Filed 1/30/14




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S105097
           v.                        )
                                     )
DEWEY JOE DUFF,                      )
                                     )                       Sacramento County
           Defendant and Appellant.  )                     Super. Ct. No. 98F01583
____________________________________)


        A jury convicted defendant Dewey Joe Duff of two counts of first degree
murder with robbery and multiple-murder special circumstances, as well as
various lesser crimes, for the 1998 killings of Roscoe Riley and Brandon Hagan.
(Pen. Code, §§ 187, 189, 190.2, subd. (a)(3), (17).) 1 It thereafter returned a death
verdict. On automatic appeal, we affirm the judgment in its entirety.
                  I. FACTUAL AND PROCEDURAL BACKGROUND

        A. GUILT PHASE TRIAL
        It is undisputed that on February 23, 1998, Duff shot and killed Riley and
Hagan. The principal issue during the guilt phase was why: Whether, as the
People argued, Duff acted with premeditation to settle a grudge against Riley, or
whether, as Duff argued, he acted in self-defense after Riley and Hagan pointed
three guns at him and opened fire.

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




                                          1
           1. Prosecution Evidence
       On the afternoon of February 23, 1998, bartender Diana Flint and customer
Filomeno Lujan witnessed shootings in the parking lot outside Taylor’s Corner
Bar in Sacramento. Flint saw a man enter the bar, use the restroom, and leave.
Minutes later, Flint heard a gunshot and through a window saw the man standing
next to the rear passenger side of a car in the parking lot, shooting into the car.
The car’s doors were closed. The man then walked around the car, pushed
something out of the driver’s seat, and drove off. Hearing shots, Lujan ran first to
a window and then outside and saw two people, later determined to be Roscoe
Riley and Brandon Hagan, slumped over in the front seats; he saw a third man
with a gun take another gun from the motionless driver, climb into the driver’s
seat, and drive off. Moments later, as the car was driving away, Flint and Lujan
both heard a further shot. Flint called 911.
       That night, police seeking a suspect on an unrelated warrant spotted Duff
fleeing on foot near where he lived. Thinking he might be the suspect they were
seeking, officers pursued him and eventually, after a brief struggle, arrested him.
An officer recognized Duff and, knowing that he had until recently lived across
the street with his mother, obtained consent from Duff’s mother to search her
house. When .22-caliber bullets were found, Duff was held on charges of being a
felon in position of ammunition. When arrested, Duff had in his possession two of
Riley’s rings. A search of the area where Duff was arrested produced a .357-
caliber revolver with blood in its chambers and a matching gun holster. 2
       Police received a tip concerning a car with bodies in it parked in a muddy
field behind the house of Sheri Sanchez and Walter Payne, friends with whom



2      Duff later confirmed the .357 was a gun he had taken from Riley.



                                           2
Duff sometimes lived. Police found the car with Riley’s and Hagan’s bodies
inside and had the car towed to a crime laboratory for inspection.
       After discovering Riley’s and Hagan’s bodies, police questioned Duff about
the shootings. In a taped interview played for the jury, he confessed to killing
both men. He explained that he had set up a deal with Riley to trade guns for
drugs; they were on their way from Sacramento to Rio Linda to secure the drugs
when Duff asked for a restroom stop. Duff had met Hagan, who was
accompanying Riley, only once before. When Duff returned to the car, Riley
pointed one gun and Hagan two guns at him, and they demanded his guns and
money. Duff said he did not want trouble and was getting out of the car, someone
fired a shot, and as Duff was getting out he returned fire with a .38. He then ran to
the driver’s side, pushed Riley aside, and drove off. One of the men was still
alive, so Duff shot him again as he was driving away. Duff took jewelry, a .357,
and other guns from the men.
       Forensic examination of the bodies and car revealed that Riley had been
shot four times and Hagan twice. Each had been shot with both a .357 and a .38.
All bullets recovered were .38-caliber but could be fired from either a .38 or a
.357. There were no bullet holes in the back of the car or any other evidence that
would suggest a gun had been fired from the front seat toward the rear. Riley was
wearing an elastic strap that could have been part of a gun holster. Hagan had dice
in his lap, as if the men had been playing a game when they were shot. Expert
reconstruction of the scene suggested both Riley and Hagan had been shot from
behind with the .38 and from the side with the .357.
       Duff’s friend Cynthia Fernando, who was staying with Duff at the
Sanchez/Payne house, testified that Duff had sold Riley a .357 for $100 or its
equivalent in methamphetamine and was very angry because Riley never paid him
and had ignored and “disrespected” him. In the month or two preceding the

                                          3
shootings, Duff repeatedly discussed setting up Riley by agreeing to meet him to
do a drug deal but then robbing him of drugs and jewelry and killing him. In the
days before the murders, Fernando saw Duff with multiple guns, including a .38,
and saw him taking shooting practice. 3
       One day when Duff was at another friend’s house, he spoke to Fernando on
the phone and asked her to come over. When she arrived, Duff had showered and
was trying on clean clothes; his clothes were folded in a box he intended to bury.
She saw him wipe blood off a .357. Duff said he had killed two people, including
one who was not supposed to be there. He never mentioned that either man had
pulled a gun or that he had acted in self-defense. The bodies were in a car in back
of the Sanchez/Payne house.
       Fernando and Duff soon met up with his friend Ronald Greathouse, and
Duff gave Greathouse a few items. Duff gave Fernando the methamphetamine he
had taken from the victims. She also saw other items from the car, including
jewelry, a cell phone, and numerous guns, including Duff’s .38 and the .357 Duff
had sold Riley. Duff kept the .357 and Fernando took the jewelry and other guns,
including the .38, with directions that the .38 go to Duff’s half brother. That night,
as they were walking toward Duff’s mother’s house with the guns and with items
from the robbery in a shopping cart, Duff spotted police officers and took off
without a word. The next day, Fernando gave the .38 and another gun to Duff’s
half brother.
       Ronald Greathouse testified that, in the weeks before the murders, Duff had
asked for help robbing a man named Roscoe and Roscoe’s friend and shooting one
of them in the buttocks. Duff was going to set up a deal for drugs and jewelry and

3      Another witness also saw a man matching Duff’s description taking target
practice in the backyard of the Sanchez/Payne house the day before the shootings.



