People v. Baker ( 2021 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
PAUL WESLEY BAKER,
Defendant and Appellant.
S170280
Los Angeles County Superior Court
LA045977
February 1, 2021
Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Corrigan, Liu, Cuéllar, Kruger,
Groban and Hull* concurred.
Justice Liu filed a concurring opinion.
________________________
*
Associate Justice of the Court of Appeal, Third Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
PEOPLE v. BAKER
S170280
Opinion of the Court by Cantil-Sakauye, C. J.
Judy Palmer told a friend that she was afraid of defendant
Paul Wesley Baker and that “if anything happened to her,” “he
did it.” Within a few weeks, Palmer disappeared. Her body was
found in the desert several weeks later, severely decomposed.
A jury convicted defendant of first degree murder, among
several other offenses. The jury also found true two special
circumstance allegations — rape and burglary — and returned
a verdict of death at the close of the penalty phase. This appeal
is automatic. Aside from correcting an error in the abstract of
judgment, we affirm.
I. BACKGROUND
A. Guilt Phase
This case involves three sets of charged offenses. The first
concerns Judy Palmer. A jury convicted defendant of first
degree murder (count 1); forcible rape (count 2); first degree
residential burglary (count 3); grand theft auto (count 4),
regarding a Ford Escort that Palmer’s son provided for her use;
unlawful driving or taking of a vehicle (count 5), regarding the
same automobile; and unlawful driving or taking of a vehicle
(count 14), regarding a Ford Ranger loaned to Palmer by her
employer after the Escort disappeared. (Pen. Code, §§ 187, subd.
(a) [murder], 261, subd. (a)(2) [rape], 459–460 [burglary], 487,
subd. (d)(1) [grand theft]; Veh. Code, § 10841, subd. (a)
[unlawful driving or taking].) The jury found defendant not
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guilty of sexual penetration by foreign object (count 15). (Pen.
Code, § 289, subd. (a)(1).) In connection with the murder, the
jury found true two special circumstance allegations (rape and
burglary) and found not true one additional special
circumstance allegation (sexual penetration by foreign object).
(Id., § 190, subd. (a)(17)(C) [rape], (a)(17)(G) [burglary],
(a)(17)(K) [foreign object].) The jury also found that the rape
(count 2) was committed during a residential burglary and
found true a multiple victim allegation. (Id., § 667.61.)
The second set of charged offenses concerns crimes that
the jury found defendant committed against women other than
Palmer: forcible rape (count 6) and sodomy by use of force
(counts 7 and 16) regarding Kathleen S.; and sodomy by use of
force (count 10) regarding Lorna T. (Pen. Code, §§ 261, subd.
(a)(2) [rape], 286, subd. (c)(2) [sodomy].) The jury found true a
multiple victim allegation in connection with each of these
offenses. (Id., § 667.61.) The jury also found true a great bodily
injury allegation in connection with the rape offense (count 6)
and one sodomy offense (count 7) concerning Kathleen S.
The third and final set of charged offenses concerns
crimes, regarding women other than Palmer, of which defendant
was acquitted. The trial court entered a judgment of acquittal
regarding the alleged forcible rape of Monica H. (count 12) after
she did not appear to testify. (See Pen. Code, § 1118.1.) The
jury acquitted defendant of two counts of sodomy by force
(counts 9 and 13) regarding Laura M. and one count of forcible
rape (count 11) regarding Susanne K. The operative charging
document did not include a count 8.
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1. Prosecution case
a. Relationship between Palmer and defendant
Judy Palmer was a sixty-year-old grandmother at the time
of her disappearance on April 17, 2004. She was an active
participant in Alcoholics Anonymous (A.A.), sober for nearly
28 years, and “dedicated a large amount of her time to helping”
others in the program.
Palmer met defendant through A.A. He was roughly
17 years her junior and very strong. Testimony suggested that
the pair became friends around 2000, began dating no sooner
than 2001, and started living together in Palmer’s apartment no
later than 2002. The relationship was on-again, off-again. It
appears Palmer and defendant separated at some point in 2003
and reconciled by early 2004.
Defendant worked as a handyperson to earn a living. In
early 2004, Palmer’s son Robert hired defendant to perform
work in Robert’s home, at defendant and Palmer’s request.
Defendant was dissatisfied with the compensation he received
and told Robert “he could really hurt my mom.”
On March 11, 2004, there was an incident at a storage
facility. Palmer and defendant shared a storage unit beginning
around September 2003. A manager at the facility saw
defendant there several times without Palmer; the manager
recalled him having visited “pretty much every day” since the
unit had been rented, often with his dog. At some unspecified
time before March 11, defendant appeared without the dog, and
the manager inquired about it. The manager testified that
defendant said, “ ‘[s]he’s got it and if I ever want the dog back,
I’ll probably have to kill her to get it.’ ” The manager understood
defendant to be referring to Palmer.
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Palmer appeared at the storage facility in person to make
a payment on March 11. Initially, defendant did not seem to be
with her. The manager told her that defendant “ ‘made a
remark that if he wanted [the dog] back, he would have to kill
you for it.’ ” The manager testified that Palmer looked at her
and started shaking. Defendant appeared immediately after the
manager’s comment. The manager told him she thought his
comment about the dog referred to Palmer. Defendant grabbed
Palmer “and just kind of pinched her real hard”; the manager
related that Palmer “kept looking at me real scared.”
Palmer’s birthday was around that time. Her daughter
Tammy hosted a birthday party on approximately March 11 or
12. Palmer was sitting at a table. Defendant came up behind
her and laid his forearm and fist in front of her. She flinched.
According to Tammy, defendant said, “ ‘I know you want to
marry me.’ And [Palmer] said, ‘the hell I do.’ ” Defendant,
laughing, asked, “ ‘Why don’t you tell her what I gave you for
your birthday?’ ” When Palmer did not reply, he added, “ ‘Come
on. Come on. Tell her what I gave you. It’s pretty and it’s
pink.’ ” Defendant continued laughing. Palmer sat silently,
then retreated to the bathroom, crying. Other evidence adduced
at trial supported an inference that the pink item to which
defendant referred was a vibrator relevant to the sexual
penetration by foreign object count and special circumstance
allegation. Palmer had told Tammy years earlier that sex toys
“grossed her out” and “demeaned the act of making love.”
Within a few days of the party, Palmer told Tammy that
she (Palmer) and defendant were having problems and that she
did not want him in her apartment anymore. Tammy’s
understanding was that defendant moved out some time during
the week following the party and “was out on the street.”
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Palmer’s relationship with defendant had ended by early
April 2004. On April 3 — two weeks before Palmer disappeared
— defendant called Tammy’s home landline telephone. Tammy
described him as “very frantic to speak to” Palmer. Although
Palmer was present, Tammy refused. Tammy and Palmer had
previously discussed Palmer “trying very hard not to see”
defendant; he had been calling Palmer and “showing up at
places,” including Palmer’s home. After Tammy hung up the
landline, her cell phone rang. It was defendant, again. She
refused to let him speak with Palmer, again. Palmer nodded,
suggesting agreement with the refusal. At some point, Palmer
remarked, “I wish the asshole would leave me alone” — the kind
of language Tammy said Palmer used only when “very angry.”
On April 5, defendant was arrested in Palmer’s apartment
and taken into custody. Palmer’s hearsay statement, admitted
only as relevant to the state of mind of the testifying officer,
indicated that defendant had forced himself into her apartment;
other hearsay, admitted without at least contemporaneous
limitation, was to similar effect. Trial testimony indicated that
officers responded at around 10:00 p.m. that night to a call
regarding a domestic disturbance. After they entered Palmer’s
apartment, defendant removed a narcotics pipe from a pocket of
his shorts. He was arrested for possession of that
paraphernalia. Officers also recovered a set of keys to Palmer’s
apartment from his underwear. Two days after the incident, on
April 7, defendant was served with a restraining order
restricting his contact with Palmer. At some point around this
time, roughly between April 3 and April 10, Palmer told a friend
“that she was afraid of him and that if anything happened to her
that — to look at him, that he did it.”
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b. Events preceding Palmer’s disappearance
Defendant was released from custody shortly after 4:00
p.m. on Wednesday, April 14, 2004. A Ford Escort that Palmer’s
son Robert provided for her use went missing by the next day.
That vehicle is the one at issue in counts 4 (grand theft auto)
and 5 (unlawful driving or taking).
Palmer called her boss on Thursday, April 15, and
informed him that she lacked transportation to work. Her boss
loaned her a white 2002 Ford Ranger pickup truck used by the
company that employed them. That truck is the vehicle at issue
in count 14 (unlawful driving or taking). At the time the truck
was loaned to Palmer, it had a metal toolbox with “a diamond-
plate type finish.” Palmer decided to park it away from her
regular parking spot, fearing that defendant, whom she believed
had stolen the Escort, would steal the Ranger as well.
That same day, around 10:00 or 10:30 a.m., defendant
called his acquaintance Daniel Mengoni. Mengoni and
defendant had used substances together “[a] dozen” times,
“maybe more,” including cocaine and alcohol. Defendant
informed Mengoni that he (defendant) had a car for him
(Mengoni). Mengoni was to pay for the car with drugs.
Defendant turned over the car before noon. It was a white Ford
Escort in good condition, with “women’s clothes in the trunk and
A.A. material.” Mengoni gave defendant about $50 worth of
crack, hoping to use the car for at least a day. Defendant gave
Mengoni a key and informed him that he (defendant) “never”
wanted the car back.
The next night (Friday, April 16), around 9:00 p.m.,
Mengoni was pulled over while driving the car. Police arrested
him and told him that the car was stolen. He recalled telling
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the arresting officers that he had received the Escort from
defendant. An officer called Palmer’s son Robert at
approximately 10:00 p.m. that night to inform him that the
missing Escort had been recovered.
c. Palmer’s disappearance
Palmer was last seen alive by friends and family on
Saturday, April 17, 2004. She went to work that day. At some
point, she spoke with Robert. They arranged to meet the next
day to retrieve the impounded Escort.
Between 4:00 and 5:00 p.m. on the 17th, while in her
apartment, Palmer called the friend to whom she had earlier
conveyed that “if anything happened to her . . . he did it.”
During the call, Palmer reiterated that “she was afraid that
[defendant] was going to come and hurt her and she didn’t know
what she should do.”
At about 5:00 p.m., Palmer spoke with her daughter
Tammy. They decided to have dinner together. Palmer drove
to Tammy’s in the Ford Ranger, arriving near 6:00 p.m. Palmer
was “quiet” and not herself. She told Tammy that “she was
really trying to stay away from” defendant. At some point,
Palmer cried.
Palmer left for her apartment, which was about a ten-
minute drive away, at around 8:00 p.m. Before departing, she
and Tammy agreed that Palmer would pick up Tammy’s sons
the next day for an outing.
On Sunday, April 18, however, there was no word from
Palmer. When Tammy called Palmer, she received no answer.
When she drove to Palmer’s apartment complex, she could not
find the truck Palmer had been driving, even though she knew
to look outside of the normal parking spot. Tammy eventually
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went to Palmer’s apartment unit. She knocked on the door,
yelling, but again received no answer. At approximately the
same time, Robert arrived at the place that he and Palmer had
agreed to meet to retrieve the impounded car. Palmer did not
appear. Tammy filed a missing persons report that day.
d. Defendant’s whereabouts the night Palmer
disappeared
The timeline evidence least dependent on human memory
suggested that defendant was at the aforementioned storage
facility as late as about 6:00 p.m. on Saturday, April 17. That
facility assigned a unique pin code to each customer account.
A code was required to enter past the facility’s gate, and to exit,
if leaving in an automobile rather than on foot. A computer-
generated log indicated that the pin code associated with
defendant’s and Palmer’s account was inputted in an attempt to
exit the facility at 5:01 p.m. and 6:07 p.m. on Saturday, April 17.
The pin code was suspended at that time due to nonpayment,
and, thus, would not operate the gate. The manager confirmed
that it was possible for someone without a functional pin code to
follow someone into the facility and need to wait until someone
else was leaving to exit. The record does not reveal precisely
when the person who inputted the pin code left the storage
facility.
Defendant’s acquaintance John Woodard testified that
defendant appeared at Woodard’s home later that night.
Woodard told the police that defendant arrived around 9:30 p.m.
Defendant was driving “a white Ford Ranger, late model,” which
Woodard, a self-described “Ford Ranger person,” had never seen
defendant drive before. (Recall that two days prior, Palmer’s
boss had loaned her the 2002 Ford Ranger at issue in count 14.)
Defendant parked in a location hidden from street traffic, which
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he had not done previously. Woodard understood defendant to
want to trade him the toolbox on the back of the Ranger for a
tile saw defendant had previously given to Woodard as collateral
for a loan. Woodard refused. Within a week or so before this
meeting, defendant had complained to Woodard that Palmer
was mistreating him; “he was very angry at her” and “called her
a cunt.” Defendant did not mention her that evening, however.
And Woodard did not see scratches on defendant’s face that
night.
The jury also heard testimony from Juan Calhoun, a
witness whom the prosecution described as “probably not as
accurate as some of the other[]” witnesses regarding the
timeline. As the court put it (outside the presence of the jury),
“[i]t seems to me that the basic facts were pretty consistent with
Mr. Calhoun. The timeline was a bit confusing.”
Calhoun testified that he encountered defendant the
morning of either Friday, April 16, or Saturday, April 17; closer
to the relevant events, he had said the 17th. Calhoun and
defendant agreed to rent a motel room later that day, to “buy
some drugs and get a few girls and get high in the room.” Among
other things, Calhoun testified that defendant left the room for
several hours, returning with “a couple of scratches or some type
of blood marks on his face.” According to Calhoun, defendant
disclosed “that he had beat the pussy up or something like that.”
Calhoun understood defendant’s terminology to be “like a
street slang, stating that he might have had aggressive sex with
his wife or whatever.” Defendant had previously “mentioned
something about his wife, that they weren’t together.” Calhoun
was not certain, but thought defendant “said he broke in.” At
trial, Calhoun seemed not to recall telling detectives that
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defendant returned at night with a bag of jewelry. He did
testify, however, that he saw defendant with what appeared to
be women’s jewelry not long after. Mengoni also testified that,
in May 2004, Calhoun told him defendant returned with jewelry
and said something about “[b]eating some pussy up real bad.”
Despite some inconsistencies in the timeline evidence adduced
at trial, nothing suggested that defendant returned to the motel
room later than the early morning of Sunday, April 18.
e. Palmer’s apartment
Palmer lived in a studio apartment. At roughly 8 p.m. on
April 18 — the day after Tammy last saw Palmer alive —
Tammy and her husband entered the apartment with the
assistance of a locksmith. Tammy (and, it seems, her husband)
remained inside for no more than 10 minutes. Her brother
Robert and his wife also spent a few minutes walking through
the apartment that night, at some point after Tammy departed.
As relevant here, Tammy noticed several things about the
condition of the apartment. The apartment smelled unusually
strongly of cleaning product. A fan was on. No coffee cup or
water glass appeared where Palmer usually left one. The
glasses that Palmer needed for driving were on top of a table,
folded; Palmer’s habit was to leave them unfolded, so that she
could put them on more easily with one hand when crocheting.
Some of Palmer’s bedding was missing. Finally, Tammy saw a
pink vibrator in the area of the bathroom sink. Embarrassed,
and aware her brother Robert was en route, Tammy wrapped
the vibrator in toilet paper and either she or her husband hid it
in an under-sink cabinet. Otherwise, Tammy testified, she
“didn’t touch anything.”
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Officers’ initial, later-occurring inspection of the
apartment did not lead them to believe that Palmer had been
killed there. “This wasn’t a typical-looking crime scene,” one
officer testified; “This was just a pretty clean apartment.”
f. Events preceding identification of Palmer’s body
On Tuesday, April 20, defendant sold his Bronco truck (not
the Ranger loaned to Palmer) to a used car dealer for $500. The
dealer, who at trial recalled seeing defendant only once before
the transaction, thought defendant seemed “very upset”;
“basically he was saying that he wanted to kill himself.”
Defendant left some personal effects at the dealership. The
dealer’s understanding was that defendant would retrieve them,
presumably the same day. Defendant never returned.
Defendant went back to Woodard’s home on foot at about
that time. He seemed “very upset” and told Woodard “that he
[that is, defendant] was gonna be on the news.” Defendant
developed a habit of appearing near Woodard’s home
“[p]ractically every day,” sometimes with a shopping cart. “[H]e
was mostly trying to get money.” At some point, defendant told
Woodard that defendant was “going to hell and he’s gonna jump
off a bridge.”
On Wednesday, April 21, at around 10 p.m., an officer
responding to a call was directed to a motel room. Defendant
answered the door. The officer observed scratches on
defendant’s face. He detained defendant and brought him to a
police station. A few hours later, at the station, photographs
were taken of scratches on defendant’s face and his inner left
arm. Defendant was released later that day; that is, Thursday,
April 22.
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Also on April 22, detectives assigned to the missing
persons division went to the dealership to which defendant sold
his Bronco. The vehicle was impounded that day. A criminalist
visually inspected the Bronco a few days later. Among other
things, he saw a shovel, towels, and the restraining order
naming defendant.
The missing persons detectives caused photographs to be
taken of certain items that defendant left at the used car lot, but
do not appear to have secured or retained those items at that
time. At some point thereafter, the dealer placed defendant’s
belongings in a dumpster. A homicide detective retrieved
miscellaneous papers from the dumpster, including receipts and
what “looked like a resume for Paul Baker and some other items
with his name on it.” One of the roughly 15 receipts from Home
Depot was dated March 27, 2004 and reflected a purchase of an
item called “multi color” with a specified item number. Although
the significance of that purchase was not apparent at this point
in the investigation, trial testimony of a Home Depot employee
and the president and CEO of a rope manufacturer tended to
indicate that the item reflected on the receipt was rope of the
kind found wrapped around Palmer’s body when her remains
were later discovered.
Law enforcement personnel searched Palmer’s apartment
several times before her body was identified. Carpet under a
coffee table appeared to be stained with blood. Those areas
tested preliminarily positive for blood using a phenolphthalein
test, as did a small drop on the wall and a spot on a piece of
furniture. A criminalist with special goggles and lighting also
identified areas that may have been stained with semen on the
front part of a couch cushion, down the front of the couch, and
on the carpet at the base of the couch. The couch and carpet also
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tested preliminarily positive for semen using an acid
phosphatase test. The criminalist’s testing did not enable him
to determine how long the semen had been there. A pink
vibrator was also collected from an under-sink cabinet.
Finally, Mengoni, whom defendant had given the stolen
Escort, was charged with felony joyriding, and remained in
custody until about Friday, May 7. Within a week of his release,
likely in the range of the 11th to 14th, Mengoni encountered
defendant while on a walk. Mengoni was angry about the arrest,
especially because the car appeared to be connected to a missing
person. Defendant assured him not to worry about it, saying
that “nobody would . . . show up to court to press charges.” If
this conversation took place on or before May 14, as Mengoni
recalled, then it occurred before Palmer’s body was identified —
and tended to show that defendant had special reason to believe
that Palmer, then missing, would not be found alive.
g. Discovery and identification of Palmer’s body
Palmer’s unidentified body was found on May 11 in a
desert area of Riverside County. Due to substantial
decomposition, much of what remained was skeleton; at an
autopsy performed the next day, she weighed 22 pounds.
