, I feel the death
penalty is fair.” She also would vote to keep the death penalty,
believed it was used too seldom, and would not be reluctant to
vote for a sentence of death, sign the verdict form, or state the
verdict in court. And, while Alternate Juror No. 1 made clear
that her opinion on the death penalty “depend[ed] on the crime,”
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PEOPLE v. MILES
Opinion of the Court by Groban, J.
she also confirmed that she believed the death penalty was fair
and would not be reluctant to vote for a death sentence, sign the
verdict form, or state the verdict in court.
Some of the jurors identified by defendant, however,
expressed more significant reservations about the death
penalty. Juror No. 6 commented, “insecure about my feelings. I
do believe in the death penalty but do not know how I feel about
administering it.” But, she, too, said that she would vote to keep
the death penalty, that it was fair and used too seldom, and that
she would not be reluctant to personally vote for a death
sentence, sign the verdict form, or state the verdict in court. She
also identified with Group 2, which was defined as “I favor the
death penalty, but will not always vote for death in every case
of murder with special circumstances.” During Hovey
questioning, she said that she might be reluctant to sentence
somebody to death, but asked whether “feeling guilty” in her
“heart” might “affect the way [she] act[s] on the way [she] feel[s]
in [her] head,” she confirmed, “No, I can truthfully say, no, I
would not. No. It’s just my own feelings, I should say.” She
confirmed that she could follow the law, she could sign a verdict
form for a death sentence, and although she “wouldn’t feel good
about it,” she could state the verdict for a death sentence in
court.
In addition, Juror No. 8 identified with Group 4, which
was defined as “I have doubts about the death penalty, but I
would not vote against it in every case.” He believed the death
penalty was used too often and said that the death penalty
“should be reserved for only the most heinous of crimes.” But he
characterized the death penalty as fair and would vote to keep
it because it is a “necessary evil.” He said that his views were
not such that he could never vote for a death sentence,
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PEOPLE v. MILES
Opinion of the Court by Groban, J.
explaining, “if the situation proved to warrant such a
punishment, I would vote for it.” He also said that he would not
be reluctant to personally vote for a death sentence, sign the
verdict form, or state the verdict in court, although he “would
not automatically seek the highest punishment.” During Hovey
questioning, Juror No. 8 said, “I used to really be for the death
penalty, but since then I’ve changed my views to I’m not totally
against it, but I’m not totally for it either.” He acknowledged
that he viewed life imprisonment as a more suitable
punishment. But, asked whether this view might cause him to
favor that sentence regardless of the evidence, he replied, “Not
necessarily. That’s my personal view, you know, depending on
the evidence, you know. I would choose what I thought was
right.” He confirmed that he could follow the law and could vote
for a death sentence.
We find that Juror No. 6’s responses and Juror No. 8’s
responses were not so similar to Kevin C.’s responses regarding
the death penalty as to cast doubt on the trial court’s acceptance
of the prosecutor’s reason for striking Kevin C. While Juror No.
6 expressed some discomfort and reluctance with voting for a
death sentence, she made clear that she supported the death
penalty and she ultimately confirmed that she could vote for a
death sentence. And while Juror No. 8 believed that the death
penalty should be reserved for “only the most heinous of crimes,”
he made clear that he supported the death penalty and could
vote for it in those circumstances. By contrast, among Kevin
C.’s tentative and vacillating responses about both his view on
the death penalty and his ability to vote for a death sentence,
Kevin C. indicated that he had a religious objection to the death
penalty and agreed with his religion’s view that “thou should not
kill.” These responses called into question the fundamental
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PEOPLE v. MILES
Opinion of the Court by Groban, J.
propriety of the death penalty and differed from Juror No. 6’s
belief in the death penalty and Juror No. 8’s opinion that the
death penalty was a “necessary evil” for the “most heinous of
crimes.”
Lastly, Juror No. 2 stated, “I am not in favor of the death
penalty,” and believed that it was not fair and was used too
often. He believed the purpose of the death penalty was
“supposedly to deter crime.” Asked whether he had a moral,
philosophical, or religious objection to the death penalty, he
checked “yes” and elaborated, “I do not believe it deters crime.”
He did not refer to any religious beliefs, and he subsequently
said that he did not have a religious preference or affiliation.
Although he initially said that he “[w]ould not vote” to decide
whether or not to keep the death penalty, he subsequently said
that he probably would vote to keep the death penalty. In
addition, he said that his views were not such that he could
never vote for a death sentence, explaining, “I would and could
follow the law.” He said that he would not be reluctant to
personally vote for a death sentence or personally sign a verdict
form for a death sentence, although he would be reluctant to
stand up in court, facing the defendant, and state the verdict for
a death sentence. He identified himself as belonging to Group
4, which was defined as “I have doubts about the death penalty,
but I would not vote against it in every case.” During Hovey
questioning, the prosecutor asked, “I think one of your concerns
is you were kind of skeptical that maybe it doesn’t deter crime,
if that’s the purpose of it . . . . [W]ould you be able to return,
personally vote for a death verdict if you felt it was, if it felt [sic]
the evidence supported, and the law supported it?” Juror No. 2
replied, “Yes.”
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PEOPLE v. MILES
Opinion of the Court by Groban, J.
We find that Juror No. 2 made clear that he did not
support the death penalty, and that Juror No. 2’s responses
regarding the death penalty were similar in some respects to
Kevin C.’s responses regarding the death penalty. We agree
with defendant that the comparison between Juror No. 2 and
Kevin C. has some probative value. That said, we also find that,
unlike Kevin C., who gave tentative and vacillating responses
about his view on the death penalty and his ability to impose it,
Juror No. 2 was more clear and consistent in both respects:
Juror No. 2 more clearly and consistently said that he did not
support the death penalty, but Juror No. 2 also more clearly and
consistently said that he could impose it. When the prosecutor
asked Juror No. 2 whether he would be able to personally vote
for a death verdict even though he was “kind of skeptical that
maybe it doesn’t deter crime,” Juror No. 2 replied, “Yes.” Juror
No. 2’s responses differed from Kevin C.’s more tentative and
conflicted responses: “there are members of society who do bad
things and don[’]t deserve to be here, can I kill them? unknown
at this time” and “I like to decide who could stay in society but
not decide who stays on earth (I’d like to sleep).” In addition,
unlike Kevin C., Juror No. 2 did not invoke a religious objection
to the death penalty. Thus, comparing the totality of their
respective responses regarding the death penalty, we find some
similarities as well as some differences, and we conclude that
the comparison has probative value within our inquiry as to
whether the prosecutor’s stated reason for striking Kevin C. was
pretextual.
We additionally note that, in stark contrast to Kevin C.,
who believed DNA evidence was “like a polygraph not a for sure
certain” and who was not upset by the O.J. Simpson verdict
because he found it “hard to believe” Simpson was solely
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PEOPLE v. MILES
Opinion of the Court by Groban, J.
responsible for the crimes and suggested “biases” created much
of the evidence, Juror No. 2 believed that DNA evidence was
“accurate” and was upset by the O.J. Simpson verdict because
“[Juror No. 2] believe[d] it was proven beyond a reasonable
doubt that [Simpson] was guilty.” By noting these differences
between Juror No. 2 and Kevin C., we do not intend to suggest
that the similarities between Juror No. 2 and Kevin C. in regard
to the death penalty are irrelevant within our analysis or that
defendant must identify an exactly identical juror to prove
purposeful discrimination. (See ante, at pp. 35–37.) Rather,
“because the ultimate question before us concerns the
prosecutor’s motivations in [striking Kevin C.], we must ask
whether there were any material differences [between Kevin C.
and Juror No. 2] — that is, differences, other than race, that we
can reasonably infer motivated the prosecutor’s pattern of
challenges.” (O’Malley, supra, 62 Cal.4th at p. 977.)
Considering these and all relevant circumstances, we ultimately
find no adequate basis to overturn the trial court’s ruling.
As to the prosecutor’s final reason, Kevin C. checked “no”
when asked whether he was upset by the O.J. Simpson verdict
and said, “To [sic] hard to believe one man did it all, I believe
biases created a lot of the circumstance [sic] evidence.” We have
previously held that a prospective juror’s opinion of the O.J.
Simpson trial is a nonbiased ground for a peremptory strike.
(See Smith, supra, 4 Cal.5th at p. 1153; Vines, supra,51 Cal.4th at pp. 851–852; Mills, supra, 48 Cal.4th at p. 184.)
The NAACP Legal Defense & Educational Fund, Inc.
(LDF), however, has filed an amicus curiae brief arguing that
asking about a prospective juror’s opinion of the O.J. Simpson
verdict is a proxy for race because most Black people support the
verdict and most White people do not. LDF refers to studies
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Opinion of the Court by Groban, J.
finding, in 1995, that approximately 22 percent of Black people
and 79 percent of White people believed Simpson was guilty. In
response, the Attorney General argues, inter alia, that public
opinion regarding the Simpson verdict is less clear than LDF
suggests. The Attorney General refers to studies finding that
“the number of Blacks who believe Simpson was guilty more
than doubled to 45% by 2007 and became a majority view of 57%
by 2015,” and thus “selection of Miles’s jury occurred at a time
when the percentage of Whites who believed Simpson guilty was
decreasing and the percentage of Blacks who believed him guilty
was increasing.”
LDF’s argument that more Blacks than Whites support
the Simpson verdict, “even if factually correct, does not establish
that the criterion is not race neutral.” (Melendez, supra,
2 Cal.5th at p. 18.) As we discussed in Melendez, the plurality
opinion in Hernandez v. New York (1991) 500 U.S. 352concluded that “ ‘[w]hile the prosecutor’s criterion might well
result in the disproportionate removal of [prospective jurors of a
specific ethnicity], that disproportionate impact does not turn
the prosecutor’s actions into a per se violation of the Equal
Protection Clause.’ ” (Melendez, at p. 17, quoting Hernandez,
supra, 500 U.S. at p. 361.) But “the plurality [in Hernandez] did
find that a disparate impact would be relevant to the overall
inquiry.” (Melendez, at p. 17.) Thus, if LDF’s argument that
more Blacks than Whites support the Simpson verdict is
factually correct, “this circumstance is relevant to the inquiry as
to whether the reasons were sincere and not merely pretextual.”
(Id. at p. 18.)
We assume that LDF’s argument is factually correct, and
we consider this circumstance to be relevant to our inquiry as to
whether the prosecutor’s reason was sincere and not merely
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Opinion of the Court by Groban, J.
pretextual. However, the record here does not show that the
prosecutor’s reason was pretextual. The voir dire in this case
began in Southern California approximately three years after
the Simpson trial in Los Angeles, making it likely that the
prospective jurors were familiar with and had formed opinions
about that case. The prosecutor specifically expressed concern
about the prospective jurors’ opinions of the Simpson verdict
because the prosecutor considered Simpson’s case to be similar
to defendant’s case given that both cases relied on DNA evidence
and circumstantial evidence. And it appears that the prosecutor
was not alone in considering Simpson’s case to be similar in
some respects to defendant’s case. For example, while
discussing the draft jury questionnaire regarding scientific
evidence, the court commented, “I’m assuming part of [the
prosecutor’s] concern is whether there’s a juror that just says, I
absolutely would not believe anything that involved DNA
evidence based on my daily watching of the O.J. Simpson trial
or something of that nature.” For another example, while
questioning the prospective jurors about DNA evidence during
voir dire, defense counsel twice referred to the O.J. Simpson
case, including to comment that “there’s been a lot of publicity
about [DNA] [and] most people are familiar, to some degree or
another, with the O.J. Simpson case.”
In addition, the prosecutor struck several non-African-
American prospective jurors who were not upset by the verdict,
suggesting that the prosecutor’s concern was sincere and not
merely a pretext for excusing African-American prospective
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Opinion of the Court by Groban, J.
jurors. (Cf. People v. Woodruff (2018) 5 Cal.5th 697, 755.)11 The
prosecutor struck, in total, five non-African-American
prospective jurors. Four of these five prospective jurors were
not upset by the O.J. Simpson verdict: Malinda M. (a Hispanic
woman) was not upset with the O.J. Simpson verdict because “I
think there was doubt in the case and some things were done
improper that [led] to the not guilty verdict;” Ronald W. (a White
man) was not upset with the O.J. Simpson verdict because
“evidently they had weighed all the evidence and come to
agreement;” Richard L. (a Hispanic man) was not upset with the
O.J. Simpson verdict because “the D.A. did not prove beyond a
reasonable doubt;” and Lynia B. (a White woman) was not upset
with the O.J. Simpson verdict because “to[o] many unanswered
questions was neither convinced of guilt nor innocence.” After
striking Malinda M. (a Hispanic woman) and Ronald W. (a
White man), the prosecutor specifically said that he had excused
jurors “of Hispanic origin and Caucasian origin, and the
common denominator, essentially, is that they were not, were
not upset by the O.J. Simpson verdict.”
11
Also, the prosecutor did not strike Alternate Juror No. 2,
who was African-American and was not upset by the O.J.
Simpson verdict. The Attorney General argues that this fact
tends to show that “the prosecutor was motivated by the jurors’
individual views instead of their race.” Alternate Juror No. 2
indeed checked “no” when asked whether she was upset by the
Simpson verdict, but she explained, “The evidence was there
which told me he was guilty.” In light of Alternate Juror No. 2’s
explanation, it appears possible that she simply checked the
wrong box when asked whether she was upset by the Simpson
verdict. Because Alternate Juror No. 2’s answer could be
interpreted in any number of ways on the cold appellate record,
we find that it is of little help in analyzing the sincerity of the
prosecutor’s reason.
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Finally, contrary to defendant’s argument, comparing
Kevin C.’s response to other jurors’ responses does not
undermine the credibility of this reason. Unlike Kevin C., who
was not upset by the O.J. Simpson verdict because he found it
“hard to believe” that Simpson was solely responsible for the
crimes, and suggested that “biases” created much of the
circumstantial evidence, Alternate Juror No. 5 simply checked
“no” when asked whether he was upset by the verdict and
expressed no further thoughts regarding it. Similarly, while
Juror No. 6 checked “no” to the same question but commented,
“evidence not clear,” Juror No. 6’s response was more measured
than and dissimilar to Kevin C.’s response. (See Vines, supra,51 Cal.4th at p. 851 [responses by two prospective jurors
“dissimilar” where one said, “the Simpson trial ‘restored’ his
‘faith’ ” and the other said, “ ‘It raised my concerns on jury
selection and impact of televising a trial’ ”].) Neither Alternate
Juror No. 5’s response nor Juror No. 6’s response resembled
Kevin C.’s harsh rebuke of the prosecution’s evidence in the O.J.
Simpson case, nor did they inject the concept of “biases” into the
result.
In short, each of the prosecutor’s reasons is supported by
the record, and considered together, they provide ample,
nonbiased grounds for striking Kevin C. Substantial evidence
therefore supports the trial court’s conclusion that the
prosecutor struck Kevin C. for reasons other than his race.
c. Prospective Juror Simeon G.
The first reason offered by the prosecutor was that Simeon
G. liked his own opinion over other people’s opinions. In his
questionnaire, Simeon G. described himself as a leader, rather
than a follower, because he liked his opinion over other people’s
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opinions. Although Simeon G. did not assert in this or other
questionnaire responses that he would be unwilling or unable to
deliberate with fellow jurors, the prosecutor reasonably could be
concerned that Simeon G. might have difficulty considering
other opinions and deliberating with fellow jurors —
particularly given that Simeon G. had not worked with a group
of people to make a decision before. (Cf. Lenix, supra, 44 Cal.4th
at p. 623 [“[a]n advocate is entitled to consider a panelist’s
willingness to consider competing views [and] openness to
different opinions”]; People v. Gutierrez (2002) 28 Cal.4th 1083,
1125 [a prosecutor could feel concerned about a prospective
juror’s comment that “he would not be influenced by anyone’s
opinion but his own”].)
The dissent does not attach any import to Simeon G.’s
response, positing that “[e]veryone likes his or her opinion over
other people’s.” (Dis. opn., post, at p. 5.) But the prosecutor was
not required to interpret the response as the dissent does. It is
not only that Simeon G. said he liked his opinion over other
people’s; it is also that he made this statement in order to
explain why he would describe himself as a “leader” rather than
a “follower.” The prosecutor could reasonably have understood
this response, in context, to suggest that if another person had
a different opinion, Simeon G.’s view of leadership would cause
him to prefer his own opinion “over” the opinion of the other
person. It was not unreasonable for the prosecutor to ascribe
some significance to Simeon G.’s response.
That said, we recognize that the prosecutor did not ask
Simeon G. during voir dire about his stated preference for his
own opinion over other people’s opinions. The prosecutor’s
failure to engage Simeon G. on each concern, however, is not
conclusive in determining whether the prosecutor’s reasons
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were pretextual. (See, e.g., Cowan, supra, 50 Cal.4th at p. 451
[although a prosecutor’s failure to engage in meaningful voir
dire can suggest the prosecutor’s stated reasons are pretextual,
the prosecutor’s failure to question the prospective jurors “about
each and every area of articulated concern does not undermine
the conclusion that her stated race-neutral reasons for excusing
these prospective jurors were genuine and not pretextual”];
Jones, supra, 51 Cal.4th at p. 363.) We are mindful that lawyers
may refrain from asking questions for a variety of reasons. (Cf.
People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1018, fn. 14
[recognizing that “lawyers must use their voir dire time
judiciously”].) Here, asking Simeon G. during voir dire — in
front of the other prospective jurors — to elaborate on his
questionnaire response would have forced him to explain why
he believes that his opinion is preferable to the opinions of other
people, such as those seated around him. Considering these and
all relevant circumstances, we find that the prosecutor’s first
reason for striking Simeon G. is race neutral, plausible, and
supported by the record.
Despite this, defendant contends that a comparative juror
analysis between Simeon G. and Juror No. 1 discredits the
prosecutor’s reason. It does not. Juror No. 1 identified herself
as a leader, rather than a follower, and elaborated, “I like to
make my own decisions.” Although Juror No. 1’s response was
similar in some respects to Simeon G.’s response, the prosecutor
could reasonably have found Juror No. 1’s response to be less
concerning in context than Simeon G.’s response. Jurors are
expected to make their own decisions after deliberating with
fellow jurors — which Juror No. 1 previously had done to reach
a verdict in a separate case. The prosecutor thus could have
concluded that Juror No. 1’s statement that she liked to make
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her “own decisions” did not call into question her openness to
considering other opinions before returning a verdict. Simeon
G.’s response, by contrast, could reasonably cause concern about
his openness to considering other opinions, and unlike Juror No.
1, he had not previously served on a jury or worked with a group
of people to make a decision. (See Chism, supra, 58 Cal.4th at
p. 1321 [where a juror, similar to two challenged prospective
jurors, lacked supervisory work experience, the fact that the
juror had previously served on a separate jury in a capital case
“substantially distinguishe[d] him from [the two challenged
prospective jurors]”]; Vines, supra, 51 Cal.4th at pp. 851, 852
[comparative juror analysis rejected where answers were
“dissimilar” and “significant differences in life experiences”
existed between jurors].)12
Thus, we find some similarities as well as some differences
between Simeon G. and Juror No. 1 in regard to the prosecutor’s
first reason for striking Simeon G., but we ultimately conclude
that their respective responses were not so similar as to cast
doubt on the trial court’s acceptance of the prosecutor’s reason
for striking Simeon G. We additionally note that Juror No. 1 did
not raise any of the other concerns the prosecutor raised in
explaining his reasons for the strike. Unlike Simeon G., Juror
12
In his reply brief, defendant engages in an attenuated
analysis concerning Juror No. 3 and Juror No. 4’s respective
responses to the related question, “Have you ever worked with
a group of people to make a decision?” But defendant’s attempt
to parse that question from the related question concerning
whether a prospective juror is a leader, and why, misses the
point. Juror No. 3 and Juror No. 4 did not declare a preference
for their opinion over other people’s opinions, making their
responses fundamentally distinguishable from Simeon G.’s
response.
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No. 1 expressed that she was upset with the O.J. Simpson
verdict because she “believe[d] he was guilty,” and she did not
suggest that she might rely on her feelings in reaching a verdict
in the guilt phase.
As to the second reason for striking Simeon G., the
prosecutor expressed concern that Simeon G. might rely on
hunches or feelings, rather than evidence, in reaching a verdict
in the guilt phase since he replaced the word “doubt” with the
word “feeling” and said in his questionnaire that if he had a
feeling the defendant did not do it, the defendant was not guilty.
The record shows that when asked whether he could follow an
instruction that a defendant is presumed innocent unless
proven guilty beyond a reasonable doubt, Simeon G. checked
“yes;” commented, “If I have any feeling that he might not have
done it, hes [sic] innocent;” and in this comment, replaced the
word “doubt” with the word “feeling.”
When asked about this response, Simeon G. did not “quite
remember” replacing the word “doubt” with the word “feeling.”
The dissent posits that Simeon G. “most likely” recognized a
double negative in his original comment and replaced the word
“doubt” with the word “feeling” in an effort to correct it. (Dis.
opn., post, at p. 8.) This is a possible explanation. But Simeon
G. did not provide this explanation. And had he intended to
correct the double negative, he could have revised his comment
in multiple ways, including, for example, by crossing out the
word “not” or by replacing the word “doubt” with the word
“belief.”
But Simeon G. replaced the word “doubt” with the word
“feeling,” and as revised, his statement read that if he had “any
feeling” that the defendant “might” not have done it, the
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defendant was innocent. The word “feeling” is ordinarily used
to mean “[a]n idea, belief, or sense (especially a vague or
irrational one) that a particular thing is true; an impression that
something is about to happen or is the case; an intuition about
something” or “[t]hat which a person feels in regard to
something; attitude, esp. emotional attitude, sentiment; opinion
or belief based on emotion or intuition and not solely on reason.”