                                          4
then rob Roscoe because he was “lame and easy to do.” Duff had a .38-caliber
gun with him. Weeks after that first conversation, Duff gave Greathouse a ring
and five spent .357- or .38-caliber shell casings and had Greathouse sell the ring,
splitting the profits, and dispose of the shells so no one would find them.
       Lloyd Dunham, a friend of Duff’s half brother, testified that Duff was
angry with Riley because Duff had set up a guns-for-drugs deal for Riley but had
not received anything. Duff had asked Dunham for help in setting up a fake drug
buy from Riley with the intent of then robbing Riley of his drugs, money, and
jewelry.
       Duff’s nephew, Lloyd Duff, told police that the week before the murders
Duff said he planned to set someone up, rob them, and “leave no witnesses.”

           2. Defense Evidence
       Duff did not testify, relying on his taped confession to convey his version
of events. The defense called only one witness, Detective Toni Winfield, to
impeach Fernando with statements she had made to Detective Winfield before
trial, including that Duff had led her to believe the second victim was a woman
and that she had not seen him wipe blood off the .357.

       B. PENALTY PHASE TRIAL

           1. Prosecution Evidence
       In addition to the circumstances of the crime, the People relied principally
on Duff’s history of prior violent criminal acts, including eight felony convictions
and other malfeasance not leading to a conviction. (§ 190.3, factors (b), (c).) In
the 20 years preceding the murders, Duff had been convicted of false
imprisonment, assault of a police officer, assault with a semi-automatic rifle,
possessing methamphetamine (twice), theft, vehicle theft, and possessing a dagger.




                                          5
       The false imprisonment victim testified that when she was 16, Duff grabbed
her from behind and dragged her toward an alley. She struggled and screamed;
when someone heard the screams, Duff released her and she fled.
       A woman testified to an uncharged incident in which Duff exposed himself
and masturbated toward her while she was sitting in the passenger seat of a car at a
drive-in restaurant, grabbed the breasts of two other women walking by, then stuck
his erect penis through the driver’s side window at the witness’s female
companion.
       The officer who had been assaulted testified that Duff slipped a handcuff
and hit him. In the ensuing struggle, the officer tore ligaments in his hand and hit
his head on a telephone pole.
       Another woman testified that Duff, shirtless, entered her home with a
loaded sawed-off rifle. She, her husband, and six children escaped the house and
called police, who caught Duff. Earlier that same night, Duff had approached
three teenagers, cocked the rifle, and pointed it at them.
       In a partially uncharged incident, a woman testified that late one night,
while she was at a closed gas station going through mail she had stolen, Duff
approached her and struck up a conversation. When she started to leave, he hit her
in the head from behind. When she tried to run, he grabbed her by the hair, held a
knife to her throat, forced her to orally copulate him, and then raped her. When
police responded to a call regarding the rape, Duff drove off but crashed; he was
found in possession of a bayonet-style dagger. The woman admitted that she had
originally lied about some aspects of the incident, including by claiming that Duff
had forced her to take methamphetamine and that she was returning from bingo,
not out stealing mail. Pursuant to a plea bargain, rape charges were dropped, but
Duff pleaded guilty to possession of a dagger.



                                          6
       In another incident, Duff shot at his friend Ronald Greathouse, grazing his
head. The night before the murders, he beat Cynthia Fernando extensively,
knocking her to the ground at least four times, kicking her, picking her up to beat
her again, and breaking her ribs.
       The prosecution concluded with brief victim impact evidence from Marie
Correa, the mother of two daughters by Riley, and Makala Tiller, a friend of
Hagan’s.

           2. Defense Evidence
       Duff introduced evidence that he had been raised in a dysfunctional home.
Duff’s mother had given birth to six living children and had had six or seven
additional miscarriages or stillbirths. She was married at least four and possibly as
many as eight times, though never to Duff’s father, whose identity was unknown.
Duff fell on his head when he was three and was “slower” thereafter. Duff’s
mother was an alcoholic, and there was domestic violence in the home, some of it
directed toward Duff, from both his mother and stepfathers. Duff’s mother used
her children to help her lure men to her home and then rob them. Duff’s mother
and family members were involved in distributing drugs.
       Duff was married for 10 years and had three daughters.
       Defense experts testified that Duff had low intelligence (an overall I.Q. of
87 and individual I.Q.’s in various areas of between 62 and 99), a learning
disability, and mild brain damage that caused learning and attention difficulties.

       C. PROCEDURAL HISTORY
       Duff was charged with two counts of first degree murder with two special
circumstances for each count, murder during the commission of robbery and
multiple murder. (§§ 187, 189, 190.2, subd. (a)(3), (17).) He was also charged
with robbery (§ 211), possession by a felon of a handgun and reloadable



                                          7
ammunition (former § 12021, subd. (a) [now § 29800]; former § 12316,
subd. (b)(1) [now § 30305, subd. (a)]), firearm-use enhancements (§ 12022.53),
and a prior serious felony conviction qualifying as a strike (§§ 245, subd. (b), 667,
subds. (a)-(i), 667.5, subd. (b), 1170.12). Before trial, the court dismissed the
reloadable ammunition count on the prosecution’s motion.
       A jury convicted Duff on both first degree murder counts and found the
special circumstances true. It also convicted Duff of all remaining lesser offenses
and found the firearm-use enhancements true. Duff admitted the strike. At the
penalty phase, the jury returned a verdict of death.
                                  II. DISCUSSION

       A. JURY SELECTION ISSUES

           1. Excusals Pursuant to Stipulation
       In the course of voir dire, the trial court permitted counsel for both sides to
prescreen juror questionnaires and arrive at stipulations as to particular jurors they
mutually agreed were unsuitable. Under this procedure, Duff and the prosecution
stipulated to the exclusion of numerous prospective jurors, including jury pool
members C.L., S.K., and D.L., and the trial court accepted these stipulations. Duff
now contends the trial court committed error by excusing these three jurors under
Witherspoon v. Illinois (1968) 391 U.S. 510 (Witherspoon) and Wainwright v. Witt
(1985) 469 U.S. 412 (Witt) 4 without adequate voir dire into their views on the
death penalty.