Palmer’s fingers were rehydrated, and her prints compared to
DMV records. She was identified on May 18 or 19, 2004.
Palmer’s remains were found largely surrounded by foam
padding. Two blankets were wrapped around her and held in
place with a rope, “secur[ing] the body in kind of a fetal position
or balled-up.” Her jeans were unzipped and pulled down to her
thighs, exposing her underwear (which was fully on).
A sweatshirt was atop her chest between her arms. An
unclasped bra was underneath her body. There were no
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apparent signs of tearing on the jeans, underwear, sweatshirt,
or bra.
Various items were found near Palmer’s body. They
included a dental chart bearing the name Judy Palmer; a Notice
of Privacy Practices bearing the name Paul Baker; and a picture
with the inscription, “ ‘Judy, I’ll always love you, no matter
what. I miss you very much. Love Paul B.’ ” Other items found
nearby are discussed as relevant below.
Given the extent of decomposition, the doctor who
performed Palmer’s autopsy was unable to determine the cause
or time of her death. “[T]here were no internal organs of any
kind available,” and “[t]he genitalia, the external genitalia and
internal genitalia, were absent.” Although it was possible that
Palmer had been asphyxiated (or stabbed, or killed by blows to
the body), the bindings around her appeared to be used so that
her body would be easier to move. The doctor did convey,
however, that he did not think Palmer died of natural causes;
“[t]he nature of the bindings and the way that the body was
treated post mortem was — certainly suggests that it wasn’t a
natural death.” The doctor also opined that the condition of her
body was consistent with her having died on April 17 or early
April 18; been left in the desert soon thereafter; and having
remained there until May 11.
h. Defendant’s arrest and aftermath
Officers arrested defendant on May 20, 2004, at about
1:00 p.m. Items of his property recovered soon after included an
acknowledgement of receipt regarding a mental health agency’s
notice of privacy practices. The prosecution argued that this
document was identical to the notice found near Palmer’s body,
except that defendant had signed the version found near
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Palmer. None of the items collected appeared to have blood on
them.
The missing Ford Ranger loaned to Palmer received
several parking citations in the days that followed defendant’s
May 20 arrest — the first shortly after midnight on May 21, the
last on June 1. On June 2, an officer recovered the Ford Ranger
and had it impounded. An LAPD criminalist searched the
vehicle two days later. The Ranger did not contain the toolbox
defendant attempted to trade to Woodard on the night Palmer
disappeared. The criminalist did, however, find “plant material”
in the bed of the truck and inside the cab on the floor near the
passenger seat. The LAPD gave four samples of plant material
to a botanist; two from the truck, and two from a location in
Riverside near where Palmer’s body was found. The botanist
testified that the samples appeared to be tamarix aphylla, a
distinctive, uncommon plant found in only a few regions of
California, including Riverside. The samples could have come
from the same plant, but the botanist was not certain they did.
Finally, Tammy went to clean out Palmer’s apartment
after Palmer’s body was identified. The person she was with
leaned against the couch, and what appeared to be a crack pipe
fell out. Tammy’s husband turned the pipe over to a detective.
i. Forensic evidence
Several items collected during the investigation of this
case were submitted for scientific analysis. Defendant contends
that some of the results of that analysis were improperly
admitted at trial, because the analysts were not available for
cross-examination. (See post, pt. II.E.) This section describes
only analysis performed by three criminalists who testified at
trial.
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One criminalist observed sperm cells on cuttings from
Palmer’s rug and couch, as well as on a swab of the vibrator.
The cutting from the rug had “a lot of sperm”; “approximately
100 to 250 sperm per . . . three microliter drop.” The swab of the
vibrator had only two. The analyst could not determine the age
of any seminal fluid on the rug, the couch, or the vibrator.
A different criminalist screened several items for seminal
fluid using an acid phosphatase test. A towel in a bag found
near Palmer’s body screened positive, as did an aqua-colored
blanket in a different bag nearby. Microscopic examination of
extractions from those items revealed sperm cells. The groin
area of Palmer’s underwear screened negative for seminal fluid,
but a later screening of other portions of the underwear was
“positive, in that it changed color[,] [b]ut inconclusive, in that it
was different than what I typically see.” The criminalist did not
evaluate the relevant areas microscopically.
The third criminalist specialized in DNA analysis. She
testified that a sock found in a bag near Palmer’s body matched
the DNA profile the criminalist created regarding Palmer, as did
various other items.
The criminalist also created a profile of defendant’s DNA.
Among other things, she compared that profile to sperm and
nonsperm fractions extracted from the aqua-colored blanket.
She found defendant’s profile in both the sperm and nonsperm
fractions. A cigarette butt from the same bag also matched
defendant’s profile, as did a sperm fraction extracted from a
towel cutting.
The criminalist understood the frequency with which
defendant’s profile would appear in the population to be “in the
magnitudes of trillions.” The profile common to defendant and
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the cigarette butt would be expected to appear in one in 120
trillion Caucasians. The more detailed profile common to
defendant and the sperm fraction from the towel would be
expected to appear in one in 740 quadrillion Caucasians.
The criminalist could not indicate when defendant’s sperm
was secreted on the blanket or the towel. Sperm cells could
remain even after exposure to sunlight or washing in detergent,
“[b]ut it’s also very possible” for sperm to be removed; “[i]f you
have a lot, there could be a lot left behind. If there wasn’t a lot,
it could be completely washed away.” Each subsequent washing
diminishes the likelihood of finding sperm. Additionally, “[t]he
constituent of the semen is the acid phosphatase, which is water
soluble and it tends to wash out.” The criminalist “would not
expect to get a positive result with acid phosphatase, which is
the enzyme that is water soluble,” if underwear had been
exposed to semen and laundered.
Finally, as noteworthy here, the criminalist extracted a
sperm fraction from cuttings of Palmer’s underwear, though she
did not observe any sperm visually. Although the criminalist
could only create a partial profile from that fraction, the profile
was consistent with defendant; he could “[]not be excluded.” The
cuttings were forwarded to another lab for a different type of
DNA testing.
j. Evidence of uncharged offenses
In addition to the charged offenses, the prosecution also
introduced evidence of uncharged offenses that defendant
allegedly committed against other women. Defendant contends
that the evidence of uncharged offenses was unduly prejudicial.
(See Evid. Code, § 352.) That evidence is discussed as relevant
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below. (See post, pt. II.D.) The balance of this background
section describes evidence regarding other charged offenses.
k. Lorna T. (Count 10)
The jury convicted defendant of one count of sodomy by
force regarding Lorna T. She met defendant at an A.A. meeting
in approximately the summer of 1994. They started dating
about a month later, dated intermittently for about five months,
and renewed their relationship sometime thereafter. During
the time in which they were dating, defendant demonstrated an
interest in pornographic films featuring anal sex and “whips and
chains.”
One evening in mid-December 1995, defendant attacked
Lorna T. in her bedroom. They were lying naked on her bed
shortly before she was to leave for a Christmas party when
defendant said “ ‘[g]ive me some from the back.’ ” After Lorna
T. repeatedly refused, he pushed her from her side onto her
stomach; held her down by the back of her neck (pressing her
face into the bed and making it difficult for her to breathe); and
forced her to have anal sex with him. Lorna testified that “[i]t
hurt like he was just ripping me, like, you know, just forcible,
forcing his self real hard . . . .” After defendant stopped, she said
what he did was wrong and asked him why he did it. He said
nothing, got dressed, and left. Lorna feared that if she called
the police, “he would retaliate.”
l. Kathleen S. (Counts 6, 7, and 16)
Defendant was convicted of three offenses regarding
Kathleen S.: forcible rape (count 6) and forcible sodomy (count
7), regarding an incident in June 1997, and forcible sodomy
(count 16), regarding an incident in April or May 1997.
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Kathleen met defendant in late 1996 or early 1997. She
was homeless at the time and struggling with drugs and alcohol.
Defendant was living in his van and offered to let her stay with
him, which she did. They began an intimate relationship.
One night in April or May 1997, they were inside the van.
Defendant told her that he “wanted it from behind,” which she
understood to mean that “he wanted to anally penetrate me.”
She told him that she did not want to engage in anal sex. In
response, “he took it anyway.” He told her that “he does this to
all of his women.” She did not report the incident to the police
that night, “[p]robably because of the life I was living at the time
and fear of going back into the streets.”
At some point, Kathleen was offered a job as a dog groomer
and inquired about a job for defendant. Defendant was hired.
Her employer eventually discovered that defendant had a
background as a handyperson. The employer offered to let
defendant and Kathleen live in the employer’s garage in
exchange for defendant working on the employer’s house on
weekends. Defendant and Kathleen accepted the offer and
moved into the garage on June 2, 1997.
The day they moved in, they went to a nearby bar.
Kathleen invited a friend to join them. Defendant knew about
the invitation but found out only after it had been extended that
the friend was an ex-boyfriend of Kathleen’s. After they
returned to the garage, defendant became angry and assaulted
her. He bit her thumb, hit her face, and threw her into the
garage door. Testimony from neighbors who heard noises
coming from the garage corroborated that a violent
confrontation occurred.
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Kathleen could not remember much of the event. But she
vaguely recalled being on a mattress on her stomach and felt
pain in her anal and vaginal regions. Based on her injuries, she
concluded that she had been raped and sodomized.
Kathleen also recalled defendant telling her “that he was
gonna take me out to the desert and tie me up and have his
friends rape and kill me.” She further testified that at some
point “he got ahold of my wrist, I believe, and proceeded to drag
me out of the garage saying that I’m gonna take you in the house
and show you what I’ve done to you” — adding, “I knew he would
kill me if he took me in that house.” In response to her asking
why he was doing this to her, “he said he does it to all of his
women, that same remark.” As he dragged her out of the garage,
she broke free and started running. “I believe at that time I
heard someone say it was the police.”
A detective who arrived at the scene testified. He saw
Kathleen running out of the garage, followed by defendant. “The
right side of her face was completely swollen, her eye swollen
shut, red and puffy, and she was bleeding from her mouth.” “As
she ran past me initially she screamed ‘don’t let him get me
again. Don’t let them take me to the desert.’ ” He believed “she
used the term ‘he fucked me in the ass.’ ” She was transported
by ambulance to a hospital.
Kathleen recalled “a few bodies . . . trying to restrain me,”
and then “waking up in the hospital.” Her memory of her time
in the hospital is “very vague.” “I remember speaking to
somebody who was telling me it was okay, that the police had
helped me and the doctor needed to examine me.”
The doctor who examined Kathleen on the morning of
June 3, 1997, testified. He explained that he did not remember
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the examination, but he testified based on records prepared
around that time. According to those records, she was
“disheveled, tearful, [and] cooperative.” “[S]he had pain in her
face and jaw area,” as well as injuries around those areas. “[S]he
stated she was beaten up and raped by live-in boyfriend Paul
Baker earlier that evening — that night. She said that he tied
her up, both hands and feet, ‘punched and kicked me all over,’
put his penis in her mouth, vagina and rectum multiple times.”
An injury on her right thumb appeared to be a possible human
bite mark. The doctor performed a pelvic exam. She had “a
small bruise on the right labia” and “an area around her rectum
that looked like it might be superficial abrasion.” The doctor
believed her injuries “were consistent with both physical and
sexual assault” and supported her description of the attack. He
did not notice any tearing or bleeding of her rectum. He could
not state exactly when the punctate wound was inflicted and
“couldn’t say it was yesterday or today” regarding the possible
abrasion near the rectum. The sperm the doctor observed could
have been a few days old.
m. Laura M. (Counts 9 and 13)
Defendant was charged with, but acquitted of, two counts
of forcible sodomy regarding Laura M. She and defendant met
through a mutual acquaintance in 1996 and, intermittently, had
consensual intimate relations until sometime in 2001. The first
charged incident allegedly occurred at a hotel in December 2000.
Laura testified that defendant tied her to a bed post and forced
her to have anal sex with him. The second charged incident
allegedly occurred at Laura M.’s home in January 2001. She
testified that he pulled her out of the shower, threw her to the
floor, and again forced her to have anal sex with him.
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Cross-examination focused primarily on Laura M.’s
alcohol use and gaps in her memory. The jury also heard
testimony that Laura M. had been convicted of several
misdemeanors, including making a false report to a public
agency or peace officer.
n. Susanne K. (Count 11)
Defendant was charged with, but acquitted of, one count
of forcible rape regarding Susanne K. She and defendant met
through A.A. in approximately February 2001 and went on a
first date in May of that year. They ended up at her home.
Susanne K. testified that, while there, defendant had sexual
intercourse with her against her will, despite her repeatedly
telling him she did not want to do so. Because Susanne K.
passed away before trial, the jury did not have an opportunity
to hear her testify; it heard a reading of her testimony from the
preliminary hearing in this case.
2. Defense case
The defense called several witnesses relevant to the
offenses concerning Laura M. As noted, the jury found
defendant not guilty of those offenses.
The defense also elicited various pieces of information
regarding the offenses related to Palmer. Among other things,
questioning probed officers’ interviews of Calhoun and whether
officers had assisted Mengoni in exchange for his testimony.
Various other details concerning the investigation were also
elicited; for example, that Palmer’s apartment door did not
appear to be damaged about a week after her disappearance,
and that Woodard said he never reported seeing scratches on
defendant’s face. Much of the testimony retraced investigators’
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steps, including a conversation in which a victim of an
uncharged offense did not report that offense.
B. Penalty Phase
1. Prosecution case
The prosecution offered additional photographs
documenting Kathleen S.’s injuries arising from the incident in
the garage. It also offered certified records indicating that
defendant had been charged with and convicted of possession of
a controlled substance (cocaine base) in June 1999.
Palmer’s daughter-in-law Vicki R. testified. She described
Palmer as “like my mom” and a doting grandmother to Vicki’s
children. Vicki’s daughter “totally shut down” after Palmer’s
death, as did Vicki’s husband Robert. Vicki’s two younger sons,
she added, also missed their grandmother; one of them testified
to similar effect, as did one of Palmer’s grandsons through her
daughter Tammy. When asked what she missed most about
Palmer, Vicki replied, “[h]er love, her support.” Palmer’s son-
in-law Casey G., Tammy’s husband, also described Palmer as “a
great mother-in-law” who “helped so much in our lives.”
Palmer’s son Robert described her as a “lighthearted,
really easygoing” person who “wanted to help . . . and listen to
everybody.” Her death had changed him; “you just don’t know
who you can trust, you know. When you learn that somebody
who acts like they’re your friend and then waits until your most
sensitive moment and they want to do such a thing to you . . . .”
Knowing how Palmer died made it harder for him to enjoy
memories of their time together.
Palmer’s daughter Tammy explained that Palmer “had a
clean bill of health” and had been focused on her well-being
because “[s]he wanted to be around to watch her grandkids grow
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up, go to college.” When Tammy was a young child, she was
ridiculed due to a facial birth defect. Palmer counseled her
concerning how to deal with the situation and Tammy “never
had any problems after that.” They remained close even during
Tammy’s teenage years; “[W]e never had any fallouts. We never
had any of that teenage bicker back and forth . . . . I never went
through that. I had so much respect for her.” Although Palmer
had suffered through a period of “deep depression” when her
then twelve-year-old son was struck by a car and killed, Palmer
and Tammy’s time together was largely filled with jokes and
laughter. Palmer was Tammy’s best friend.
Tammy also described her emotions after Palmer
disappeared. “I went from frantic to anger, back to frantic”
when Palmer was missing, Tammy testified, and “didn’t sleep
for three weeks.” Learning that her mother had been murdered
made her and her ten-year-old son very angry. Tammy was
different now; “I don’t trust anybody.” “I feel about 20, 30 years
older. . . . [I]t took me almost a year to stop shaking.” Her
memories of her mother were also tarnished. “I wish when I had
those good memories that they didn’t have a picture of her at the
desert or how she was killed in her apartment. But it always
finishes — my good memories always finish with that picture.”
People who knew Palmer through A.A. also described her
importance to that community. “She was an extremely well-
respected human being as far as her willingness to go to almost
any lengths to help anybody,” one said. Another described
Palmer as “the most giving, understanding, dedicated,
wonderful, generous, nonjudgmental, caring person.” A third
recalled Palmer’s sobriety even after Palmer’s twelve-year-old
son was killed. Approximately a day after her son’s death,
Palmer shared the news; “ [‘]if you are hurting,[’] [Palmer] said,
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[‘]I’m here to tell you that there’s nothing so awful in your life
that you have to drink again.[’] ” “And I remember thinking,”
the witness continued, “if this woman can lose her child right in
front of her, then I certainly don’t ever have to have another
drink. And that’s kept me sober . . .[,] that knowledge that if she
can stay sober through that, well then I can stay sober.”
2. Defense case
The defense case had two main components. The first
involved family members describing defendant’s difficult
childhood. The second was the expert testimony of Dr. Jay
Adams, a clinical psychologist.
Defendant’s older sister Penny explained that their
biological father left their household when she was about five
years old. They grew up with an aloof stepfather, one of the five
husbands their mother had had by the time of trial. The
household, which at times included Penny, defendant, two of
their siblings, five step siblings, and a child born to her mother
and stepfather, struggled financially. She did not recall any of
the children ever visiting a dentist before she turned 18, the age
at which she left home. Sometimes they did not have food, a
phone, electricity, or oil for heat and warm water during cold
Pennsylvania winters. The children bathed only once per week
and often wore unwashed clothing.
Penny was roughly 9 or 10 years old when she became
aware that her mother and stepfather had problems with
alcohol. When her mother was very drunk, “she was abusive.
I mean, she was a very angry drunk.” She would hit the children
with “anything available. A wooden spoon, a belt, a book.”
“Sometimes . . . she would go into a rage and wouldn’t be able to
stop.” The stepfather would hit them, too; “[h]e was a very
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muscular man” who “wouldn’t hold back.” Their mother and
stepfather would also scream at each other and fight physically.
At one point Penny called the police, afraid that the stepfather
would kill her mother. The police arrived and asked the
stepfather — a former police officer — whether they needed to
come in. The stepfather said no. The police “just turned around
and walked away.”
Defendant was also exposed to sexual content at a young
age. When the family was in the living room watching
television, Penny explained, their stepfather “would put his arm
around [their mother] and put his hand down the shirt and feel
her breasts.” There were pornographic books and magazines
around the house, accessible to all of the children. Defendant’s
half brother testified that defendant’s mother and stepfather
would watch pornographic videos while the children were
around. There was also evidence tending to suggest that
defendant may have been aware of his mother’s intimate
activities with other men.