(Oxford English Dict. Online (3d ed. 2015)
[as of May 22, 2020].)13 To the
prosecutor, Simeon G.’s response that if he had “any feeling”
that the defendant “might” not have done it, the defendant was
innocent “made it sound like [Simeon G.] was going to be
basically basing it on a hunch, or a feeling, which was, as the
presenter of evidence, [the prosecutor was] powerless to
overcome.”
The prosecutor’s concern was plausible and supported by
the record. We acknowledge that Simeon G.’s questionnaire
response may be interpreted in multiple ways and that his other
questionnaire responses did not indicate that he would rely on
his feelings in reaching a verdict in the guilt phase. However,
the prosecutor was not obliged to accept the most innocuous
interpretation of Simeon G.’s questionnaire response and could
be legitimately concerned about his response for the reasons the
prosecutor specifically articulated. (See People v. Mai (2013)
57 Cal.4th 986, 1050, 1051 [where the prospective juror’s
remarks “might be taken more than one way,” the prosecutor
13
All Internet citations in this opinion are archived by year,
docket number, and case name at
.
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“was not obliged to accept [the defendant’s] precise
interpretation of [the juror’s] ambiguous remarks, and [the
prosecutor] could reasonably be concerned about [these
remarks]”].)
It is true, however, that Simeon G. explained his
questionnaire response differently during voir dire. During voir
dire, the prosecutor explained to the prospective jurors,
including Simeon G., that “if the case has been proved by the
prosecution beyond a reasonable doubt, your duty is to return a
guilty verdict” and the question is if “at the conclusion of the
case if the case has been proved beyond a reasonable doubt
whether we can expect everybody to come back with a guilty
verdict.” Immediately after this, the prosecutor asked Simeon
G. about his questionnaire response. Simeon G. did not “quite
remember” his questionnaire response, but when asked what he
meant by it, Simeon G. explained, “Well, I think what I was
trying to say, if I’m correct, is that if the evidence showed that
there wasn’t — that there was some reasonable doubt, then I
probably would not accuse him, because of the fact that, myself
being in the same situation or anybody, I think that if the
evidence didn’t totally prove that I did it, then there is some
doubt. You know what I’m saying?” Simeon G. added, “So it
wasn’t so much a feeling as it was if the evidence didn’t show.”
Asked whether he “would base it on evidence,” Simeon G.
responded, “Basically, yes. I’m sorry.” He added, “I couldn’t tell
you, tell you what I said, because I don’t have the paper to look
at what I actually meant totally.”
Reviewing this colloquy in the appellate record, the
dissent views Simeon G.’s responses to have “left no ambiguity
about the issue.” (Dis. opn., post, at p. 9.) To be sure, Simeon
G. gave answers during voir dire that, from the prosecutor’s
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perspective, were less concerning than Simeon G.’s
questionnaire response and helped to explain his questionnaire
response. However, in this colloquy, Simeon G. also said that he
did not “quite remember” his questionnaire response, and
because he did not have a copy of the questionnaire, he could not
tell the prosecutor “what [he] actually meant totally” by it.
Simeon G. referenced that if the evidence “didn’t totally prove”
that the defendant did it, “then there is some doubt.” And when
asked whether he “would base [the verdict] on evidence,” he
responded, “[b]asically,” yes. These portions of Simeon G.’s
answers may not have been entirely reassuring to the
prosecutor, who was concerned that Simeon G. would rely “on a
hunch, or a feeling, which was, as the presenter of evidence, [the
prosecutor] was powerless to overcome.” Thus, reviewing this
colloquy in the appellate record — unaided by Simeon G.’s tone
or demeanor — we do not conclude that Simeon G.’s responses
“left no ambiguity” and necessarily mollified any prosecutorial
concern about his questionnaire response. (Dis. opn., post, at
p. 9.)
Moreover, when providing his reasons for striking Simeon
G., the prosecutor acknowledged that Simeon G. explained his
questionnaire response “differently in court.” Nevertheless, the
prosecutor told the trial court that Simeon G.’s explanation
during voir dire did not eliminate the prosecutor’s concern about
Simeon G.’s questionnaire response. The prosecutor explained
that he was still concerned about Simeon G.’s responses “in light
of the fact that he was, he was single-handedly hunted down to
be here this afternoon. So [the prosecutor was] not sure that his
responses in court should prevail over the answers he gave on
his questionnaire.” The dissent seems to contend that the
prosecutor was obliged to abandon his concern about Simeon
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G.’s written response because Simeon G. explained that
response differently in court under oath and “left no ambiguity
about the issue.” (Dis. opn., post, at p. 9.) We disagree. Faced
with seemingly different responses, the prosecutor was not
obliged to abandon his concern about Simeon G.’s written
response, which was signed under penalty of perjury, in light of
Simeon G.’s oral response — and in fact, the prosecutor made
clear to the trial court that he did not. (Cf. Vines, supra,
51 Cal.4th at p. 850 [“That [the prospective juror] stated on voir
dire that he could consider both penalties, and thus
demonstrated he was not subject to removal for cause [citation],
did not preclude the prosecutor from exercising a peremptory
challenge when [the juror’s] questionnaire responses indicated
a degree of reluctance to impose the death penalty with which
the prosecutor was uncomfortable”].)
The trial court was “ ‘best situated’ ” to assess Simeon G.’s
responses in court and the prosecutor’s stated concern in light
of those responses. (People v. Armstrong (2019) 6 Cal.5th 735,
770 (Armstrong) [“the ‘trial court is best situated to evaluate
both the words and the demeanor of jurors who are peremptorily
challenged, as well as the credibility of the prosecutor who
exercised those strikes’ ”].) Having observed Simeon G. in court,
the trial court could assess Simeon G.’s oral responses, and it
was better positioned than our court to determine whether
Simeon G.’s oral responses should have completely assuaged
any potential concerns raised by his written response. The trial
court also could assess the credibility of the prosecutor’s stated
concern about Simeon G.’s questionnaire response, as well as
the prosecutor’s assessment that he was “not sure that [Simeon
G.’s] responses in court should prevail over the answers he gave
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on his questionnaire.”14 The trial court specifically asked a
question to the prosecutor about this concern, and after listening
to the prosecutor’s explanation and defense counsel’s comments,
the trial court accepted the prosecutor’s stated reasons for
striking Simeon G. (See Lenix, supra, 44 Cal.4th at p. 614 [we
give “ ‘great deference to the trial court’s ability to distinguish
bona fide reasons from sham excuses’ ”].)
It is by no means clear from the record that if he had been
selected, Simeon G. would have relied on his feelings in reaching
a verdict in the guilt phase. But “[o]ur task is not to determine
whether we would have shared the prosecutor’s concerns; the
only question before us is whether substantial evidence supports
the court’s ruling that the prosecutor described legitimate
reasons for the challenge and that he challenged [Simeon G.] for
those reasons, not because of [his] race.” (Smith, supra,
4 Cal.5th at p. 1161.)
We find that the prosecutor’s concern here is plausible,
supported by the record, and race neutral. Contrary to
defendant’s argument, his comparative juror analysis between
Simeon G. and Juror No. 5 does not undermine the sincerity of
the prosecutor’s concern. Asked whether she could follow a
14
The dissent states that “it is not clear why” the
circumstances surrounding Simeon G.’s attendance in court
would have caused the prosecutor to doubt Simeon G.’s
responses in court. (Dis. opn., post, at p. 11.) The record shows
that Simeon G. arrived in court only after the trial judge himself
called his employer to try to locate him. (See ante, at p. 24.) By
any measure, having a judge call your workplace to locate you
and have you come to court is unusual. Whether these unusual
circumstances affected Simeon G.’s responses in court — as the
prosecutor suggested they did — is an assessment that the trial
court was best positioned to make.
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presumption-of-innocence instruction, Juror No. 5 checked “yes”
and wrote, “Try to follow instructions.” Reading this statement
to suggest that she could not or would not follow the instruction
is strained, and we decline to do so. The record therefore
provides no adequate basis to overturn the trial court’s ruling.
For the final reason, the prosecutor said that Simeon G.
(like Kevin C.) was not upset by the O.J. Simpson verdict. As
discussed, a prospective juror’s opinion regarding the Simpson
case can be a nonbiased ground for a peremptory challenge.
Defendant and LDF, however, argue that this reason was a
proxy for race or, alternatively, pretextual. As discussed, we
assume that LDF’s argument that more Blacks than Whites
support the Simpson verdict is factually correct, and we consider
this circumstance to be relevant to our inquiry as to whether the
prosecutor’s reason was sincere and not merely pretextual. In
this particular case, however, it is plausible that the prosecutor
— tasked with securing a conviction in San Bernardino County
approximately three years after the Simpson trial took place in
the adjacent Los Angeles County — was sincerely concerned
about the prospective jurors’ opinions regarding the Simpson
verdict because the prosecutor considered Simpson’s case to be
similar to defendant’s case given that both cases relied on DNA
evidence and circumstantial evidence. Also as discussed, it
appears that the prosecutor was not alone in considering
Simpson’s case to be similar in some respects to defendant’s case
because both the trial court and defense counsel referred to
Simpson’s case at various points when discussing DNA
evidence. (See ante, at p. 50.) In addition, four of the five non-
African-American prospective jurors whom the prosecutor
struck were not upset by the O.J. Simpson verdict, suggesting
that the prosecutor’s concern was sincere and not merely a
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pretext for striking African-American prospective jurors. (See
ante, at pp. 50–51.)
That said, we find that the credibility of the prosecutor’s
concern here is undermined to some degree by the prosecutor’s
failure to ask Simeon G. or other prospective jurors about the
O.J. Simpson verdict during voir dire. In his questionnaire,
Simeon G. indicated that he was not upset by the O.J. Simpson
verdict but left blank the follow-up request to “[p]lease explain
why or why not.” To be sure, we recognize that one might infer
from this response that Simeon G. was not upset by the O.J.
Simpson verdict because he simply agreed with the verdict,
requiring little explanation. But we also recognize that a
prospective juror may not be upset by the O.J. Simpson verdict
for a variety of reasons. While the prosecutor’s failure to
question Simeon G. or other prospective jurors about the O.J.
Simpson verdict does not necessarily demonstrate that the
prosecutor’s concern was pretextual, we consider this
circumstance to be relevant to our inquiry as to whether the
prosecutor’s concern was pretextual here. (See Smith, supra,
4 Cal.5th at p. 1152 [“an attorney’s failure to meaningfully
examine a prospective juror about a subject about which the
attorney claims to be concerned can constitute evidence of
pretext”].)
When the prosecutor gave this reason for striking Simeon
G., the prosecutor stated, “If you’ll notice across the board, I’ve
excused jurors I believe of Hispanic origin and Caucasian origin,
and the common denominator, essentially, is that they were not,
were not upset by the O.J. Simpson verdict, which was a DNA,
circumstantial case.” Defendant argues that the prosecutor’s
statement meant that “he had struck all prospective jurors who
were not upset with the O.J. Simpson verdict” and “this is not
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what the record shows at all” because the prosecutor did not
strike Juror No. 6 or Alternate Juror No. 5.15 Contrary to
defendant’s argument, the prosecutor’s statement is fairly read
to mean that the prosecutor had struck prospective jurors
“across” different races, including a Hispanic prospective juror
and a Caucasian prospective juror, who were not upset by the
O.J. Simpson verdict. And at the time of the statement, the
prosecutor indeed had struck three non-African-American
prospective jurors, two of whom — Malinda M. (a Hispanic
woman) and Ronald W. (a White man) — were not upset by the
Simpson verdict.
Nevertheless, defendant’s comparative juror analysis
between Simeon G. and Juror No. 6 and Alternate Juror No. 5
has some probative value and is more convincing than it was
with respect to Kevin C.16 As noted, Simeon G. checked “no” as
15
At the time of the prosecutor’s statement, Juror No. 6 was
seated in the jury box, but Alternate Juror No. 5 was not.
Although defendant does not discuss this additional fact in his
briefing, we note that at the time of the prosecutor’s statement,
others seated in the jury box had indicated that they were not
upset by the Simpson verdict but had provided varying
explanations that likely assuaged the prosecutor’s concern.
16
Although defendant does not raise these comparisons, the
dissent additionally compares Simeon G.’s response to the
responses by Juror No. 4, Juror No. 7, and Alternate Juror No.
4. (Dis. opn., post, at p. 14.) Juror No. 4 was not upset by the
O.J. Simpson verdict because “su[r]prised, based on media-given
facts, but did not follow trial closely.” Juror No. 7 was not upset
by the verdict “since I can only judge from T.V. I cannot give an
honest opinion.” And Alternate Juror No. 4 was not upset by
the verdict because “I did not hear the evidence.” While a
prospective juror’s response that he or she was not upset by the
O.J. Simpson verdict may suggest that the prospective juror
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to whether he was upset by the Simpson verdict but did not
explain why. His response was thus identical to Alternate Juror
No. 5’s response and less detailed than Juror No. 6’s response,
which noted, “evidence not clear.” We find that the credibility
of the prosecutor’s concern regarding Simeon G.’s opinion on the
O.J. Simpson verdict is undermined to some degree by
defendant’s comparative juror analysis. (See Miller-El, supra,545 U.S. at p. 241 [“If a prosecutor’s proffered reason for striking
a black panelist applies just as well to an otherwise-similar
nonblack who is permitted to serve, that is evidence tending to
prove purposeful discrimination to be considered at Batson’s
third step”].)
We recognize that jurors need not be identical in all
respects for a comparison among them to be probative, and we
continue to consider defendant’s comparisons to be relevant and
probative on the issue of purposeful discrimination here. (See
ante, at pp. 35–37.) However, we additionally consider as part
of our inquiry into the prosecutor’s motivations for striking
Simeon G. that Juror No. 6 and Alternate Juror No. 5 were
dissimilar from Simeon G. in regard to the prosecutor’s other
two stated reasons for striking Simeon G. (See ibid.)
Neither Juror No. 6 nor Alternate Juror No. 5 indicated
that they might have difficulty considering the opinions of or
deliberating with others when asked whether they considered
themselves leaders or followers and why. Juror No. 6 considered
herself “[b]oth” a leader and a follower “depend[ing] on what
agreed with that verdict, Juror No. 4, Juror No. 7, and Alternate
Juror No. 4 explained that they were not upset by the verdict
because they had limited information about the case. These
explanations likely assuaged the prosecutor’s concern.
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interest” she had, and she had experience working with a group
of people to make a decision. Alternate Juror No. 5 considered
himself a leader because “like to learn, intelligent, people tend
to follow my lead.” While his response reflected some self-
assuredness, he also said in his response that he “like[d] to
learn,” and he had “daily” experience working with a group of
people to make a decision and “fe[lt] that there would be no
problem working with others.” Additionally, neither Juror No.
6 nor Alternate Juror No. 5 indicated that they might rely on
their feelings in reaching a verdict in the guilt phase when asked
whether they can follow an instruction that a defendant is
presumed innocent unless proven guilty beyond a reasonable
doubt. By contrast, Simeon G.’s opinion on the O.J. Simpson
verdict may have raised more concern about him as a guilt phase
juror in this case given that he liked his opinion over other
people’s opinions, had not previously worked with a group of
people to make a decision, and said that if he had “any feeling”
that the defendant “might” not have done it, the defendant was
innocent.
Considering these and all other relevant circumstances,
we view the issue to be close but ultimately find no adequate
basis to overturn the trial court’s ruling under the applicable
standard of review. We find that each of the prosecutor’s
reasons for striking Simeon G. is plausible, supported by the
record, and race neutral. Considering the prosecutor’s reasons
together and reviewing the trial court’s determination regarding
the sufficiency of those reasons with great restraint (see Lenix,
supra, 44 Cal.4th at p. 613), we conclude that substantial
evidence supports the trial court’s conclusion that the
prosecutor struck Simeon G. for reasons other than his race.
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In sum, we find substantial evidence supports the trial
court’s denial of defendant’s Batson/Wheeler motion. Although
defendant argues that Kevin C. and Simeon G. were favorable
prospective jurors for the prosecution, “the question is not
whether a prosecutor should or should not have excused a
prospective juror. It is whether this prosecutor excused [them]
for an improper reason. The record provides no sufficient reason
to so conclude or for this court to overturn the trial court’s
ruling” here. (Hardy, supra, 5 Cal.5th at p. 84.) Moreover, the
prosecutor’s acceptance of an alternate juror who was
African-American further supports the prosecutor’s good faith
in exercising the peremptory strikes. (See, e.g., Jones, supra,51 Cal.4th at pp. 362–363.)
B. Excusal of Two Prospective Jurors for Cause
Defendant contends the trial court erroneously excused
two prospective jurors based on their views about the death
penalty. We disagree.
“Under Wainwright v. Witt (1985) 469 U.S. 412, 424
[83 L.Ed.2d 841, 105 S.Ct. 844] (Witt), we consider whether the
record fairly supports the trial court’s determination that [a
prospective juror’s] views on the death penalty would have
prevented or substantially impaired her performance as a
juror.” (People v. Thomas (2011) 52 Cal.4th 336, 357.)
“ ‘ “Generally, a trial court’s rulings on motions to exclude for
cause are afforded deference on appeal, for ‘appellate courts
recognize that a trial judge who observes and speaks with a
prospective juror and hears that person’s responses (noting,
among other things, the person’s tone of voice, apparent level of
confidence, and demeanor), gleans valuable information that
simply does not appear on the record.’ ” ’ ” (Id. at p. 358.)
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Opinion of the Court by Groban, J.
“ ‘When the prospective juror’s answers on voir dire are
conflicting or equivocal, the trial court’s findings as to the
prospective juror’s state of mind are binding on appellate courts
if supported by substantial evidence.’ ” (People v. Wall (2017)
3 Cal.5th 1048, 1062 (Wall).)
As a preliminary matter, defendant contends that
deferring to the trial court’s findings on jury selection issues is
improper for two reasons. First, he argues that such deference
is inappropriate on direct appeal in light of the high court’s
holding in Greene v. Georgia (1996) 519 U.S. 145, 146–147. But
Greene held that the Supreme Court of Georgia was mistaken
when it believed itself bound by Witt’s standard of review: It
was “free to adopt the rule laid down in Witt for review of trial
court findings in jury-selection cases, but it need not do so.”
(Greene, at p. 147.) In contrast, we have previously adopted
Witt’s standard of review and accordingly rejected this
argument because “[t]he law in California . . . is settled on the
point.” (People v. Farnam (2002) 28 Cal.4th 107, 132, fn. 6.)
Second, defendant argues that deferring to the trial court’s
resolution of inconsistencies or ambiguities is contrary to the
high court’s holdings in Adams v. Texas (1980) 448 U.S. 38(Adams) and Gray v. Mississippi (1987) 481 U.S. 648 (Gray). We
have rejected the contention that Adams and Gray “ ‘made clear
that when a prospective capital case juror gives equivocal
responses, the state has not carried its burden of proving that
the juror’s views would “prevent or substantially impair the
performance of his duties as a juror.” ’ ” (People v. Schmeck
(2005) 37 Cal.4th 240, 263 (Schmeck).) We also have rejected
the contention that Gray “suggests the high court intended to
cast aside its view that ‘deference must be paid to the trial judge
who sees and hears the juror.’ ” (People v. Moon (2005)
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37 Cal.4th 1, 15 (Moon).) “ ‘Furthermore, the high court has
more recently reiterated its view that “[c]ourts reviewing claims
of Witherspoon-Witt error . . . owe deference to the trial court,
which is in a superior position to determine the demeanor and
qualifications of a potential juror.” ’ ” (People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 400.) These arguments
therefore are meritless.
1. Prospective Juror No. 44
Prospective Juror No. 44’s (Number 44) responses to the
approximately 31-page jury questionnaire signaled a degree of
uncertainty and discomfort regarding the death penalty. She
said, “I don’t feel one way or another” on whether the death
penalty is fair or unfair, and “I don’t have an opinion” on
whether the death penalty is used too often or too seldom. Asked
whether the sentence of death or life imprisonment without the
possibility of parole was more severe, she responded, “Depends
— for me Life w/o parole — for others — I don’t know.” But she
also said that she did not like the death penalty, that it made
her “uncomfortable,” and that she would vote to abolish it. She
identified herself as belonging to Group 4, which was defined as
“I have doubts about the death penalty, but I would not vote
against it in every case.”
She said that her feelings about the death penalty were
not such that she “would refuse to find the defendant guilty of
first degree murder and/or would refuse to find the special
circumstance true, solely to avoid having to make a decision on
the death penalty,” and that she was “willing to weigh and
consider all the aggravating and mitigating factors that will be
presented to [her] before deciding the penalty in this case.”
However, she indicated that she would be reluctant to vote for a
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death sentence, to sign the verdict form for a death sentence, or
to state that verdict in court before the defendant, commenting,
“The day I am not reluctant to look a person in the face and
sentence them to death will be the day I no longer belong to the
human — or should I say humane — race.” As to whether her
feelings about the death penalty were such that she “would
never be able to personally vote for the death of the defendant
under any circumstances” and “would always vote for a sentence
of life without [the] possibility of parole,” she declined to check
either the yes or no box. Instead, she commented, “I don’t know
— I’ve done a few things I thought I would never do.”