4       Under Witherspoon, supra, 391 U.S. 510 and Witt, supra, 469 U.S. 412,
prospective jurors may be excused for cause based on their views on the death
penalty if the jurors’ attitudes will prevent or substantially impair the performance
of their duties as jurors in accordance with their instructions and oath. (People v.
Wilson (2008) 44 Cal.4th 758, 786.)



                                          8
       This contention is misguided. The trial court did not dismiss these
prospective jurors on Witherspoon-Witt grounds; it did not dismiss them on any
particular ground or make findings as to the basis for their dismissal, but instead
accepted the parties’ stipulation that the jurors be dismissed. Nothing in the record
suggests these jurors’ views of the death penalty played any role in their dismissal.
Indeed, the court anticipated there would be stipulations wholly unrelated to
Witherspoon-Witt concerns; while explaining that the plan for voir dire was to
focus questioning on the death penalty, the court noted: “I would not be at all
surprised if counsel collaborate on stipulating to excuse people who have issues
that preclude them from being fair to both sides in this case that have nothing to do
with the penalty discussion.”
       A court may allow counsel to prescreen juror questionnaires and stipulate
to juror dismissals. (People v. Booker (2011) 51 Cal.4th 141, 159-161; People v.
Benavides (2005) 35 Cal.4th 69, 88-89; People v. Ervin (2000) 22 Cal.4th 48, 72-
73.) When prospective jurors are formally dismissed pursuant to stipulation rather
than cause, the trial court makes no findings, and we have nothing we can review.
(Booker, at p. 161.) Consequently, a stipulation to the excusal of jurors forfeits
any subsequent objection to their omission from the jury pool. (Id. at p. 159;
Benavides, at pp. 87-88; Ervin, at p. 73.)
       Duff argues that because the court made no findings, we do not know why
each juror was objectionable. Next, he concludes that in the absence of findings,
we must assume Witherspoon-Witt concerns underlay each dismissal, and he
argues such concerns are not borne out by the jurors’ questionnaires. While it is
true that the trial court made no findings, the conclusion does not follow. As the
trial court recognized, any number of reasons unrelated to a prospective juror’s
views on the death penalty might lead both sides to conclude the juror is
unsuitable or otherwise subject to excusal. (See Code Civ. Proc., §§ 204,

                                             9
subd. (b), 225, subd. (b)(1), 228, 229.) 5 The absence of a record, attributable to
Duff’s stipulation to each dismissal, precludes us from speculating and
entertaining Duff’s claim on appeal.

           2. Excusal for Cause: Witherspoon-Witt
       In the course of voir dire, the trial court granted over Duff’s objection the
prosecution’s motion to excuse Prospective Juror S.L. for cause on Witherspoon-
Witt grounds. Duff renews his objection on appeal, arguing the excusal of S.L.
violated his rights under Witherspoon, supra, 391 U.S. 510, Witt, supra, 469 U.S.
412, and their progeny. In an essentially related argument, he contends that his
equal protection rights were violated because Juror S.L. was excused on account
of her religious beliefs.
       “Under both the state and federal Constitutions, a criminal defendant is
guaranteed the right to be tried by an impartial jury. (Cal. Const., art. I, § 16; U.S.
Const., 6th & 14th Amends.) A prospective juror may be excused for cause only
if his or her views in favor of or against capital punishment ‘would “prevent or
substantially impair the performance of his [or her] duties as a juror in accordance
with [the court’s] instructions and [the juror’s oath].” ’ (Witt, supra, 469 U.S. at
p. 424; see Uttecht v. Brown (2007) 551 U.S. 1, 9.) Although opposition to the
death penalty does not necessarily afford a basis for excusing a juror for cause
(People v. Martinez (2009) 47 Cal.4th 399, 425), the prosecutor may properly
challenge those prospective jurors whose opposition to the death penalty ‘would
not allow them to view the proceedings impartially, and who therefore might



5      Indeed, when Prospective Juror D.L. was excused by stipulation at the same
time as two other jurors, the trial court noted that different unspecified reasons lay
behind the excusal of each juror.




                                          10
frustrate administration of [the] death penalty scheme.’ (Witt, supra, at p. 416.)”
(People v. Clark (2011) 52 Cal.4th 856, 895.)
       On appeal, we consider whether the trial court’s ruling is fairly supported
by the record. (People v. McKinzie (2012) 54 Cal.4th 1302, 1328; People v.
Pearson (2012) 53 Cal.4th 306, 327.) “When the prospective juror’s answers on
voir dire are conflicting or equivocal, the trial court’s findings as to the
prospective juror’s state of mind are binding on appellate courts if supported by
substantial evidence.” (People v. Duenas (2012) 55 Cal.4th 1, 10.) “ ‘Deference
to the trial court is appropriate because it is in a position to assess the demeanor of
the venire, and of the individuals who compose it, a factor of critical importance in
assessing the attitude and qualifications of potential jurors.’ ” (McKinzie, at
p. 1329, quoting Uttecht v. Brown, supra, 551 U.S. at p. 9.)
       Juror S.L.’s questionnaire revealed someone profoundly conflicted as to
whether she could ever personally vote to impose the death penalty. She checked
that she could give honest consideration to both life and death and circled that she
was only “Somewhat Opposed” to the death penalty. But she also wrote, “I am
Catholic and I do not believe I could send someone to their death” and “I’m just
not sure if I could live with myself if I had to send someone to their death.”
Numerous other answers elaborated on the internal tension she felt. (E.g., “I feel
[the] death penalty is a deterrent, I understand why it is necessary. But I also
believe that only God has the right to take away life. It is a conflict in my life that
I have not yet been able to resolve. I err on the side of God.”; “I understand why it
works as a deterrent so I can’t oppose it (as I know I should). But I cannot
condone it as it is not what I believe God would want us to do.”) Answering
whether her views would always cause her to vote against the death penalty, she
checked “Yes,” then crossed that out, checked “No,” and explained: “I would