Defendant, Penny testified, wet his bed “to a very late
age,” possibly even as a teenager. Her mother and stepfather
beat him in response. Sometimes their stepfather would hit the
children so hard that they would fall to the ground, and then,
while on the ground, hit them more. She never heard him
apologize. He left the family when defendant was
approximately nine years old. Defendant was largely
unsupervised from then until he was about 14 years old, when
his mother relinquished her custody of him at a police station.
Cross-examination elicited some of his misbehavior to that
point, without defense objection.
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Defendant’s younger sister June gave similar testimony
about her mother and stepfather’s conduct, including daily
alcohol consumption and frequent violence. His half brother
Clyde also testified similarly. June recalled defendant having
seizures and sometimes sleepwalking naked with his stuffed
monkey. She recalled that he was hit more than the other
children. On at least two occasions, she saw the stepfather pick
defendant up by the neck when defendant was seven or eight
years old. She left the house for good when she was 14;
“I couldn’t handle it anymore.” June also conveyed that
defendant struggled with drugs “on and off through his entire
life.” Cross-examination of June addressed an incident in which
defendant stole from his sister, potentially to obtain drugs.
Among other things, cross-examination of Clyde elicited,
without objection, that defendant threatened to kill Clyde when
defendant was roughly 13 or 14 years old.
Defendant’s mother testified. She had not seen him in
about 15 or 20 years. She testified that defendant’s biological
father hit her, including while she was pregnant with defendant,
and also hit defendant, even though defendant was only a few
years old before the father left the family. After defendant’s
biological father left, he never called to speak with the children,
never sent them cards, and paid child support only once.
Defendant’s bedwetting became worse after his father left, and
worse again when his mother remarried. She and his stepfather
would discipline the children physically. When defendant was
about eight years old, she took him to counseling at his school’s
suggestion. The stepfather attended once; the counselor said
“he was part of the problem,” and he refused to attend again.
Defendant’s mother related that she and defendant’s
stepfather would drink every day. With or without alcohol, he
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would sometimes get very angry and hit her (including in front
of the children) or hit the children themselves. At one point she
got carried away hitting defendant and “[t]he rest of the kids
and the dog” had to pull her off him. She eventually had
defendant declared incorrigible and gave him up after he
threatened her and her daughter. She did not visit him
regularly “because it was a long drive” and she had to work.
Defendant’s mother also described some of defendant’s
other difficulties as a child. He was diagnosed with a form of
epilepsy. Even at the age of five or six, he would drink his
mother and stepfather’s alcohol — conduct for which he was not
disciplined. He also struggled with schoolwork. Without
objection, cross-examination elicited that defendant had
committed theft, both as an adult (from his mother) and as a
child (from others).
Dr. Adams thought it “pretty clear” that defendant
“suffered from major [recurrent] depression” and “less clear, but
I think pretty likely, there is a diagnosis of polysubstance
dependency, which means that the person has used and become
dependent upon at least three substances.” Her testimony
conveyed much of the information on which she relied in
reaching those conclusions. She also identified indicia of
potential dissociative disorder, generalized anxiety disorder,
and post-traumatic stress disorder. She thought defendant
“clearly” met the criteria for antisocial personality disorder,
with features of borderline personality disorder.
Difficult upbringings, she explained, can prevent
individuals from developing the skills necessary to cope with
stress in a nondestructive way. She opined that defendant’s
relationship with women was characterized by hostile
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dependency; he “sought out closeness with women” but “doesn’t
have the skills to maintain a relationship.” She anticipated
“that he would have problems coping with stress, that he would
easily become overwhelmed and not have developed the skills to
deal with stress very well.” Regarding rejection, she thought “he
would find rejection very damaging and very psychologically
threatening,” the type of threat to which he might impulsively
“react very aggressively.”
Although at some point another mental health
professional had identified defendant as malingering, and it was
“certainly possible” that there had “been instances where he
malingered,” Dr. Adams emphasized that just “because someone
is malingering in a particular instance does not necessarily
mean that they don’t have other psychiatric diagnoses.”
Cross-examination elicited, among other things, that
Dr. Adams did not include her diagnoses in her written report,
and that those diagnoses were not made available to the
prosecution until the eve of her testimony. It also probed the
reliability of the bases for her testimony, such as self-reported
information and documents prepared by a defense mitigation
specialist. The prosecution also sought to distinguish any
impulse control issues defendant might suffer from the
assertedly planned nature of the murder.
3. Rebuttal
The prosecution called one rebuttal witness, John Gaynor,
a group care counselor at a facility at which defendant arrived
in 1977. Gaynor had prepared a memorandum on which the
defense expert relied. His testimony clarified an ambiguous
passage in the document. As clarified, the thrust of the passage
was that defendant could behave himself if incentivized to do so
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but had “little sense of personal motivation . . . to control and
manage his behavior.”
II. DISCUSSION
A. Denial of Batson/Wheeler Motion
“Peremptory challenges may not be used to exclude
prospective jurors based on group membership such as race or
gender.” (People v. Armstrong (2019) 6 Cal.5th 735,
765 (Armstrong); see Batson v. Kentucky (1986) 476 U.S. 79, 97;
People v. Wheeler (1978) 22 Cal.3d 258, 276 (Wheeler).)
“Excluding even a single prospective juror for reasons
impermissible under Batson and Wheeler requires reversal.”
(People v. Huggins (2006) 38 Cal.4th 175, 227.) When a party
opposing a peremptory strike makes a prima facie case that the
strike was motivated by impermissible discrimination (step 1),
the proponent of the strike must offer a nondiscriminatory
reason for that challenge (step 2). (Armstrong, at p. 765.) The
question then becomes (step 3) whether the opponent of the
peremptory challenge has shown it “ ‘more likely than not that
the challenge was improperly motivated.’ ” (Id., at p. 766; see
also Purkett v. Elem (1995) 514 U.S. 765, 767 (Purkett).)
The prosecution in this case peremptorily struck both
prospective jurors who identified themselves as Black and had
not previously been excused for hardship or cause: Prospective
Jurors R.T. (No. 7731) and T.P. (No. 9049). The trial court found
a prima facie case of discrimination based solely on “sheer
numbers.” The prosecutor explained that she struck both
prospective jurors because she thought it would be difficult for
them to impose the death penalty, relying in part on R.T.’s
demeanor during voir dire. Defense counsel did not dispute the
sincerity of the prosecutor’s explanation, nor the accuracy of the
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observations underlying it. The trial court found that the
prosecutor was “credible” and “that her observations are based
on race neutral reasons.” We affirm the denial of the
Batson/Wheeler motion.
1. Background
a. Prospective Juror R.T. (No. 7731)
Prospective Juror R.T. described herself in her juror
questionnaire as a 51-year-old Black woman. She wrote that
she “believe[d] in the death penalty” and was “moderately in
favor” of it. She felt comfortable serving as a juror in a capital
case, asserting that she would be able to vote for death if
appropriate under the facts and the court’s instructions. The
death penalty was worse than life imprisonment, she added,
because “[a] life is ended.” Prospective Juror R.T. indicated that
she did not belong to any organization that advocates for or
against the death penalty. The religious organization to which
she belonged, she added, does not take a position on the issue.
The People did not seek to excuse Prospective Juror R.T.
for cause based on her questionnaire. During Hovey voir dire
(see Hovey v. Superior Court (1980) 28 Cal.3d 1, 80), defense
counsel elicited that R.T. could not indicate whether she
preferred a sentence of death or life imprisonment because she
“ha[dn’t] heard any facts”; that she would be open to listening to
mitigating and aggravating evidence; and in particular, that
evidence about the defendant’s life “would help” in selecting a
penalty. Hovey voir dire continued:
“[PROSECUTION:] Okay. I want you to imagine that
you’ve gone through the whole trial, you’ve gone through the
penalty phase, you considered the mitigating and aggravating
circumstances and based — based upon all of that you’ve
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determined that in this particular case death was an
appropriate penalty. I want you to imagine that you’re sitting
in the jury box and look at the defendant and tell us if you would
feel comfortable or that you could announce your verdict is
death? Could you do that, looking at the defendant right here
and now?
“[R.T.:] I really don’t know. [¶] I don’t know if I’d be
comfortable or if I’d be scared. [¶] I don’t know.
“[PROSECUTION:] Okay. Because you don’t know,
because you have those feelings, do you think it would be
difficult for you to sit on a trial of this nature and impose the
death penalty if you believe it is appropriate to do so based upon
everything you’ve heard?
“[R.T.] That’s a possibility.
“[PROSECUTION:] Do you think it would be impossible
for you to impose the death penalty because of those feelings of
uncertainty?
“[R.T.:] No.” (Italics added.)
The court then inquired whether R.T. was open to
weighing mitigating and aggravating factors at the penalty
phase to reach an appropriate verdict (“Yes,” she responded);
whether that verdict could be life without the possibility of
parole or the death penalty (“Yes”); and whether she was open
to both possible sentences (“Yes, I am”). Both parties passed for
cause. The prosecution later exercised a peremptory challenge
against R.T. The defense did not object at that time.
b. Prospective Juror T.P. (No. 9049)
Prospective Juror T.P. described himself on his juror
questionnaire as a 44-year-old Black man. He wrote that he was
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“neutral” about the death penalty and thought it “might be”
necessary “in some cases of extreme violence.” He also conveyed,
however, that he viewed life imprisonment as a worse
punishment than death. When asked whether he belonged to
any organization that takes a position for or against the death
penalty, he answered “no.” But when asked whether his
religious organization had a view on the death penalty, he said
“yes”; namely, that “God is the only one to give life and take life,”
a view with which he agreed. Prospective Juror T.P. indicated
that he was comfortable serving as a juror in a capital case and
would not automatically vote for or against death. But he also
said that he could not see himself “in the appropriate case
choosing the death penalty instead of life in prison without the
possibility of parole.”
During Hovey voir dire, the court and the parties probed
some of these apparent inconsistencies. When the court asked
why T.P. did not know whether he could impose the death
penalty, T.P. replied, “I don’t think — I think that belongs to a
higher authority than myself. I don’t think I’m — I should be
one to decide a man’s life.” When asked “are you against the
death penalty,” T.P. replied, “Yes, I am.” When pressed about
whether he could impose the death penalty, T.P. variously
indicated: “Well, it’s sort of kind of a mixed feeling with it, you
know”; “If somebody’s found guilty beyond a reasonable doubt,
I think maybe so, yeah”; and that he could impose death “[i]f it’s
very appropriate.” When informed by the prosecution that
felony murder does not require intent to kill and asked whether
he would “absolutely refuse to impose [the] death penalty if you
believed the defendant did not intend to kill,” T.P. replied,
“Right. In that case, I don’t think death would be merited if it’s
unintentional,” regardless of any aggravating circumstances.
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Prospective Juror T.P. had also indicated, however, that he
could follow the court’s instructions and be open to imposing the
death penalty.
The prosecutor challenged T.P. for cause “based upon the
fact that he could not impose the death penalty . . . in this
present case,” citing T.P.’s unwillingness to impose death absent
proof of intent to kill. The court denied the challenge: “Again,
I have a problem with the juror not being familiar with all the
facts of the case, not having heard the case, not being given the
full instruction under the law as to what felony murder is.
I don’t think I can excuse him for cause based upon that limited
inquiry. I just think it would be improper. So he’ll be retained.”
The prosecution later exercised a peremptory challenge against
Prospective Juror T.P.
c. Objection and ruling
Immediately after the prosecution struck Prospective
Juror T.P., the defense raised an objection “in the nature of a
[state law] Wheeler motion,” which the court understood to raise
a federal Batson claim as well. (Cf. People v. Williams (2006)
40 Cal.4th 287, 310 & fn. 6 [holding, even after Johnson v.
California (2005) 545 U.S. 162, that a Wheeler motion preserved
a Batson claim on appeal].) This colloquy followed:
“[DEFENSE]: . . . [F]rom my recollection and
observations, there are only two black jurors in the venire and
the prosecution has moved to excuse the two and I believe that
qualifies as a cognizable group and they should have to show
good cause as to why they would do such a thing.
“THE COURT: I’m making the same observations. There
were two blacks left in the jury, one female and one male, both
[of] which have now been exercised and excused by the people,
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Juror No. 9049, and Juror No. 7731 who was a female. [¶]
Based upon that, there are no additional black jurors left in the
venire and those are the only two exercised by the [P]eople. [¶]
The court is going to find a prima facie case — well, before I do
that, I would like the [P]eople to offer an explanation as to the
excuse for these two jurors.
“[PROSECUTION]: We weren’t in the position to pull out
their questionnaires to get verbatim quotes about what they had
said. The court’s made a prima facie finding —
“THE COURT: Not yet.
“[PROSECUTION]: Each of the two African American
jurors who were excused expressed extreme difficulty in
imposing the death penalty, which is a race neutral reason for
exercising a preemptory. The lady juror who was . . . the
people’s fourth preemptory challenge, her body language was
extremely unreceptive both to the prosecution and the idea of
having to impose the death penalty and she expressed verbally
that she’d have a great deal of difficulty in doing it. With regard
to the prospective alternate whom the [P]eople just kicked,
I believe he wrote some extremely strong answers in his
questionnaire in opposition to the death penalty.
“The decisional law . . . makes it clear that the inability to
impose the death penalty or even equivocation with regard to
comfort in imposing the death penalty are race neutral
rationales for kicking a juror.
“It’s probably also worth stating because there’s not only
[w]hat’s in the Wheeler arena, but also a related arena under the
Sixth Amendment it’s worth pointing out to make a full record
that the defendant is a non-Hispanic Caucasian and that same
description describes all of the victims. They would be what you
35
PEOPLE v. BAKER
Opinion of the Court by Cantil-Sakauye, C. J.
would call Anglo-Saxons with the exception of one woman who
may be partly African American — who is a trivial witness to
the case — I believe Lorna [T.] is. Everyone else appear to be a
non-Hispanic Caucasian who is associated with this case as a
witness. [¶] I only point that out in case there’s going to be some
Sixth Amendment challenge also.
“And, by the way, I do apologize, your honor, if the court
needs stronger basis for the reason for kicking those two jurors,
I’d have to get out their questionnaires, which may take a
moment or two, and it would have to happen in front of the
jurors. If that needs to occur, perhaps we can ask the jury to
step outside.
“THE COURT: The court does find a prima facie case
based upon the sheer numbers of both African American or black
jurors being excused; however, in listening to the explanations
given by counsel, I presume they would be the same.
“[PROSECUTION]: Yes.
“THE COURT: They appear to be race neutral. [¶] There
are no racial issues in this case that I am aware of, which doesn’t
necessarily defeat a Wheeler Batson motion, but I find that [the
prosecutor] Ms. Ford is credible, that her observations are based
on race neutral reasons that are proper challenges — or proper
preemptory challenges.
“[PROSECUTION]: Your honor, once the jury has been
let go, can I ask to raise this topic again and bring out their
questionnaires?
“THE COURT: Yes. . . . [¶] . . . You can augment the
record later.”
36
PEOPLE v. BAKER
Opinion of the Court by Cantil-Sakauye, C. J.
The court denied the Batson/Wheeler motion. The court
later asked the prosecutor whether she wished to augment the
record. She did so, offering details regarding her pattern of
strikes and the prospective jurors’ reactions to questions
regarding the death penalty.
2. Analysis
Because the trial court found a prima facie case of racial
discrimination and the prosecutor stated a reason for the strikes
at issue, the question before us is whether defendant has shown
it “ ‘more likely than not that’ ” at least one of the “ ‘challenge[s]
was improperly motivated.’ ” (Armstrong, supra, 6 Cal.5th at
p. 766; see Flowers v. Mississippi (2019) 588 U.S. __ [139 S.Ct.
2228, 2244] (Flowers) [“ ‘motivated in substantial part by
discriminatory intent’ ”]; Foster v. Chatman (2016) 578 U.S. __
[136 S.Ct. 1737, 1747] (Foster); Davis v. Ayala (2015) 576 U.S.
257, 270 [135 S.Ct. 2187, 2199] (Ayala); People v. Smith (2018)
4 Cal.5th 1134, 1147.) “The existence or nonexistence of
purposeful racial discrimination is a question of fact.” (People v.
Lewis (2008) 43 Cal.4th 415, 469.)
The answer to this factual question will ordinarily depend
“on the subjective genuineness of the race-neutral reasons given
for the peremptory challenge.” (People v. Reynoso (2003)
31 Cal.4th 903, 924, italics omitted.) A justification based on a
mischaracterization of the record could reveal a discriminatory
motive (e.g., Foster, supra, 136 S.Ct. at p. 1753), but might
reflect a mere error of recollection (e.g., People v. Hardy (2018)
5 Cal.5th 56, 79 (Hardy); People v. O’Malley (2016) 62 Cal.4th
944, 979; People v. Williams (2013) 56 Cal.4th 630, 661; People
v. Elliott (2012) 53 Cal.4th 535, 565; People v. Jones (2011) 51
Cal.4th 346, 366; People v. Taylor (2009) 47 Cal.4th 850, 896;
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PEOPLE v. BAKER
Opinion of the Court by Cantil-Sakauye, C. J.
People v. Gutierrez (2002) 28 Cal.4th 1083, 1124). Likewise, a
justification that is “implausible or fantastic . . . may (and
probably will) be found to be pretext[ual],” yet even a “silly or
superstitious” reason may be sincerely held. (Purkett, supra,514 U.S. at p. 768; People v. Gutierrez (2017) 2 Cal.5th 1150,
1171 (Gutierrez); cf. O’Malley, at pp. 981–982 [“prosecutor’s
reliance on [prospective juror’s] interest in amateur magic” did
not “establish that [the prosecutor] acted with discriminatory
intent”].) Of course, the factual basis for, and analytical
strength of, a justification may shed significant light on the
genuineness of that justification — and, thus, on the ultimate
question of discrimination. (Miller-El v. Cockrell (2003)
537 U.S. 322, 339.) But the force of the justification is
significant only to the extent that it informs analysis of the
ultimate question of discriminatory motivation. (People v. Cruz
(2008) 44 Cal.4th 636, 660.)1
Given this framework, a trial court’s ruling on that
ultimate question is ordinarily reviewed with deference. “ ‘In
the typical peremptory challenge inquiry, the decisive question
will be whether counsel’s race-neutral explanation for a
peremptory challenge should be believed. There will seldom be
much evidence bearing on that issue, and the best evidence often
will be the demeanor of the attorney who exercises the
challenge.’ ” (People v. Jones (1997) 15 Cal.4th 119, 162.)
“A trial court is best situated to evaluate both the words and the
demeanor of jurors who are peremptorily challenged, as well as
1
Theoretically, a justification might be a pretext for a
nondiscriminatory reason; people may lie to advance other ends.
(See, e.g., Reeves v. Sanderson Plumbing Products, Inc. (2000)
530 U.S. 133, 148.) But this technical exception is unlikely to
matter often, if ever, and nothing suggests that it matters here.
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Opinion of the Court by Cantil-Sakauye, C. J.
the credibility of the prosecutor who exercised those strikes.”
(Ayala, supra, 135 S.Ct. at p. 2201; see People v. Stevens (2007)
41 Cal.4th 182, 198.) Thus, “[w]hen the trial court makes a
sincere and reasoned effort to evaluate the [proffered] reasons,
the reviewing court defers to its conclusions on appeal, and
examines only whether substantial evidence supports them.”