During Hovey questioning, the prosecutor asked whether
her identification as belonging to Group 4 (that she has doubts
about the death penalty but would not vote against it in every
case) was accurate “about the way [she] feel[s] on the death
penalty.” She responded, “You know, it’s really hard to say
exactly what you would do when you’re not in the situation. I
would have — I would never know exactly what I would do until
I’m put in that situation. So, yeah, I would have doubts.” The
prosecutor then explained that in the penalty phase, the court
will provide an instruction listing mitigating and aggravating
factors to consider and “essentially if you find the aggravating
factors outweigh the mitigating factors, then death is the
appropriate verdict, if you find that.” The prosecutor asked, “Do
you think that — can you say for sure, I guess is my question,
that if placed in that position with the aggravating factors
weighing more heavily, could you personally make the vote?”
She responded, “I know, I know what you’re looking for, and I’m
sorry. I can’t help you with it, because I don’t know, because
there have been too many — I’m 39, and there have been too
many times that I’ve said I’d never do this, or I’d always do that,
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and then I’ve done the other. So, I just cannot tell you, unless
I’m placed in that situation, unless I’ve gone through it. . . . I
just don’t make judgments until I’m in that situation. I just
don’t.” Seeking to clarify her answer, the prosecutor asked if she
found the aggravating factors weigh heavier than the mitigating
factors, “you can’t guarantee me that you could step up to the
plate, so to speak, and make a vote for death?” She repeated, “I
can’t guarantee anything. I don’t deal in hypotheticals, and I
just — no, I cannot guarantee you what I would do until I am in
that situation, no.”
Defense counsel subsequently explained, “[T]he Court at
the end always gives instructions to jurors about what the law
is, and how they’re supposed to carry out their duties. . . . And
in a death penalty case, there are certain things that the law
allows jurors to consider in deciding whether to select death or
life, assuming you were in that position. They’re called
aggravating factors, mitigating factors.” Defense counsel then
asked, “if you’re selected and sworn as a juror, could you commit
yourself under oath to follow what the Judge told you the law
was? Or do you think there’s something else that might
interfere with your ability to do that?” She responded, “I don’t
think there’s anything that would interfere with my ability. And
I can’t tell you, and I don’t know if I could follow the law. There’s
— I’m — there’s just a good chance that I would or I wouldn’t.
You’re going to have to pick me and have me sit here and see,
because I just don’t know.”
At the close of this questioning, the prosecutor challenged
her for cause. The trial court initially stated, “She technically
comes within the Wainwright [v.] Witt standard. She’s not
saying her views are such that it would substantially interfere
with her ability to follow the instructions and her duty, she just
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says she doesn’t know, because it’s such an emotional issue.”
Citing two cases, the prosecutor argued that jurors who insist
they do not know or cannot say if they could impose a death
sentence are properly excused. Defense counsel responded that
Number 44 did not say that she could not or would never impose
a death sentence; “[s]he just felt that she didn’t know under
what circumstances.” The trial court commented, “She was
probably an extremely honest juror who really couldn’t give us
a definite answer,” and took the challenge under submission.
Later, after reviewing the record and the authority cited
by the prosecutor, the trial court found, “[M]y memory is
refreshed that her answers basically were that she could not say
whether she would be able to impose the death penalty, and it
was not just that she didn’t know whether in this case she could
impose the death penalty, because obviously she wouldn’t know
until she got — she heard the evidence and the law. But in any
situation, basically, she didn’t know until she was put in that
situation whether she could do it, or whether she could follow
the Court’s instructions in this area. . . . I would agree with [the
prosecutor] that that’s sufficiently equivocal. Her ‘I don’t know’
responses are sufficiently equivocal to warrant a challenge for
cause, so I will order that she be excused.”
The trial court did not err in excusing Number 44.
Number 44 said in her questionnaire and during Hovey
questioning that she did not know whether she could vote for a
death sentence. Certainly, a juror’s decision as to whether to
vote for a death sentence can be weighty and difficult. “[E]ven
a juror who ‘might find it very difficult to vote to impose the
death penalty’ is not necessarily substantially impaired unless
he or she was unwilling or unable to follow the court’s
instructions in determining the appropriate penalty.” (People v.
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Merriman (2014) 60 Cal.4th 1, 53 (Merriman).) Number 44,
however, did not merely express uncertainty as to “her own
views on the death penalty or the appropriateness of the death
penalty in any particular case, but as to her ability to impose a
death sentence.” (Wall, supra, 3 Cal.5th at p. 1063.) When
asked in her questionnaire whether her feelings about the death
penalty were such that she would never be able to vote for a
death sentence, she wrote, “I don’t know — I’ve done a few
things I thought I would never do.” She repeated during Hovey
questioning that she did not know whether she could vote for a
death sentence. (See Wall, supra, 3 Cal.5th at p. 1062
[upholding the excusal of a prospective juror who “expressed
hesitation about her ability to impose a death verdict” and “[i]n
response to repeated questions by the trial court and the
prosecutor as to whether she had the ability to impose the death
penalty . . . said she did not know if she did”].)
Number 44 further expressed uncertainty as to her ability
to follow the trial court’s instructions regarding the
consideration of aggravating and mitigating factors in deciding
whether to impose a death sentence. Although she said in her
questionnaire that she was willing to weigh and consider all the
aggravating and mitigating factors before deciding the penalty
in this case, she then responded to a similar question during
Hovey questioning by saying, “I don’t know if I could follow the
law. There’s — I’m — there’s just a good chance that I would or
I wouldn’t. You’re going to have to pick me and have me sit here
and see, because I just don’t know.” “Given the juror’s own
recognition that [she] did not know whether [she] could follow
the law or ever vote for the death sentence, the trial court did
not commit Witherspoon/Witt error when it found the juror was
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substantially impaired.” (People v. Spencer (2018)
5 Cal.5th 642, 659.)
Nevertheless, defendant compares Number 44 to Juror
White in the high court’s Adams opinion and argues that
Number 44’s responses were insufficient to justify her excusal.
“But using Adams as a reference point for evaluating the excusal
of [Number 44] is inapt because Adams concerned the particular
statutory scheme in Texas, whereby ‘ “[p]rospective jurors shall
be informed that a sentence of life imprisonment or death is
mandatory on conviction of a capital felony. A prospective juror
shall be disqualified from serving as a juror unless he states
under oath that the mandatory penalty of death or
imprisonment for life will not affect his deliberations on any
issue of fact.” ’ [Citation.] As the Adams court explained, the
statutory scheme is inconsistent with the standard demanded
by the federal Constitution because ‘neither nervousness,
emotional involvement, nor inability to deny or confirm any
effect whatsoever is equivalent to an unwillingness or an
inability on the part of the jurors to follow the court’s
instructions and obey their oaths, regardless of their feelings
about the death penalty.’ ” (People v. Thompson (2016)
1 Cal.5th 1043, 1068.) Moreover, unlike Juror White and others
who were improperly excluded under this statutory scheme
“only because they were unable positively to state whether or
not their deliberations would in any way be ‘affected’ ” (Adams,
supra, 448 U.S. at p. 50; id. at p. 50, fn. 8), Number 44 was not
merely “unable positively to state whether or not [her]
deliberations would in any way be ‘affected,’ ” (id. at p. 50) but
rather, she did not know whether she would be able to follow the
court’s instructions in a death penalty case or vote for a death
sentence.
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Defendant additionally compares Number 44 to Juror
Bounds in the high court’s Gray opinion. “Although the voir dire
of member Bounds was somewhat confused, she ultimately
stated that she could consider the death penalty in an
appropriate case and the judge concluded that Bounds was
capable of voting to impose it.” (Gray, supra, 481 U.S. at p. 653.)
After further discussion, the judge, however, excused Bounds for
cause. (Id. at p. 655.) The state court agreed that Bounds was
“ ‘clearly qualified to be seated as a juror’ ” but concluded that
excusing Bounds was harmless error. (Id. at p. 657.) The issue
subsequently addressed by the high court “was not the standard
for excusing a juror for cause, but whether the erroneous excusal
of a juror for cause was subject to a harmless error test.” (Moon,
supra, 37 Cal.4th at p. 14.) We find the comparison between
Juror Bounds and Number 44 to be inapposite. Unlike Juror
Bounds, Number 44 did not confirm “that she could consider the
death penalty in an appropriate case,” and the trial court did not
conclude that she “was capable of voting to impose it;” rather,
the trial court found that Number 44 “could not say whether she
would be able to impose the death penalty.”17
In short, we decline to find error in the trial court’s
decision to excuse Number 44 for cause.
2. Prospective Juror No. 63
Prospective Juror No. 63 (Number 63) did not reveal much
hesitation regarding the death penalty in his questionnaire
17
Defendant repeats these comparisons in arguing that
Prospective Juror No. 63’s responses were insufficient to justify
his excusal. Those comparisons fare no better.
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responses, but he neglected to answer several questions on the
topic.18 He said that he did not have any moral, philosophical,
or religious objection to the death penalty and that he believed
the death penalty was fair, noting in part, “If you kill you be
killed.” He said that his feelings about the death penalty were
not “such that [he] would refuse to find the defendant guilty of
first degree murder and/or would refuse to find the special
circumstance true, solely to avoid having to make a decision on
the death penalty;” that his feelings about the death penalty
were not “such that [he] would never be able to personally vote
for the death of the defendant under any circumstances” and
“would always vote for a sentence of life without [the] possibility
of parole;” and that he would not be reluctant to sign the verdict
form for a death sentence or state that verdict in court.
Inexplicably, however, he failed to respond to several other
questions, including, among others, what his general feelings
were about the death penalty, what he believed to be the
purpose of the death penalty, whether the death penalty was
used too often or too seldom, and whether he would vote to keep
or abolish the death penalty. Nor did he identify which one of
five defined groups most accurately described his opinion
regarding the death penalty.
Separately, and without explanation, he checked “no”
when asked whether he thought he could be a fair and impartial
juror in this case and when asked whether he was “willing to
18
Regarding the questionnaire’s introductory paragraphs
about the death penalty, he checked “no” when asked to
acknowledge that he read and understood those paragraphs. It
is not apparent from the record whether he indeed failed to read
or understand those paragraphs or simply checked “no” due to
inadvertence.
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weigh and consider all the aggravating and mitigating factors
that will be presented to [him] before deciding the penalty in
this case.”
During Hovey questioning, Number 63 said that he did not
have strong feelings about the death penalty, but that he would
not feel comfortable voting for a death sentence and that he
would be reluctant to do so. The prosecutor asked, “Do you think
your feelings about that might affect the way you judge the guilt
or innocence of the defendant?” He said, “It might.” The
prosecutor then asked, “Do you think that your feelings might
also affect the way you look at the Court’s instructions about the
death penalty?” He again said, “It might.” He also confirmed
that sitting on this type of case might be difficult for him based
on his feelings.
The defense subsequently asked, “[D]o your feelings about
the death penalty, are they based on a religious or ethical thing,
or is it just your own personal feelings about it?” Number 63
responded, “You could say both.” The defense then asked, “If
you were to be asked to judge which penalty to impose, and the
Court gave you what the rules are, here’s how you decide. You
look at all the aggravating factors, and they are 1, 2, 3, 4, 5. You
look at all the mitigating factors, 5, 6, 7, 8, 9. Whatever they
are. You decide whether the aggravating factors weigh more
than the mitigating factors. If they do, then you vote for death.
If they don’t, you vote for life without possibility of parole.
[¶] Would you be able to follow that instruction?” Number 63
responded, “I don’t know.” The defense asked, “What gives you
— what is your concern about following that instruction?”
Number 63 responded, “The way I feel.” To clarify, the defense
asked, “Which is that you wouldn’t want to vote for death?”
Number 63 responded, “Nope.” Again seeking to clarify, the
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defense asked, “No, you wouldn’t want to vote for death?”
Number 63 responded, “I don’t think so. I’m saying, no, I’m not,
but I don’t think so.”
The prosecutor challenged Number 63 for cause “based on
his answers,” and the defense said, “Submit it.” The trial court
excused Number 63 for cause.
“Jurors are not required to like the law, but they are
required to follow it.” (Armstrong, supra, 6 Cal.5th at p. 750.)
“[S]o long as prospective jurors can obey the court’s instructions
and determine whether death is appropriate based on a sincere
consideration of aggravating and mitigating circumstances,
they are not ineligible to serve.” (Ibid.) “A jury candidate who
will not, or cannot, follow a statutory framework, is not qualified
to serve.” (Ibid.)
Here, Number 63 said in his questionnaire that he did not
have any moral, philosophical, or religious objection to the death
penalty, his feelings were not such that he “would never be able
to personally vote for the death of the defendant under any
circumstances,” and he would not be reluctant to sign the verdict
form for a death sentence or state that verdict in court. But he
said during Hovey questioning that his feelings about the death
penalty were based both on “a religious or ethical thing . . . and
[his] own personal feelings,” he “[didn’t] think” he wanted to vote
for a death sentence, and he would be reluctant and not feel
comfortable doing so.
As with Number 44, a generalized recognition that it
would be difficult to impose a death sentence does not mean that
a juror is necessarily substantially impaired. (See Merriman,
supra, 60 Cal.4th at p. 53.) But Number 63 said more. He
indicated in his questionnaire that he was not “willing to weigh
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Opinion of the Court by Groban, J.
and consider all the aggravating and mitigating factors that will
be presented to [him] before deciding the penalty in this case.”
And when asked during Hovey questioning whether he would be
able to follow the court’s instruction regarding considering and
weighing the aggravating and mitigating factors, he said that
he “[didn’t] know” due to “[t]he way [he] feel[s].”19
“ ‘[A prospective] juror’s inability to set aside his or her
personal views and follow the law, need not be demonstrated
with unmistakable clarity.’ ” (People v. Jones, supra, 3 Cal.5th
at p. 615.) Here, Number 63’s written and oral responses could
have left the trial court with “the definite impression that [he]
would be unable to faithfully and impartially apply the law.”
(Wainwright v. Witt, supra, 469 U.S. at p. 426.) That defense
counsel merely submitted the question to the trial court20
further “suggest[s] counsel concurred in the assessment that the
juror was excusable.” (People v. Cleveland, supra, 32 Cal.4th at
p. 735; cf. Witt, supra, 469 U.S. at p. 435 [where counsel did not
question the juror or object to the trial court’s excusing her for
cause, “it seems that at the time [the juror] was excused no one
19
Defendant notes that Number 63 was not directly “asked
if he would be willing to set aside whatever personal views he
had and follow the law given to him by the court.” “We agree
that the better practice is to ask such a question. But the focus
of our review is whether there is substantial evidence to support
a conclusion that the juror would not be able to set aside his or
her personal feelings and follow the trial court’s instructions
concerning the imposition of the death penalty.” (People v. Jones
(2017) 3 Cal.5th 583, 616.)
20
We have since held that similar statements do not suffice
to preserve this objection on appeal. (People v. McKinnon (2011)
52 Cal.4th 610, 643.) But this rule does not apply retroactively
here. (People v. Cleveland (2004) 32 Cal.4th 704, 734–735.)
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in the courtroom questioned the fact that her beliefs prevented
her from sitting. The reasons for this, although not crystal clear
from the printed record, may well have been readily apparent to
those viewing [the juror] as she answered the questions”].) After
giving appropriate deference to the trial court’s determination
regarding Number 63’s state of mind, we find substantial
evidence supports the trial court’s ruling and conclude that the
court did not err in excusing Number 63.
C. Standard for Excusing Prospective Jurors for
Cause
Defendant challenges the standard for excusing
prospective jurors based on their views of the death penalty.
“ ‘Under the applicable state and federal constitutional
provisions, prospective jurors may be excused for cause if their
views would prevent or substantially impair the performance of
their duties.’ ” (People v. Gonzalez (2012) 54 Cal.4th 1234,
1284–1285.) We recently declined an invitation to revisit this
standard and do so again here. (See People v. Rices (2017)
4 Cal.5th 49, 79–80 (Rices).)
III. GUILT PHASE ISSUES
A. Denial of Defendant’s Motion to Suppress
Pursuant to a search warrant, the police collected, among
other items, a sample of defendant’s blood and the note from his
truck. Before trial, defendant moved to suppress this evidence.
The trial court denied his motion. Defendant contends the court
erred because the search warrant affidavit contained
misrepresentations and omissions that were intentionally false
or made in reckless disregard for the truth. The trial court did
not err.
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1. Background
On June 16, 1992, the police received a report that a “black
male wearing a white T-shirt armed with a small handgun” had
just committed a robbery and rape at a nearby office building in
Torrance. (See ante, pt. I.B.1.a.v.) Within minutes of the report,
and in the general vicinity from which the suspect may have
attempted to flee, two officers spotted defendant in his truck,
appearing very nervous and matching the suspect’s general
description. The officers unsuccessfully attempted to stop
defendant, a chase ensued, and the officers shot and arrested
him. Once Detective Lore learned about the arrest, he sought a
warrant to search defendant, his residences, and his vehicle.
a. Detective Lore’s affidavit in support of the
search warrant
Detective Lore’s 11-page affidavit, dated June 18, 1992,
began by describing Willem’s death in Rialto and its apparent
connection to other, similar rapes and robberies committed
throughout San Bernardino and Riverside Counties. He
described two such similar incidents: the Christine C. incident
in Victorville and the Osburn and Carole D. incident in San
Bernardino. In both incidents, the suspect bound the victims
with telephone receiver cords. In the Christine C. incident, “a
suspect was described as a tall Black male adult, late 20’s to
early 30’s, armed with a small caliber handgun,” and in the
Osburn and Carole D. incident, the description of the suspect
“matched the description of the suspect in the Victorville crime.”
Forensic specialist David Stockwell performed a chemical
analysis for the three incidents and concluded that “the same
suspect that committed the homicide/rape in the Rialto [sic],
committed the rape in Victorville, [and] was also responsible for
the robbery/rape in the City of San Bernardino.” Based on
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Stockwell’s analysis, “the subject that was sought after in these
series of crimes, is believed to be a Black male that is an ABO
type, AB secretor.”
Detective Lore next summarized a series of similar
robberies. “The robberies included professional business suites
in the late evening hours on Mondays, Tuesdays and
Wednesdays, very similar to that of the time of the rapes
mentioned previously. The robberies also included a male Black
that matched the physical description of the one that was
described in two of the rape incidents. The subject was armed
with a small caliber semi-automatic handgun at the time of
these robberies. During some of the robberies, the victims were
bound with telephone receiver cords. During the follow-up
interviews with the victims in these cases, it was revealed that
in most of the cases the suspect had made some specific
comments. The most prevalent being, ‘Don’t look at me.’ ”
Elaborating with respect to a related robbery, Detective
Lore said that Arnold and Sharyn Andersen were working at
their business when they were “confronted by a tall Black male
adult, armed with a small caliber handgun.” “The suspect made
both victims lie on the floor. The subject robbed the victims of
approximately $1,600.00 in cash and fled out the same door
where he had forced entry.” Detective Lore continued, “The
investigation by San Bernardino Police Department revealed
that the suspect smashed out a small window over the locking
area of the door, which led into the rear portion of the business
suite. When doing this, the suspect cut himself on the glass and
had grabbed a box of Kleenex that was sitting on a counter near
the back door to stop some of the bleeding. The Kleenex box was
collected and linked to the suspect.”
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Detective Lore then noted that four robberies in Riverside
“had similar suspect descriptions.” The San Bernardino County
Sheriff’s Department also created a sketch of the suspect, which
“seemed to be the consensus of most of the victims that saw the
suspect during the robberies.”
Next, Detective Lore explained that in June 1992, he
learned that the Torrance Police Department had arrested
defendant for committing a robbery and rape, during which “the
suspect tied both victims with telephone receiver cords, had a
chrome handgun, spoke very softly in a calm voice, and had
made vaginal penetration with his finger and penis from behind.
The suspect also said to the victims, ‘Where is the money’ and
‘Don’t look at me.’ ” According to Detective Lore, “All of the
above M.O. traits are consistent with the crimes in the Inland
Empire from January through March of 1992.”
Detective Lore then proceeded to describe defendant.
According to the Torrance Police Department, he has AB
positive blood, which “is the same type of blood that the suspect
in the Rialto homicide and the two other rapes in Victorville and
San Bernardino [has].” He “is further described as being very
clean with virtually no body fat. The physical description
provided by his California Driver’s License is 6’6”, 210#, Black
hair and brown eyes.” “Mr. Miles criminal history from the
State of California [citation] describes him also as being a Black
male, 6’5”, 200#.” In addition, Detective Lore listed his
residences, noting that he listed with the DMV an address in
Compton as of March 23, 1992 and that the “crime spree stopped
in the Inland Empire on 3/8/92, before the suspect moved to
Compton, CA.” Detective Lore concluded, “[b]ased on my
experience as being a policeman for approximately 20 years, Mr.
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Miles displays the physical characteristics as described by the
majority of the victims in these cases.”
Detective Lore added, “A photographic line-up with the
suspect’s photograph in position #2 was tentatively I.D.’d by
victim Heynen, one of the victim’s [sic] in the Upland robbery
which occurred on 1/21/92. The victim pointed to position #2
(suspect Miles) and said, ‘It could be him.’ ”
Near the end of the affidavit, Detective Lore summarized,
“With the exception of the homicide, the suspect in each crime
is described as articulate and soft spoken. Witnesses to the
robberies described the suspect as being Black male adult, 25-35
years, 6’-6’4”, thin build, large dark eyes, dark hair, wearing a
dark blue or black watch cap, dark blue or black Levi type pants,
an[d] at times was described as having a thin moustache.
Information derived from his driver’s license history, criminal
history and booking information reveals his physical description
of 6’6”, 210#, black hair and brown eyes.” Detective Lore
believed evidence from these crimes would be located during
searches of defendant, his residences, and his vehicle and listed
the items sought and described the places and person to be
searched. Judge Gunn issued the warrant.