                                           11
follow the law, I would not intentionally break the law, but I am not sure I could
live with it.”
       She clarified that the tension she experienced was personal, and not because
she felt obligated to follow her church’s or anyone else’s views; although religion
was for her “100% of my life” and the death penalty was “against the Catholic
beliefs,” she felt “this way because of what I have read about God in the Bible, not
because the Church says so.” In that vein, she noted, “My husband is strongly in
favor [of the death penalty] but I follow my own path, God holds me accountable
for my acts. I must decide what is correct for myself.”
       Presented with a questionnaire that left it ultimately unclear whether the
prospective juror would be able to be guided by the court’s instructions as opposed
to her personal views, the trial court and counsel appropriately conducted a
lengthy voir dire to ascertain the precise nature of the juror’s sentiments. (Cf.
People v. Riccardi (2012) 54 Cal.4th 758, 782 [court committed reversible error
by failing to conduct voir dire before excusing on Witherspoon-Witt grounds a
juror with ambiguous questionnaire answers].) As the court explored her views,
S.L. repeatedly avowed that while she would try to do what the law asked of her
notwithstanding her religious beliefs, she was unsure whether she “could
separate—completely separate those beliefs from me and my decision making
because that’s what has influenced all of my decisions all of my life.” (See also,
e.g., “I don’t know that [my religious beliefs] would not influence me. It’s been
my whole life. I mean my—my belief—it’s my whole life. So I don’t know that
it would not influence me. [¶] I wouldn’t try—I would try not to allow that to
influence me. [¶] But I’ve never been in a position where I have to make that kind
of a decision before. I don’t know. [¶] I mean I can’t say 100 percent that
never—it would never influence me at all. [¶] It’s not something that I have ever
had to separate from my life before.”)

                                         12
       Questioned by defense counsel as to whether she could vote for death if the
aggravating circumstances outweighed the mitigating circumstances, S.L. offered,
“I think that if it was—like you said it would have to be something that would be
so completely—I could—I’m not sure how well I would live with myself after
that. [¶] But I think that I could. That’s my job and my responsibility to do that.”
Asked if she could vote for death even though it was personally unpleasant, she
indicated, “I believe so, yes.”
       After confirming to the prosecution that she thought it wrong to put
someone to death, S.L. was asked how it could ever be right to vote to put
someone to death: “Truthfully I don’t know. [¶] I’ve never faced this before. I’ve
never been in a position to have to do that before. [¶] I—I could only tell you that
I would do the best that I could do if I was put in this position.” After agreeing
that the right thing to do would be to always vote for life, she explained, “I guess
basically my conflict resides in that doing the right thing could mean not doing
something correct in the law. [¶] I don’t know.” Moments later, after agreeing
that voting for death would “be directly violating what God told you not to do,”
S.L. offered, “I do think it would be wrong for me to sit on the jury. [¶] It is just
because I don’t think that—I know what I’m capable of doing. I don’t know that I
would 100 percent be capable of doing this.” The prosecutor asked if S.L. “could
not really live with yourself if you actually vote for the death penalty?” and S.L.
replied, “Yeah. [¶] That’s true.”
       Thereafter, the trial court considered the prosecution’s motion to excuse
S.L. for cause and concluded the juror had made clear she was “not open minded”
and that while she thought “she might be able” to reach a death verdict, “she
doesn’t know how she could live with that decision” and “articulated that this is
not something she should do.” Accordingly, the court found S.L. “substantially
impaired” and excused her from the jury.

                                          13
       Juror S.L.’s questionnaire and responses to voir dire reveal a deep-seated
internal conflict as to whether she could set aside her profound devotion to the
perceived dictates of her religious faith in order to follow the court’s instructions
and render a verdict of life or death based on the evidence before her. She made
clear that she certainly desired to follow the law, but in the end could not shake
substantial doubts that she would be able to do so. The record also makes
apparent that the trial court ultimately excused her not because of her religious
affiliation, but because in its judgment, after viewing her responses to its own
questions and those of counsel, the prospective juror would be substantially
impaired in her ability to follow the court’s instructions and fulfill her duties as a
juror. (See Witt, supra, 469 U.S. at p. 424; People v. Rountree (2013) 56 Cal.4th
823, 847 [The “trial court did not excuse [the juror] because he belonged to any
particular religious denomination, or even because he had any particular religious
beliefs. Rather it excused him because he made it clear that his beliefs would have
substantially impaired the performance of his duties as a juror. Prospective jurors
whose beliefs—whether religiously or otherwise based—prevent them from
impartially performing the duties of a juror, which includes deciding the case
impartially and, ultimately, sitting in judgment, may be excused for cause.”].)
       The uncertainty S.L. displayed about her own ability to actually vote for
death exceeded that reflected in the record in any number of recent cases where we
have upheld excusals for cause based on the effect a juror’s religious beliefs would
have on her or his ability to act. (See, e.g., People v. Rountree, supra, 56 Cal.4th
at p. 847 [the “juror could hardly have been more equivocal about whether he
could set aside his religious convictions and perform a juror’s duties”]; People v.
Jones (2012) 54 Cal.4th 1, 43 [“equivocal and conflicting” answers “indicated that
[the prospective juror] harbored very serious doubts concerning whether, if seated
on a capital jury, she could ever personally vote to impose the death penalty” and

                                          14
supported the trial court’s conclusion that her religious beliefs would substantially
impair the performance of her duties]; People v. Cowan (2010) 50 Cal.4th 401,
441 [the trial court is in the best position to determine whether a juror uncertain
about her ability to impose death because “punishment was for God alone” can
serve or would be substantially impaired].) As in these cases, substantial evidence
supports the trial court’s assessment that a juror deeply conflicted about her ability
to follow the court’s instructions and disregard her personal belief that it would
never be right for mortals to put someone to death is substantially impaired, and
we accordingly defer to that determination.