(People v. Melendez (2016) 2 Cal.5th 1, 15.)
For the reasons discussed below, we conclude that the trial
court made a sincere and reasoned effort to evaluate the
genuineness of the prosecutor’s stated reasons, and that
substantial evidence supports its conclusion that the strikes
were not discriminatory.
a. The trial court made a sincere and reasoned
effort to evaluate the prosecutor’s stated
justifications
A court may make a sincere and reasoned effort to
evaluate a peremptory challenge even if it does not provide a
lengthy and detailed explanation for its ruling. (See, e.g., People
v. Smith, supra, 4 Cal.5th at p. 1158; People v. Jones, supra,51 Cal.4th at p. 361; People v. Mills (2010) 48 Cal.4th 158, 175–
176; People v. Lenix (2008) 44 Cal.4th 602, 625–626.) Under our
precedent, “[w]hen the trial court has inquired into the basis for
an excusal, and a nondiscriminatory explanation has been
provided, we . . . assume the court understands, and carries out,
its duty to subject the proffered reasons to sincere and reasoned
analysis, taking into account all the factors that bear on their
credibility.” (People v. Mai (2013) 57 Cal.4th 986, 1049, fn. 26;
see also id., at pp. 1053–1054; Mills, at p. 180; see also People v.
Williams (2013) 56 Cal.4th 630, 699–701, 704–717 (dis. opn. of
Liu, J.) [critiquing that precedent].)
39
PEOPLE v. BAKER
Opinion of the Court by Cantil-Sakauye, C. J.
That assumption can be overcome. When “the proffered
reasons lack[] inherent plausibility or [are] contradicted by the
record,” the court’s failure to probe, or to explain, may eliminate
the basis for deference. (Armstrong, supra, 6 Cal.5th at p. 777;
see People v. Silva (2001) 25 Cal.4th 345, 385.) Deference may
also be inappropriate when the court evinces a
misunderstanding of the legal inquiry. (See, e.g., Gutierrez,
supra, 2 Cal.5th at p. 1172 [“court improperly cited a
justification not offered by the prosecutor”]; People v. Fuentes
(1991) 54 Cal.3d 707, 720.)
The prosecution in this case sought to excuse both
prospective jurors at issue based on their alleged reluctance to
impose the death penalty. “A juror’s reservations about
imposing the death penalty are an acceptable race-neutral basis
for exercising a peremptory.” (Armstrong, supra, 6 Cal.5th at
p. 770; see, e.g., People v. Hayes (1990) 52 Cal.3d 577, 604.)
The trial court made a sincere and reasoned effort “ ‘to
evaluate the nondiscriminatory justifications offered.’ ”
(Gutierrez, supra, 2 Cal.5th at p. 1159.) Even before finding a
prima facie case, the court signaled that it was attentive to this
issue. As soon as the defense made its motion, the court
indicated that it was “making the same observations” regarding
the pattern of strikes — volunteering the sex and juror numbers
of the prospective jurors at issue. When the prosecutor stated
her reasons, the court did not “den[y] the motion without
comment” (People v. Turner (1986) 42 Cal.3d 711, 727–728);
it found “that her observations are based on race neutral
reasons that are proper . . . peremptory challenges.” Moreover,
although the court did not separately discuss each of the two
prospective jurors, it did speak to a “casewide factor[] that it
found relevant” (People v. DeHoyos (2013) 57 Cal.4th 79, 115);
40
PEOPLE v. BAKER
Opinion of the Court by Cantil-Sakauye, C. J.
namely, that the defendant and his alleged victims were
Caucasian, unlike the prospective jurors stricken. Finally, the
court found that the prosecution’s explanation was “credible,”
reflecting, at least implicitly, that it had considered whether the
prosecutor’s stated reasons were factually supported (see People
v. Elliott, supra, 53 Cal.4th at p. 569; People v. Mills, supra,
48 Cal.4th at pp. 175–176; People v. Lenix, supra, 44 Cal.4th at
pp. 625–626). The court was not required to do more, at least
when, as here, the defense disputed neither the accuracy of the
prosecutor’s observations nor the sincerity of her explanation.
Moreover, the record shows that the trial court was
attentive to the demeanor of prospective jurors and
knowledgeable about their questionnaires during jury selection.
During the parties’ challenges to prospective jurors for cause
based on their questionnaire responses, the trial court reviewed
the responses and voiced its own thoughts about them. Once,
for instance, the trial court remarked that one prospective
juror’s “later answers appear to equivocate indicating that she
could impose L.W.O.P. or death and that she could follow the
law,” before refusing to excuse that prospective juror for cause.
The court was also mindful of the questionnaires when
conducting Hovey voir dire, explaining that it would allow
counsel to “have time to prepare to look at those questionnaires
prior to . . . Hovey.” (Italics added.)
The court further remarked about prospective jurors’
demeanors during Hovey voir dire. It granted the prosecution’s
for-cause challenges to several prospective jurors based in part
on their demeanor. For example, the court noted Prospective
Juror No. 8814’s “body action” and “shaking of his head,” and
observed that Prospective Juror No. 8891 “was highly excited,
gesturing wildly.” The court also denied the defense’s for-cause
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PEOPLE v. BAKER
Opinion of the Court by Cantil-Sakauye, C. J.
challenge to Prospective Juror No. 1599 after viewing “his
demeanor and body language” and hearing his answers. These
indications in the record support an inference that the trial
court had in mind the prospective jurors’ demeanor and
questionnaire answers when it evaluated the prosecutor’s
strikes of Prospective Jurors R.T. and T.P.
That said, the trial court certainly “could have done more
to make a fuller record.” (People v. Miles (2020) 9 Cal.5th 513,
540.) For example, the trial court could have explicitly brought
to bear its general awareness of questionnaire answers and
jurors’ demeanors when specifically assessing whether the
prosecutor’s race-neutral reasons for striking Prospective Jurors
R.T. and T.P. were credible. “Advocates and courts both have a
role to play in building a record worthy of deference. Advocates
should bear in mind the record created by their own questioning
— where the court and opposing counsel have failed to elicit
panelist responses in a certain area of interest — as well as their
explanations for peremptory challenges.” (Gutierrez, supra, 2
Cal.5th at p. 1171.) In particular, when a strike is justified
based on information that will not appear on a transcript — a
prospective juror’s tone, visual indicia of demeanor, and the like
— a court’s description of what it has observed may aid the task
of appellate review. (See, e.g., Snyder v. Louisiana (2008) 552
U.S. 472, 479.) “[A] more detailed colloquy” than occurred here
may also prove useful. (Miles, at p. 540; see, e.g., People v.
Smith, supra, 4 Cal.5th at p. 1158 [“The court engaged actively
in the third stage analysis, questioning counsel closely on
certain points.”].) “Providing an adequate record may prove
onerous, particularly when jury selection extends over several
days and involves a significant number of potential jurors. It
can be difficult to keep all the panelists and their responses
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PEOPLE v. BAKER
Opinion of the Court by Cantil-Sakauye, C. J.
straight. Nevertheless, the obligation to avoid discrimination in
jury selection is a pivotal one. It is the duty of courts and counsel
to ensure the record is both accurate and adequately developed.”
(Gutierrez, at p. 1172.)
The law, however, does not require a court in all
circumstances to articulate and dissect at length the proffered
nondiscriminatory reasons for a strike. The record in this case
reveals that the trial court made a sincere and reasoned effort
to evaluate the justifications proffered, and on that basis,
deference is appropriate under our precedent.
For its part, defendant’s briefing does not explicitly
dispute that the court made a sincere and reasoned effort when
evaluating the Batson/Wheeler motion. The briefing focuses
instead on whether substantial evidence supports the motion’s
denial. At least one of defendant’s arguments, however, is
properly understood as bearing on this issue. Specifically, he
argues that the court erred by relying on its understanding that
“[t]here are no racial issues in this case.” That reasoning,
defendant continues, “is not race-neutral.”
Viewing the court’s comment in isolation, we understand
the basis for defendant’s concern about the trial court’s “no
racial issues” framing. Batson and Wheeler “are intended to
limit reliance on stereotypes about certain groups in exercising
peremptory challenges.” (People v. Lewis and Oliver (2006) 39
Cal.4th 970, 1016.) And stereotypes may infect a lawyer’s
assessment of a prospective juror regardless of the race of others
involved in the trial. (See Powers v. Ohio (1991) 499 U.S. 400,
416 [“race prejudice stems from various causes and may
manifest itself in different forms”]; see, e.g., U.S. v. Lee (8th Cir.
2013) 715 F.3d 215, 221 [discussing “stereotype that ‘African-
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PEOPLE v. BAKER
Opinion of the Court by Cantil-Sakauye, C. J.
American jurors are less likely to impose death and are more
distrustful of the Government than white jurors’ ”]; U.S. v.
Kehoe (8th Cir. 2013) 712 F.3d 1251, 1252 [similar]; cf. People v.
Williams, supra, 56 Cal.4th at p. 652 [trial court: “ ‘in my other
death penalty cases I have found that the Black women are very
reluctant to impose the death penalty’ ”].)
Viewing the court’s comment in context, however, no error
appears. No doubt, a litigant may raise a Batson/Wheeler
objection regardless of the race of the defendant or the victim.
(See, e.g., Flowers, supra, 139 S.Ct. at p. 2243; People v. Mills,
supra, 48 Cal.4th at p. 173.) But the trial court evinced no
confusion on this point, observing that the lack of so-called
“racial issues . . . doesn’t necessarily defeat a Wheeler Batson
motion.” Nor did the trial court conclude that a lack of “racial
issues” was a race-neutral justification for the prosecutor’s
strikes. Instead, it appears the court relied on that
circumstance as a factor relevant to assessing whether the
prosecutor’s stated race-neutral reasons were genuine — that is,
whether the prosecutor’s strikes were in fact motivated by
concerns about the prospective jurors’ views on the death
penalty. This was not error. (See People v. Bell (2007)
40 Cal.4th 582, 600 [“that defendant was not a member of any
of the actual or assumed cognizable groups involved . . . [is] a
factor that, because it is absent, fails in this case to support an
inference of discrimination”]; see also, e.g., People v. Rhoades
(2019) 8 Cal.5th 393, 430; Hardy, supra, 5 Cal.5th at p. 78;
People v. O’Malley, supra, 62 Cal.4th at pp. 980–981; People v.
Bonilla (2007) 41 Cal.4th 313, 343–345; People v. Farnam (2002)
28 Cal.4th 107, 135–137; People v. Catlin (2001) 26 Cal.4th 81,
119; People v. Howard (1992) 1 Cal.4th 1132, 1156; Wheeler,
supra, 22 Cal.3d at p. 281.) Accordingly, the trial court’s
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PEOPLE v. BAKER
Opinion of the Court by Cantil-Sakauye, C. J.
statement is consistent with our conclusion that the trial court
made a reasoned evaluation of the justifications offered.
We turn next to the question whether substantial evidence
supports the court’s conclusion that neither strike was
motivated by discrimination.
b. Substantial evidence supports the trial court’s
conclusion that the strike of Prospective Juror
R.T. was not discriminatory
The prosecutor justified her strike of R.T. (No. 7731) based
on R.T.’s perceived reluctance to impose the death penalty. The
court’s finding that the prosecutor was not motivated by
impermissible discrimination is supported by substantial
evidence. Although many of R.T.’s answers conveyed that she
would be able to impose the death penalty, when asked whether
she could announce a death verdict, “looking at the defendant
right here and now,” R.T. replied, “I really don’t know. [¶] I
don’t know if I’d be comfortable or if I’d be scared. [¶] I don’t
know.” The prosecution also described R.T.’s “body language” as
“extremely unreceptive both to the prosecution and the idea of
having to impose the death penalty.” Although the record does
not depict R.T.’s body language, and although demeanor-based
justifications may in some cases provide a convenient pretext for
discrimination, here, the prosecution’s description was
uncontroverted. The trial court was in a position to observe not
only R.T.’s demeanor, but also the demeanor of the prosecutor
herself, whom the court found credible. (Cf. People v. Williams,
supra, 56 Cal.4th at p. 658 [“we do not discount the trial court’s
ability to assess the credibility of the prosecutor, even absent the
trial court’s personal recollection of R.P.’s demeanor”].)
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Opinion of the Court by Cantil-Sakauye, C. J.
Defendant, now for the first time, complains that the
prosecutor overstated R.T.’s opposition to the death penalty,
arguing that R.T. did not, as the prosecutor claimed, “express[]
extreme difficulty in imposing that death penalty.” We
acknowledge that this is a somewhat strong characterization of
R.T.’s answers, viewed on a cold record. But in context, this
statement appears to be based on a combination of R.T.’s words
and the description of her demeanor. And those words did not
so uniformly indicate comfort with imposing the death penalty
that the prosecutor’s statement was especially suspicious. (Cf.
People v. Vines (2011) 51 Cal.4th 830, 850 [evaluating whether
prospective juror’s answer was “reasonably susceptible of the
interpretation the prosecutor placed on it”].) In any event, any
somewhat strong characterization of R.T.’s answers, during
argument over the Batson/Wheeler motion, does not reveal that
the stated reason for the strike was pretextual.2
2
Defendant also argues that the strikes cannot be upheld
based on the record the prosecutor made after the motion was
denied. As noted, after the court found that the prosecutor was
“credible” and that her “observations [were] based on race-
neutral reasons that are proper . . . peremptory challenges,” the
prosecutor asked for permission to “raise this topic again and
bring out their questionnaires” “once the jury has been let go.”
The court later asked the prosecutor whether she wished to
augment the record. The prosecutor used that record-making
opportunity to describe the pattern of her strikes and to explain
some of the factual basis underlying her stated concern about
the prospective jurors’ views toward the death penalty — not to
manufacture a new, unrelated reason that “reeks of
afterthought.” (Miller-El v. Dretke (2005) 545 U.S. 231, 246.)
For example, the prosecutor explained, “the People exercised our
peremptories in this way: A white female; a white female; an
Hispanic female; a [B]lack female; a white female; we passed
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PEOPLE v. BAKER
Opinion of the Court by Cantil-Sakauye, C. J.
Defendant also complains that R.T. “was never questioned
regarding her ‘body language.’ ” We note the record contains no
prohibition preventing defense counsel from stating on the
record or otherwise preserving his observations of R.T.’s
demeanor. It is enough that R.T. was questioned in the presence
of the court and the parties, whom we have no reason to doubt
could observe her demeanor. (People v. Jones, supra, (2011)
51 Cal.4th at p. 367.)
Defendant further contends that “the prosecutor asked
[R.T.] only four questions,” a count apparently limited to Hovey
voir dire. It is true that “[u]nder certain circumstances
perfunctory voir dire can be indicative of hidden bias” (People v.
Edwards (2013) 57 Cal.4th 658, 698), particularly when there is
a dearth of questioning “on a subject a party asserts it is
concerned about” (People v. Huggins, supra, 38 Cal.4th at p. 234;
see also, e.g., Gutierrez, supra, 2 Cal.5th at pp. 1169–1170). But
this consideration is “not particularly probative” in this case.
(Hardy, supra, 5 Cal.5th at p. 83.) In addition to her own
questioning, the prosecutor “heard questioning during voir dire
by the court and defense counsel.” (Ibid.; see People v. Melendez,
twice; white female; Hispanic female; passed; white female;
Hispanic male; we accepted the panel. [¶] With regard to
alternates, it was Hispanic male; African American male;
Hispanic male; white male; white male; Hispanic male. I don’t
know that the record would otherwise have any references to
that.” It suffices to say that the denial of the motion can be
upheld based solely on the explanation initially given by the
prosecutor, and that none of the statements made during the
prosecutor’s record-making opportunity calls that conclusion
into question, including the prosecutor’s slightly inaccurate
claim that R.T. “said she would be very uncomfortable and
scared to impose the death penalty.” (Italics added.)
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PEOPLE v. BAKER
Opinion of the Court by Cantil-Sakauye, C. J.
supra, 2 Cal.5th at p. 19.) That questioning gave the prosecutor
an opportunity to observe the demeanor on which the strike was
partially based. (People v. Dement (2011) 53 Cal.4th 1, 20;
People v. Clark (2011) 52 Cal.4th 856, 906–907.) Finally, even
assuming the prosecutor asked R.T. few questions relative to
other prospective jurors (which defendant has not established),
the prosecutor focused her inquiry on precisely the reason she
gave for the peremptory strike: R.T.’s willingness to impose the
death penalty.
Defendant asks us to engage in comparative juror analysis
for the first time on appeal. We will do so, but “ ‘need not
consider responses by stricken panelists or seated jurors other
than those identified by the defendant.’ ” (People v. Smith,
supra, 4 Cal.5th at p. 1148; see People v. Winbush (2017)
2 Cal.5th 402, 442–443.) We also remain “ ‘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’ ” (People v. O’Malley, supra, 62 Cal.4th at p. 976),
and consider the probative force of such a comparison “in view
of the deference accorded the trial court’s ultimate finding of no
discriminatory intent” (People v. Lenix, supra, 44 Cal.4th at
p. 624).
With respect to Prospective Juror R.T., defendant’s
comparative juror analysis is not persuasive. Defendant briefly
compares R.T.’s answers on her questionnaire to the answers of
other jurors. But the prosecutor claimed to strike R.T. based on
her answers and demeanor during voir dire. Moreover, none of
the questionnaire answers that defendant identifies is similarly
equivocal to R.T.’s voir dire statement that she “really [didn’t]
know” if she would “be comfortable or if [she’d] be scared” to
announce a death verdict. And when asked similar questions
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PEOPLE v. BAKER
Opinion of the Court by Cantil-Sakauye, C. J.
during voir dire about their ability to impose a death verdict, the
other prospective jurors defendant identifies (Nos. 1267, 1599,
1999, 3466, and 6889) indicated that they could do so. This
bolsters rather than undermines our conclusion that substantial
evidence supports the trial court’s finding that the strike of R.T.
was not motivated by impermissible discrimination.
We do not suggest, of course, that any conceivable degree
of hesitation about imposing the death penalty is dispositive of
a Batson/Wheeler claim. The less substantial a prospective
juror’s reluctance to impose the death penalty, the more reason
there may be to believe that a proffered justification based on
that reluctance is pretextual. But the ultimate question is
whether a strike was motivated by impermissible
discrimination. And on this record, substantial evidence
supports the trial court’s conclusion that the strike of R.T. was
not so motivated.
c. Substantial evidence supports the trial court’s
conclusion that the strike of Prospective Juror
T.P. was not discriminatory
The prosecutor also stated that she struck T.P. based on
his reluctance to impose the death penalty, noting a “belie[f]”
that “he wrote some extremely strong answers in his
questionnaire.” Here, too, the trial court’s finding of no
discrimination is supported by substantial evidence. Although
T.P.’s questionnaire answers were not consistently opposed to
the death penalty, and although the trial court declined to
excuse him for cause, his questionnaire provided the prosecutor
with reason to doubt T.P.’s willingness to impose the death
penalty. He admitted his view that “God is the only one to give
life and take life.” And he said that he could not see himself “in
the appropriate case choosing the death penalty instead of life
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PEOPLE v. BAKER
Opinion of the Court by Cantil-Sakauye, C. J.
in prison without the possibility of parole.” These questionnaire
answers support the court’s finding that the prosecutor’s stated
reason was not a pretext for discrimination. (See, e.g., People v.