On appeal, defendant contends that the affidavit
contained misrepresentations and omissions regarding the
Kleenex box, Heynen’s identification, and the suspect
descriptions. Before trial, Detective Lore testified regarding his
affidavit, the search warrant, and the searches conducted
pursuant to the warrant. As to the three purported
misrepresentations or omissions challenged on appeal, he
testified as follows.
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First, Detective Lore testified twice about the Kleenex box
statement. Initially, the defense elicited the following
testimony: “Q. Then you state the Kleenex box was linked to the
suspect; is that correct? A. Yes, sir. Q. In what way was the
Kleenex box linked to Mr. Miles? A. It was sent to the San
Bernardino Crime Lab, but unfortunately the box had been
wiped off, and there was nothing of use taken from the box.
Q. The purpose of that statement was to assert to the
Magistrate, again as a basis for probable cause, that somehow
or another there was a scientific link that had been made
between the substance on that box and Mr. Miles; is that
correct? A. Yes, sir. Q. And that wasn’t true, was it? A. No, sir.”
The prosecutor subsequently recalled Detective Lore to
testify about this statement again. At this time, the prosecutor
asked whether there were some things in his affidavit “which
ultimately were found not to be correct” including “a Kleenex
box alleged to have been analyzed and linked to the defendant
through scientific evidence.” Detective Lore replied, “Yes.”
Asked whether he was aware that this statement was not true
at the time of his affidavit, Detective Lore replied, “No.” Asked
whether he intentionally made this statement with the intent to
deceive the magistrate judge, Detective Lore again replied, “No.”
Asked to explain why he included this statement, he testified,
“It was my belief at the time that [the] San Bernardino Police
Department had collected the Kleenex box, along with the blood
stained Kleenexes, that were placed into evidence and they were
going to be shipped to the Crime Lab.” He was not sure whether
at the time of the affidavit, he anticipated that the items “were
going to go [to the lab], or that they were already there.” He
acknowledged, though, that at the time of the affidavit, he did
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not have information that the box had been analyzed or that any
comparison had been made.
Second, Detective Lore testified that Heynen had
identified another individual during an earlier photographic
lineup, but he did not include this information in his affidavit.
He said that he orally informed the magistrate judge that he had
sought and obtained search warrants with regard to other
suspects in this case and that the warrant sought here was
“either the fourth or fifth search warrant” sought in this case.
Third, Detective Lore testified that the suspect
descriptions in his affidavit were based on the ATM photographs
captured after Willem’s death, police reports, and victim
interviews. Regarding the ATM photographs, he explained that
he had visited the same ATM camera, and by comparing himself
to the photographed suspect, he had estimated that the suspect
was approximately six feet, five inches tall or six feet, six inches
tall. As to the police reports, the defense pressed Detective Lore,
asking him to confirm the height and weight descriptions
reported by the victims.21 When the defense asked whether any
21
During this line of questioning, Detective Lore confirmed
the following: the Christine C. police report described the
suspect as “Male — or black male. 25 to 27. 6 feet 1. 150
[pounds]”; the Osburn and Carole D. police report described the
suspect as “6 feet. 150 to 160 pounds. I believe it’s brown hair.
Brown eyes. And skin was medium”; the Yenerall police report
described the suspect as “Male black. 30’s. 6 feet. Weight was
medium”; the Heynen police report described the suspect as
“Black male. Brown eyes. Height was 6 feet 1. Weight was 180
pounds”; the Kendrick and Crawfords police report described
the suspect as “25 years. Black male. Hair was black. Eyes
were black. Height was 6’4”. Weight was 160”; and the
Andersens police report described the suspect as “male black.
20’s. 6 feet. 170 [pounds].”
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of the victims described the suspect as six feet, six inches tall,
Detective Lore testified that when he interviewed Arnold, he
“said around 6’6”,” explaining that “[Arnold] was 6’4”, and that
he actually had to look up to the suspect.”
Asked by the defense whether he meant to imply “that
basically all of these people had similar descriptions” by stating
that the robberies “included a male black that matched the
physical description” of the Christine C. and Osburn and Carole
D. suspect, Detective Lore replied affirmatively. The defense
then asked whether, in his opinion, someone who is six feet, 150
pounds “matches” defendant’s height and weight. Detective
Lore replied, “After 25 years of law enforcement, you begin to
realize that people are not very good with heights and weights.”
When the prosecutor subsequently questioned Detective Lore,
he confirmed that by the word “matched,” he did not mean to
suggest that each victim’s suspect description exactly mirrored
defendant’s height and weight. Rather, he meant that “[t]he
descriptions given by the different witnesses and victims in this
case, [were] within a couple of pounds or a couple of inches. And
when I say a couple of pounds, 10, 20, 30.” He also confirmed
that he included defendant’s height and weight in the affidavit
to make the magistrate aware that discrepancies existed.
b. Trial court’s ruling
The trial court evaluated defendant’s contentions with
respect to each of the three purported misrepresentations or
omissions challenged on appeal.
First, regarding the Kleenex box statement, the trial court
reasoned that it could be interpreted in one of two ways. The
first possible interpretation was that the “blood on the box had
been scientifically matched to the suspect’s blood. In this case,
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Mr. Miles.” By this interpretation, the statement would be false
because no testing had in fact been done. “Had the affiant
known this at the time that he prepared the affidavit, there
would be no question that he made a knowingly and
intentionally false statement; and at the very least, he made a
statement with a reckless disregard for the truth since he had
no information that was the case.” The second possible
interpretation was “that the box being linked to the suspect
merely meant that the authorities collected the evidence, [and]
believed the blood on the box was that of the suspect when he
forced entry into the building.” Or put differently, the affiant at
the time that he prepared the affidavit “believed there was a
Kleenex box with blood on it, possibly the suspect’s blood; and
that box was taken into evidence to be analyzed. He did not
mean to suggest that the analysis had been done and that the
blood on the box was that of Mr. Miles.”
The trial court found that this second interpretation was
consistent with the surrounding facts in the affidavit and was
consistent with Detective Lore’s testimony, in which he
explained that he had later learned the Kleenex box could not
be analyzed because it had been wiped off. The trial court
concluded, “[b]ased on the Court’s reading of the affidavit, and
having heard the affiant testify on both occasions as to his
intentions in including that information, the Court cannot say
that he knowingly and deliberately included false information
for the purpose of deceiving the Magistrate, nor can the Court
find a reckless disregard for the truth on [the] affiant’s part. At
most, the Court would find a negligent mistake in drafting the
affidavit in such a way that a Magistrate could mistakenly
assume there was a scientific link, or failing to include the
information that the box was to be analyzed later.”
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Further, the trial court found that even if the Kleenex box
statement were omitted from the affidavit, the affidavit would
nevertheless establish probable cause. “The affidavit contained
substantial information that the same person likely committed
the Willem, [Christine C.], [Carole D.]/Osburn crimes, including
serological evidence. There was also information presented that
Miles has the same blood type as that found at the Willem crime
scene. And finally, there was information that Miles was
arrested as a suspect in a similar robbery/rape in Torrance.”
Second, as to the purported omission of Heynen’s earlier
identification, the trial court found, “The identification by Miss
Heynen is, at the very least, equivocal and falls short of a
positive identification. I can assume that the Magistrate came
to the same conclusion, and that the additional information
would not have led to a different result or have added anything
of substance to the affidavit.”
Third, regarding the suspect descriptions, the trial court
“[did] not find this information to be misleading or false, and
[did] not find that defendant ha[d] met his initial burden of
showing a knowing or intentionally false statement, or reckless
disregard for the truth.”
Finally, the trial court found that “the affiant and the
executing officers had an objective good faith reliance on the
warrant, and the good faith exception to the exclusionary rule
would apply in this case.”
2. Discussion
“ ‘In reviewing a search conducted pursuant to a warrant,
an appellate court inquires “whether the magistrate had a
substantial basis for concluding a fair probability existed that a
search would uncover wrongdoing.” [Citation.] “The task of the
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issuing magistrate is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the
affidavit before him [or her], including the ‘veracity’ and ‘basis
of knowledge’ of persons supplying hearsay information, there
is a fair probability that contraband or evidence of a crime will
be found in a particular place.” [Citation.] The magistrate’s
determination of probable cause is entitled to deferential review.
[Citation.]’ [Citation.] Probable cause sufficient for issuance of
a warrant requires a showing in the supporting affidavit that
makes it substantially probable that there is specific property
lawfully subject to seizure presently located in the particular
place for which the warrant is sought.” (People v. Scott (2011)
52 Cal.4th 452, 483 (Scott).)
“A defendant has a limited right to challenge the veracity
of statements contained in an affidavit of probable cause made
in support of the issuance of a search warrant. The trial court
must conduct an evidentiary hearing only if a defendant makes
a substantial showing that (1) the affidavit contains statements
that are deliberately false or were made in reckless disregard of
the truth, and (2) the affidavit’s remaining contents, after the
false statements are excised, are insufficient to support a
finding of probable cause. Innocent or negligent
misrepresentations will not support a motion to traverse.
[Citations.] A defendant who challenges a search warrant based
on omissions in the affidavit bears the burden of showing an
intentional or reckless omission of material information that,
when added to the affidavit, renders it insufficient to support a
finding of probable cause. [Citations.] In either setting, the
defendant must make his showing by a preponderance of the
evidence, and the affidavit is presumed valid.” (Scott, supra,
52 Cal.4th at p. 484.)
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On appeal, “[w]e defer to the trial court’s express and
implied factual findings if supported by substantial evidence,
but we independently determine the legality of the search under
the Fourth Amendment.” (People v. Eubanks (2011)
53 Cal.4th 110, 133.) We consider each of defendant’s
contentions in turn.
First, the trial court’s reading of the Kleenex box
statement to mean “that the authorities collected the evidence,
[and] believed the blood on the box was that of the suspect when
he forced entry into the building” (but not to suggest “that the
analysis had been done and that the blood on the box was that
of Mr. Miles”) is supported by the record. Indeed, the affidavit’s
first several pages detailed the series of robberies and rapes,
referring throughout to the “suspect” or the “subject” of those
crimes, and made no mention of defendant or his arrest.
Reading this statement’s reference to the “suspect” of the
Andersens crime to mean defendant is thus strained, as the trial
court found.
That said, Detective Lore’s testimony about his own
statement necessarily complicates the analysis. At one point,
Detective Lore confirmed that the purpose of his statement was
to assert that there was a “scientific link” between the Kleenex
box and defendant. When later questioned by the prosecutor,
however, Detective Lore said that he believed only that the “San
Bernardino Police Department had collected the Kleenex box,
along with the blood stained Kleenexes, that were placed into
evidence and they were going to be shipped to the Crime Lab.”
He also confirmed that at the time of his statement, he was not
aware that the statement was untrue, and he did not make it
with the intent to deceive the magistrate judge. Faced with this
inconsistent testimony, and with the opportunity to assess
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Detective Lore’s demeanor and credibility, the trial court found
that his statement was not intentionally false or made with a
reckless disregard for the truth. Though the testimony is less
than clear, there was certainly substantial evidence to support
the trial court’s finding. (See People v. Troyer (2011)
51 Cal.4th 599, 613 [“on appeal from the denial of a motion to
suppress, we are bound by the trial court’s resolution of disputed
facts and inferences as well as its evaluations of credibility . . .
where (as here) the findings are supported by substantial
evidence”].) Simply put, the trial court was entitled to credit
Detective Lore’s clarification that he meant to convey in his
affidavit that the Kleenex evidence was merely being shipped to
the crime lab and that he in no way intended to deceive the
magistrate.
In any event, even assuming that this statement was
intentionally false or made with a reckless disregard for the
truth, and accordingly was excised from the affidavit, the
affidavit would nevertheless establish probable cause. The
affidavit catalogued the similarities among the series of rapes
and robberies, including that the crimes occurred on weekday
evenings at professional offices, that several of the victims were
bound with telephone cords, and that the suspect was described
as a tall, Black man who was armed. In addition, the affidavit
described the consistencies between these incidents and the
rape and robbery for which defendant was arrested and
described defendant as a tall, Black man with AB blood, which
was consistent with the suspect descriptions and the forensic
analysis.
Second, we turn to the affidavit’s statement about
Heynen’s lineup identification. The affidavit stated that
Heynen “tentatively” identified defendant in a photographic
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lineup by saying “ ‘It could be him.’ ” Although the affidavit did
not state that Heynen had identified another individual during
an earlier photographic lineup, Detective Lore testified that he
orally informed the magistrate judge about prior warrants
obtained during the investigation for other suspects. It is
conceivable that overstating the certainty of identifications
made by victims or selectively including details about such
identifications may be substantially misleading in some
circumstances. But here, the affidavit described Heynen’s
identification of defendant as tentative and quoted her equivocal
statement that “ ‘It could be him.’ ” The omitted fact of Heynen’s
earlier identification, when added to the affidavit, does not
render the affidavit insufficient to support a finding of probable
cause. As described above, the affidavit contained ample
information to establish probable cause, including but not
limited to the similarities among the series of rapes and
robberies and the consistencies between these incidents and the
rape and robbery for which defendant was arrested.22
Finally, substantial evidence supports the trial court’s
finding as to defendant’s third contention regarding the suspect
descriptions. The affidavit plainly stated the range of the
suspect’s height as described by the victims, and in the
immediately following sentence, set forth defendant’s actual
height and weight. The affidavit therefore made clear the
discrepancies between the suspect descriptions and defendant’s
22
To the extent that defendant challenges any related
omission concerning earlier suspects in the investigation, “[t]he
fact that law enforcement had investigated other leads had no
bearing on whether probable cause existed to issue the warrant
to search [the defendant’s] home and car.” (People v. Sandoval
(2015) 62 Cal.4th 394, 408.)
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characteristics, as Detective Lore testified he intended to do.
Considering this, the fact that he elsewhere in his affidavit
summarized the suspect descriptions as similar or matching
does not show that he made a false statement, much less made
a false statement with an intent to deceive or a reckless
disregard for the truth. Similarly, his opinion that, based on his
experience as a policeman, “Mr. Miles displays the physical
characteristics as described by the majority of the victims in
these cases” does not amount to an intentional or reckless
falsehood, particularly since he testified that his experience as
a policeman indeed taught him that victims were not always
accurate in describing suspects. Nor do we find an intentional
or reckless omission of material information regarding the
suspect descriptions that, when added to the affidavit, renders
the affidavit insufficient to establish probable cause.23
For these reasons, the trial court did not err.
B. Instruction Regarding Motive
Pursuant to CALJIC No. 2.51, the jury was instructed as
follows: “Motive is not an element of the crime charged and need
not be shown. However, you may consider motive or lack of
motive as a circumstance in this case. Presence of motive may
23
Defendant also claims that Detective Lore previously
detailed these suspect descriptions in earlier affidavits for two
other suspects in the investigation and that Detective Lore’s
inconsistent approach regarding the suspect descriptions within
those affidavits and the affidavit here evidenced a lack of good
faith in the affidavit here. But how Detective Lore presented
the suspect descriptions in earlier affidavits for two other
suspects does not alter our conclusion that the affidavit here
contained no false statement and omitted no material
information regarding the suspect descriptions.
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tend to establish the defendant is guilty. Absence of motive may
tend to show the defendant is not guilty.” Defendant contends
this instruction impermissibly lowered the prosecution’s burden
of proof for the murder by torture charge and the penetration by
a foreign object charges in violation of his federal constitutional
rights because, according to defendant, motive was “effectively”
an element of those crimes. We disagree.
1. Murder by Torture
The trial court instructed the jury that murder by torture
requires in relevant part “a willful, deliberate, and premeditated
intent to inflict extreme and prolonged pain upon a living
human being for the purpose of revenge, extortion, persuasion
or for any sadistic purpose.” Defendant argues that this
“purpose” element was effectively negated by instructing the
jury that motive was not an element of murder by torture.
We previously rejected that precise argument in People v.
Whisenhunt (2008) 44 Cal.4th 174, 218. In Whisenhunt, the
defendant argued that CALJIC No. 2.51 “had the effect of
negating the element of ‘sadistic purpose’ in the first degree
murder by torture instruction, CALJIC No. 8.24.” (Whisenhunt,
at p. 218; see also id. at p. 219, fn. 11 [CALJIC No. 8.24 stated
in relevant part, “for the purpose of revenge, extortion,
persuasion or for any sadistic purpose”].) We observed that the
Court of Appeal had previously rejected that argument in People
v. Lynn (1984) 159 Cal.App.3d 715, and we concluded that Lynn
“correctly decided this issue.” (Whisenhunt, at p. 218.) We
explained, “ ‘[A]lthough malice and certain intents and purposes
are elements of the crimes, . . . motive is not an element.’
[Citation.] ‘Motive describes the reason a person chooses to
commit a crime. The reason, however, is different from a
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required mental state such as intent or malice.’ ” (Ibid.) We see
no reason to depart from Whisenhunt here.
Nor does defendant’s reliance on People v. Maurer (1995)
32 Cal.App.4th 1121, 1125 compel a departure. In Maurer, the
trial court instructed the jury that misdemeanor child
annoyance required that “ ‘[the] acts or conduct were motivated
by an unnatural or abnormal sexual interest.’ ” (Id. at p. 1125,
italics added.) The trial court additionally instructed the jury
that motive was not an element of the crime charged and need
not be shown. Reasoning that “the question whether ‘motive’ is
somehow different from ‘motivation’ or ‘motivated by’ is a
question of some academic interest but of little practical
significance,” the Court of Appeal held that the trial court erred
by not excluding this misdemeanor child annoyance charge from
the motive instruction of CALJIC No. 2.51. (Maurer, at p. 1127.)
Unlike the charge in Maurer, however, the murder by torture
charge here did not reference or require motive, or any
derivation of that term. (Cf. People v. Hillhouse (2002)
27 Cal.4th 469, 503–504 (Hillhouse) [distinguishing Maurer
where motive was not element of crime].) We find no error.
2. Penetration by a Foreign Object
The trial court instructed the jury that penetration by a
foreign object under section 289, subdivision (a) requires in
relevant part that “[t]he penetration was done with the purpose
and specific intent to cause sexual arousal, gratification or
abuse.” The trial court further instructed the jury that “the
‘specific intent to cause sexual abuse,’ as used in this
instruction, means a purpose to injure, hurt, cause pain or to
cause discomfort. It does not mean that the perpetrator must
be motivated by sexual gratification or arousal or have a lewd
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intent.” Here, again, defendant argues that this “purpose and
specific intent” element was effectively negated by instructing
the jury that motive was not an element of this offense.
We have made clear, however, that motive is not an
element of an offense merely because the offense requires a
particular purpose or intent. (See, e.g., Hillhouse, supra,27 Cal.4th at pp. 503–504.) Accordingly, motive was not an
element of the penetration by a foreign object charges simply by
virtue of the charges requiring a particular “purpose and specific
intent.” (Cf. People v. White (1986) 179 Cal.App.3d 193, 198,
205–206 [regarding the “ ‘purpose of sexual arousal,
gratification, or abuse’ ” requirement of former section 289,
subdivision (a), “it is the nature of the act that renders the abuse
‘sexual’ and not the motivations of the perpetrator”].) Defendant
points to no authority suggesting otherwise. We find no error.
C. Instruction Regarding Intent to Kill
Defendant contends that the jury was not properly
instructed regarding the intent-to-kill requirement of the
torture-murder special circumstance and therefore the jury’s
finding on this special circumstance violates state and federal
law and must be reversed. The trial court instructed the jury
pursuant to CALJIC No. 8.80.1 that if it found defendant guilty
of first degree murder, the jury must determine if one or more
of the following special circumstances are true: “the murder was
committed by the defendant while in the commission of, or
attempted commission of a robbery, rape or burglary; or the
murder was intentional and involved the intent to inflict
torture. . . . Unless an intent to kill is an element of a special
circumstance, if you are satisfied beyond a reasonable doubt
that the defendant actually killed a human being, you need not
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find that the defendant intended to kill in order to find the
special circumstance to be true.”
Regarding the torture-murder special circumstance, the
trial court instructed the jury pursuant to CALJIC No. 8.81.18,
over the defense’s objection: “To find that the special
circumstance, referred to in these instructions as murder
involving infliction of torture is true, each of the following facts
must be proved: [¶] 1. The murder was intentional; and; [¶] 2.
The defendant intended to inflict extreme cruel physical pain
and suffering upon a living human being for the purpose of
revenge, extortion, persuasion or for any sadistic purpose.
Awareness of pain by the deceased is not a necessary element of
torture.”
Defendant argues that CALJIC No. 8.81.18’s directive
that “[t]he murder was intentional” did not adequately instruct
the jury as to the intent-to-kill requirement of the
torture-murder special circumstance. He acknowledges that in
some cases, CALJIC No. 8.81.18 may adequately instruct the
jury as to this requirement. But he argues that where, as here,
the jury was presented with multiple theories of first degree
murder — specifically, premeditation and deliberation, torture,
and felony murder — and two of those theories did not require
an intent to kill, CALJIC No. 8.81.18’s directive that “[t]he
murder was intentional” did not necessarily require the jury to
find that defendant intended to kill but rather required the jury
simply to find that defendant intended to inflict torture or
intended to commit the crime of rape, robbery, or burglary. In
support of this argument, defendant relies on People v. Pearson
(2012) 53 Cal.4th 306 (Pearson).
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In Pearson, the trial court included torture in the list of
felonies on which the jury could base a felony-murder special
circumstance and as to which the jury needed to find only that
defendant, if not the actual killer, acted as a major participant
and with reckless indifference to human life. (Pearson, supra,
53 Cal.4th at p. 322.) This instruction “incorrectly described the
mental state element of the torture-murder special
circumstance [citation], which requires the intent to kill.” (Id.
at p. 323.) The trial court thus erred in its instructions on the
intent-to-kill requirement of the torture-murder special
circumstance.