           3. Wheeler-Batson Motion
       During jury selection, the prosecution at one point used three consecutive
peremptory challenges on African-American prospective jurors. Duff challenged
this exercise of peremptories as race-based. The trial court ruled Duff had not
made out a prima facie case of discrimination but invited the prosecutor to make a
record of his reasons, and the prosecutor did so. Thereafter, the trial court denied
Duff’s motion. The jury as seated included no African-Americans. 6 Duff renews
his objection on appeal. We find no error.

               a. Legal Principles
       The federal Constitution, state Constitution, and state statutory law all
prohibit the use of peremptory challenges to exclude prospective jurors based on
race. (Batson v. Kentucky (1986) 476 U.S. 79, 97; People v. Wheeler (1978) 22
Cal.3d 258, 276 (Wheeler); Code Civ. Proc., § 231.5.) “The prosecution’s use of
peremptory challenges to remove prospective jurors based on group bias, such as


6     Duff is Caucasian. Hagan was also Caucasian. Riley was African-
American.



                                          15
race or ethnicity, violates a defendant’s right to trial by a jury drawn from a
representative cross-section of the community under article I, section 16 of the
California Constitution and his right to equal protection under the Fourteenth
Amendment to the United States Constitution.” (People v. Blacksher (2011) 52
Cal.4th 769, 801.)
       “ ‘There is a rebuttable presumption that a peremptory challenge is being
exercised properly, and the burden is on the opposing party to demonstrate
impermissible discrimination.’ ” (People v. Dement (2011) 53 Cal.4th 1, 19; see
also Purkett v. Elem (1995) 514 U.S. 765, 768.) Under a now-familiar three-step
process, to carry this burden a defendant must first “make out a prima facie case
‘by showing that the totality of the relevant facts gives rise to an inference of
discriminatory purpose.’ [Citation.] Second, once the defendant has made out a
prima facie case, the ‘burden shifts to the State to explain adequately the racial
exclusion’ by offering permissible race-neutral justifications for the strikes.
[Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must
then decide . . . whether the opponent of the strike has proved purposeful racial
discrimination.’ [Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168, fn.
omitted.) The same rules apply to state constitutional claims. (People v. Taylor
(2009) 47 Cal.4th 850, 886.)
       Here, although the trial court found no prima facie case had been made out,
it permitted the prosecutor to make a complete record of his reasons as to each of
the three challenges. Consequently, as in People v. Cowan, supra, 50 Cal.4th 401,
we may “assume without deciding that defendant established a prima facie case by
pointing out that the prosecutor used three of the 18 peremptory challenges she
exercised to strike all of the African-American prospective jurors called to the jury
box, resulting in no African-Americans serving on defendant’s jury” (id. at
pp. 447-448) and directly “proceed to the second and third steps of the

                                          16
Batson/Wheeler analysis” (id. at p. 448; see also People v. Mai (2013) 57 Cal.4th
986, 1050; People v. Elliott (2012) 53 Cal.4th 535, 560-561; People v. Thomas
(2011) 51 Cal.4th 449, 474). The key question at this juncture is how persuasive
the prosecutor’s proffered justifications are, considering, inter alia, their inherent
plausibility and their relation to accepted trial strategy considerations. (Miller-El
v. Cockrell (2003) 537 U.S. 322, 338-339; Cowan, at p. 448.) For each of the
three excused jurors, we conclude the prosecutor’s stated reasons are fully
supported by the record and are plausible, nondiscriminatory bases for exercising a
peremptory. (See Mai, at pp. 1050-1054; Cowan, at p. 448; People v. Zambrano
(2007) 41 Cal.4th 1082, 1106.)

                b. Prospective Juror T.T.
       The prosecutor offered four reasons for excusing Prospective Juror T.T.
First, his brother had just been released after six years in prison. Second, T.T. was
uncertain as to whether the People should have a higher burden of proof in a
murder case. Third, T.T. came across during voir dire as “incredibly timid,”
“probably the quietest person that we interviewed. He was very quiet, and I
characterized him as being timid,” and “seemed scared” about the possibility of
having to vote on the death penalty. Fourth, the prosecutor observed the
prospective juror apparently sleeping in the hallway outside the courtroom with
sunglasses on, and was concerned about how he would fit in with other jurors.
       The record supports the first three of these reasons that are rooted in T.T.’s
questionnaire or voir dire responses. T.T.’s brother had in fact just been released
after an apparent six-year prison sentence, and we have routinely recognized a
prospective juror’s family’s negative experience with the justice system as a
legitimate potential reason to want to excuse a juror (e.g., People v. Booker, supra,
51 Cal.4th at p. 167, fn. 13; People v. Bonilla (2007) 41 Cal.4th 313, 343; People



                                          17
v. Avila (2006) 38 Cal.4th 491, 554-555). In his questionnaire, T.T. was unsure
whether the People should face a higher standard of proof in murder cases, and in
voir dire he indicated the People should have to prove guilt “without a reasonable
shadow of a doubt” (see People v. Mills (2010) 48 Cal.4th 158, 176-177
[legitimate for prosecutor to want to excuse juror who may wish to impose higher
standard of proof]). In his questionnaire, T.T. described himself as a “Follower[.]
I just don’t like the responsibility . . . .” and “kind of scared at the possible
thought of” the death penalty. During voir dire, he described himself as a “little
nervous” about the prospect of being on the jury and at another point dropped his
voice so low counsel had to ask him to repeat himself. We have recognized that
prosecutors may legitimately choose to shy away from followers or unduly timid
jurors. (People v. Ledesma (2006) 39 Cal.4th 641, 679; People v. Johnson (1989)
47 Cal.3d 1194, 1220.)