Winbush, supra, 2 Cal.5th at p. 436; People v. Blacksher (2011)
52 Cal.4th 769, 802.)3
Defendant argues that because the prosecutor said she
believed T.P. wrote strong answers in his questionnaire, but did
not “know[] what those answers were, the prosecutor . . . could
not properly rely on those unknown answers.” We disagree.
Immediately after defendant objected, the prosecutor conveyed
her recollection that T.P. had written strong statements in his
questionnaire. In the colloquy that followed, the prosecutor
offered to augment her explanations with the questionnaires.
Ultimately the court agreed to the augmentation after it denied
the motion. The prosecutor’s recollection was supported by the
record. The prosecutor was not required to have T.P.’s precise
answers at the ready, and the fact that she did not casts little
doubt on the basis for the trial court’s finding.
3
Those answers also provide a basis for the prosecution’s
somewhat strong statement that T.P. “express[ed] extreme
difficulty in imposing the death penalty.” We further note that,
during voir dire, T.P. conveyed that he did not know whether he
could impose the death penalty because he thought “that
belongs to a higher authority than myself. I don’t think I’m — I
should be one to decide a man’s life.” And when informed by the
prosecution that felony murder does not require intent to kill
and asked whether he would “absolutely refuse to impose [the]
death penalty if you believed the defendant did not intend to
kill,” T.P. replied, “Right. In that case, I don’t think death would
be merited if it’s unintentional,” regardless of any aggravating
circumstances.
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Defendant further contends that the prosecutor did not
ask T.P. many questions. This contention also lacks force. The
court and defense counsel combined to ask T.P. more than a
dozen questions about his ability to impose the death penalty
during Hovey voir dire. Even after hearing those questions (and
answers), the prosecutor asked five more. She also had the
benefit of the “lengthy and detailed questionnaire” she cited to
explain the strike. (Hardy, supra, 5 Cal.5th at p. 83.) As the
trial court put it when announcing its intention to give each side
only a few minutes to question jurors individually during Hovey
voir dire, “[y]ou are going to have a pretty lengthy questionnaire,
so you won’t need to do a lot of oral questioning.” Under these
circumstances, the lack of further questioning is not
illuminating.
Finally, defendant asks us to compare T.P.’s questionnaire
answers to the answers of several other jurors. “Although jurors
need not be completely identical for a comparison to be
probative” (People v. Winbush, supra, 2 Cal.5th at p. 443), the
prospective jurors defendant identifies are too different for his
comparison to be persuasive. None of the jurors he identified
espoused a view similar to T.P.’s position that “God is the only
one to give life and take life,” and none conveyed an inability to
choose the death penalty in an appropriate case. It is true, as
defendant claims, that Prospective Juror No. 1599 stated that
his religious organization “do[es] not believe in the death
penalty.” But immediately below that answer, No. 1599
indicated that he did not share the organization’s belief.
Defendant’s comparative juror analysis thus does not
undermine our conclusion that the trial court’s finding of no
discrimination was supported by substantial evidence.
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B. Excusing Jurors Based on Their Views about
the Death Penalty
A prospective juror may not be excused for cause based on
that person’s views about the death penalty unless those views
would at least substantially impair the person’s ability to
perform a juror’s duties. (People v. Erskine (2019) 7 Cal.5th 279,
297; see Wainwright v. Witt (1985) 469 U.S. 412, 424;
Witherspoon v. Illinois (1968) 391 U.S. 510.) A trial court’s
decision to excuse a juror based solely on written questionnaire
answers is reviewable de novo. (People v. Zaragoza (2016)
1 Cal.5th 21, 37.) When a prospective juror is excused following
voir dire, however, whether that juror “is substantially impaired
is an issue for the trial court’s determination.” (Armstrong,
supra, 6 Cal.5th at p. 751.) We defer to the trial court’s decision
so long as the trial court applied the correct legal standard and
reached a decision supported by substantial evidence. (See
ibid.; see also Erskine, at pp. 299–300; People v. Spencer (2018)
5 Cal.5th 642, 659.)
Defendant argues that the trial court erroneously excused
two jurors based on their perceived inability to impose the death
penalty: Prospective Jurors U.A. (No. 8814) and J.W. (No. 8891).
The thrust of his claim is that the trial court’s decisions were
not supported by substantial evidence.
A review of the prospective jurors’ questionnaires and
answers during Hovey voir dire reveals that the claim lacks
merit. U.A.’s questionnaire generally professed an openness to
imposing the death penalty. But when asked about the subject
during voir dire, he replied, “I think I put on my questionnaire
that I could, but this is the first time I’m in a jury and now I
have second thoughts. I’m not sure.” And although his answers
during voir dire were somewhat equivocal, he made several
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statements evincing reluctance to impose the death penalty,
including “[m]y definite response this time is going to be no,
I won’t vote for the death penalty.” Similarly, when asked,
“[c]ould you in fact vote to execute this man if legally you felt it
was an appropriate penalty? Could you actually do that?,” U.A.
replied, “I don’t know. I just don’t know.” (Italics added.) These
statements provide substantial evidence supporting the trial
court’s decision to excuse U.A., which the court made “[a]fter
observing [U.A.’s] demeanor, his body action, his shaking of his
head.”
Prospective Juror J.W. wrote on his questionnaire that he
“ha[s] problems with the death penalty.” When asked how he
might resolve a conflict between his beliefs and the court’s
instructions, he wrote, “I don’t know. I will have a hard time
sentencing someone to death even if it means countering the
judge.” At least a dozen of his other answers evinced similar
concern about his ability to vote for death. He later volunteered,
before voir dire, that he had “problems with the death penalty”
“over and above what I’ve put in the questionnaire,” adding,
“[y]ou may want to question me about that.” During voir dire,
J.W. claimed he could be persuaded to impose the death penalty
but could not imagine a specific circumstance in which he would
vote for that penalty. (Cf. People v. Beck & Cruz (2019) 8 Cal.5th
548, 607 [no error in excusing a prospective juror even though
she “offered examples of when she believed the death penalty
was appropriate”].) When asked whether he would feel
comfortable serving as a juror, he indicated that he was “going
to have a hard time with my own feelings of guilt if I start to
tend towards the guilty aspect.” He did, to be sure, convey that
he would follow the court’s instructions and consider imposing a
death sentence. But the court concluded “he could not be a fair
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and impartial juror in this case,” because “his views would
substantially prevent his abilities to follow the law and his
oath.” Substantial evidence supported this conclusion, which
was again based in part on the prospective juror’s “demeanor,
his affect.” Thus, the excusal for cause of J.W., like U.A., was
not error.4
C. Unbalanced Treatment of Prospective Jurors
Defendant contends that “the trial court questioned
prospective jurors differently and exercised its discretion in
ruling on cause challenges differently depending on the
prospective jurors’ view of the death penalty.” He disclaims any
argument “that the trial court erroneously denied his challenges
for cause.”
The complaint about the trial court’s questioning was
forfeited by a failure to object. (People v. Pearson (2013)
4
The trial court also remarked that it was “abundantly
clear that” J.W. “is anti death penalty.” An individual’s general
opposition to the death penalty is, of course, not an appropriate
basis on which to excuse a prospective juror. (See People v.
Peterson (2020) 10 Cal.5th 409, 427 [“Long-standing United
States Supreme Court precedent makes clear that prospective
jurors may not be disqualified from service in a capital case
solely because of their general objections to the death penalty”];
People v. Avila (2006) 38 Cal.4th 491, 529 [“Those who firmly
oppose the death penalty may nevertheless serve as jurors in a
capital case as long as they state clearly that they are willing to
temporarily set aside their own beliefs and follow the law”].) But
the trial court did not excuse J.W. based on general opposition
to the death penalty; as noted, the court concluded that J.W.’s
views “would substantially prevent his abilities to follow the law
and his oath,” precluding J.W. from being “a fair and impartial
juror in this case.” It is the finding of substantial impairment
that supports the excusal.
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56 Cal.4th 393, 417.) Defendant contends trial counsel did
object, relying on a comment made during the discussion of
whether Prospective Juror U.A. should be excused for cause.
Counsel inquired whether he could “make one comment for the
record.” When permitted to do so, counsel complained that “by
allowing this juror to be excused for cause, what is happening is
we are selecting jurors that are only predisposed for death
without being given the opportunity to hear all of the evidence.”
This appears to be an objection to the excusal of a particular
juror, not a complaint about the evenhandedness of the court’s
questioning. Regardless, the claim does not warrant reversal.
(See People v. Champion (1995) 9 Cal.4th 879, 909 [no reversal
when defense permitted to participate in voir dire of prospective
jurors and “defendants do not contend that the court
erroneously refused to excuse any such jurors for cause”]; see
also People v. Whalen (2013) 56 Cal.4th 1, 31; see also id., at
p. 100 (conc. opn. of Liu, J.).)
Defendant has also forfeited his complaint that the trial
court “exercised its discretion in ruling on cause challenges
differently depending on the prospective jurors’ view of the
death penalty.” This claim is not that the court erroneously
granted the prosecution’s challenges for cause. Nor is it that the
court erroneously denied the defense’s challenges for cause.
Instead, the argument is that even if the court reached results
that were otherwise within its discretion, it did so in an unfair
manner. At bottom, then, this is a claim of bias. (Cf. People v.
Mills, supra, 48 Cal.4th at p. 189 [“judicial misconduct”].)
Although defendant objected to the content of some of the court’s
rulings, he has not identified any instance in which trial counsel
raised a bias objection. Indeed, a court may be wrong, even
repeatedly, without revealing any partiality. (Cf. People v.
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Guerra (2006) 37 Cal.4th 1067, 1112 [“a trial court’s numerous
rulings against a party — even when erroneous — do not
establish a charge of judicial bias, especially when they are
subject to review”].) Accordingly, this aspect of the claim is also
forfeited. (See Armstrong, supra, 6 Cal.5th at p. 540; cf. People
v. Johnson (2018) 6 Cal.5th 541, 592 [declining to reach bias
claim when, among other things, defense neither objected on
that ground nor “move[d] to disqualify the court on the ground
of bias”]; People v. Buenrostro (2018) 6 Cal.5th 367, 405
[“Defendant forfeited the claim of bias by failing to raise it
during the competency trial”].)5
D. Admissibility of Evidence of Uncharged
Misconduct
Defendant contends the trial court erred by admitting “an
unwarranted amount” of evidence that he had committed
uncharged offenses. The core of the argument is that this
evidence was so prejudicial that it caused the jury to wrongly
convict defendant of raping Palmer — though not quite so
prejudicial that it prevented the jury from acquitting him of
forcible rape (count 11), sodomy by force (counts 9 and 13), or
sexual penetration by foreign object (count 15). (See Evid. Code,
§ 352 (section 352).) There was no error.
1. Legal background
“[E]vidence of a person’s character” is generally
inadmissible “when offered to prove his or her conduct on a
specified occasion.” (Evid. Code, § 1101, subd. (a).) That general
5
Because defendant has not preserved his claim that the
court was biased, we also do not address whether any such bias
makes it inappropriate to deferentially review the court’s
excusal of Prospective Jurors J.W. and U.A.
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rule does not “prohibit[] the admission of evidence that a person
committed a crime . . . or other act” to prove something other
than a person’s “disposition to commit such an act.” (Id., § 1101,
subd. (b).) For example, other-acts evidence may be admissible
to prove motive, intent, or that “a defendant in a prosecution for
an unlawful sexual act . . . did not reasonably and in good faith
believe that the victim consented.” (Ibid.) The general rule
against admission of “so-called ‘propensity’ or ‘disposition’
evidence” is also subject to exceptions. (People v. Daveggio &
Michaud (2018) 4 Cal.5th 790, 822 (Daveggio).) Evidence Code
section 1108 provides an exception to the general rule and
permits evidence that a defendant accused of a sexual offense
has committed another sexual offense, potentially showing a
propensity to do so. (See id., § 1108, subd. (a).) The exception
set out in Evidence Code section 1109 applies to certain evidence
that a defendant accused of an offense involving domestic
violence has committed other domestic violence. (See id.,
§ 1109, subd. (a)(1).) Both sections apply only if the evidence “is
not inadmissible pursuant to Section 352.” (Id., §§ 1108,
subd. (a), 1109, subd. (a)(1)).)
Section 352 is the focus of defendant’s argument here. As
relevant, that section provides: “The court in its discretion may
exclude evidence if its probative value is substantially
outweighed by the probability that its admission will . . . create
substantial danger of undue prejudice . . . .” “ ‘ “ ‘ “Evidence is
not prejudicial, as that term is used in a section 352 context,
merely because it undermines the opponent’s position or shores
up that of the proponent. The ability to do so is what makes
evidence relevant. The code speaks in terms of undue
prejudice. . . . The prejudice that section 352 ‘ “is designed to
avoid is not the prejudice or damage to a defense that naturally
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flows from relevant, highly probative evidence.” [Citations.]
“Rather, the statute uses the word in its etymological sense of
‘prejudging’ a person or cause on the basis of extraneous
factors.” ’ ” ’ ” ’ ” (Daveggio, supra, 4 Cal.5th at p. 824.) In the
context of Evidence Code sections 1108 and 1109, a defendant’s
propensity to commit sexual offenses or domestic violence is not
an extraneous factor; it is relevant to the guilt of the accused —
and evidence tending to show that propensity has probative
value.
Aside from claiming an abuse of discretion under section
352, defendant does not argue that the evidence at issue in this
section was inadmissible under Evidence Code sections 1101,
1108, or 1109. He does contend, however, that the admission of
propensity evidence under sections 1108 or 1109 is
unconstitutional.
2. Constitutionality of admitting propensity evidence
We held in People v. Falsetta (1999) 21 Cal.4th 903(Falsetta) that “the trial court’s discretion to exclude propensity
evidence under section 352 save[d] [Evidence Code] section 1108
from” a “due process challenge.” (Id., at p. 917.) Defendant
concedes as much, but asks us to “revisit the issue,” observing
that he must raise his objection now to preserve the issue for
federal review. We see no persuasive reason to revisit Falsetta
and reject his claim on the merits.6
6
Falsetta concerned Evidence Code section 1108.
Defendant has preserved his argument that the admission of
propensity evidence under section 1108 denied him due process,
as well as his argument that the admission of propensity
evidence under Evidence Code section 1109 denied him due
process. Defendant makes no serious effort to argue, however,
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The remaining issue is whether the trial court abused its
discretion by declining to exclude evidence under section 352.
3. Claim of undue prejudice
Although defendant’s briefing catalogs the evidence
admitted at trial, he does not appear to argue that any single
piece of evidence was inadmissible. Instead, his claim is that
the trial court admitted too much evidence in total, some of
which he deems especially prejudicial. We will describe the
evidence individually and then analyze it collectively.
a. Michelle W.
Defendant and Michelle W. met telephonically in 1982,
when she was 17 years old and he was about 20. (She dialed a
wrong number, he answered, and after talking several times
they eventually decided to meet.) They moved in together when
she was around 18 years old. The relationship became rocky;
“there were many anger issues” and problems related to
defendant’s drinking. At some point in 1983, defendant falsely
accused her of “fooling around on him.” His voice was raised
“and he was angry.” He threw a vase, which hit and cut her
arm, “and he ripped up a couple of things in the house and then
he grabbed me by the throat and started to choke me” with both
hands. He also spit in her face and called her stupid and ugly.
that the admission of propensity evidence under section 1109 is
unconstitutional even if we decline to overrule Falsetta’s
analysis regarding section 1108. We do not reach that
additional issue. We do note, however, that the Court of Appeal
has rejected the view that section 1109 is distinguishable from
section 1108 for due process purposes. (See People v. Hoover
(2000) 77 Cal.App.4th 1020, 1024; People v. Johnson (2000)
77 Cal.App.4th 410, 412.)
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Michelle moved out. She was approximately 19 years old
at the time, in 1983 or 1984, and moved in with her grandmother
for a month or two. At some point in 1984, Michelle and
defendant had an argument. Defendant wanted to reconcile.
Michelle had decided to move to Wisconsin, where her parents
had moved the year prior, and “had a rental van parked in front
of [her] grandmother’s house.” “[D]uring the time that we were
moving things in and out of the van, [defendant] was across the
street and he had been stalking, watching.” At some point he
approached her. He was “visibly upset” and confronted her with
a raised voice. At some point, he hit her in the face with his fist,
striking her nose and eye. She fell and hit her shoulder on a
concrete wall, sustaining a scar. Defendant left; he did not
assist her. No one saw the incident, but the scar remained by
the time of trial. Michelle did not call the police; she explained
that, still then only 19, she was “[s]cared,” “ashamed,”
“humiliated.”
Defendant and Michelle encountered each other again
(still in 1984, during the moving process) at a hamburger stand.
Defendant cornered her in the parking lot by her car, saying
something to the effect of “ ‘[w]here do you think you’re going?
You can’t leave me.’ ” He kept her there for “20 minutes to half
an hour, and it was just a standstill with no conversation.”
When she “finally decided to make a move to [her] car to get out
of there . . . he kicked [her]” in the upper thigh. He left after
that; she returned to her grandmother’s house. She did not call
the police, in part because she was scared. She moved to
Wisconsin as planned.
Due to the temporal remoteness of these incidents, the
probative value of this evidence was perhaps the least
significant of all the uncharged evidence admitted at trial. As
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discussed below, however, the trial court understood this
evidence to corroborate a pattern of how defendant treated the
women with whom he was intimately involved, and particularly
those women who attempted to break off their relationships
with him. (Cf. People v. McCurdy (2014) 59 Cal.4th 1063, 1099
[no abuse of discretion in admitting evidence of conduct “around
30 years” before charged offense where it appeared defendant’s
“sexual interest in young girls persisted despite the long passage
of time”].) And the danger of undue prejudice associated with
these incidents was relatively small.
At some point while in Wisconsin, Michelle called
defendant. She testified that she missed him and “was still in
love with him.” She moved back to California at some point in
1985. After she spent a few months at her grandmother’s, she
and defendant moved into an apartment together. They
married in 1986 and moved to Long Beach.
There were some good times during the relationship.
When Michelle and defendant argued, however, he would
sometimes get violent. He choked her with both hands at least
three or four times. He punched her in the face occasionally; she
estimated that occurred about once per year. He struggled with
drugs and alcohol throughout. The violence correlated with his
drinking.
Defendant and Michelle eventually had a son in 1988.