We were unable to conclude beyond a reasonable doubt
that “the court’s instructional error, the omission of an intent-
to-kill requirement for an accomplice’s liability under the
torture-murder special circumstance, was harmless.” (Pearson,
supra, 53 Cal.4th at p. 323.) The jury’s verdict form showed “its
reliance on an aiding and abetting theory,” and the jury made
no finding “as to whether defendant aided and abetted his
accomplices’ fatal acts with the intent to kill or merely with
reckless indifference to the victim’s life.” (Ibid.) The “confusing”
language provided on the verdict form for the torture-murder
special circumstance also “[fell] short of a finding defendant
personally intended to kill.” (Id. at p. 323, fn. 7 [“ ‘that the
defendant . . . committed the murder [of the victim] was
intentional and involved the infliction of torture’ ”].) In those
circumstances, we found that CALJIC No. 8.81.18 did not
supply the missing intent-to-kill element because CALJIC
No. 8.81.18 “required the jury to find ‘[t]he murder was
intentional,’ but not necessarily to find [the aider and abettor]
personally harbored the intent to kill.” (Pearson, at p. 323.)
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Defendant’s reliance on Pearson, however, is misplaced.
Unlike in Pearson, the instructions here did not include torture
in the list of felonies on which the jury could base a
felony-murder special circumstance, or as to which the jury
needed to find only that defendant acted with reckless
indifference to human life. In addition, Pearson addressed
CALJIC No. 8.81.18 as it applied to an aider and abettor, not
the actual killer.
“In determining whether a legally inadequate theory was
conveyed to the jury here, we must ask whether there is a
‘ “reasonable likelihood” ’ that the jury understood the [relevant
theory] in a legally impermissible manner. [Citation.] In doing
so, we consider the instructions provided to the jury and
counsel’s argument to the jury.” (People v. Canizales (2019)
7 Cal.5th 591, 613; see also Hardy, supra, 5 Cal.5th at p. 97.)
The instructions here informed the jury that it need not
find that defendant intended to kill in order to find a special
circumstance to be true unless an intent to kill is an element of
the special circumstance, and that in order to find the torture-
murder special circumstance to be true, it must find that “[t]he
murder was intentional.” Where, as here, defendant was the
actual killer, CALJIC No. 8.81.18’s requirement that “[t]he
murder was intentional” adequately instructed the jury as to the
intent-to-kill requirement of the torture-murder special
circumstance. (Cf. People v. Pensinger (1991) 52 Cal.3d 1210,
1256 [“Further, defendant’s intent to kill was established by the
jury when it found the torture-murder special circumstance
true, as that allegation was that ‘[t]he murder was intentional
and involved the infliction of torture.’ ”]; accord, People v. Leach
(1985) 41 Cal.3d 92, 108, 110.) In addition, the prosecutor
correctly informed the jury that in order to find the torture-
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murder special circumstance to be true, the jury must find “an
intentional murder.”24 Accordingly, there was no error in these
circumstances.
D. Felony-Murder Special Circumstances
Defendant contends that the felony-murder special
circumstances are unconstitutional because they do not require
a finding of a culpable mental state when the defendant is the
actual killer. “We have repeatedly held that when the defendant
is the actual killer, neither intent to kill nor reckless
indifference to life is a constitutionally required element of the
felony-murder special circumstance.” (People v. Jackson (2016)
1 Cal.5th 269, 347; see People v. Watkins (2012) 55 Cal.4th 999,
1033–1034.) We decline to revisit this issue here, particularly
since the jury found for purposes of another special
circumstance that Willem’s murder was indeed intentional.
24
The prosecutor argued as follows: “Finally, we have a
fourth special circumstance. The murder was intentional.
Again, it has to be an, an intentional murder. Not an implied
malice murder like with the first degree torture theory that we
described earlier. Now we’re into the torture special
circumstance. Again, I know there’s some overlapping words
here, but to get to torture first degree murder, which is what I
discussed a minute ago. [¶] Remember, the murder, it has to be
murder, but there doesn’t have to be an intent to kill. To get to
the special circumstance first you have to find that there was an
intentional murder, and again we’ve established, through the
method of death, the method of attack, the repetitive nature,
again the strangulation, we know the murder was intentional.
There’s no issue there.”
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IV. COMPETENCY PHASE ISSUES
Admission of Defense Counsel’s Testimony
Regarding Counsel’s “Strategies and Tactics”
After the guilt phase, the trial court declared a doubt as to
defendant’s competency, suspended proceedings pursuant to
section 1368, and commenced a competency trial before a
separate jury. Defendant was appointed a different attorney
from the public defender’s office, David Negus, to represent him
in the competency trial. At the competency trial, the defense
argued that defendant was not able to rationally cooperate with
his trial counsel, Joseph Canty, and thus was not competent to
stand trial. Canty testified on behalf of the defense, and over
the defense’s objection, the prosecutor cross-examined him.
Defendant contends that the trial court erred in allowing the
prosecutor to cross-examine Canty about his “trial tactics and
motive for seeking a competency hearing” because this
testimony was irrelevant, prejudicial, and protected from
disclosure by the attorney-client privilege and attorney work
product doctrine. We examine each of defendant’s contentions
in turn.
1. Competency Trial
a. Defense evidence
Five doctors testified on behalf of the defense. Dr. Dudley
testified that defendant suffered from schizo-affective disorder
and cognitive deficits and was not able to rationally cooperate
with his counsel. Dr. Wu testified that defendant’s PET brain
scan showed abnormalities that were consistent with
schizophrenia, and Dr. Meth testified that defendant’s SPECT
brain scan showed abnormalities, which were consistent with
those shown in the PET scan. Dr. Shoba Sreenivasan, a clinical
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psychologist, testified that defendant was not able to rationally
cooperate with his counsel. Dr. Lantz testified that he
diagnosed defendant as schizophrenic undifferentiated,
determined defendant’s intelligence to be below average, and
did not believe that defendant was able to rationally cooperate
with his counsel as a result of his mental illness.
In addition to these doctors, Canty testified. Before he did,
the trial court evaluated whether he could testify without
obtaining an attorney-client privilege waiver from defendant
and to what extent the prosecutor could cross-examine him. The
trial court concluded that Canty could testify without obtaining
a waiver since it was not clear that defendant was capable of
waiving the privilege. The trial court refrained, however, from
defining the scope of permissible cross-examination at the
outset, suggesting instead that counsel request to approach the
bench should the testimony near Canty’s “strategy, motive, trial
tactics.”
Canty began his direct testimony by describing his
experience with capital cases and his relationship with
defendant. He proceeded to chronicle his concerns about
defendant’s decision-making in the case, detailing, among other
things, defendant’s refusal to consider a potential plea deal, his
desire to testify in the guilt and penalty phases, and his wish to
present no mitigating evidence during the penalty phase. Canty
testified that he did not believe defendant could rationally
cooperate with him.
On cross-examination, Canty acknowledged that his
obligation in representing defendant was to exhaust every legal
remedy that avoids the death penalty. The prosecutor then
inquired into prior occasions on which Canty had voiced
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concerns about defendant’s competency in this case. With
respect to one occasion, earlier in this case, Canty confirmed
that defendant ultimately waived his right to a competency jury
trial and that “a number of factors” went into that decision,
including a “tactical” consideration in seeking to avoid pretrial
publicity.
The prosecutor next asked whether the guilt phase jurors
were “in limbo” pending the outcome of this competency trial, to
which Canty confirmed that they were told to “potentially” come
back later that month. The prosecutor asked, “And the effect of
a finding of incompetency in this particular trial would mean
that that jury would be discharged, would it not?” Canty
responded, “That would be up to the Judge.” When the
prosecutor directed Canty’s attention to a statutory provision
(section 1368) — which, according to the prosecutor, provided
that the jury would be discharged upon a finding of
incompetency — Canty said he was not familiar with that
provision.25 The prosecutor then asked, “Well, if there is a
finding of incompetency, I’m sure you would be arguing that the
jury should be discharged, would you not?” Canty replied,
“That’s hard to know, because you have to know what the
proposed treatment plan is going to be. And I don’t know what
the Judge will feel about keeping the jury.” The prosecutor
followed up, asking, “Frequently there’s a, there’s a tactical
advantage in death penalty cases to have a second, separate jury
25
Later in his testimony, Canty acknowledged that he
subsequently reviewed the provision and that the prosecutor
had accurately recited it. Canty testified that he did not recall
the provision until the prosecutor had recited it, but
acknowledged that he previously had discussed the impact of a
finding of incompetency with his colleagues and the press.
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impaneled for the penalty phase that did not hear the guilty
phase; is that correct?”
The defense immediately asked to approach the bench.
Outside the presence of the jury, the defense stated, “It sounds
like we’re getting into Mr. Canty’s tactical decisions. I realize
thus far it’s been expressed just in the abstract, but [it would]
appear that we’re starting to focus in on it in this particular
case.” The defense objected to the line of questioning as
irrelevant and prejudicial. In response, the prosecutor
explained that he intended to show that Canty’s motive for this
competency trial was to obtain a new penalty phase jury. The
trial court took the matter under submission. It ultimately
ruled that the prosecutor could bring before the jury “this
question of motivation” for the competency trial. The trial court
instructed the prosecutor, however, that he otherwise should
probably “stay away” from asking about “what’s going on in
[Canty’s] mind.”
Back in the presence of the jury, the prosecutor returned
to his question as to whether “[f]requently it’s a defense tactic in
capital cases to seek a new jury for the penalty phase.” Canty
testified, “I can’t answer that yes or no. I would think that
depending upon the status of the case and a given case, I could
conceive that counsel might wish to have another jury handle
the penalty phase, and there would be a variety of reasons for
that.” Asked about another capital case where he had tried the
penalty phase before a jury, Canty confirmed that he had moved
for a new penalty phase jury in that case. The prosecutor’s
remaining, and relatively extensive, questioning regarded
Canty’s concerns about defendant’s decision-making in the case.
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On a brief recross-examination, Canty confirmed that in
determining defendant’s sentence, the penalty phase jury would
consider evidence it had heard during the guilt phase. In the
event of a new penalty phase jury, he explained that the
witnesses who testified in the guilt phase would either be
recalled, or counsel would stipulate as to their testimony.
Finally, the prosecutor asked whether Canty had previously told
the prosecution in this case that he may move for a new penalty
phase jury. Canty responded, “I — if I — I don’t remember
making that statement. I wouldn’t say that I didn’t. I don’t
remember saying that.” The prosecutor followed up, asking,
“It’s possible? And by that I mean, motion for a separate penalty
phase jury?” Canty responded, “Yes. If that’s — that’s the
question I’m answering, yes.” The parties subsequently
stipulated that Canty “has not made a motion for separate juries
for guilt and penalty phase in this case.”
b. Prosecution evidence
A forensic psychologist, Dr. Lee Guerra, testified that
defendant was competent to stand trial and that he suspected
defendant was malingering mental illness. A psychiatrist, Dr.
Jose Moral, likewise testified that defendant was competent to
stand trial and that he, too, suspected defendant was
malingering mental illness.26
An investigator testified that when he served defendant
with a court order for a handwriting exemplar, defendant
refused to comply. The investigator believed that defendant
understood the request but considered it to not be in his best
26
In rebuttal, the defense offered testimony from Dr. Ronald
Roston to refute portions of Dr. Moral’s testimony.
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interest to comply with it. A videotape showing defendant
watching and playing chess with other inmates in jail was also
played for the jury, and Deputy Billings testified that
defendant’s behavior on the tape was generally consistent with
his behavior in jail.27
2. Discussion
a. Whether the testimony was irrelevant and
unduly prejudicial
Only relevant evidence is admissible. (Evid. Code, § 350.)
Relevant evidence is defined as “evidence, including evidence
relevant to the credibility of a witness or hearsay declarant,
having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
27
The prosecutor’s closing argument discussed Canty’s
possible motivations for the competency trial, in approximately
two transcript pages of the total 32-page closing argument. In
relevant part, the prosecutor argued that Canty’s “role is to use
every legal means to insure [sic] that Miles escapes the death
penalty,” and reminded the jury that Canty previously moved
for a new penalty phase jury in another capital case and that a
finding of incompetence in this trial would guarantee the same
result. The prosecutor urged the jury, “make no mistake that
the competency issue is played as a tactic,” that Canty used that
tactic earlier in this case, and that “it is a tactic that gets
played.” The prosecutor later repeated, “[c]onsider that
[defendant’s] attorneys are doing the best they can and they’re
going to use every legal means so that he avoids the death
penalty.” The defense did not object during the prosecutor’s
closing argument.
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prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352.) “ ‘Prejudice,’ as used in Evidence Code
section 352, is not synonymous with ‘damaging.’ [Citation.]
Rather, it refers to evidence that uniquely tends to evoke an
emotional bias against the defendant as an individual, and has
little to do with the legal issues raised in the trial.” (People v.
McCurdy (2014) 59 Cal.4th 1063, 1095.)
“A trial court has ‘considerable discretion’ in determining
the relevance of evidence. [Citation.] Similarly, the court has
broad discretion under Evidence Code section 352 to exclude
even relevant evidence if it determines the probative value of
the evidence is substantially outweighed by its possible
prejudicial effects. [Citation.] An appellate court reviews a
court’s rulings regarding relevancy and admissibility under
Evidence Code section 352 for abuse of discretion.” (Merriman,
supra, 60 Cal.4th at p. 74.) “ ‘We will not disturb a trial court’s
exercise of discretion under Evidence Code section 352 “ ‘except
on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in
a manifest miscarriage of justice.’ ” ’ ” (People v. Mora and
Rangel (2018) 5 Cal.5th 442, 480.)
Here, defendant argues that the testimony about Canty’s
“strategy and tactics” was irrelevant and unduly prejudicial.
Defendant “recognizes that in many cases, evidence of a
testifying witness’s motivation might be useful to assessing the
credibility of the witness,” but he argues, with little explanation,
that Canty “was a sworn officer of the court [and] testifying
under penalty of perjury.” Defendant additionally argues that
“the prosecutor’s theory that Mr. Canty’s state of mind would
shed light on [defendant’s] mental health required the exact
type of speculative inference condemned by this court.” In
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response, the Attorney General argues that Canty’s testimony
was relevant both to Canty’s credibility and to show “the
potential benefits of faking incompetence” since the prosecutor
argued that defendant was faking incompetence for an ulterior
purpose.
We conclude that the trial court did not abuse its
discretion under Evidence Code section 352 when it permitted
the prosecutor to cross-examine Canty about his possible motive
for seeking a competency trial. As noted, Canty was a witness
during the competency trial and did not represent defendant for
purposes of that trial. Whether the guilt phase jury would be
discharged upon a finding of incompetence, whether there were
advantages to impaneling a new penalty phase jury, and
whether Canty previously considered seeking a new penalty
phase jury in this case is evidence relevant to his credibility as
a witness in this competency trial. (Cf. People v. Turner (2004)
34 Cal.4th 406, 430 [where “defendant’s trial attorneys were
percipient witnesses during the competency hearing,” the
prosecutor was “free to attack their credibility based on the
evidence in the record” and did not commit misconduct by
suggesting that defendant’s trial attorneys raised the
competency issue only due to “their emotional involvement in
the case”].) To be sure, we recognize the suggestion that Canty
harbored ulterior motives in testifying at the competency trial
had possible prejudicial effects. In the circumstances here,
however, we cannot say that on balance, the trial court abused
its discretion in permitting this testimony. (See People v. Dalton
(2019) 7 Cal.5th 166, 237 [“ ‘ “Evidence is substantially more
prejudicial than probative” ’ under Evidence Code section 352
‘ “if, broadly stated, it poses an intolerable ‘risk to the fairness
of the proceedings or the reliability of the outcome.’ ” ’ ”].)
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As to Canty’s testimony that he previously sought a new
penalty phase jury in another capital case, defendant did not
raise a timely and specific objection to this particular testimony.
Although we acknowledge that defendant objected to the
prosecutor’s overall efforts to show that Canty’s motive for the
competency trial was to obtain a new penalty phase jury in this
case, we find that defendant forfeited any claim of error as to
this particular testimony regarding the other capital case. Even
if we assume for the sake of argument that this portion of his
claim was preserved and admitting this testimony was error,
however, we would find any such error harmless in light of
Canty’s other, properly admitted testimony, including his
testimony that he “could conceive that counsel might wish to
have another jury handle the penalty phase, and there would be
a variety of reasons for that” and that it was “possible” that he
told the prosecution that he may move for a new penalty phase
jury in this case.
b. Whether the testimony was protected by the
attorney-client privilege and attorney work
product doctrines
The attorney-client privilege protects from forced
disclosure “a confidential communication between client and
lawyer.” (Evid. Code, § 954.) The Evidence Code defines
“confidential communication between client and lawyer” as
“information transmitted between a client and his or her lawyer
in the course of that relationship and in confidence by a means
which, so far as the client is aware, discloses the information to
no third persons other than those who are present to further the
interest of the client in the consultation or those to whom
disclosure is reasonably necessary for the transmission of the
information or the accomplishment of the purpose for which the
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lawyer is consulted, and includes a legal opinion formed and the
advice given by the lawyer in the course of that relationship.”
(Evid. Code, § 952.) The “ ‘fundamental purpose’ ” of the
attorney-client privilege is “ ‘to safeguard the confidential
relationship between clients and their attorneys so as to
promote full and [frank] discussion of the facts and tactics
surrounding individual legal matters.’ ” (Los Angeles County
Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 292.)
Defendant contends that admitting Canty’s testimony
regarding his “tactical decisions” violated the attorney-client
privilege. Canty’s challenged testimony, however, did not
violate the attorney-client privilege because it related primarily
to general legal principles and publicly available facts. For
example, his testimony about the procedural effects of an
incompetence finding or the potential advantages in impaneling
a new penalty phase jury spoke to legal concepts in nonspecific
terms and did not disclose the content of any confidential
communications between Canty and defendant. (Cf. People v.
Clark (2016) 63 Cal.4th 522, 603 [privilege not violated where
expert witness testified regarding general legal concepts and
“did not disclose any actual communication between defendant
and his attorney”].)28 Similarly, his testimony about section
1368 or about moving for a new penalty phase jury in another
case did not violate the attorney-client privilege since those facts
were publicly available. (See People v. Combs (2004)
34 Cal.4th 821, 865–866 [privilege not violated by eliciting
information contained in public record].)
28
Nor did it disclose the content of any legal opinions formed
in the course of representing defendant, as defendant contends.
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Admittedly, a couple of the prosecutor’s questions came
closer to potentially eliciting privileged information. First, the
prosecutor asked whether Canty would argue for a new penalty
phase jury upon a finding of incompetency in this case (putting
aside any applicable statutory provision). Although this
question moved beyond the more general line of questioning,
Canty’s noncommittal response to this hypothetical question
that it was “hard to know” and that he did not know “what the
Judge [would] feel about keeping the jury” fell short of revealing
any privileged information. Second, the prosecutor asked
whether Canty previously told the prosecution that he was
considering moving for a new penalty phase jury in this case,
again going beyond the abstract and into the specifics of this
case. However, information communicated to the prosecution
would not have remained privileged. And in any event, Canty
testified that, although it was possible, he did not recall whether
he in fact told the prosecution that. Thus, despite these closer
calls, none of his testimony ultimately disclosed any privileged
information.
As to the attorney work product doctrine, section 1054.6
currently provides in relevant part that “[n]either the defendant
nor the prosecuting attorney is required to disclose any
materials or information which are work product as defined in
subdivision (a) of Section 2018.030 of the Code of Civil
Procedure, or which are privileged pursuant to an express
statutory provision, or are privileged as provided by the
Constitution of the United States.”29 Code of Civil Procedure
29
When defendant committed his crimes and his trial took
place, “Penal Code section 1054.6 referred to Code of Civil
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section 2018.030, subdivision (a) in turn provides: “A writing
that reflects an attorney’s impressions, conclusions, opinions, or
legal research or theories is not discoverable under any
circumstances.” Code of Civil Procedure section 2018.030,
subdivision (b) separately provides that “[t]he work product of
an attorney, other than a writing described in subdivision (a), is
not discoverable unless the court determines that denial of
discovery will unfairly prejudice the party seeking discovery in
preparing that party’s claim or defense or will result in an
injustice.” The policy behind the work product doctrine is to
“[p]reserve the rights of attorneys to prepare cases for trial with
that degree of privacy necessary to encourage them to prepare
their cases thoroughly and to investigate not only the favorable
but the unfavorable aspects of those cases [and to] [p]revent
attorneys from taking undue advantage of their adversary’s
industry and efforts.” (Code Civ. Proc., § 2018.020.)
Defendant contends that admitting Canty’s testimony
regarding his “tactical decisions” not only violated the attorney-
client privilege but also violated the absolute attorney work
product doctrine. Defendant argues that admitting this
testimony violated the attorney work product doctrine,
regardless of whether the work product was reduced to writing
or not, because “despite the arguably contrary language of
California’s absolute work product statute, the privilege also
applies to non-written work product.” Disagreeing, the Attorney
General argues that “[t]he prosecutor’s questions to Canty did
Procedure former section 2018, subdivision (c), which then
stated the absolute work product protection now stated in Code
of Civil Procedure section 2018.030, subdivision (a).” (People v.
Zamudio (2008) 43 Cal.4th 327, 355, fn. 14.)
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not relate to any writing reflecting his impressions, conclusions,
opinions, legal research or theories and thus could not have
impinged any valid work product privilege.” The Attorney
General further argues that “Canty was not asked to, and did
not, divulge any otherwise privileged or confidential
information;” instead, his testimony regarded matters disclosed
to the prosecutor or in public records, and consisted of evasive
responses that “did not disclose any unique impressions,
conclusions, opinions, or theories.”