                c. Prospective Juror L.T.
       The prosecutor described Prospective Juror L.T.’s questionnaire answers as
jumping out as “unusual.” He believed the juror had been significantly late to
court one day, and was bothered that L.T. thought lawyers made too much money,
that he was overly eager to be on the jury, that his mannerisms seemed unusual,
and that he pressed the bailiff with a wealth of questions, giving rise to concern
that he would be a potential annoyance or problem juror. The trial court thought
the record “quite clear” as to reasons one might want to excuse L.T., even before
the prosecutor put his justifications on the record.
       The prosecutor did not identify particular questionnaire answers he thought
unusual. Among those that might have stood out, L.T. disclosed he had been
arrested for driving with a suspended license and was not happy about being fined
and losing his car. Prosecutors and defense attorneys were necessary “but make



                                           18
way too much money,” a view he confirmed on voir dire, adding that as a result
“not everyone is given the same access to the resource.” Victim impact evidence
was in his mind irrelevant because the “crime wasn’t necessarily against the
family.”
       On voir dire, asked about the prospect of being a juror, L.T. replied, “To be
honest I’m actually kind of looking forward to it. [¶] I’ve wanted to be in jury
duty for some time now, and I feel that it’s the perfect thing here. The first time
around I get a case where I get to really get involved in and understand the legal
system a little more. So I welcome the chance.” The record does not confirm
whether L.T. frequently questioned court staff, but he did interrupt jury selection
to ask how many peremptories the parties got just moments before he himself was
excused. 7
       The reasons that can be confirmed in the record are plausible nonpretextual
grounds for choosing to excuse a juror. (See, e.g., People v. Thompson (2010) 49
Cal.4th 79, 108-109 [upholding excusal of prospective juror for, inter alia, being
too eager to be on a jury]; People v. Ervin, supra, 22 Cal.4th at pp. 76-77 [same].)
The prosecutor could reasonably be concerned that L.T. would not consider
penalty phase victim impact evidence and that he might feel hostility toward one
or both side’s attorneys that would color his deliberations. “[T]he law recognizes
that a peremptory challenge may be predicated on a broad spectrum of evidence
suggestive of juror partiality. The evidence may range from the obviously serious
to the apparently trivial, from the virtually certain to the highly speculative.”
(Wheeler, supra, 22 Cal.3d at p. 275; see also People v. Lenix (2008) 44 Cal.4th

7       The question, coming at the very tail of the selection process, was
apparently posed with some impatience, because the trial court rejoined, “Mr. [T.],
there is an end.”




                                          19
602, 613 [“ ‘[E]ven a “trivial” reason, if genuine and neutral, will suffice.’
[Citation.] A prospective juror may be excused based upon facial expressions,
gestures, hunches, and even for arbitrary or idiosyncratic reasons.”].)

               d. Prospective Juror T.M.
       The prosecutor identified three concerns about Prospective Juror T.M.
First, she indicated on her questionnaire that she had seen police brutality. As the
prosecutor noted, during various points in Duff’s interrogation and subsequent
calls to his mother and girlfriend, Duff complained that he had been beaten up and
hurt by the police officers who arrested him. The prosecutor was concerned that,
given T.M.’s past experience, she might be more open to an argument that Duff’s
confession was involuntary or a product of police brutality.
       Second, asked whether a person’s background and upbringing can affect his
or her adult life, T.M. indicated on her questionnaire, “People generally are
products of their environment.” The prosecutor explained that Duff’s penalty
phase argument was likely to focus heavily on the contention that Duff “is, in fact,
a product of his own environment, that he was—that he was mistreated when he
was younger, that he had a bad childhood, and that it’s no wonder that he ended up
in the place he is. [¶] And I think that kind of an argument, just from my reading
of the questionnaire and watching [T.M.], listening to the answers she gave in
court, I think she is going to be more susceptible to that kind of an argument.”
       Finally, the prosecutor noted that T.M. had failed to show up for the final
day of jury selection, the day she was peremptorily challenged and the court heard
the Wheeler-Batson motion. The prosecutor could reasonably be concerned that
future tardiness or absences might delay trial proceedings. The other two
proffered reasons—susceptibility to an argument that Duff’s confession was in
part due to police brutality and to an argument that Duff was simply a product of



                                          20
his environment and thus his culpability was mitigated—are likewise wholly
plausible and firmly grounded in acceptable trial strategy considerations. 8 Duff
thus has not carried his burden of showing the prosecutor’s justifications for
exercising peremptories were a pretext for invidious racial discrimination. (See
People v. Taylor, supra, 47 Cal.4th at p. 891 [defendant’s burden is to show
discrimination, not just that one or more nondiscriminatory reasons are
unsupported by the record].)

       B. GUILT PHASE ISSUES

           1. Disposal of the Car in Which the Victims Were Shot
       Riley’s and Hagan’s bodies were found in a hatchback car stolen from a
third party. Police used a superglue process to test the interior for fingerprints and,
because that procedure involved toxic chemicals, purchased the car from the
owner rather than returning it to her. The interior was photographed and
videotaped and then, in accordance with standard procedures for cars subjected to
the superglue process, the car was towed away in March 1998 with the expectation
it would be crushed. The car was still in a salvage yard in September 1998, but
was apparently destroyed sometime thereafter.
       In October 2001, because his expert was no longer able to examine and test
the car, Duff brought a motion for sanctions for the spoliation of evidence. He
argued that the state had breached its duty to preserve exculpatory evidence and

8        We note as well that on the morning of the final day of jury selection, when
T.M. failed to appear, the trial court offered the parties a choice between recessing
for the day, pressing on with a placeholder in T.M.’s seat to indicate her
continuing provisional inclusion on the jury, or summary dismissal of T.M. Had
the prosecution been looking for any pretextual excuse to dismiss T.M., it could
have availed itself of the opportunity to lobby for her summary dismissal at that
point. The prosecution did not, electing instead to carry on with a placeholder,
until it ultimately exercised one of its peremptories to excuse T.M.