Soon after, in 1989, they moved to Wisconsin, to a town near her
parents. In August of 1989, Michelle and defendant went to a
tavern. The tavern was empty other than the two of them and
the bartender. All three were shooting pool. At some point the
bartender bumped into her and her bra became unhooked
accidentally. Defendant noticed that her bra had become
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undone and became “extremely angry,” asking whether she was
having an affair with the bartender. They went home not long
after, stopping on the way so that Michelle, who was drunk,
could throw up. When they arrived, Michelle went upstairs to
the bedroom.
Defendant followed her. He had vaginal intercourse with
her, against her will, before turning her onto her face on the bed.
She tried to move away from him. (She was five feet, three
inches tall, and weighed approximately 90 pounds; he was six
feet tall and weighed approximately 190 pounds.) At some point
she fell onto the floor; when she did, he grabbed her hair and
banged her head on the floor at least five times. He then threw
her on the bed and sodomized her more than once. After he
stopped, he bit her on the leg, back, and arm.
She escaped. She ran to a neighbor’s house, and at some
point, the police were called. She told an officer what happened,
including that defendant said he would kill her if she left the
house. Michelle went to a hospital as a result of the attack. She
had “several bite marks,” a “really bad headache,” “and some
rips” in her “rectum area.” This and photographic evidence
tended to corroborate that the attack had occurred.
A criminal case was filed; defendant was arrested; and a
restraining order was entered that prevented him from coming
to her home. Michelle was scared, however, that if she did not
let him back in, “he would torment me more, he would show up
at my mom’s house, or he’d hurt my mom or my other family and
take our son away.” At some point she informed a prosecutor
that she did not want to pursue the case, and it was dismissed.
Michelle, defendant, and their son moved to Florida in
1990 to obtain employment for defendant. They had a daughter
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while there. Defendant struggled with alcohol and illegal drugs
and spent at least part of 1991 in a rehabilitation center. One
day, a neighbor called to let her know that defendant was
nearby, “wondering why he wasn’t in the treatment center.” She
spoke with defendant through the neighbor’s phone. Defendant
informed her that he left rehab because “[h]e was aware of a
relationship [she] was having with [a] radio station D.J.,” which,
in fact, she was not having. He became angry. After this
incident, she finally decided to leave him. She left with her two
children and moved in with family in California in April 1991.
She and defendant divorced in 1993.
Michelle and the children had their own apartment by
1994. Within a few months of the Northridge earthquake that
January, she heard from defendant. He asked to move in with
her and the kids in approximately June of that year. She was
“scared to say no,” but also “thought . . . it would be a good idea
to have the kid’s father in their lives.” She told defendant that
“it was not to be a permanent move into the house. It was
temporary just so he could have a mailing address for his mail
and get on his feet.” He moved in that June; she made clear she
was dating someone and did not want to have a romantic
relationship with defendant.
“The first week or so went well. After that, everything fell
apart.” An incident occurred at Michelle’s home on June 12,
1994, with the children present. Defendant was angry. “He
thought I was pursuing a relationship with him or leading him
on. Basically, that we were together[,] and I was still dating
somebody else.” “[J]ealous and enraged,” he cornered her and
threatened to burn her eye with a lit cigarette. Defendant did
not ultimately do so; he left. She called her boyfriend, scared
that defendant would return. The boyfriend came over. When
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defendant returned, he and the boyfriend saw each other and
began fighting at defendant’s instigation. Defendant grabbed
the boyfriend, “picked him up in the air and threw him.” He also
took out a knife and cut the boyfriend’s ear. “The children were
just around the corner watching what was going on.”
The police eventually arrived, but by then, defendant had
departed. Michelle reported what happened and later obtained
a restraining order, which tended to corroborate that this
incident occurred. Although there were no additional violent
incidents in person, defendant would later call her for money,
which she would give him because she “didn’t want any trouble.”
Defendant began to leave her alone around the time he started
dating other women.
b. Sandra B.
Sandra B. and defendant met in July 1994 at an A.A.
meeting. They became friends and eventually started dating.
Within a few months of dating, defendant moved into Sandra’s
apartment — uninvited, and over her objection. She eventually
relented, in part; “It was never no, okay, you can live here. It
was like you find a place as soon as you can, you need to get out
of here.”
Defendant was in the process of moving out on about July
24, 1995. They argued. Defendant pulled a telephone cord out
of the wall and told her “what a . . . worthless person I was . . .
and, you know, I was going to pay for this and I was going to
regret it. And it was really quite a terrorizing situation.” She
found some cards and letters she had given him torn up and
shoved into her toilet.
Roughly a week later, defendant called her, “expressing
that he was like depressed or upset about what had happened
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between us and he asked me if I would give him a ride to an A.A.
meeting. And I told him that I had somewhere to go and that
after I’d done that I would come and get him.” He was “irritated
because I wouldn’t drop everything and go get him.” When she
picked him up and he got in the car, he asked where she had
gone. She told him that she had given a ride to a friend whose
car needed repair, “[a]nd at that point Mr. Baker got really
irritated because it was an ex-boyfriend of mine. And he opened
the car door and jumped out into traffic . . . .” Sandra, “really
upset,” pulled over and looked for him, but could not find him.
Sandra picked up the friend and drove him to the repair
shop where his car was waiting. As the friend started to walk
toward the mechanics, “Mr. Baker was standing about 50 to 100
feet away and he started yelling at me and my friend.” “And he
was really angry and he threatened my friend and kind of was
going between threatening my friend and demeaning me and
telling my friend that . . . he had better watch out because he
wasn’t gonna tolerate him taking me away from him and that I
was Mr. Baker’s girlfriend and not his anymore and he didn’t
like this. And then he even came up at one point and started
pounding on the hood of my vehicle,” causing damage. The ex-
boyfriend, who was a deputy sheriff, eventually deescalated the
situation.
Sandra broke off her relationship with defendant
completely after the incident, if not before, and attempted to get
law enforcement involved. At their suggestion, she sought a
restraining order in August or September of 1995. Around that
time, defendant “would just show up like at my home, in my
laundry room, at my apartment building and places that to the
best of my knowledge he would have no way to know I was going
to be there, but he would just be there.” He would also call her
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“incessantly. Sometimes he would call me 15 times an hour, just
keep calling and calling and calling. . . . He would leave
threatening messages and they would be escalating in anger and
aggressiveness and threats.” Defendant wanted to get back
together; Sandra refused. He did not take the refusal well; his
response was “[j]ust anger, degrading me, demeaning me,
threatening me, telling me I needed to watch my back, telling
me I didn’t know what he was capable of, and, you know, to
always be ever mindful that he could do things to me that would
be detrimental to me.” Sandra “was terrorized.”
Defendant would also show up to A.A. meetings Sandra
attended. “[O]ftentimes he would sit . . . directly next to me and
almost . . . lean on me and he would — on one occasion, came in
with another individual who was wearing something that
belonged to me and they would just sit like right next to me, like,
you know, make their presence very apparent, and it was just so
uncomfortable.” At a meeting on August 31, 1995, he became
angry with her. “[W]hen I was coming into the meeting, he was
coming out the same door and he asked if he could speak to me
and I told him no, just leave me alone, I just want to, you know,
work on my recovery. And he had a cup of coffee in his hands
and he threw it at me and — toward my upper torso and it hit
me on my neck and upper chest, and then he kicked me in my
leg.” A restraining order was in place at that time, but it
permitted defendant to come to the A.A. meetings she attended.
After that incident, however, an additional ruling prohibited
him from visiting that location.
A criminal case was eventually filed against defendant on
her behalf. Even in court, “[w]hen he did show up, . . . he would
make rude, denigrating comments toward me, toward my
behavior, toward my actions, kind of announcing to the whole
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room that, you know, I was the problem and he didn’t know why
he had to even be there.” “And he would just remind me that he
— you know, that I knew what he was capable of and that
I needed to be very careful because he was capable of doing these
things to me.” Defendant was eventually convicted. The court
in this case took judicial notice that “defendant Paul Baker was
convicted on August 1st, 1996, . . . of misdemeanor stalking . . .
and misdemeanor criminal threats.” Sandra had no contact
with defendant for several years after the conviction. The fact
that defendant was convicted “weighed heavily in favor of
admission” of the related evidence. (Daveggio, supra, 4 Cal.5th
at p. 825.)
c. Lorna T.
The jury found defendant guilty of sodomy by force
regarding Lorna T. Lorna T. also testified regarding an
uncharged incident in mid-1996, in which defendant stole her
debit or credit card and was arrested. The court admitted this
evidence under at least Evidence Code section 1101, subdivision
(b). During closing argument, the prosecution relied on this act
as evidence of “what type of intent the defendant had in his acts
towards Judy Palmer, his reasons for entering the apartment.”
Defendant does not dispute that the evidence was relevant for
that purpose. Any danger of undue prejudice, in the context of
this case, is trivial.
d. Kathleen S.
The jury found defendant guilty of two counts of sodomy
by force and one count of forcible rape regarding Kathleen S.
Between the first charged incident (in defendant’s van) and the
second charged incident (in the garage), Kathleen at some point
decided she needed to leave her relationship with defendant.
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She told defendant she was leaving him in May 1997. She
left the van they were living in and crossed a street. By the time
she reached the middle, he ran after her, grabbed her hair or
head, and threw her to the ground. Her head hit the asphalt.
Fortuitously, “at that same moment a police car was coming up
the street toward her.” Two officers exited their vehicle and
arrested defendant. He was later convicted of misdemeanor
battery. (See Pen. Code, §§ 242, 243, subd. (e).)
At some point after the June 1997 incident in the garage,
Kathleen returned to work and rented a room from a couple she
knew through church. Defendant — uninvited — came to the
home she was renting on August 31, 1997. She “was leaving the
house and I saw [defendant] coming toward me and I was trying
to hurry up and get into the truck. And I don’t know what he
was yelling, but he grabbed the antenna as I started to pull away
and then he hit the windshield and cracked it.” She was
“terrified,” “afraid he was gonna hurt [her] again.” The incident
was reported to the police and defendant was eventually
convicted of misdemeanor vandalism. Here, too, the convictions
“weighed heavily in favor of admission” of the related evidence.
(Daveggio, supra, 4 Cal.5th at p. 825.)
e. Laura M.
The jury acquitted defendant of two counts of sodomy by
force regarding Laura M. As defendant summarizes the
evidence of uncharged acts, “Laura M. testified that, in 2000,
[defendant] threatened her and stranded her in Las Vegas.
[Citations.] She testified to three acts of sodomy [citations],
whereas only two such acts were charged [citations]. She
claimed [defendant] threatened to burn down her house.”
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The testimony regarding the Las Vegas incident was
extremely brief and not inflammatory; in essence, it amounted
to defendant threatened her and left her in Las Vegas. The
evidence regarding a threat to burn down Laura M.’s house was
also quite succinct. And that evidence was relevant to one of the
charged offenses; when asked why she informed the police that
she did not want to prosecute, Laura M. explained, “I was afraid
because, you know, in the past he had said ‘I’m gonna burn your
house down.’ You know, he was — he could be violent.” The
third act of sodomy regarded an incident in 2000, close in time
to the charged offenses about which Laura M. testified. This
testimony also was brief. Laura M. testified that she was in a
camper and had been drinking; defendant forced her to have
anal sex; and she ran away to a nearby A.A. venue where
someone helped her get to a hotel. Cross-examination elicited
that she did not call the police or seek medical attention and
returned to the camper after one night at the hotel.
f. Theresa T.
Much of the testimony by Theresa T. was relevant to the
charged murder, separate and apart from any uncharged act.
She first met defendant on about November 6, 2003, at an
inexpensive hotel. They spent time together for roughly the next
week, during which they used drugs. Defendant at some point
disclosed that his last romantic relationship had been with Judy
Palmer, whom Theresa knew from a sober living meeting and
considered to be “an absolutely incredible lady.” Near the
beginning of the week Theresa and defendant spent together,
around November 7 or 8, defendant went to Palmer’s apartment.
Palmer was not present. Defendant “used his credit card to get
into the apartment and told [Theresa that Palmer] was letting
him in because she left the deadbolt unlocked.” Defendant
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retrieved a duffel bag, what seemed to be a toothbrush, and
possibly some underwear. He seemed “nervous” and “wanted to
get out of there”; they left within five minutes of entering.
Theresa never returned to Palmer’s apartment. But she
and defendant spent time in a model unit, shown to prospective
tenants, in Palmer’s building. The model unit was directly
below Palmer’s. Theresa and defendant also occasionally used
drugs in a stairwell within the complex during November 2003.
One morning that month, Theresa and defendant were
lying side by side in the model unit. They had had sex
consensually approximately once by that point and had made a
few other attempts that were frustrated by drug use. Defendant
said “ ‘I want some.’ ” Theresa was uncomfortable. When she
said “ ‘not now,’ ” “he forced me over [onto her back] and pinned
my shoulders down and he goes ‘I want it.’ ” He was
“[d]emanding and forceful.” She unzipped her pants “and he had
intercourse.” Afterwards, she was “[v]ery mad, very disgusted.”
She never saw him after that night. He called her in December
2003. She told him to lose her number. All of these events
occurred close in time to Palmer’s April 2004 disappearance.
At some point in April 2004, Theresa became aware that
Palmer was missing. Her first thought was “oh my God, Paul.”
She called homicide detectives at a number she saw on a
“missing” poster. She did not disclose the rape until
approximately November 20, 2007, thinking, at the time she
spoke with detectives around April 2004, that finding Palmer
was the priority. She also explained that at the time, she
“wasn’t really ready to face up to” what had happened.
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g. Analysis
The issue is whether the trial court abused its “ ‘broad
discretion’ ” by not excluding some of this evidence as unduly
prejudicial. (People v. Loy (2011) 52 Cal.4th 46, 64.) Defendant
argues that evidence of spousal abuse is especially prejudicial,
as is evidence of acts for which he had not been convicted and
punished. But he does not argue that the probative value of any
particular evidence was “substantially outweighed by the
probability that its admission will . . . create substantial danger
of undue prejudice” (§ 352), nor does he explain why individually
admissible pieces of evidence became inadmissible when viewed
as a whole.
Without demonstrating that any individual piece of
evidence has probative value substantially outweighed by the
danger of undue prejudice, it may be difficult for a defendant to
establish that adding pieces of evidence together results in an
intolerable danger of undue prejudice. We do not hold, however,
that a defendant could never show that at some point the unduly
prejudicial effect of additional evidence would substantially
outweigh that evidence’s (perhaps cumulative) probative value.
We hold only that defendant has not established an abuse of
discretion on this record, considered as a whole.
As Falsetta explained, courts “must engage in a careful
weighing process under section 352” when admitting propensity
evidence. (Falsetta, supra, 21 Cal.4th at p. 917.) “Rather than
admit or exclude every sex offense a defendant commits, trial
judges must consider such factors as its nature, relevance, and
possible remoteness, the degree of certainty of its commission
and the likelihood of confusing, misleading, or distracting the
jurors from their main inquiry, its similarity to the charged
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offense, its likely prejudicial impact on the jurors, the burden on
the defendant in defending against the uncharged offense, and
the availability of less prejudicial alternatives to its outright
admission, such as admitting some but not all of the defendant’s
other sex offenses, or excluding irrelevant though inflammatory
details surrounding the offense.” (Ibid.)
Before trial, the court carefully considered proffered
evidence of uncharged misconduct. The court analyzed “each
and every” act under Evidence Code sections 1108, 1109, and
1101, subdivision (b). It then evaluated the evidence under
section 352, considering, among other things, the probative
value of the testimony (including the remoteness of the
incidents), its prejudicial effect, and the burden of mounting a
defense. Pursuant to that analysis, the court declined to admit
evidence that defendant: (i) surreptitiously followed and
photographed a former romantic partner; (ii) recorded, without
permission, an act of sexual intercourse between himself and
another woman; (iii) entered that woman’s home without her
permission and at some point banged on her windows;
(iv) tapped her phone line; (v) poisoned her cat, nearly killing it;
(vi) punched his brother at his (defendant’s) wedding for kissing
the bride; (vii) fought with the husband of a neighbor with whom
he (defendant) was having an affair; (viii) killed a puppy in the
presence of his wife and two-year-old son because he was angry
with her; and (ix) cut her telephone and electrical lines after
they separated.
The court concluded that the uncharged acts it deemed
admissible shed light on “defendant’s propensity to engage in
sexual assaults and domestic violence against Judy Palmer and
the other victims named pursuant to Evidence Code 1108 and
1109.” As it had earlier explained in ruling on some of the
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evidence, “defendant has a pattern, a very demonstrable pattern
of escalating violence towards women that he’s been
romantically involved with, tending to control these women,
assaulting them physically, and sexually assaulting them
particularly when they break up with him or rebuff him. [¶] He
has an M.O. of preferring sodomy o[r] wanting to tie up women,
breaking into their apartments, taking their property, and this
appears to be a long-standing pattern.” “Also,” the court added,
“the evidence is admissible in many instances to prove the
defendant’s motive, his intent, his common scheme or plan, lack
of consent with regard to the sexual offenses, knowledge and in
his attack on Judy Palmer and other named victims in the
information. [¶] The court finds that the evidence is material,
it’s relevant, and its probative value outweighs any prejudicial
effect on the defendant.”
Regarding that prejudicial effect, the court explained,
“I felt that all of the acts that I have admitted are not too
inflammatory. They are the same or less serious conduct
compared to the actual charged offenses, the murder and . . . all
the sexual offenses[,] . . . some with convictions. [¶] I don’t see
any probability of confusion. I think it can be sufficiently laid
out in a clear, understandable manner I think by the
prosecution, particularly with the convictions, to show what acts
are actually being charged . . . . [¶] I don’t see undue
consumption of time here. This is going to be a long case. Most
of these acts are against already charged victims. They don’t
appear to be lengthy or complicated or will substantially confuse
the jurors or consume an undue [amount] of time based upon the
seriousness and the length of the case as it already stands.”
Regarding the remoteness of some of the acts, the court again
stressed the similarity of the pattern of domestic violence and
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abuse, as well as other corroboration, such as “witnesses,
whether there were injuries, whether there were restraining
orders, police reports filed, or whether there were convictions
sought or obtained.”
When additional instances of uncharged misconduct were
discussed during trial, the court again paid careful attention to
the probative and prejudicial value of that evidence. The court
excluded evidence tending to show that defendant had slashed
a woman’s tires; potentially sodomized Laura M. on two other
occasions; and burned down the shed in which Kathleen S. and
two others were staying. And the court “certainly will not let in
the racial slurs.”
The trial court’s decision to admit evidence of uncharged
acts was bolstered by Palmer’s death. “[T]he case for admission
of propensity evidence ‘is especially compelling’ where, as here,
‘[a] sexual assault victim was killed and cannot testify.’ ”
(Daveggio, supra, 4 Cal.5th at p. 824.) That principle applies
with additional force in this case: the extensive decomposition
of Palmer’s body inhibited the search for physical evidence of
sexual assault and cause of death.
To demonstrate error, defendant must show that the trial
court abused its discretion when it did not exclude some
unspecified portion of this evidence as having probative value
“substantially outweighed by the probability that its admission
will . . . create substantial danger of undue prejudice.” (§ 352,
italics added.) The claim is slippery. Defendant does not
identify particular evidence that he thinks should have been
excluded under section 352. He does not posit a point at which
the evidence crossed the line between acceptable and excessive.