We need not decide whether Canty’s oral testimony
qualified as attorney work product or whether admitting it
violated the attorney work product doctrine. Even if we assume
that error occurred, it was not reversible. The Attorney General
and defendant disagree as to which standard of prejudice
applies here. Regardless, we would find it harmless under
either standard. (See People v. Watson (1956) 46 Cal.2d 818;
Chapman v. California (1967) 386 U.S. 18.) As Canty
acknowledged, section 1368 itself provided that the jury would
be discharged if defendant were found mentally incompetent. In
addition, Canty acknowledged that “depending upon the status
of the case and a given case,” he “could conceive that counsel
might wish to have another jury handle the penalty phase, and
there would be a variety of reasons for that.” Canty also
acknowledged that it was “possible” that he told the prosecution
that he may move for a new penalty phase jury in this case. To
the extent admitting other portions of Canty’s challenged
testimony may have violated the attorney work product
doctrine, we find any such error harmless in light of Canty’s
properly admitted testimony. We therefore find no reversible
error.
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V. PENALTY PHASE ISSUES
A. Admission of Evidence of Crimes Committed as
a Juvenile
Over the defense’s objection, the trial court took judicial
notice of 14 of defendant’s prior convictions. Eight of these
convictions were for crimes that defendant committed when he
was 17 years old. Defendant contends that considering those
convictions violated his rights under the Eighth Amendment to
the United States Constitution. This contention fails.
If a defendant committed an offense while under the age
of 18, but was tried and convicted as an adult, “the conviction
would be admissible at the penalty phase under section 190.3,
factor (c).” (People v. Williams (2010) 49 Cal.4th 405, 462;
People v. Pride (1992) 3 Cal.4th 195, 256–257.) Defendant
acknowledges this but urges us to reconsider the issue based on
the high court’s decisions in Roper v. Simmons (2005)
543 U.S. 551, Graham v. Florida (2010) 560 U.S. 48, Miller v.
Alabama (2012) 567 U.S. 460, and Hall v. Florida (2014)
572 U.S. 701. We recently rejected a similar argument
premised on those same four decisions and held that presenting
evidence of a defendant’s violent juvenile misconduct under
section 190.3, factor (b) did not violate the Eighth Amendment.30
(See Rices, supra, 4 Cal.5th at pp. 86–87.) We likewise reject
30
Even where “[j]uvenile adjudications are inadmissible as
evidence in aggravation . . . because they are not ‘prior felony
convictions’ within the meaning of section 190.3, factor (c),”
violent “conduct underlying the adjudication is relevant to the
jury’s penalty determination and admissible as violent criminal
activity under [section 190.3] factor (b).” (People v. Taylor (2010)
48 Cal.4th 574, 653.)
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defendant’s argument here and find no error in admitting
defendant’s prior convictions under section 190.3, factor (c).
B. Admission of Evidence of Unadjudicated
Offenses
The prosecution devoted part of its case in aggravation to
unadjudicated criminal activity and presented testimony
concerning four incidents involving Yenerall, Heynen, Kendrick,
and Arnold. Defendant, however, contends that permitting
Yenerall, Heynen, Kendrick, and Arnold to testify violated his
state and federal constitutional rights to a reliable penalty
phase, due process, a fair trial, and confrontation, and to present
a defense because the state lost or destroyed the following
evidence relating to those four incidents: information as to
which suspect sketches Yenerall and Heynen saw; a photo
lineup in which Yenerall recalled identifying defendant; the
Steven Dyer photo lineup shown to Heynen; the Randy Winters
photo lineup shown to Kendrick; and the Roger Egans photo
lineup shown to Arnold.31 We disagree.
1. Background
a. Yenerall
Following the January 6, 1992 incident, Yenerall viewed a
photo lineup in which she identified a man named Orlando
Boone. That lineup was provided to the defense. She
subsequently attended a live lineup that included Boone, but
she did not identify him. After that, there is disagreement as to
whether she viewed another photo lineup: She recalled viewing
31
Although defendant initially contended that he also did
not know whom Heynen identified in the Boone photo lineup,
defendant conceded this point in his reply brief.
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another one and identifying defendant in it, but the police had
no record of any such lineup and believed she misremembered
it.
In addition, she viewed a sketch of the suspect. The police
composed several suspect sketches during the investigation, and
it appears that those sketches were provided to the defense in
this case. As to which sketch she personally saw, she did not
recall, but Detective Lore testified that she saw one of two
specific sketches. The defense argued, however, that “[a]lthough
[Detective Lore] believed [Yenerall was shown] one of two
composites in evidence, he did not know which one was shown
to Yenerall and so that evidence is unavailable to the
defendant.” Later, she identified defendant during a live lineup
and at the preliminary hearing.
During the penalty phase of the trial, she identified
defendant in the courtroom, testifying, “I’m certain” as to that
identification. She also testified about previously identifying
defendant during the live lineup and during the preliminary
hearing. Regarding the live lineup, she explained that she did
not write a number on the lineup identification card but instead
directly informed one of the detectives about her identification
and was “very certain” about it. On cross-examination, she
admitted that her hesitancy to write down a number on the card
reflected “[s]ome” uncertainty but explained that she chose not
to write down a number because she was not obligated to do so.
Also on cross-examination, she confirmed that she
previously viewed a photo lineup in which she identified an
individual other than defendant and expressed “some great
degree of certainty” as to that identification. Asked whether she
identified an individual named Orlando Boone, she testified that
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she did not recall the name of the individual but that this
individual subsequently attended a live lineup, where she did
not identify him or anyone else.
b. Heynen
Heynen testified that she saw at least four photo lineups
after the January 21, 1992 incident. She recalled possibly
pointing to someone as close in three lineups but did not recall
identifying anyone. According to Detective Lore, Heynen later
was not sure whether she actually saw that many lineups.
Detective Lore testified that Heynen viewed three photo
lineups and one book containing parolee pictures. The first
photo lineup, shown on March 12, 1992, included an individual
named Steven Dyer. Detective Lore testified that Heynen did
not identify Dyer in this lineup, but Detective Lore’s notes
indicated that Heynen said, “it could be him.” This photo lineup
was disassembled and not provided to the defense. The
prosecution, however, provided the defense with a picture of
Dyer, although it was not the picture used in the disassembled
lineup. The same day as that lineup, she viewed a book of
parolee pictures and said that an individual named Damon
Cooper looked familiar. The book was provided to the defense.
The second photo lineup included Boone. She identified another
individual in that lineup, and the lineup was provided to the
defense. The third photo lineup included defendant, and
Heynen said, “it could be” him.
She also saw a suspect sketch and assisted the police in
creating another sketch. As noted, it appears that the sketches
were provided to the defense. The prosecutor declared that “all
of the composites are available;” however, the defense argued
that “like those shown to [Yenerall], the composites [shown to
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Heynen] are unidentifiable.” Later, she identified defendant
during a live lineup and at the preliminary hearing.
During the penalty phase of the trial, Heynen identified
defendant in the courtroom, testifying that she was “[v]ery
certain” regarding her identification. She testified that she had
previously identified defendant during a live lineup and during
the preliminary hearing as well. On cross-examination, she said
that she had previously viewed photo lineups on “[a]bout” four
occasions. Asked whether on two of those occasions she selected
anyone in the lineup, she responded, “That appeared to be
close.” She explained that in those two selections, the
individuals could have been the perpetrator, but she was not
sure. Asked whether she selected a picture of defendant and
said it could be him, she testified that she was never told
whether any of the pictures were of defendant.
c. Kendrick
After the February 19, 1992 incident, Kendrick recalled
viewing two photo lineups. He testified that he did not identify
anyone in either of these lineups. However, Detective Lore
testified that in one of these lineups, on March 26, 1992,
Kendrick identified an individual named Randy Winters with a
certainty of eight out of ten. This photo lineup was disassembled
and not available to the defense. The prosecution, however,
provided the defense with a copy of Winters’s DMV picture,
which was not the picture used in the disassembled lineup.
In addition, Kendrick saw a sketch of the suspect and
assisted the police in creating another sketch of the suspect,
both of which were provided to the defense. Later, Kendrick
identified defendant during a live lineup and at the preliminary
hearing.
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During the penalty phase, Kendrick identified defendant
in the courtroom and testified that he had previously identified
defendant during the live lineup as well. He further testified
that he had previously viewed two photo lineups but did not
identify anyone in them. The defense did not cross-examine
Kendrick.
d. Arnold Andersen
Arnold Andersen testified that he viewed photo lineups on
several occasions after the February 21, 1992 robbery, but he
did not recall identifying anyone in them. Detective Lore
testified that Arnold viewed two photo lineups. As to one of
these lineups, Detective Lore testified that Arnold did not
identify anyone but said that one individual was close. As to the
other, Sergeant Howard Woods testified that Arnold said an
individual named Roger Egans was the closest, with an 80
percent certainty, on May 21, 1992. Once Egans was eliminated
as a suspect, this lineup was disassembled. The prosecution
gave the defense a copy of Egans’s DMV photo, but the photo
was not the one used in the disassembled lineup.
Arnold also saw a sketch of the suspect that his wife,
Sharyn, assisted in creating. He subsequently identified
defendant during a live lineup and at the preliminary hearing
as well.
During their penalty phase testimony, both Arnold and
Sharyn identified defendant in the courtroom. They testified
that they had previously identified defendant during a live
lineup, too. Regarding the photo lineups, Arnold testified that
he had previously viewed two or three photo lineups but did not
identify anyone in them. The defense did not cross-examine
either Arnold or Sharyn.
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e. Trial court’s ruling
The prosecution originally filed an information that
included charges relating to the January 6, January 21,
February 19, and February 21, 1992 incidents.32 Following the
preliminary hearing, the defense moved to strike identification
testimony by certain witnesses under Brady v. Maryland (1963)
373 U.S. 83 (Brady) and California v. Trombetta (1984)
467 U.S. 479 (Trombetta). That motion was denied. The
defense also moved to dismiss the information under section 995
on the ground, inter alia, that admitting the identification
testimony violated defendant’s constitutional rights. That
motion, too, was denied. The trial court agreed that the missing
evidence — which the court characterized “generally as the lost
either photographs, composites or photo spreads” — was
important but found that there was no willful or malicious
conduct by the state.
Later, the defense moved to sever the counts involving
eyewitness identifications from the Willem, Christine C.,
Osburn, and Carole D. counts on the ground, inter alia, that
severance was an appropriate sanction under section 1054.5 due
to the missing evidence related to the eyewitness counts. The
defense simultaneously moved again under Brady, supra,
373 U.S. 83 and Trombetta, supra, 467 U.S. 479 to preclude any
pretrial or in-court identification testimony by, among others,
Yenerall, Heynen, Kendrick, and Arnold. The trial court
32
Even earlier in the case, the defense successfully moved to
quash an indictment on the ground that evidence regarding
earlier identifications made by some witnesses had not been
presented to the grand jury. At that time, the prosecutor
acknowledged that certain exculpatory evidence indeed had not
been presented.
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granted defendant’s motion for severance but denied his motion
to exclude the identification testimony. When the defense
moved to have the severed eyewitness counts tried before the
other counts, the court denied the motion.
Before the penalty phase, the defense moved to exclude
evidence of these severed, unadjudicated offenses or
alternatively, to have them tried by another jury. The trial court
found that the “confusion that underlies” the identifications
could be brought before the jury without the missing evidence.
The court also found that there was no “willful, purposeful,
malicious intent on the part of the police in destroying evidence
that could have been helpful to Mr. Miles,” explaining that
“these were line-ups that were put together early in the
investigation, substantially prior to Mr. Miles being a suspect,”
and in those cases where the police followed up on photo lineups
shown to the victims and “found that the person could not have
been the perpetrator,” the police “probably felt that there was
no longer a need to keep those photo line-ups intact.” The court
denied the motion.
2. Discussion
The Attorney General frames defendant’s contentions
regarding the lost or destroyed evidence under Trombetta,
supra, 467 U.S. 479. Defendant makes clear in his reply brief,
however, that he does “not raise a Trombetta/Youngblood Due
Process claim.” Rather, he raises an Eighth Amendment claim
based on the heightened reliability standard in capital cases and
Gardner v. Florida (1977) 430 U.S. 349 (Gardner), and he
additionally asserts violations of his state and federal
constitutional rights to due process, a fair trial, confrontation
and to present a defense. In light of defendant’s express
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clarification, we do not address his contentions under
Trombetta.
Contrary to defendant’s argument, the circumstances here
are unlike those in Gardner, supra, 430 U.S. 349, on which
defendant heavily relies. In Gardner, the high court vacated a
death sentence where the trial court sentenced the defendant to
death due in part to information in a presentence investigation
report, portions of which were provided to the trial court but not
disclosed to the defendant. (Id. at pp. 351, 353, 356, 362.) By
contrast, no evidence in this case was provided to and relied on
by the trial judge, but not disclosed to the defense.
Indeed, we have previously rejected an argument relying
on Gardner, supra, 430 U.S. 349 in circumstances like those
here. In People v. Rodrigues (1994) 8 Cal.4th 1060, 1160–1161,
the defendant claimed that he was deprived of his right to a
reliable sentencing determination and a fair opportunity to
confront and rebut evidence against him because certain
evidence related to an unadjudicated charge had been lost,
including photos shown to the victim. We held that despite this
lost evidence, there was no unfairness in admitting evidence
regarding the unadjudicated charge. (Id. at pp. 1162–1163.)
Here, as in Rodrigues, we conclude that the loss of evidence did
not deprive defendant of a fair trial or a reliable sentencing
determination.
First, as to the suspect sketches viewed by Yenerall and
Heynen, defendant argues on appeal that “although various
composite sketches were available, since police could not recall
which sketch had been shown to [Yenerall or Heynen], whatever
value there was in the sketches was gone.” The defense,
however, implicitly acknowledged having received the suspect
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sketches, and the defense could ask Yenerall and Heynen about
them. Second, as to a photo lineup in which Yenerall recalled
identifying defendant, the police did not believe any such lineup
ever existed, and Yenerall recalled identifying defendant, not
someone else, in it. Although defendant suggests that this
missing lineup may explain how she initially identified Boone
yet later identified defendant, this theory, too, is speculative. It
also ignores that between her photo identification of Boone and
her identification of defendant, she attended a live lineup where
she did not identify Boone, making her later identification of
defendant less sudden than defendant suggests. Moreover, the
defense cross-examined Yenerall about her earlier identification
in a photo lineup of an individual other than defendant, and
about her hesitancy to write down a number on the card when
she identified defendant in a live lineup.
As to the remaining missing evidence (the Dyer, Winters,
and Egans photo lineups), defendant’s contentions pose a closer
call but ultimately, too, fall short. There is conflicting testimony
as to whether Heynen, Kendrick, and Arnold made any
identifications in the lineups, and the lineups took place before
defendant was a suspect. In addition, the prosecutor provided
the defense with pictures of Dyer, Winters, and Egans, and
while those pictures were not comparable to the missing lineups,
the defense could ask Heynen, Kendrick, and Arnold about those
pictures and about their identifications. Indeed, the defense
cross-examined Heynen about having viewed photo lineups on
“[a]bout” four occasions and having selected persons who
“appeared to be close” on two of those occasions; the defense had
the opportunity but declined to cross-examine Kendrick or
Arnold. In these circumstances, we find no error and conclude
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that admitting the testimony of these four witnesses did not
violate defendant’s state or federal constitutional rights.
Even assuming for the sake of argument that admitting
this testimony was error, it was not reversible. “[E]rror in the
admission of evidence under section 190.3, factor (b) is
reversible only if ‘there is a reasonable possibility it affected the
verdict,’ a standard that is ‘essentially the same as the harmless
beyond a reasonable doubt standard of Chapman v. California[,
supra,] 386 U.S. 18, 24.’ ” (People v. Lewis (2008)
43 Cal.4th 415, 527.) Certainly, there was no reasonable
possibility that admitting Arnold’s testimony affected the
penalty verdict because his wife, Sharyn, testified about the
same incident and identified defendant during her testimony.
Defendant, too, acknowledged on cross-examination that he
robbed the Andersens, as well as Yenerall. There was no
reasonable possibility that admitting the testimony of Yenerall,
Heynen, and Kendrick affected the penalty verdict either, in
light of the volume of other evidence presented, including the
details of Willem’s brutal murder, the Christine C., Osburn,
Carole D., Bridget E., and Steve H. crimes, defendant’s 14 other
convictions, and the victim impact evidence. There was no
reversible error.
C. Admission of Victim Impact Evidence
Regarding Prior Crime
Over the defense’s objection, Bridget E. testified about the
effects of the June 16, 1992 incident on her health, career, and
personality. Defendant contends that the trial court erred by
admitting her testimony because, according to defendant,
admitting victim impact evidence for prior crimes under section
190.3, factor (b) is improper and unconstitutional. Defendant’s
argument relies on five out-of-state decisions, a textual
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distinction between section 190.3, factors (a) and (b), and People
v. Boyde (1988) 46 Cal.3d 212 (Boyde).
We have previously found unpersuasive the five out-of-
state decisions upon which defendant relies. (See People v.
Davis (2009) 46 Cal.4th 539, 618.) We have also disagreed that
“the textual distinction between section 190.3, factors (a) and (b)
compels the conclusion that the electorate intended to preclude
victim impact testimony and argument relating to violent
criminal activity other than the capital crime.” (People v.
Johnson (2016) 62 Cal.4th 600, 647.) In addition, we have
overruled Boyde, supra, 46 Cal.3d 212 “to the extent it concludes
that victim impact evidence relating to factor (b) criminal
activity is inadmissible, and reaffirm[ed] the unbroken line of
authority beginning with People v. Benson [(1990)]
52 Cal.3d 754, which has approved evidence and prosecutorial
argument regarding the impact of the defendant’s factor (b)
crimes on the victims of that criminal activity.” (Johnson, at
p. 648.) We find no error here.
D. Admission of Victim Impact Evidence Related
to Capital Crime
Over defendant’s objection, the trial court admitted victim
impact evidence related to Willem’s murder consisting of
testimony from her family members, a short videotape depicting
her singing, and a photograph of her that resembled how she
looked around the time of her death. We have previously
permitted the admission of similar victim impact evidence (see,
e.g., People v. Brady (2010) 50 Cal.4th 547, 577–579 [admission
of family member testimony and four-minute videotape
depicting victim at family celebration]; Vines, supra,51 Cal.4th at p. 888 [admission of videotape depicting victim
singing and dancing]), and defendant does not argue that there
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was anything improper about the amount or content of the
specific victim impact evidence here. Defendant, however,
argues that section 190.3, factor (a) has been improperly
interpreted by this court to allow victim impact evidence in
violation of state and federal law and accordingly calls for a
wholesale reconsideration of existing precedent beginning with
People v. Edwards (1991) 54 Cal.3d 787. We recently rejected
the same statutory argument in People v. Seumanu (2015)
61 Cal.4th 1293, 1366–1368. We see no reason to reconsider it
now and thus find no error here.
E. Asserted Juror Misconduct
Defendant contends that the trial court erred when it
declined to discharge Juror No. 12 after he saw newspaper
headlines about defendant’s competency trial. We disagree. We
conclude that there was no substantial likelihood of juror bias
and there was no violation of defendant’s federal or state
constitutional rights.
1. Background
After the trial court declared a doubt as to defendant’s
competency and suspended proceedings, the trial court met
individually with each of the guilt phase jurors and informed
them that there was an issue — about which the court could not
reveal the details — that would cause a significant delay before
beginning the penalty phase. The court individually
admonished each of the jurors to avoid discussing or reading
about the case in the interim. When the court met individually
with Juror No. 12, the court instructed Juror No. 12, “[P]lease
don’t discuss what we’ve talked about with any of the other
jurors. And if there’s anything in the newspaper about this case,
please don’t read that.”
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Several months later, the guilt phase jurors returned for
the penalty phase. At the defense’s request, the jurors filled out
a supplemental questionnaire concerning whether they had
read, heard, or discussed anything about the case since
rendering the verdict. The first question asked, “Have you read
anything in a newspaper about this case since rendering your
verdict on March 18, 1999?” Juror No. 12 checked “yes” in
response to this question and commented, “I have read the
headlines, but not the article itself.” Juror No. 12 checked “no”
in response to the remaining two questions, indicating that he
had not heard anything about the case from any other source or
discussed the case with any of the other jurors since rendering
the verdict.
The trial court and counsel inquired further into Juror No.
12’s responses. Juror No. 12 explained that he had seen
“[p]robably like two or three” newspaper headlines. Asked
whether he “[j]ust saw the headlines, recognized it was about
the case, and then didn’t read anything further?” he replied,
“That’s right.” He said that there was not anything about what
he had read that caused him to come to any opinions or
conclusions or that would affect or influence his ultimate
decision in this case. He acknowledged, however, that from
these headlines, he knew that a competency trial took place and
knew its result. Asked about his reaction to this information,
he responded, “All I knew is that I would be coming back. That’s
about all I thought about it.” Asked to explain, he said that he
had assumed he probably would not be returning if the
competency trial had ended differently because the competency
trial “was a part of the sentencing or whatever.” He confirmed
that he had not discussed any of this information with anybody
else.
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The defense moved to excuse and replace Juror No. 12.