                                          21
thus violated his due process rights. (See California v. Trombetta (1984) 467 U.S.
479, 488-489 (Trombetta).) The trial court concluded that because it was
extremely unlikely anything of exculpatory value had been lost and Duff had not
shown the car’s destruction was an act of bad faith, no sanctions were warranted.
We review the trial court’s denial of Duff’s Trombetta motion for substantial
evidence (People v. Carter (2005) 36 Cal.4th 1215, 1246) and find no error.
       “Due process does not impose upon law enforcement ‘an undifferentiated
and absolute duty to retain and to preserve all material that might be of
conceivable evidentiary significance in a particular prosecution.’ ” (People v.
Wallace (2008) 44 Cal.4th 1032, 1083, quoting Arizona v. Youngblood (1988) 488
U.S. 51, 58.) At most, the state’s obligation to preserve evidence extends to
“evidence that might be expected to play a significant role in the suspect’s
defense.” (Trombetta, supra, 467 U.S. at p. 488; accord, People v. Alexander
(2010) 49 Cal.4th 846, 878.) If the evidence’s exculpatory value is apparent and
no comparable evidence is reasonably available, due process precludes the state
from destroying it. (Trombetta, at p. 489; Alexander, at p. 878.) If, however, “no
more can be said [of the evidence] than that it could have been subjected to tests,
the results of which might have exonerated the defendant” (Youngblood, at p. 57,
italics added), the proscriptions of the federal Constitution are narrower; “unless a
criminal defendant can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process of law” (id.
at p. 58; accord, People v. Tafoya (2007) 42 Cal.4th 147, 187; People v. DePriest
(2007) 42 Cal.4th 1, 42).
       The loss of the hatchback car falls in the latter category. Duff did not
demonstrate to the trial court, and does not establish here, that the car had any
exculpatory value apparent to the police such that an obligation to preserve
evidence would arise. Rather, he contends only that if it had been preserved, the

                                         22
car could have been subjected to additional tests beyond those conducted by the
People’s expert, tests whose results might have supported Duff’s theory that he
was shot at and acted in self-defense.
       Duff’s claim of error fails because he cannot demonstrate the bad faith
required under these circumstances by Arizona v. Youngblood, supra, 488 U.S. at
page 58. Duff argues that the prosecution’s failure to notify defense counsel of the
intention eventually to destroy the car demonstrates bad faith, but (1) there was no
showing of such a failure, as the original prosecutor simply could not recall
whether she ever advised Duff’s then-defense counsel, who was deceased by the
time of the Trombetta hearing and thus unable to testify; and (2) Duff does nothing
to rebut the showing that the car was disposed of in accordance with the police
department’s usual procedures for cars subjected to the particular toxic
fingerprinting procedure employed in this case. A showing that evidence was
disposed of in accordance with standard procedures in the ordinary course of
business suggests police acted in good faith. (People v. Tafoya, supra, 42 Cal.4th
at p. 187.) 9 Accordingly, no due process violation occurred.

           2. Introduction of Duff’s Statements
       Duff moved pretrial to suppress all statements he made to the police while
in custody on February 26, 1998, based on alleged violations of Miranda v.
Arizona (1966) 384 U.S. 436 and due process. The trial court held an evidentiary


9      For the first time in his reply brief, Duff argues that the failure to conduct
further tests on the car in the six months or more it sat in a junk lot was ineffective
assistance of counsel. It is rarely appropriate to resolve an ineffective assistance
claim on direct appeal (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267);
we certainly will not do so where, as here, the claim is omitted from the opening
brief and thus waived (People v. Barragan (2004) 32 Cal.4th 236, 254, fn. 5;
Varjabedian v. City of Madera (1979) 20 Cal.3d 285, 295, fn. 11).



                                          23
hearing and denied the motion, concluding that Duff was advised of his rights and
knowingly and voluntarily waived them, police were not required to readvise him
when questioning resumed after a short break that same day, and nothing he said
was the product of unlawful coercion or threats. After Duff’s change in counsel
resulted in a postponement of trial, a new trial judge afforded Duff the opportunity
to reargue the motion, but the court again denied it. The prosecution thereafter
played for the jury a videotape of a portion of Duff’s interrogation, during which
Duff confessed to shooting Riley and Hagan. Duff argues reliance on this
evidence violated his privilege against self-incrimination and due process rights.
(U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15.)
       “Miranda v. Arizona, supra, 384 U.S. 436, and its progeny protect the
privilege against self-incrimination by precluding suspects from being subjected to
custodial interrogation unless and until they have knowingly and voluntarily
waived their rights to remain silent, to have an attorney present, and, if indigent, to
have counsel appointed. [Citations.] ‘If a suspect indicates “in any manner and at
any stage of the process,” prior to or during questioning, that he or she wishes to
consult with an attorney, the defendant may not be interrogated.’ [Citation.]”
(People v. Gamache (2010) 48 Cal.4th 347, 384.) “To establish a valid Miranda
waiver, the prosecution bears the burden of establishing by a preponderance of the
evidence that the waiver was knowing, intelligent, and voluntary under the totality
of the circumstances of the interrogation.” (People v. Linton (2013) 56 Cal.4th
1146, 1171, citing People v. Williams (2010) 49 Cal.4th 405, 425.)
       As well, “[b]oth the state and federal Constitutions bar the prosecution from
introducing a defendant’s involuntary confession into evidence at trial.” (People
v. Linton, supra, 56 Cal.4th at p. 1176; see also People v. Scott (2011) 52 Cal.4th
452, 480; People v. Williams, supra, 49 Cal.4th at p. 436.) As with Miranda
waivers, the People bear the burden of establishing by a preponderance of the