And he does not appear to argue that the evidence should have
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been excluded as confusing or unduly consumptive of time —
only that, in the aggregate, it was unduly prejudicial. True,
defendant argues that the evidence was significant. But to say
that evidence was significant is not enough; as noted,
“ ‘ “ ‘ “[e]vidence is not prejudicial, as that term is used in a
section 352 context, merely because it undermines the
opponent’s position or shores up that of the proponent. The
ability to do so is what makes evidence relevant. The code
speaks in terms of undue prejudice.” ’ ” ’ ” (Daveggio, supra,
4 Cal.5th at p. 824.)
It is apparent that the trial court painstakingly reviewed
the proffered other-acts evidence and considered whether
evidence should be excluded under section 352, as Falsetta
requires. We conclude that, viewing the other-acts evidence as
a whole, the trial court did not abuse its discretion by declining
to exclude pieces of evidence based on the collective significance
of that evidence. The trial court could have reasonably decided
to further limit the other-acts testimony it admitted. But we
cannot say that the trial court abused its discretion on this
record, in the face of the precise claim of error now raised.
This conclusion makes it unnecessary to decide whether
defendant, who at least perfunctorily objected to individual
pieces of evidence (for example, “We’d object and submit”),
raised an objection of this type below.
E. Admissibility of DNA Evidence
Defendant claims the trial court erred by admitting
evidence of DNA testing performed by analysts who were not
called as witnesses at trial and, thus, were not subject to cross
examination. That evidence included the testimony of Dr. Rick
Staub regarding the analysts’ testing and reports prepared by
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the analysts themselves. The focus of the claim is Crawford v.
Washington (2004) 541 U.S. 36, in which the high court held, as
relevant, “that the admission of testimonial hearsay against a
criminal defendant violates the Sixth Amendment right to
confront and cross-examine witnesses.” (People v. Sanchez
(2016) 63 Cal.4th 665, 670.) Defendant also contends that the
reports were not admissible as business records. We assume
that these objections are preserved for our review but conclude
that any error was harmless beyond a reasonable doubt.
1. The DNA Evidence
The evidence at issue concerns analysis performed in two
Cellmark labs: one lab in Dallas, Texas, the other in
Germantown, Maryland. The most notable evidence produced
by the Dallas laboratory concerned Palmer’s underwear.
A profile of defendant, believed to be unique to him and to a
subset of his male blood relatives, matched a sperm fraction
extracted from cuttings of Palmer’s underwear.
The most notable evidence produced by the Germantown
laboratory concerned the vibrator found in Palmer’s apartment.
DNA on a swab of the vibrator matched defendant’s DNA (in a
sperm fraction) and Palmer’s DNA (in a nonsperm fraction).
The Germantown evidence also indicated that blood stains
found in Palmer’s apartment matched her DNA profile and that
sperm on the rug matched defendant’s.
During deliberations, the jury asked for a readback of
Dr. Staub’s testimony, specifically “ ‘the parts about the
underwear and the [vibrator], especially the conclusions.’ ”
During closing argument, the prosecution described evidence of
“defendant’s semen . . . in the seat of [Palmer’s] panties” as “a
bit of a problem for the defendant.”
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2. Harmlessness
The evidence that defendant killed Palmer was
overwhelming. A criminalist testified that the DNA analysis
she performed linked defendant to sperm fractions extracted
from an aqua-colored blanket and towel cutting found near
Palmer’s body, as well as a nonsperm fraction from a nearby
cigarette butt. Defendant’s relationship with Palmer had failed
and he was frantic to reconnect with her. The night she
disappeared, he was seen with a Ford Ranger that she drove
home that evening. Soon after she disappeared, he expressed
consciousness of guilt, conveying to others that he was going to
be on the news, was going to hell, or wanted to kill himself. He
also told Mengoni not to worry about anyone showing up to
testify regarding Palmer’s missing Ford Escort, evincing special
knowledge that Palmer, then missing, was already dead. That
he had purchased rope of the kind found around Palmer’s body
further pointed toward his involvement in her killing.
To say that defendant killed Palmer, however, is not to say
that he committed first degree murder, let alone special
circumstance murder. The more significant question is whether
the DNA evidence may have prejudiced the jury’s assessment of
whether defendant raped Palmer — an issue relevant to the
felony murder theory of first degree murder; to the rape
conviction and special circumstance; and to the burglary
conviction and special circumstance.
Here too, however, there was no prejudice. The jury heard
Calhoun’s testimony that defendant admitted he had “beat the
pussy up.” Clearly admissible physical evidence corroborated
that confession. As discussed above, a criminalist testified at
trial that the DNA analysis she performed linked defendant to
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sperm fractions extracted from an aqua-colored blanket and
towel cutting found near Palmer’s body. The profile common to
defendant and the sperm fraction from the towel, she explained,
would be expected to appear in only one in 740 quadrillion
Caucasians. The criminalist also extracted a sperm fraction
from cuttings of Palmer’s underwear and concluded that
defendant could “[]not be excluded” as the source of the partial
profile she created from that fraction. None of that analysis was
performed at the Germantown or Dallas labs at issue in this
claim of error. All of it was performed by an analyst who
testified at trial, subject to cross-examination.
Moreover, the jury heard ample evidence demonstrating
defendant’s propensity to commit sexual assault, something he
did to “all of his women.” And it learned the state of Palmer’s
clothing when she was found — shirt off, jeans pulled down to
the thighs, fully exposing her underwear. Viewed in this
context, any error in admitting additional DNA evidence was
harmless beyond a reasonable doubt.
The harmlessness of any error in admitting the
Germantown evidence is further confirmed by the jury’s
verdicts. The jury acquitted defendant of sexual penetration by
foreign object. It found not true the sexual penetration by
foreign object special circumstance allegation. Because the
Germantown evidence — most significantly, evidence regarding
the vibrator — did not persuade the jury that defendant had
committed sexual penetration by a foreign object, it is difficult
to see that evidence causing the jury to conclude that defendant
committed rape or entered with intent to commit rape.
Accordingly, even assuming error, no basis for reversal appears.
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F. Sufficiency of the Evidence that Defendant
Raped Palmer
Defendant contends there is insufficient evidence that he
raped or attempted to rape Palmer. As discussed, we disagree.
“The test for evaluating a sufficiency of evidence claim is
deferential: ‘whether, on the entire record, a rational trier of fact
could find the defendant guilty beyond a reasonable doubt.’
[Citation.] We must ‘view the evidence in the light most
favorable to the People’ and ‘presume in support of the judgment
the existence of every fact the trier could reasonably deduce
from the evidence.’ [Citation]. We must also ‘accept logical
inferences that the jury might have drawn from the
circumstantial evidence.’ ” (People v. Flores (2020) 9 Cal.5th
371, 411.)
As noted, evidence that defendant raped Palmer included
the sperm discovered in her apartment and on items found with
her body; defendant’s admission to Calhoun that he had “beat
the pussy up”; defendant’s propensity to commit sexual assault;
and the state of Palmer’s clothing when she was found.
Defendant argues that any sexual intercourse might have
been consensual. The jury could have rejected that contention
based on the evidence that Palmer had ended her relationship
with defendant and was afraid of him. The fact of her murder
— and the scratches observed on defendant’s face — also suggest
that any intercourse around the time she disappeared was rape.
Defendant contends there is no evidence regarding when
any sperm was deposited. But defendant’s statement to
Calhoun tended to indicate that he had sex with Palmer close in
time to her disappearance, after their relationship had ended.
The jury also heard testimony that the acid phosphatase in
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semen “is water soluble and it tends to wash out.” Accordingly,
the fact that a towel and aqua blanket found near Palmer’s body
both screened positive using an acid phosphatase test tended to
indicate that the sperm found on those items was deposited after
the last time those items were washed. Testimony similarly
conveyed that although sperm may remain after washing, each
wash diminishes the likelihood of finding sperm.
Defendant next asserts that if Palmer had been raped, “it
is likely that sperm would have been deposited in the crotch
area” of her underwear, adding that the presence of sperm
elsewhere in the underwear was “indicative of sexual conduct
other than rape.” (See People v. Holt (1997) 15 Cal.4th 619, 676
[“In this state rape and sodomy are distinct crimes”].) Putting
this speculation aside, the jury was not required to conclude that
the “sexual penetration, however slight,” that is “sufficient to
complete the crime” of rape resulted in any sperm at all, let
alone sperm in a particular area of Palmer’s underwear. (Pen.
Code, § 263.) Nor was the jury required to assume that if
defendant committed sodomy, he did not also commit rape. For
example, the jury convicted defendant of both raping and
sodomizing Kathleen S. during the incident in the garage.
Moreover, the jury heard Calhoun’s testimony that
defendant admitted to “beat[ing] the pussy up.” Defendant
argues that “no reasonable juror could have reasonably inferred”
that defendant’s statement to Calhoun meant that defendant
had raped Palmer. But a reasonable juror could have
understood the statement to be an admission that defendant
and Palmer had vaginal sex — and relied on the surrounding
circumstances to conclude that the sex was not consensual.
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Finally, defendant contends there was no evidence that
Palmer was alive when any intercourse occurred. “ ‘ “[I]n the
absence of any evidence suggesting that the victim’s assailant
intended to have sexual conduct with a corpse [citation], we
believe that the jury could reasonably have inferred from the
evidence that the assailant engaged in sexual conduct with the
victim while [she] was still alive rather than after [she] was
already dead.” ’ ” (People v. Ghobrial (2018) 5 Cal.5th 250, 280.)
Likewise, the jury could have reasonably inferred that because
defendant committed the rape before killing Palmer, he also
formed the intent to commit rape before she was dead.7
G. Burglary Felony Murder Instructions
The jury was permitted to find defendant guilty of first
degree felony murder on a theory that the murder was
committed during the commission of a burglary. The jury was
also tasked with considering the truth of a burglary special
circumstance allegation. In both contexts, the jury was
instructed that defendant was guilty of burglary only if he
entered with intent to commit (i) theft, (ii) rape, (iii) sexual
penetration by a foreign object, or (iv) sodomy. Defendant
argues that “[n]either a burglary-based felony murder nor a
burglary special circumstance can properly be based on an entry
with the intent to commit sexual assault.” We disagree.8
7
Our conclusion that there was substantial evidence of a
rape also addresses defendant’s argument that the trial court
should not have relied on the premise that the murder took place
in the course of a rape when ruling on the automatic motion to
modify the verdict. (See post, pt. II.K.)
8
Defendant contends that he may raise this issue on appeal
even in the absence of an objection below. We assume without
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The felony murder rule makes certain homicides murder
(rather than manslaughter) and makes a subset of those
homicides murder of the first degree. As relevant here,
“[m]urder is the unlawful killing of a human being . . . with
malice aforethought.” (§ 187, subd. (a).) “Manslaughter is the
unlawful killing of a human being without malice.” (§ 192.)
“Malice is express when there is manifested a deliberate
intention to unlawfully take away the life of a fellow creature.”
(§ 188, subd. (a)(1).) “Malice is implied when no considerable
provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart.” (§ 188, subd.
(a)(2).) “ ‘The felony-murder rule imputes the requisite malice
for a murder conviction to those who commit a homicide during
the perpetration of a felony inherently dangerous to human
life.’ ” (People v. Chun (2009) 45 Cal.4th 1172, 1184 (Chun).)
A homicide committed during the perpetration of certain
felonies enumerated by statute — including rape and burglary
— is murder of the first degree. (§ 189, subd. (a).) A homicide
committed during the perpetration of unenumerated inherently
dangerous felonies is murder of the second degree. (People v.
Bryant (2013) 56 Cal.4th 959, 966.) Only felonies “inherently
dangerous to human life” are eligible for the felony murder rule.
(Id. at p. 965; see People v. Ford (1964) 60 Cal.2d 772.) The
merger doctrine applies to a subset of those felonies.
If construed broadly, the felony murder rule could
threaten to collapse the distinction between murder (which
requires malice) and manslaughter (which does not). The
merger doctrine limits this threat. The thrust of the doctrine is
deciding that the claim of error has not been forfeited. (See
Daveggio, supra, 4 Cal.5th at p. 845; Pen. Code, § 1259.)
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that certain felonies “ ‘merge’ with the homicide and cannot be
used for purposes of felony murder.” (Chun, supra, 45 Cal.4th
at p. 1189; see also People v. Wilson (1969) 1 Cal.3d 431, 442,
fn. 5 (Wilson) [“felonies that are an integral part of the homicide
are merged in the homicide (italics omitted)”].) “In explaining
the basis for the merger doctrine, courts and legal commentators
reasoned that, because a homicide generally results from the
commission of an assault, every felonious assault ending in
death automatically would be elevated to murder in the event a
felonious assault could serve as the predicate felony for purposes
of the felony-murder doctrine. Consequently, application of the
felony-murder rule to felonious assaults would usurp most of the
law of homicide, relieve the prosecution in the great majority of
homicide cases of the burden of having to prove malice in order
to obtain a murder conviction, and thereby frustrate the
Legislature’s intent to punish certain felonious assaults
resulting in death (those committed with malice aforethought,
and therefore punishable as murder) more harshly than other
felonious assaults that happened to result in death (those
committed without malice aforethought, and therefore
punishable as manslaughter).” (People v. Hansen (1994)
9 Cal.4th 300, 311–312, overruled by Chun, at p. 1199.) Some
decisions also take the position that deterrence concerns cannot
justify the felony murder rule when certain types of assaultive
felonies are at issue, demanding “a felony independent of the
homicide” to render the merger doctrine inapplicable. (Wilson,
at p. 440; see also ibid. [“Where a person enters a building with
an intent to assault his victim with a deadly weapon, he is not
deterred by the felony-murder rule”]; but see People v. Farley
(2009) 46 Cal.4th 1053, 1120 (Farley).)
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This court embraced a version of the merger doctrine in
People v. Ireland (1969) 70 Cal.2d 522 (Ireland). The
instructions in Ireland permitted the jury to find a second
degree murder if a killing resulted from an assault with a deadly
weapon. (Id., at p. 538.) We concluded that allowing the “use of
the felony-murder rule” in such a case “would effectively
preclude the jury from considering the issue of malice
aforethought in all cases wherein homicide has been committed
as a result of a felonious assault — a category which includes
the great majority of all homicides.” (Id., at p. 539.) We forbade
such “bootstrapping” in the circumstances relevant there.
(Ibid.; see also Wilson, supra, 1 Cal.3d at p. 441 [“In Ireland, we
rejected the bootstrap reasoning involved in taking an element
of a homicide and using it as the underlying felony in a second
degree felony-murder instruction”].)
Several months later, we extended Ireland to reach
certain first degree felony murders based on burglary. (See
Wilson, supra, 1 Cal.3d at p. 431.) The prosecution in Wilson
“sought to apply the felony-murder rule on the theory that the
homicide occurred in the course of a burglary, but the only basis
for finding a felonious entry [was] the intent to commit an
assault with a deadly weapon.” (Id., at p. 440.) We forbade
reliance on a felony murder theory when, among other things,
“the entry would be nonfelonious but for the intent to commit
the assault.” (Ibid.; see also id., at p. 442 [“an instruction on
first degree felony murder is improper when the underlying
felony is burglary based upon an intention to assault the victim
of the homicide with a deadly weapon”].) We reached this result
even though, then as now, Penal Code section 189 defined first
degree murder to include “[a]ll murder . . . which is committed
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in the perpetration or attempt to perpetrate . . . burglary.”
(Wilson, at p. 441, fn. 4; see § 189.)
Stressing the clear language of Penal Code section 189, we
eventually held in Farley that Wilson “erred in extending the
merger doctrine to first degree felony murder.” (Farley, supra,46 Cal.4th at p. 1117; see id., at pp. 1111–1122.) Because the
defendant in Farley had committed his crimes in 1988, “at which
time it was unforeseeable that we would overrule Wilson,” our
Farley decision did not apply to that defendant retroactively.
(Farley, at p. 1122.) Likewise here: Although the merger
doctrine no longer applies to first degree murder, we will apply
Wilson as though it had not been overruled.
In the decades that Wilson remained good law, the
contours of our merger doctrine evolved — and not always
consistently. (See Chun, supra, 45 Cal.4th at pp. 1188–1201.)
Regardless, defendant’s position lacks merit under either of the
analytical approaches we applied at the time he committed his
offenses. First, defendant offers no reason to conclude that rape,
sodomy, or penetration by foreign object are involved in “a high
percentage of all homicides” (id., at p. 1198), such that
application of the felony murder rule to those offenses would
remove the issue of malice aforethought from myriad homicide
cases (Ireland, supra, 70 Cal.2d at p. 539). And second, in this
particular case, there was evidence from which the jury could
conclude that defendant had an independent purpose to commit
rape, sodomy, or penetration by foreign object, separate and
apart from any intent to assault or kill. (See People v. Gonzales
(2011) 51 Cal.4th 894, 942 [even before Farley, Wilson was
limited to situations in which “the defendant’s only felonious
purpose was to assault or kill the victim” (italics added)]; see
also Chun, at pp. 1193–1195, 1197–1200; People v. Smith (1984)
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35 Cal.3d 798, 806–807 [“child abuse of the assaultive variety”
merged when court could “conceive of no independent purpose
for the conduct”].)
True: rape, sodomy, and penetration by foreign object may
fairly be termed “sexual assault,” and so in some sense an intent
to commit those offenses is assaultive in nature rather than
independent of an assault. But as used in the context of the
merger doctrine — a doctrine which, at least in part, guards the
line between murder and manslaughter — the term “assault”
captures only felonies that are more likely to prove fatal; if the
felony is not sufficiently likely to prove fatal, it does not merge.
We do not announce any precise test to determine which
offenses trigger application of what remains of the merger
doctrine after Farley. The point is merely that intent to commit
rape, sodomy, and penetration by foreign object are not
“assaultive” in the relevant sense; they reflect an independent
intent for purposes of the merger doctrine. (Cf. People v. Morgan
(2007) 42 Cal.4th 593, 619 [no merger problem because
“unlawful penetration with a foreign object . . . embodies a
separate felonious purpose apart from the intent to injure or
kill”]; People v. Holloway (2004) 33 Cal.4th 96, 140 [no merger
problem when the jury could find burglary only if there was
entry with intent to commit rape].)
A notable omission from defendant’s argument
underscores the point. There is a certain symmetry between
Ireland and Wilson: If assault with a deadly weapon merges
(Ireland), then perhaps entry with intent to commit assault with
a deadly weapon should merge as well (Wilson). (See People v.
Burton (1971) 6 Cal.3d 375, 388.) But here, defendant does not
dispute that rape itself may provide the basis for special-
circumstance first degree felony murder. And if rape does not
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merge, it is difficult to see why entry with intent to commit rape
would.9
Defendant also argues there was insufficient evidence to
support the court’s instruction that the jury could consider
whether defendant entered with intent to commit theft. He does
not frame this as a standalone attack on the verdict, perhaps
because any error here would obviously be harmless: The
exacting Chapman harmlessness standard would not apply (see
People v. Guiton (1993) 4 Cal.4th 1116, 1129–1130), and in any
event, the rape conviction (with the burglary allegation) and
rape special circumstance leave no reasonable doubt that the
jury found defendant entered with intent to commit rape.