The trial court denied the motion, reasoning that Juror No. 12
had neither violated the court’s order by seeing the newspaper
headlines nor formed any opinions or conclusions based on
them. The trial court found, “The impression I get was that in
going through the newspaper, naturally in skimming the
headlines you can see that this is something about the case, and
at that point he stopped reading and did not read the
content. . . . I didn’t tell them not to read the papers. I just told
them not to read anything about the case. I don’t think he
violated the Court’s order.” The trial court continued, “I didn’t
get the impression from anything that he said that he had
formed any opinions or conclusions. In fact, he said he didn’t,
and that it wouldn’t affect his decision in this case.”
2. Discussion
“A defendant accused of a crime has a constitutional right
to a trial by unbiased, impartial jurors.” (People v. Nesler (1997)
16 Cal.4th 561, 578 (Nesler).) “Juror misconduct, such as the
receipt of information about a party or the case that was not part
of the evidence received at trial, leads to a presumption that the
defendant was prejudiced thereby and may establish juror bias.”
(Ibid.) Even a juror’s “inadvertent receipt of information that
had not been presented in court falls within the general category
of ‘juror misconduct.’ ” (Id. at p. 579.)
“[W]hen misconduct involves the receipt of information
from extraneous sources, the effect of such receipt is judged by
a review of the entire record, and may be found to be
nonprejudicial. The verdict will be set aside only if there
appears a substantial likelihood of juror bias. Such bias can
appear in two different ways. First, we will find bias if the
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extraneous material, judged objectively, is inherently and
substantially likely to have influenced the juror. [Citations.]
Second, we look to the nature of the misconduct and the
surrounding circumstances to determine whether it is
substantially likely the juror was actually biased against the
defendant. [Citation.] The judgment must be set aside if the
court finds prejudice under either test.” (In re Carpenter (1995)
9 Cal.4th 634, 653.) “We emphasize that before a unanimous
verdict is set aside, the likelihood of bias under either test must
be substantial.” (Id. at p. 654.) “Jurors are not automatons.
They are imbued with human frailties as well as virtues. If the
system is to function at all, we must tolerate a certain amount
of imperfection short of actual bias. To demand theoretical
perfection from every juror during the course of a trial is
unrealistic.” (Id. at pp. 654–655.)
In reviewing the trial court’s ruling, “[w]e accept the trial
court’s credibility determinations and findings on questions of
historical fact if supported by substantial evidence. [Citations.]
Whether prejudice arose from juror misconduct, however, is a
mixed question of law and fact subject to an appellate court’s
independent determination.” (Nesler, supra, 16 Cal.4th at
p. 582.)
We need not decide whether juror misconduct occurred
here because, in any event, we find no substantial likelihood of
juror bias. (See People v. Thomas (2012) 53 Cal.4th 771, 819.)
The headlines were not so prejudicial in and of themselves that
they were inherently and substantially likely to have influenced
a juror during the penalty phase. Although the precise content
of the headlines is not clear from the record, nothing suggests
that they were inflammatory or biased in their presentation of
the facts, or that they conveyed additional information about the
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competency trial such as the issues involved, the evidence
presented, or the testimony heard. The relevance of the
competency verdict, or its potential for prejudice, was further
diminished at the penalty phase since the task of jurors at the
penalty phase was qualitatively different from that at the
competency trial. Learning only that a competency trial took
place and that defendant was found competent was therefore
“not akin to a bell that could not be unrung.” (In re Boyette
(2013) 56 Cal.4th 866, 893; id. at p. 892 [contrasting extraneous
information in case to “a suppressed confession or evidence of
other crimes that the trial court had excluded as too
prejudicial”]; cf. People v. Ramos (2004) 34 Cal.4th 494, 520–522
[newspaper accounts of trial were not inherently prejudicial and
did not prejudice the verdict].)
Nor was it substantially likely that Juror No. 12 was
“actually biased” against defendant. Defendant does not
contend that Juror No. 12 was actually biased, and nothing in
the record suggests such bias existed. Mindful of the trial
court’s admonitions to avoid news coverage of the case, Juror
No. 12 did not read any newspaper articles about the case but
promptly informed the trial court that he had seen a few
headlines. He made clear that he did not form any opinions or
conclusions based on the headlines, nor did he discuss them with
anyone. His only reaction to the information was that he “would
be coming back. That’s about all [he] thought about it.” The
trial court found his representations credible, and substantial
evidence supports this finding. (See People v. Stanley (2006)
39 Cal.4th 913, 951 [accepting credibility determinations
regarding juror’s recollection of newspaper article]; see also In
re Carpenter, supra, 9 Cal.4th at p. 657 [juror not discussing
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information with other jurors tends to negate inference of
bias].)33
Having found no substantial likelihood of juror bias, we
reject defendant’s assertion that Juror No. 12’s exposure to
these headlines impeded his ability to fairly weigh defendant’s
mitigating evidence in violation of his federal constitutional
rights. Defendant characterizes Caldwell v. Mississippi (1985)
472 U.S. 320 as instructive. In Caldwell, the high court vacated
a death judgment where the prosecutor had “urged the jury not
to view itself as determining whether the defendant would die,
because a death sentence would be reviewed for correctness by
the State Supreme Court.” (Id. at p. 323.) The high court has
“since read Caldwell as ‘relevant only to certain types of
comment[s] — those that mislead the jury as to its role in the
sentencing process in a way that allows the jury to feel less
responsible than it should for the sentencing decision.’ ”
(Romano v. Oklahoma (1994) 512 U.S. 1, 9; see also In re
Carpenter, supra, 9 Cal.4th at p. 649 [discussing Romano as
limiting Caldwell].)
Here, there was no evidence to suggest that Juror No. 12
was unable to consider defendant’s mitigating evidence or felt
any less responsible for making a penalty determination after
seeing these headlines — much less that he was misled to
believe himself to be so. (See People v. Montes (2014)
33
Defendant asserts that the trial court did not admonish
Juror No. 12 to disregard the headlines, but the Attorney
General accurately points out that the court incorporated its
guilt phase jury instructions into its penalty phase jury
instructions, including, “You must decide all questions of fact in
this case from the evidence received in this trial and not from
any other source.”
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58 Cal.4th 809, 896 [even assuming the juror committed
misconduct by consulting religious passages, “those passages
did not lessen the juror’s personal sense of responsibility by
shifting the decision to some other entity”].) We thus conclude
that the trial court did not err.
F. Instruction to Alternate Jurors
The trial court excused two of the seated guilt phase jurors
and replaced them with two alternate jurors before the penalty
phase began. The court then instructed the jury that “[f]or the
purposes of this penalty phase of the trial, the alternate jurors
must accept as having been proved beyond a reasonable doubt
those guilty verdicts and true findings rendered by the jury in
the guilt phase of this trial.”34 Defendant objected to having the
two alternate jurors try the penalty phase but did not object to
this specific instruction. He now contends that this instruction
violated his federal and state constitutional rights to a fair
34
In full, CALJIC No. 17.51.1 provided as follows:
“Members of the Jury: [¶] Two jurors have been replaced by
alternate jurors. [¶] The alternate jurors were present during
the presentation of all of the evidence, arguments of counsel,
and reading of instructions, during the guilt phase of the trial.
However, the alternate jurors did not participate in the jury
deliberations which resulted in the verdicts and findings
returned by you to this point. For the purposes of this penalty
phase of the trial, the alternate jurors must accept as having
been proved beyond a reasonable doubt, those guilty verdicts
and true findings rendered by the jury in the guilt phase of this
trial. Your function now is to determine, along with the other
jurors, in light of the prior verdict or verdicts, and findings, and
the evidence and law, what penalty should be imposed. Each of
you who now compose the jury must participate fully in the
deliberations, including any review as may be necessary of the
evidence presented in the guilt phase of the trial.”
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penalty trial, reliable sentencing decision, equal protection, due
process, and effective assistance of trial counsel.
Assuming defendant’s claim was not forfeited, it fails on
the merits. (See § 1259 [preserving claims of instructional error
affecting substantial rights despite lack of objection below].) We
have made clear that “[a]s a matter of law, the penalty phase
jury must conclusively accept [the guilt phase jury’s] findings”
as to the defendant’s guilt and the truth of the special
circumstance allegations beyond a reasonable doubt. (People v.
Harrison (2005) 35 Cal.4th 208, 256 (Harrison).) We have also
rejected the suggestion “that anytime a juror is replaced at the
penalty phase, the jury should engage in guilt phase
deliberations anew.” (People v. Maciel (2013) 57 Cal.4th 482,
548.) And, most notably, in People v. Cain (1995) 10 Cal.4th 1(Cain), we found no constitutional defect in the trial court
instructing the jury, including a new juror who replaced an
excused juror, that it must accept the guilt phase verdicts and
findings at the penalty phase. (Id. at pp. 64, 66.)
Nor do we find People v. Kaurish (1990) 52 Cal.3d 648, 708
to be inconsistent, as defendant contends. In Kaurish, the
defendant claimed that a replacement juror should have been
instructed at the penalty phase that she “was not bound by the
other jurors’ earlier determination of guilt, but could vote
against the death penalty if she doubted defendant’s guilt.”
(Ibid.) We rejected this claim, finding that the replacement
juror was instructed about considering lingering doubt as a
mitigating factor, that instruction “made it clear that she could
vote against the death penalty if she disagreed with the guilt
phase verdict, and no further instruction was necessary.” (Ibid.)
This concept of lingering doubt, however, is distinct from and
consistent with the jury’s obligation to accept the guilt phase
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verdicts and special circumstance findings as proved beyond a
reasonable doubt at the penalty phase. (Harrison, supra,35 Cal.4th at p. 256 [jurors may consider lingering doubt as
mitigating circumstance but cannot relitigate or reconsider
matters resolved at guilt phase]; Cain, supra, 10 Cal.4th at p. 67
[same].)35
In short, we discern no error in the trial court’s
instructions here.
VI. OTHER ISSUES
A. Challenge to California’s Death Penalty Law as
Not Adequately Narrowing the Class of
Death-Penalty Eligible Defendants
Defendant urges that California’s death penalty law
violates the Eighth Amendment because it does not sufficiently
narrow the class of death-eligible defendants, based on statistics
drawn primarily from published decisions of this court and the
Court of Appeal, as well as unpublished decisions of the Court
of Appeal, First District, between 1988 and 1992. We have
repeatedly rejected similar statistics-based arguments claiming
that the multiplicity of the statute’s special circumstances fails
to sufficiently narrow the class of death-eligible defendants.
(See, e.g., People v. Beames (2007) 40 Cal.4th 907, 934; People v.
Vieira (2005) 35 Cal.4th 264, 303–304; People v. Jones (2003)
30 Cal.4th 1084, 1127–1128.) Defendant offers no persuasive
reason to reconsider this issue.
35
The trial court in this case gave CALJIC No. 8.85, which
we have held to sufficiently cover the concept of lingering doubt.
(See People v. Enraca (2012) 53 Cal.4th 735, 767–768.)
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B. Other Challenges to California’s Death Penalty
Law
Defendant raises numerous challenges to California’s
death penalty law that we have repeatedly rejected and continue
to reject as follows.
Section 190.3, factor (i) (the age of the defendant) is not
unconstitutionally vague. (Tuilaepa v. California (1994)
512 U.S. 967, 977; People v. Ray (1996) 13 Cal.4th 313, 358.)
The death penalty statute as construed by this court does not
fail to perform the narrowing function required by the Eighth
Amendment. (Schmeck, supra, 37 Cal.4th at p. 304.) “Penal
Code sections 190.2 and 190.3 are not impermissibly broad, and
factor (a) of Penal Code section 190.3 does not make imposition
of the death penalty arbitrary and capricious.” (People v.
Sánchez (2016) 63 Cal.4th 411, 487.) Other than the penalty
verdict itself, the jury need not achieve unanimity. (Ibid.) The
trial court did not “violate defendant’s Fifth, Sixth, Eighth, or
Fourteenth Amendment rights in failing to instruct the jury
that it must find beyond a reasonable doubt that the
aggravating factors outweigh the mitigating factors.”
(Schmeck, at p. 304.) The trial court’s instructions need not
delete inapplicable sentencing factors, delineate between
aggravating and mitigating circumstances, or specify a burden
of proof either as to aggravation (except for section 190.3,
factor (b) or (c) evidence) or the penalty decision. (Schmeck, at
p. 305.) “Nor are potentially mitigating factors
unconstitutionally limited by the adjectives ‘extreme’ and
‘substantial’ . . . .” (Ibid.) The sentencing factors are not vague
and ill-defined. (Ibid.) “California’s use of the death penalty
does not violate international law.” (Sánchez, at p. 488.)
Allowing the jury that adjudicated the defendant’s guilt to weigh
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and consider his uncharged crimes in determining the penalty
is constitutional. (People v. Hawthorne (1992) 4 Cal.4th 43, 77.)
C. Cumulative Prejudice
Defendant contends the combined errors require reversal
of his convictions and death sentence even if the errors are not
prejudicial when considered individually. We have assumed
errors but found no prejudice. Considering these assumed
errors altogether, we conclude that reversal is not warranted.
VII. DISPOSITION
We affirm the judgment.
GROBAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
137
PEOPLE v. MILES
S086234
Dissenting Opinion by Justice Liu
Defendant Johnny Duane Miles, a black man, was
sentenced to death for raping and murdering Nancy Willem, a
white woman. During jury selection, the prosecutor removed
the first three black jurors available for peremptory challenge.
Miles objected to the strikes as racially motivated under Batson
v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler
(1978) 22 Cal.3d 258. The prosecutor gave reasons for each
strike, and the trial court rejected Miles’s Batson claim.
At the time of the ruling, the prosecutor had used three of
his first six peremptory strikes to remove every black juror in
the jury box who had not been excused for cause. At the end of
jury selection, no black juror was seated on the main panel.
Among the six alternate jurors, only one was black. As a result,
the black defendant in this case, charged with raping and
murdering a white woman, was tried and convicted by a jury
that included no black member.
On appeal, Miles challenges the prosecutor’s strikes of two
black prospective jurors, Kevin C. and Simeon G. I agree that
Miles has not shown purposeful discrimination with respect to
the strike of Kevin C. in light of his ambivalent responses
regarding the death penalty and the two other reasons given for
his excusal. (Maj. opn., ante, at pp. 37–52.) But the record
shows that each of the prosecutor’s stated reasons for striking
Simeon G. was implausible or unsupported by the facts. I would
PEOPLE v. MILES
Liu, J., dissenting
thus conclude “it was more likely than not that the challenge
was improperly motivated.” (Johnson v. California (2005) 545
U.S. 162, 170 (Johnson).) Because the “[e]xclusion of even one
prospective juror for reasons impermissible under Batson and
Wheeler constitutes structural error,” the judgment must be
reversed. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158
(Gutierrez).)
I.
Today’s opinion accords deference to the trial court’s
ruling on the Batson motion, but it is unclear what this court is
deferring to. “A trial court’s conclusions are entitled to
deference only when the court made a ‘sincere and reasoned
effort to evaluate the nondiscriminatory justifications
offered.’ ” (Gutierrez, supra, 2 Cal.5th at p. 1159.) A “reasoned”
attempt requires the trial court to “reject [the prosecutor’s]
reason or ask the prosecutor to explain further” when the reason
is “not borne out by the record.” (Id. at p. 1172.) Where “the
prosecutor’s reason[s] for [the contested] strike[s are] not self-
evident and the record is void of any explication from the court,
we cannot find . . . that the court made a reasoned attempt to
determine whether the justification was a credible one.” (Ibid.)
Here, the trial court expressly acknowledged that the
prosecutor’s proffered reasons for striking Kevin C. and Simeon
G. were not self-evident. During discussion of the Batson
motion, the trial judge told the prosecutor: “I don’t understand
[the strikes] as to [Kevin C.] and as to [Simeon G.]. You’ll [have
to] explain those.” After hearing the prosecutor’s reasons, the
court concluded: “As I indicated, as to [another struck juror], I
understand [the prosecutor’s] concern there. As to [Kevin C.]
and [Simeon G.], I think it’s certainly not as obvious, but I
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PEOPLE v. MILES
Liu, J., dissenting
cannot say it is not legitimate.” That was the extent of the trial
court’s explanation for upholding the strikes.
At one point, the court did ask the prosecutor to clarify his
explanation for striking Simeon G. (Maj. opn., ante, at p. 26
[“ ‘His answer being that if he had a feeling the defendant was
not guilty, that was the answer that bothered you?’ ”].) But the
court did not probe any of the prosecutor’s stated reasons for the
strikes, even though they were difficult to reconcile with the
record, as discussed below. Nor did the court explain why it
credited the prosecutor’s justifications. It merely made a global
finding that the stated reasons were “valid” and “legitimate.”
(See maj. opn., ante, at p. 31 [“the trial court could have done
more to make a fuller record and itself acknowledged it was
making a somewhat close call”].)
Our requirement of a “ ‘sincere and reasoned effort to
evaluate the nondiscriminatory justifications offered’ ”
(Gutierrez, supra, 2 Cal.5th at p. 1159) demands more than
what is apparent from the record here. I do not doubt that the
trial court was sincere and listened to the parties’ arguments.
But because the record does not indicate whether it engaged in
a reasoned evaluation of the prosecutor’s explanations for the
strikes, I see no basis for deference to the trial court’s ruling.
II.
In addressing Miles’s Batson claim, our task is to
determine whether “it was more likely than not” that the
prosecutor’s strikes were racially motivated. (Johnson, supra,545 U.S. at p. 170.) It is important to keep in mind the
applicable standard of proof. The “more likely than not”
standard does not require a fact to be established beyond a
reasonable doubt, nor does it call for “a finding of high
3
PEOPLE v. MILES
Liu, J., dissenting
probability” as required by the clear and convincing evidence
standard. (In re Angelia P. (1981) 28 Cal.3d 908, 919.) It
“ ‘simply requires the trier of fact “to believe that the existence
of a fact is more probable than its nonexistence.” ’ ” (Id. at
p. 918.)
“The function of a standard of proof is to instruct the fact
finder concerning the degree of confidence our society deems
necessary in the correctness of factual conclusions for a
particular type of adjudication, to allocate the risk of error
between the litigants, and to indicate the relative importance
attached to the ultimate decision.” (Conservatorship of
Wendland (2001) 26 Cal.4th 519, 546.) In the Batson context,
the “more likely than not” standard reflects the “inherent
uncertainty present in inquiries of discriminatory purpose.”
(Johnson, supra, 545 U.S. at p. 172.) The standard “is not
designed to elicit a definitive finding of deceit or racism.
Instead, it defines a level of risk that courts cannot tolerate in
light of the serious harms that racial discrimination in jury
selection causes to the defendant, to the excluded juror, and to
‘public confidence in the fairness of our system of justice.’ ”
(Gutierrez, supra, 2 Cal.5th at pp. 1182–1183 (conc. opn. of Liu,
J.), quoting Batson, supra, 476 U.S. at p. 87.) Miles has met this
standard with respect to the strike of Simeon G.
At the time of jury selection, Simeon G. was a 24-year-old
forklift driver. He had studied business for three years in
college and had plans to continue his education in the future.
Simeon G. had characteristics that might be considered
favorable to the prosecution. On the questionnaire, he wrote
that his father was a Drug Enforcement Administration agent
and that he had considered becoming a police officer. He
indicated that he “favor[ed] the death penalty” and would have
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PEOPLE v. MILES
Liu, J., dissenting
been willing to personally impose it. He believed the purpose of
the death penalty was “to match the seriousness of a crime with
a life for a life” and thought it “should be an option” for serious
crimes. He considered the death penalty law in California to be
fair and wrote that he would vote to keep the death penalty
because “it may be an appropriate punishment” in some cases.
He also indicated that he had no moral, philosophical, or
religious objections to the death penalty.
The prosecutor gave several reasons for striking Simeon
G. The first was that Simeon G. “made statements on his
questionnaire how he likes his opinions over others.”
When asked on the questionnaire whether he would
describe himself as a leader or a follower, Simeon G. wrote that
he thought of himself as a “leader” because “I like my opinion
over other people’s.” In People v. Gutierrez (2002) 28 Cal.4th
1083, we said that a juror’s comment that “he would not be
influenced by anyone’s opinion but his own” gave rise to a
reasonable concern that the juror “would not be able to consider
the opinions of his fellow jurors.” (Id. at p. 1125.) But Simeon
G. said that he liked his opinion over other people’s, not that he
would not consider other people’s views. His statement is
actually somewhat of a tautology: Everyone likes his or her
opinion over other people’s; to have an “opinion” is to prefer that
view to other views. Just because a person favors one view does
not mean he or she “might have difficulty considering other
opinions and deliberating with fellow jurors.” (Maj. opn., ante,
at p. 53.) Indeed, Simeon G.’s other responses on the
questionnaire indicate that he was interested in working with
other jurors to reach a verdict. When asked how he felt about
working with 11 other jurors to make a decision, he wrote: “I
believe it would be very interesting.” When asked whether he
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PEOPLE v. MILES
Liu, J., dissenting
believed the jury system was a fair way to determine a
defendant’s guilt, he checked “yes” and explained: “12 people
have to come together to accuse someone. That[’s] 12 different
opinions. Pretty impressive.”
The prosecutor did not ask Simeon G. about these
responses, nor did the prosecutor question him or any other
jurors about their ability to work with others. As the high court
has observed, “ ‘[t]he State’s failure to engage in any meaningful
voir dire examination on a subject the State alleges it is
concerned about is evidence suggesting that the explanation is
a sham and a pretext for discrimination.’ ” (Miller-El v. Dretke
(2005) 545 U.S. 231, 246 (Miller-El).) Today’s opinion speculates
that the prosecutor might have refrained from questioning
Simeon G. about this topic because “asking Simeon G. during
voir dire — in front of the other prospective jurors — to elaborate
on his questionnaire response would have forced him to explain
why he believes that his opinion is preferable to the opinions of
other people, such as those seated around him.” (Maj. opn., ante,
at p. 54.) But I see no reason why such inquiry would have been
unproductive or more awkward than questioning on the death
penalty, race relations, or other sensitive yet routine topics that
call on jurors to explain their views and, at least implicitly,
disapprove or cast doubt on the views of fellow jurors.