Instead, we understand defendant’s insufficiency
argument to be in service of his merger argument: The burglary
was not based on entry with intent to commit theft, therefore it
was based on entry with intent to commit sexual assault, thus
the merger doctrine applies. Because the argument fails at the
final step — there being no merger problem even if the burglary
was based on entry with intent to commit rape, sodomy, or
sexual penetration by foreign object — we need not catalog the
evidence relevant to the theft instruction (such as the jewelry
described by Calhoun and the theft from Lorna T.).
9
The nature of defendant’s argument that the special
circumstance should merge is not entirely clear. He does not
appear to argue that if the felony murder instruction was
permissible, the special circumstance instruction was
nevertheless flawed. The existence of an independent purpose
would undermine any such argument as well. (See People v.
Farmer (1989) 47 Cal.3d 888, 915; see also People v. Clark (1990)
50 Cal.3d 583, 608–609 & fn. 15.)
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H. Parole Revocation Fine
The trial court imposed a $10,000 parole revocation fine.
Defendant claims that the fine is improper because, as a person
sentenced to death, he is ineligible for parole. The claim fails
under People v. Brasure because defendant was also sentenced
to a determinate term. (See People v. Brasure (2008) 42 Cal.4th
1037, 1075 (Brasure).) Defendant concedes that Brasure so
holds and makes no effort to distinguish it. He instead criticizes
Brasure’s statutory interpretation and contends that the case is
in tension with People v. McWhorter (2009) 47 Cal.4th 318, 380
(McWhorter).
We decline to reconsider Brasure. As relevant here,
Brasure reasoned that a determinate term carries with it a
period of parole, triggering a parole revocation fine under Penal
Code section 1202.45. (See Brasure, supra, 42 Cal.4th at
p. 1075; see also Pen Code., § 1202.45, subd. (a) [requiring a fine
“[i]n every case” in which a person’s “sentence includes a period
of parole”].) In McWhorter, we embraced a capital defendant’s
claim that a parole revocation fine should be stricken, reasoning,
in full, that defendant “is correct. (See People v. Oganesyan
(1999) 70 Cal.App.4th 1178, 1184–1185 [83 Cal.Rptr.2d 157].)
Respondent has conceded the point.” (McWhorter, supra,47 Cal.4th at p. 380.) As is apparent, McWhorter did not
acknowledge the existence of Brasure; relied solely on a Court of
Appeal decision (Oganesyan) that Brasure distinguished as
involving “no determinate term of imprisonment imposed under
[Penal Code] section 1170” (Brasure, at p. 1075); and never
considered the significance of any determinate term, omitting
mention of whether one had been imposed in connection with
McWhorter’s robbery conviction (see McWhorter, at pp. 324,
380). Because “ ‘ “cases are not authority for propositions not
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considered” ’ ” (Silverbrand v. County of Los Angeles (2009)
46 Cal.4th 106, 127), McWhorter casts no doubt on the
significance Brasure afforded to a defendant’s determinate term.
We note, too, that “[d]efendant is in no way prejudiced by
assessment of the fine, which will become payable only if he
actually does begin serving a period of parole and his parole is
revoked.” (Brasure, at p. 1075.)10
I. Error in Abstract of Judgment
Penal Code section 286 defines the crime of sodomy and
addresses different circumstances in which the crime may be
committed. One relevant circumstance is the age of the victim.
(See, e.g., § 286, subd. (c).) The abstract of judgment indicates
that defendant thrice committed sodomy with a person under
14 years of age. The parties agree that this was error;
defendant’s victims regarding the relevant counts (7, 10, and 16)
were adults. “[A] court has the inherent power to correct clerical
errors in its records so as to make these records reflect the true
facts.” (In re Candelario (1970) 3 Cal.3d 702, 705.) The abstract
of judgment will be corrected to reflect that defendant was
convicted under subdivision (c)(2) — sodomy by “force, violence,
duress, menace, or fear of immediate and unlawful bodily
injury.”
J. Evidence of Animal Abuse
Defendant complains that the trial court erred at the
penalty phase by admitting evidence that he mistreated cats as
10
Defendant does not contend that, and we do not address
whether, any other intervening authority casts doubt on
Brasure’s conclusion.
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a child. Even assuming the claim of error is preserved and has
merit, any error was harmless beyond a reasonable doubt.
The prosecution sought to admit evidence of animal abuse
through the testimony of defendant’s half brother. The evidence
relevant here concerned tying cats’ tails together and throwing
the cats over a clothesline. The prosecution contended that the
evidence was relevant to the anticipated testimony of a defense
expert psychologist. Defense counsel conceded that he had
provided the expert with a transcript of an interview in which
the half brother discussed the tying together of cats’ tails.
During a later colloquy, the prosecution stressed “that at no time
have we said or do we intend to say that any of the things that
the defendant did as a youth . . . fall under Factor B. We are not
characterizing them as aggravating factors.” The court allowed
inquiry about the subject, but encouraged the prosecution to “try
to minimize this testimony,” cautioning that the court would
“put a halt to it if it becomes too inflammatory.”
The defense was the first to question the half brother
regarding the subject. In full: “Now, did you have occasion to
see [defendant] — that you personally saw [defendant] get a
couple cats and tie their tails and put them up on a clothesline
or something? [¶] A[.] Yeah. It was getting ready to happen
and I ran because I didn’t want to see it. [¶] Q[.] Okay. Did you
actually see any — did you actually ever see anything that
happened? [¶] A[.] No. I ran. [¶] Q[.] Okay. [¶] A[.] But they
were getting ready to do it.”
The prosecution picked up where the defense left off.
Questioning elicited that defendant and a few other boys were
in a backyard discussing tying cats’ tails together and throwing
the cats over a clothesline in that yard. They were trying to
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catch the cats and had something like “rope or twine.” The half
brother did not see defendant harm animals on other occasions.
The court later had doubts about its decision to admit this
and other testimony regarding defendant’s conduct during his
childhood. The court ultimately instructed the jury that
“[e]vidence has been presented regarding the defendant’s
background. This evidence may be considered by you, if at all,
as mitigating evidence. [¶] I’m going to change that last
sentence. [¶] This evidence may only be considered by you, if at
all, as mitigating evidence.” (Italics added.) The court also
instructed that, other than certain crimes about which the jury
heard evidence during the guilt phase, the jury should not
“consider any other evidence pertaining to any other crimes on
any alleged victim, whether charged or uncharged.”
Considering all these circumstances, no basis for reversal
appears. The testimony at issue was brief. It concerned the
behavior of a group of boys, not solely defendant, an adult whom
the jury had already convicted of murder, rape, and sodomy.
The witness did not testify that the plan regarding cats was
defendant’s idea. Nor did he testify that any cats were ever
caught, tied, or thrown. The prosecution asserted at trial that
it sought to elicit this testimony solely for impeachment
purposes. There is no dispute that the prosecution did not rely
on the evidence regarding cats as evidence in aggravation
during closing argument. The defense, by contrast, emphasized
that “background information” is, if anything, “mitigation and
only mitigation.” Likewise, the court’s instructions limited the
significance that the jury could have given to this evidence.
Viewed in context, any error in admitting this evidence of
(potential) animal abuse was harmless beyond a reasonable
doubt.
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K. Denial of Automatic Motion to Modify the
Verdict
The trial court denied defendant’s automatic motion to
modify the verdict. (Pen. Code, § 190.4.) Defendant concedes
that he did not object to the denial and that “[s]uch a failure
generally constitutes forfeiture of the issue on appeal.” (People
v. Sánchez (2016) 63 Cal.4th 411, 485; People v. Horning (2004)
34 Cal.4th 871, 912 (Horning); People v. Riel (2000) 22 Cal.4th
1153, 1220.) He contends that the failure to object should be
excused on grounds of futility, “given the trial court’s adamant
view of the case.” We disagree. The trial court’s belief that the
motion should be denied does not indicate that the trial court
could not have been persuaded otherwise after objection. The
futility argument is particularly unconvincing to the extent
defendant argues that the trial court’s reasoning was marred by
legal error; if informed of an actual legal error by an objection,
presumably the court would have revisited its reasoning and,
thus, its conclusion.
Defendant’s claim fails on the merits in any event. He
notes that the trial court concluded that the murder was
premeditated, surmising that the court’s view was based on
evidence suggesting that defendant formed an intent to kill
before entering Palmer’s apartment. From this, he argues that
the burglary special circumstance was inapplicable, citing
People v. Seaton (2001) 26 Cal.4th 598, 646 for the proposition
that “the burglary-murder special circumstance do[es] not apply
to a burglary committed for the sole purpose of assaulting or
killing” the homicide victim. The problem with defendant’s
argument is revealed by the language he quotes: “sole purpose.”
(Ibid., italics added.) That defendant may have entered with
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intent to kill does not eliminate the evidence of his entry with
intent to commit sexual assault.
Defendant also faults the trial court for relying on a view
that the treatment of Palmer’s body made the crime
“ ‘particularly heinous.’ ” In support, he relies on case law
relevant to factors that render crimes death eligible; in the
parlance of California law, special circumstances. (See Maynard
v. Cartwright (1988) 486 U.S. 356, 363–364; People v. Superior
Court (Engert) (1982) 31 Cal.3d 797; People v. Green (1980)
27 Cal.3d 1, 61 & fn. 51.) That authority is beside the point. As
the other case he cites explains, “defendant argues that the trial
court erred by considering the ‘heinous’ nature of the crimes as
a factor in aggravation. . . . But the aggravating circumstance
addressed in Maynard was one that determined eligibility for
the death penalty, which requires greater precision than the
factors that govern the sentence-selection process, at issue here.
[Citations.] In any event, the trial court merely used the word
‘heinous’ . . . as part of its explanation why it found the
circumstances of the offense an aggravating factor.” (People v.
Lucero (2000) 23 Cal.4th 692, 737 (Lucero).)11
Defendant also points to “significant mitigating evidence
reducing his culpability.” The trial court took such evidence into
account. Finally, defendant contends that the evidence that
“Palmer was beloved by her family and was a kind, generous,
and loving individual” was “not sufficient to justify the decision
11
Defendant also asserts that “a contention that a murder
was ‘particularly heinous’ is vague and cannot support
imposition of the death penalty.” He identifies no authority in
support of this proposition — a deficiency that would forfeit the
issue on appeal even if it had not been forfeited below. (See
Daveggio, supra, 4 Cal.5th at p. 830, fn. 6.)
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not to modify the verdict.” The trial court did not rely solely on
that evidence to justify its decision. Our independent review
reveals no reason to disturb the trial court’s denial of the motion.
(People v. Sánchez, supra, 63 Cal.4th at p. 485.)
L. Victim Impact Evidence
Defendant contends that victim impact evidence must be
limited to the facts or circumstances known to the accused at the
time of the offense. The trial court’s failure to embrace this
principle, he continues, resulted in evidentiary and
instructional error. We have rejected this contention in the past
and see no persuasive reason to revisit our precedent. (See, e.g.,
People v. Henriquez (2017) 4 Cal.5th 1, 37–38; People v. Pollock
(2004) 32 Cal.4th 1153, 1183.) Accordingly, there was no error.
M. Cumulative Error
We have assumed that the trial court erred in admitting
certain DNA evidence at the guilt phase and in admitting
evidence of (potential) animal abuse at the penalty phase; held,
in the alternative to a finding of no error, that any error in
imposing a parole revocation fine was harmless; and confirmed
that the abstract of judgment reflects a clerical error. We
further conclude that, even viewed in combination, these errors
(found or assumed) were not prejudicial. It is especially clear
that the parole revocation fine and abstract of judgment could
not have affected the jury’s guilt or penalty verdict, and that the
admission of animal abuse evidence at the penalty phase could
not have affected the guilt phase verdict.
N. Miscellaneous Challenges to the Death Penalty
Defendant raises several challenges to the legality of
California’s death penalty. We decline to revisit our precedent
as follows:
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Neither Penal Code section 190.2 nor Penal Code section
190.3 (including its factor (a)) is unconstitutionally vague.
(People v. Sivongxxay (2017) 3 Cal.5th 151, 198 (Sivongxxay);
People v. Myles (2012) 53 Cal.4th 1181, 1224.) Section 190.3 “is
not invalid for failing to specify which factors are mitigating and
which are aggravating, to limit aggravation to the specified
aggravating factors, or to define aggravation or mitigation.”
(Horning, supra, 34 Cal.4th at p. 913.) “Nor do these asserted
deficiencies impermissibly allow the jury to consider mitigating
evidence, or its absence, in aggravation.” (Myles, at p. 1223.)
“Moreover, neither the use of the adjective ‘extreme’ in ‘extreme
mental or emotional disturbance’ under factor (d), nor the
absence of language explaining that these identified
circumstances are mitigating rather than aggravating, renders
that factor unconstitutionally vague. Nor does the same
asserted deficiency invalidate factor (h), regarding impairment
due to mental disease, defect, or intoxication.” (Ibid.)
Defendant’s further claim that “all the remaining factors in
section 190.3 fail to pass constitutional scrutiny” is too cursory
to require our discussion of each factor individually. (See Myles,
at p. 1223, fn. 16; People v. Jones (2003) 30 Cal.4th 1084, 1129.)
“California’s sentencing statute sets forth a
constitutionally adequate burden of proof concerning the
aggravating factors and the sentencer’s ultimate decision.”
(Sivongxxay, supra, 3 Cal.5th at p. 198.) Written findings in
support of the verdict are not required. (Id., at p. 199; People v.
Potts (2019) 6 Cal.5th 1012, 1061 (Potts).)
“ ‘ “Comparative intercase proportionality review by the
trial or appellate courts is not constitutionally required.” ’ ”
(Potts, supra, 6 Cal.5th at p. 1061.) A lack of such “review does
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not deny a defendant the constitutional right to equal
protection.” (People v. Romero (2008) 44 Cal.4th 386, 429.)
The special circumstances that make an offense a capital
crime adequately “narrow the class of persons eligible for the
death penalty.” (People v. Mai, supra, 57 Cal.4th at p. 1057; see
also People v. Stevens, supra, 41 Cal.4th at p. 211; Lucero, supra,23 Cal.4th at p. 740.) “Prosecutorial discretion to select those
death-eligible cases in which the death penalty will actually be
sought is not constitutionally impermissible.” (People v.
Anderson (2001) 25 Cal.4th 543, 601; see also People v. Ayala
(2000) 23 Cal.4th 225, 304.) “To the extent defendant argues
that the same incident may not be considered as a special
circumstance and as an aggravating factor, he is incorrect.”
(People v. Salazar (2016) 63 Cal.4th 214, 254; see also People v.
Whalen, supra, 56 Cal.4th at p. 89 [double jeopardy].)
Finally, “[t]he imposition of the death penalty under
California’s law does not violate international law or prevailing
norms of decency.” (People v. Krebs (2019) 8 Cal.5th 265, 351;
see also, e.g., People v. Rhoades, supra, 8 Cal.5th at p. 456;
People v. Johnson (2019) 8 Cal.5th 475, 528; People v. Capers
(2019) 7 Cal.5th 989, 1017; People v. Molano (2019) 7 Cal.5th
620, 679.)
III. DISPOSITION
The superior court is directed to amend the abstract of
judgment to reflect the basis for defendant’s convictions on
counts 7, 10, and 16; and to forward the amended abstract of
judgment to the Department of Corrections and Rehabilitation.
The judgment is otherwise affirmed.
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Opinion of the Court by Cantil-Sakauye, C. J.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
HULL, J.*
________________________
*
Associate Justice of the Court of Appeal, Third Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
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PEOPLE v. BAKER
S170280
Concurring Opinion by Justice Liu
In rejecting defendant’s claims under Batson v. Kentucky
(1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258,
today’s opinion accords deference to the trial court’s ruling.
(Maj. opn., ante, at p. 39.) A trial court is required to make a
“ ‘sincere and reasoned effort’ ” to assess the prosecutor’s stated
reasons for striking prospective jurors. (People v. Gutierrez
(2017) 2 Cal.5th 1150, 1159.) Today’s opinion recites our
precedent that “ ‘[w]hen the trial court has inquired into the
basis for an excusal, and a nondiscriminatory explanation has
been provided, we . . . assume the court understands, and
carries out, its duty to subject the proffered reasons to sincere
and reasoned analysis, taking into account all the factors that
bear on their credibility.’ ” (Maj. opn., ante, at p. 39, quoting
People v. Mai (2013) 57 Cal.4th 986, 1049, fn. 26 (Mai).)
I continue to believe the better rule is to require the trial
court to affirmatively demonstrate on the record that it has
made a sincere and reasoned effort to evaluate the prosecutor’s
explanations for a contested strike. I see little in the way of
meaningful appellate review when we assume, in the absence of
any explicit record of reasoned analysis, that the trial court
discharged its duty to undertake such analysis. (See People v.
Miles (2020) 9 Cal.5th 513, 612 (dis. opn. of Liu, J.) [“[B]ecause
[the trial court’s] ruling is not accompanied by any reasons or
analysis, there is nothing to defer to.”]; Mai, supra, 57 Cal.4th
at p. 1060 (conc. opn. of Liu, J.) [“There is no reasoning in the
PEOPLE v. BAKER
Liu, J., concurring
trial court’s statement that ‘no discriminatory intent is inherent
in the explanations, and the reasons appear to be race
neutral.’ ”].) “There is a wide chasm . . . between the absence of
reasons to conclude that the trial court did not conduct a proper
Batson analysis and the presence of reasons to conclude that it
did.” (Mai, at p. 1061 (conc. opn. of Liu, J.); see People v.
Williams (2013) 56 Cal.4th 630, 709–717 (dis. opn. of Liu, J.).)
In this case, the court’s discussion of deference notes that
“indications in the record support an inference that the trial
court had in mind the prospective jurors’ demeanor and
questionnaire answers when it evaluated the prosecutor’s
strikes of Prospective Jurors R.T. and T.P.” (Maj. opn., ante, at
p. 42.) I would further note that even upon an independent
review of the record, I would conclude that defendant has not
shown by a preponderance of the evidence that the prosecutor’s
reasons for striking R.T. and T.P. were pretextual. Accordingly,
defendant’s Batson/Wheeler claims must be rejected.
LIU, J.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Baker
_________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S170280
Date Filed: February 1, 2021
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Susan M. Speer
__________________________________________________________________________________
Counsel:
John F. Schuck, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Susan Sullivan Pithey, Assistant Attorney General, Joseph P. Lee, Scott A.
Taryle and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
John F. Schuck
Law Offices of John F. Schuck
885 N. San Antonio Road, Suite A
Los Altos, Ca 94022
(650) 383-5325
E. Carlos Dominguez
Deputy Attorney General
300 South Spring St., Suite 1702
Los Angeles, CA 90013
(213) 269-6120