The prosecutor’s explanation is even more suspicious in
light of the fact that he accepted Juror No. 1, who also described
herself as a “leader” and wrote, “I like to make my own
decisions.” Today’s opinion attempts to distinguish “decisions”
from “opinions” in parsing the responses of Juror No. 1 and
Simeon G. (Maj. opn., ante, at pp. 54–55.) But the key point is
that Juror No. 1’s response gave no more indication than
Simeon G.’s response that she would consider other people’s
6
PEOPLE v. MILES
Liu, J., dissenting
views in making a decision. Both “opinions” and “decisions” can
be and often are informed by other people’s points of view, and
a juror who “likes my opinion over other people’s” seems just as
likely to consider other people’s views as a juror who “like[s] to
make my own decisions.” It is true that Simeon G., unlike Juror
No. 1, indicated that he had not previously served on a jury or
worked with a group to make a decision. But that was not the
prosecutor’s stated reason, and in any event, Simeon G.’s other
questionnaire responses suggested he was interested in and
willing to do both.
The prosecutor’s second reason for striking Simeon G. was
that “he made a statement on his questionnaire basically saying
if I have a feeling he didn’t do it, he’s not guilty. And he had
crossed out the word doubt, which led me to believe that he
certainly wasn’t going to base it on evidence.”
When asked on the questionnaire whether he could follow
the reasonable doubt instruction, Simeon G. checked “yes” and
wrote: “If I have any doubt feeling that [the defendant] might
not have done it, he[’s] innocent.” During the Batson hearing,
the prosecutor noted that Simeon G. originally wrote “doubt” on
his questionnaire response, then crossed it out and replaced it
with “feeling.” According to the prosecutor, this suggested that
Simeon G. would have relied “on a hunch, or a feeling” instead
of evidence to decide Miles’s guilt. While acknowledging that
Simeon G. “explained [his questionnaire response] differently in
court,” the prosecutor said he was “not sure that [Simeon G.’s]
responses in court should prevail over the answers he gave on
his questionnaire.” The prosecutor said he was especially
concerned about those responses in light of the fact that Simeon
G. “didn’t show up for court” that morning and appeared in the
7
PEOPLE v. MILES
Liu, J., dissenting
afternoon after being “single-handedly hunted down” by the
trial judge.
Considering the record as a whole, I do not find the
prosecutor’s stated concern very plausible. Simeon G. first
wrote on the questionnaire: “If I have any doubt that [the
defendant] might not have done it, he[’s] innocent.” On a
moment’s reflection, it is clear that the double negative makes
no sense: If a juror had doubt that the defendant might not have
committed the crime, then the juror’s inclination would be to
find guilt, not innocence. It is unsurprising that Simeon G.,
most likely recognizing the error, crossed out “doubt” and
replaced it with a different word, “feeling”: “If I have any feeling
that [the defendant] might not have done it, he[’s] innocent.” To
draw an inference that Simeon G. intended this to convey that
he would rely on his feelings as opposed to evidence to decide the
defendant’s guilt seems like a stretch.
But even assuming Simeon G.’s response was ambiguous,
the prosecutor probed this issue during voir dire, and Simeon
G.’s answers clarified any ambiguity. The prosecutor said: “In
your questionnaire, you used the phrase that if you have a
feeling that the defendant was [not] involved, that you’d find
him not guilty. . . . You’d written ‘doubt’ and crossed out and
written the word ‘feeling.’ . . . I’m trying to understand what
you meant by that.” Simeon G. responded: “Well, I think what
I was trying to say, if I’m correct, is that if the evidence showed
that there wasn’t — that there was some reasonable doubt, then
I probably would not accuse him, because of the fact that, myself
being in the same situation or anybody, I think that if the
evidence didn’t totally prove that I did it, then there is some
doubt. . . . So it wasn’t so much a feeling as it was if the evidence
didn’t show.” The prosecutor asked: “Okay. So you would base
8
PEOPLE v. MILES
Liu, J., dissenting
it on evidence?” Simeon G. responded: “Basically, yes. I’m
sorry.” The prosecutor had no further questions on this topic.
Today’s opinion says that when faced with inconsistent
responses, the prosecutor is not obligated to accept the least
objectionable one. (Maj. opn., ante, at pp. 57–58.) That is true,
but it is not the situation here. At voir dire, the prosecutor
expressly said that his questioning of Simeon G. was intended
to clarify the “doubt feeling” issue, and Simeon G. — in response
to an open-ended, non-leading question posed by the prosecutor
(“I’m trying to understand what you meant by that”) — clarified
that he would make decisions based on “the evidence,” not a
“feeling.” His voir dire answers, given under oath, left no
ambiguity about the issue. The court makes much of Simeon
G.’s comments that he did not “quite remember” his
questionnaire response and could not tell the prosecutor “what
[he] actually meant totally” by it. (Maj. opn., ante, at p. 59.) But
what those statements show is that he was attempting to be a
scrupulous juror. When asked to explain the “doubt feeling”
issue, Simeon G. was careful to qualify that he did not recall his
exact response on the questionnaire because he did not have a
copy to review during voir dire. These comments in no way
undermined Simeon G.’s clear and consistent assertions that he
would rely on evidence rather than his feelings to reach a
verdict.
Moreover, the rest of Simeon G.’s questionnaire indicated
that he would have carefully considered the evidence presented
in the case. When asked whether he could be a fair and
impartial juror, he wrote: “I’m open to objectively listening to
evidence from both sides to decide a fair verdict.” When asked
if he could follow the instruction that jurors should not draw any
conclusions from the fact that a defendant does not testify, he
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PEOPLE v. MILES
Liu, J., dissenting
checked “yes” and explained that he would “[j]ust deal with the
facts and other testimonies.” When asked whether he believed
the testimony of law enforcement officers would be more
truthful or accurate than civilian testimony, he checked “no” and
wrote that “[n]obody’s testimony should be more or less due to
the fact that they are all under oath.” When asked whether he
would automatically accept the opinion of a psychiatrist or
psychologist, he checked “no” and explained that “[w]hat they
say would have to make sense.” All of these responses, like
Simeon G.’s answers during voir dire, show that he would have
been a conscientious juror who makes decisions on the basis of
facts and evidence, not hunches or feelings. The prosecutor’s
fixation on one questionnaire answer, to the exclusion of all of
Simeon G.’s other relevant and consistent answers, is
suspicious.
Today’s opinion says the prosecutor was not required to
accept Simeon G.’s sworn voir dire responses at face value. At
the Batson hearing, the prosecutor said “this is an individual
who the Court personally tracked down this morning. . . . I
would be concerned about his responses in light of the fact that
he was single-handedly hunted down to be here this afternoon.”
In evaluating this statement, today’s opinion explains that
“[t]he trial court was ‘ “best situated” ’ to assess Simeon G.’s
responses in court and the prosecutor’s stated concern in light
of those responses.” (Maj. opn., ante, at p. 60.)
But what exactly is the court deferring to? The trial court
made no specific findings regarding Simeon G.’s responses or
demeanor when it denied the Batson motion. Nor did it ask the
prosecutor to explain why Simeon G.’s tardiness to court would
cast doubt on the credibility of his voir dire answers. The court
only asked the prosecutor, “His answer being that if he had a
10
PEOPLE v. MILES
Liu, J., dissenting
feeling the defendant was not guilty, that was the answer that
bothered you?” I have no doubt that the trial court “listen[ed] to
the prosecutor’s explanation and defense counsel’s comments”
before “accept[ing] the prosecutor’s stated reasons for striking
Simeon G.” (Maj. opn., ante, at p. 61.) But because its ruling is
not accompanied by any reasons or analysis, there is nothing to
defer to.
As to Simeon G.’s tardiness, a bit of context is important.
The record shows there had been a miscommunication in the
jury room, which may have caused several jurors not to appear
in court that morning. After the court called Simeon G.’s
workplace, he immediately called back and explained that he
was confused and thought he was supposed to come the next
day. Simeon G. then appeared in the afternoon for voir dire.
The prosecutor was aware of this mix-up at the time of the
Batson hearing, and there was no suggestion that the incident
resulted from willful conduct by Simeon G. Nor was there
anything in his background or questionnaire that suggested
untrustworthiness. To be sure, “having a judge call your
workplace to locate you and have you come to court is unusual.”
(Maj. opn., ante, at p. 61, fn. 14.) And it would be natural to
infer that Simeon G. perhaps felt embarrassed when he
appeared in court. But it is not clear why the incident would
have cast doubt on the veracity of Simeon G.’s statement at voir
dire that he would reach a verdict based on “the evidence” and
not a “feeling,” especially in light of the consistent responses on
his juror questionnaire.
The prosecutor’s third reason for striking Simeon G. was
that “he was not upset by the O.J. Simpson verdict.” Simeon G.
indicated on the questionnaire that he was not upset by the O.J.
Simpson verdict but did not explain why. He also wrote that he
11
PEOPLE v. MILES
Liu, J., dissenting
“really [didn’t] know anything about” DNA evidence. At the
Batson hearing, the prosecutor said: “If you’ll notice across the
board, I’ve excused jurors I believe of Hispanic origin and
Caucasian origin, and the common denominator, essentially, is
that they were not, were not upset by the O.J. Simpson verdict,
which was a DNA, circumstantial case. And I think those, those
raise significant concerns in my mind as a guilt phase juror and
the type of case that I’m dealing with.”
In evaluating this reason, it must be said at the outset that
exercising peremptory strikes based on jurors’ attitudes toward
the O.J. Simpson case — in the capital trial of a black man
accused of murdering a white woman, occurring just three years
after the Simpson verdict — seems like playing with fire. At the
time of Miles’s trial, it would have been hard to think of any
recent case in the American justice system more sensational and
racially polarizing than the Simpson trial. (See O.J.: Made in
America (ESPN Films 2016); Toobin, The Run of His Life: The
People v. O.J. Simpson (1996).) Amicus curiae NAACP Legal
Defense & Educational Fund, Inc. (LDF) cites a poll taken in
1995, when the Simpson case was decided, finding that 22% of
black Americans and 76% of white Americans believed Simpson
was guilty of murder. (See De Pinto et al., Poll: Only 27 Percent
of Americans Think O.J. Simpson Will Regain Celebrity Status
(Sept. 29, 2017) CBS News.) The Attorney General argues that
the racial disparity was not so significant by the time of Miles’s
trial and cites a different poll finding that 45% of black
Americans in 2007 and 57% in 2015 believed Simpson was
guilty. (See Ross, Two decades later, black and white Americans
finally agree on O.J. Simpson’s guilt, Wash. Post (Mar. 4, 2016).)
But the figures cited by LDF are more relevant because jury
selection in this case occurred in 1998. Those figures are
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PEOPLE v. MILES
Liu, J., dissenting
actually corroborated by the poll cited by the Attorney General,
which shows that 31% of black Americans and 82% of white
Americans in 1997 thought Simpson was guilty. (See ibid.)
Thus, at the time of Miles’s trial, a practice of striking
jurors who said they were not upset by the Simpson verdict
would have resulted in disproportionate removal of black jurors.
Although such disparate impact “does not turn the prosecutor’s
actions into a per se violation of the Equal Protection Clause”
(Hernandez v. New York (1991) 500 U.S. 352, 361), it can be
considered “evidence that the prosecutor’s stated reason
constitutes a pretext for racial discrimination” (id. at p. 363).
There is nothing wrong with probing prospective jurors’ views
about DNA or circumstantial evidence in a murder trial. But
surely there are less racially charged ways of doing so.
Also relevant is the fact that the prosecutor did not
question Simeon G. or any other prospective juror about the
Simpson verdict during voir dire. (Cf. maj. opn., ante, at p. 63
[“the credibility of the prosecutor’s concern here is undermined
to some degree by the prosecutor’s failure to ask Simeon G. or
other prospective jurors about the O.J. Simpson verdict during
voir dire”].) The prosecutor’s lack of questioning is especially
suspicious as to Simeon G. When asked on the questionnaire
whether he was upset by the Simpson verdict, Simeon G. simply
checked “no” without explanation. At the Batson hearing, the
prosecutor said his main concern with this response was that it
indicated Simeon G. might be skeptical about DNA evidence.
But the prosecutor never asked Simeon G. whether his response
to the O.J. Simpson question was related to his views on DNA
evidence. Nor did he ask Simeon G. or any other prospective
juror about DNA evidence.
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PEOPLE v. MILES
Liu, J., dissenting
Comparative juror analysis also supports an inference of
pretext. (Cf. maj. opn., ante, at p. 65 [“We find that the
credibility of the prosecutor’s concern regarding Simeon G.’s
opinion on the O.J. Simpson verdict is undermined to some
degree by defendant’s comparative juror analysis.”].) Like
Simeon G., eight seated and alternate jurors indicated that they
were not upset about the O.J. Simpson verdict. Some of those
jurors provided explanations that might have been more
acceptable to the prosecutor. But Alternate Juror No. 5, like
Simeon G., did not explain why he was not upset about the
verdict. Juror No. 4, Juror No. 7, and Alternate Juror No. 4
wrote that they were not upset because they did not know
enough about the details of the case, which seems just as neutral
as Simeon G.’s response. Juror No. 6 wrote that the “evidence
[was] not clear” in the O.J. Simpson case, which if anything
seems less favorable to the prosecution than Simeon G.’s
response. In sum, the plausibility of the prosecutor’s
explanation “is severely undercut by [his] failure to object to
other [jurors] who expressed views much like [Simeon
G.’s]. . . . The fact that [the prosecutor’s] reason also applied to
these other [jurors], most of them white, none of them struck, is
evidence of pretext.” (Miller-El, supra, 545 U.S. at p. 248.)
Today’s opinion finds these comparisons “relevant and
probative” but ultimately downplays their importance by
pointing out differences between the comparator jurors and
Simeon G. (Maj. opn., ante, at p. 65.) The court notes that Juror
No. 6 and Alternate Juror No. 5, while similar to Simeon G. on
the O.J. Simpson question, did not indicate that they might have
difficulty considering other people’s opinions or that they might
rely on their feelings to reach a verdict. (Maj. opn., ante, at
pp. 65–66.)
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Liu, J., dissenting
This line of reasoning — undercutting the probative value
of juror comparisons by identifying other traits on which the
jurors differed — is a frequent maneuver in our Batson
jurisprudence. (See, e.g., maj. opn., ante, at pp. 55–56; People v.
Hardy (2018) 5 Cal.5th 56, 83 (Hardy); People v. Winbush (2017)
2 Cal.5th 402, 443–446; People v. Chism (2014) 58 Cal.4th 1266,
1318–1322.) To be sure, the issue of how similar two jurors must
be to yield a probative comparison is not reducible to a simple
formula. But this court’s approach of changing the relevant
point of comparison for each of the prosecutor’s stated reasons
cannot be the right one. The court’s reasoning suggests that
significant weight cannot be assigned to comparative juror
analysis unless an accepted juror matches the struck juror with
respect to all of the prosecutor’s stated concerns. Indeed, despite
statements to the contrary, that seems to be what the court
actually holds in this case. (Maj. opn., ante, at pp. 55–56, 65–
66.)
But the high court has expressly rejected this view. (See
Miller-El, supra, 545 U.S. at p. 247, fn. 6 [“None of our cases
announces a rule that no comparison is probative unless the
situation of the individuals compared is identical in all respects,
and there is no reason to accept one. . . . A per se rule that a
defendant cannot win a Batson claim unless there is an exactly
identical white juror would leave Batson inoperable; potential
jurors are not products of a set of cookie cutters.”].) In several
cases addressing Batson claims, “[t]he high court has repeatedly
drawn inferences of discrimination from comparative juror
analysis without regard to whether the comparator jurors
matched the struck juror in every respect identified by the
prosecutor.” (Hardy, supra, 5 Cal.5th at p. 119 (dis. opn. of Liu,
J.) [citing cases].)
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Liu, J., dissenting
In Miller-El, for example, the prosecution gave three
reasons for striking a prospective black juror: he was
ambivalent about the death penalty, his brother-in-law had a
prior conviction, and the prosecution still had 10 peremptory
challenges left and could be liberal in using them. (Miller-El,
supra, 545 U.S. at pp. 247–250.) The high court first compared
the death penalty views of the struck juror to those of three
accepted jurors. (Id. at p. 248.) It found the similarities among
the jurors’ views to be probative (ibid.), even though the
dissenting justices noted that the accepted jurors were not
similarly situated to the struck juror with respect to the other
reasons given by the prosecutor (id. at p. 290 (dis. opn. of
Thomas, J.)). The high court then conducted comparative juror
analysis with respect to the other two stated reasons, again
considering each reason separately. (Id. at pp. 249–250.) In
subsequent Batson decisions, the high court has consistently
followed this approach to comparative juror analysis. (See
Flowers v. Mississippi (2019) 588 U.S. __, __ [139 S.Ct. 2228,
2248–2249]; Foster v. Chatman (2016) 578 U.S. __, __ [136 S.Ct.
1737, 1750–1754]; Snyder v. Louisiana (2008) 552 U.S. 472,
483–484.) All of these decisions found single-issue comparisons
among jurors to be highly probative of discrimination; none used
the pivoting frames of comparisons that this court employs to
mitigate inferences of pretext.
Today’s opinion says “[t]he fact that the high court found
single-issue comparisons to be highly probative of
discrimination within the circumstances of a particular case is
not inconsistent with our analysis here, which . . . recognizes
that such comparisons are relevant but ultimately concludes,
within all of the relevant circumstances, that substantial
evidence supports the trial court’s denial of defendant’s
16
PEOPLE v. MILES
Liu, J., dissenting
Batson/Wheeler motion.” (Maj. opn., ante, at p. 36, fn. 9.) But
that assertion begs the crucial question: What is it about “the
circumstances” of Flowers, Foster, Snyder, and Miller-El that
makes single-issue comparisons highly probative in all of those
cases, but not in the case before us? The court does not say —
and thus leaves unexplained how its approach can be reconciled
with high court precedent. (See Hardy, supra, 5 Cal.5th at
p. 119 (dis. opn. of Liu, J.).)
III.
With today’s decision, this court extends its record of not
having found Batson error involving the peremptory strike of a
black juror in more than 30 years — despite the fact that “[t]he
high court’s opinion [in Batson] responded specifically to the
pernicious history of African Americans being excluded from
jury service, calling such exclusion ‘a primary example of the
evil the Fourteenth Amendment was designed to cure.’ ”
(Hardy, supra, 5 Cal.5th at p. 124 (dis. opn. of Liu, J.),
quoting Batson, supra, 476 U.S. at p. 85; see People v. Johnson
(2019) 8 Cal.5th 475, 534–536 (dis. opn. of Liu, J.).)
Like this case, several of our recent cases had “definite
racial overtones” that “ ‘raise[] heightened concerns about
whether the prosecutor’s challenge was racially motivated.’ ”
(Hardy, supra, 5 Cal.5th at p. 78 [black man convicted of raping
and murdering a white woman]; see People v. Armstrong (2019)
6 Cal.5th 735, 765 [same]; People v. Harris (2013) 57 Cal.4th
804, 863 (conc. opn. of Liu, J.) [same]; People v. Johnson, supra,8 Cal.5th at p. 507 [black man convicted of murdering a white
man and raping a white woman].) Like this case, some of our
recent cases involved peremptory strikes that resulted in no
black jurors serving on the main panel. (See Hardy, at p. 78;
17
PEOPLE v. MILES
Liu, J., dissenting
People v. Rhoades (2019) 8 Cal.5th 393, 456 (dis. opn. of Liu, J.);
see also People v. Bryant (2019) 40 Cal.App.5th 525, 535.) And
like this case, our recent cases have upheld quite tenuous or
implausible explanations for the removal of black jurors. It is
past time to ask whether the Batson framework, as applied by
this court, must be rethought in order to fulfill the constitutional
mandate of eliminating racial discrimination in jury selection.
(See Bryant, at p. 544 (conc. opn. of Humes, J.) [highlighting
“the serious shortcomings with the Batson framework” as
interpreted by this court and “calling for meaningful reform”].)
Here, the prosecutor’s reasons for striking Simeon G. do
not withstand scrutiny. Although I cannot be certain that the
prosecutor struck Simeon G. because of his race, certainty is not
the standard. Considering all relevant circumstances, I believe
it was more likely than not that the strike was improperly
motivated. Because the trial court erred in denying Miles’s
Batson claim, his convictions must be reversed.
LIU, J.
18
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Miles
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S086234
Date Filed: May 28, 2020
__________________________________________________________________________________
Court: Superior
County: San Bernardino
Judge: James A. Edwards
__________________________________________________________________________________
Counsel:
Cliff Gardner and Catherine A. White, under appointments by the Supreme Court, for Defendant and
Appellant.
Sherrilyn A. Ifill, Samuel Spital, Kristen A. Johnson, Christopher Kemmitt and Daniel S. Harawa for
NAACP Legal Defense & Educational Fund, Inc., as Amicus Curiae on behalf of Defendant and Appellant.
Kamala Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens, Ronald A. Jakob and Seth M.
Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Cliff Gardner
1448 San Pablo Avenue
Berkeley, CA 94702
(510) 524-1093
Christopher Kemmitt
NAACP Legal Defense & Educational Fund, Inc.
700 14th Street, NW, Suite 600
Washington, DC 20011
(202) 682-1300
Seth M. Friedman
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-3199