                                          24
evidence the voluntariness of a confession. (People v. Tully (2012) 54 Cal.4th
952, 993; Scott, at p. 480; People v. Carrington (2009) 47 Cal.4th 145, 169.)
       In reviewing the trial court’s denial of a suppression motion on Miranda
and involuntariness grounds, “ ‘ “we accept the trial court’s resolution of disputed
facts and inferences, and its evaluations of credibility, if supported by substantial
evidence. We independently determine from the undisputed facts and the facts
properly found by the trial court whether the challenged statement was illegally
obtained.” ’ ” (People v. Enraca (2012) 53 Cal.4th 735, 753; accord, People v.
Williams, supra, 49 Cal.4th at pp. 425, 436.) Where, as was the case here, an
interview is recorded, the facts surrounding the admission or confession are
undisputed and we may apply independent review. (People v. McWhorter (2009)
47 Cal.4th 318, 346.)
       As we shall explain, the trial court did not err in admitting any of Duff’s
statements.

               a. Initial Waiver of Miranda Rights
       On February 24, 1998, Duff was arrested on unrelated charges. The next
day, police discovered the car with Riley’s and Hagan’s bodies inside not far from
where Duff lived and where he had been picked up. On February 26, police
questioned Duff about the Riley/Hagan murders.
       At the outset of questioning, Detective Toni Winfield advised Duff of his
Miranda rights to silence, to an attorney, and so on. Duff replied that he
understood them. Asked whether he still wished to talk with Detective Winfield,
Duff initially replied, “I don’t know. Sometimes they say it’s—it’s better if I have
a—a lawyer.” The detective continued:
       “WINFIELD: You know, sometimes they do. Yeah. Yeah. You know,
but sometimes—uh—a lot of times people want to talk and—and want to—uh—



                                          25
clarify, let’s say for instance—um—where they were during that period of time.
Because, really, you could provide me—and it’s entirely up to you. It’s—it really
is. You can provide me with individuals who could verify where you were that I
wouldn’t otherwise get. You know what I mean? And so that’s—um—that’s kind
of—uh—you know, the way it—the—the way it works. And in—in most cases,
the individuals that I talk to do, in fact, give me—um—other circumstances for me
to go and check out. That’s why one person’s interview leads to another person’s,
and another’s, and another’s, and we end up, you know, doing a lot of interviews.
So that’s why I told you I’ve all—I’ve—I have already spoken with quite a few
people. And that’s what, eventually, you know, led us to trying to talk to you.
       “DUFF: Yeah.
       “WINFIELD: And if at any time—like I say, if at any time you want to
stop the interview and say, ‘Hey, I don’t—I don’t—I don’t feel like answering that
question,’ then you have that option.
       “DUFF: Okay. Okay. I understand.
       “WINFIELD: You understand?
       “DUFF: Yeah.
       “WINFIELD: Okay. So are you willing to talk about the—you know,
where you were and that kind of a thing?
       “DUFF: Yeah. (Unintelligible.)
       “WINFIELD: Okay. I mean, I just want you to feel confident with that.
You do feel—you feel confident with that?
       “DUFF: Yeah.
       “WINFIELD: Okay. All right. So—um—then you keep your rights in
mind. And if at some time, you know, you don’t feel like answering another
question, then you—you just tell me no. Okay?
       “DUFF: Okay.”

                                        26
       Duff does not contend his remark, “Sometimes they say it’s—it’s better if I
have a—a lawyer,” was an unambiguous invocation of the right to counsel
sufficient to require that all questioning cease. (See, e.g., Smith v. Illinois (1984)
469 U.S. 91, 98; People v. Cruz (2008) 44 Cal.4th 636, 668.) He does, however,
argue that it was at least an equivocal invocation of the right to counsel, that it
placed Detective Winfield under a duty to clarify Duff’s desires and obtain a clear
and unequivocal waiver, and that she never did so.
       We agree with Duff that because his reference to a lawyer occurred at the
beginning of questioning, the rules respecting pre-Miranda waiver invocations of
the right to counsel apply. (See People v. Williams, supra, 49 Cal.4th at p. 427
[inquiries into the initial waiver of the right to counsel and the sufficiency of
subsequent postwaiver invocation are distinct]; United States v. Rodriguez (9th
Cir. 2008) 518 F.3d 1072, 1078-1080 [articulating different rules for police
conduct before and after an initial waiver of the right to counsel].) Thus, the
postwaiver rule rejecting any duty to clarify ambiguous invocations and permitting
an officer to continue substantive questioning “ ‘until and unless the suspect
clearly requests an attorney,’ ” 10 upon which the People principally rely, is
inapposite here.
       In the face of an initial equivocal reference to counsel, we have held that an
officer is permitted to clarify the suspect’s intentions and desire to waive his or her
Miranda rights. (People v. Williams, supra, 49 Cal.4th at p. 428 [collecting


10     People v. Williams, supra, 49 Cal.4th at page 427, quoting Davis v. United
States (1994) 512 U.S. 452, 461; see also Berghuis v. Thompkins (2010) 560 U.S.
370, 381 (If after waiver “an accused makes a statement concerning the right to
counsel ‘that is ambiguous or equivocal’ or makes no statement, the police are not
required to end the interrogation, [citation], or ask questions to clarify whether the
accused wants to invoke his or her Miranda rights.”).



                                          27
cases].) The Ninth Circuit has explicitly declared that an officer not only may, but
must, clarify the suspect’s intentions before initiating substantive questioning.
(United States v. Rodriguez, supra, 518 F.3d at p. 1080 [“Prior to obtaining an
unambiguous and unequivocal waiver, a duty rests with the interrogating officer to
clarify any ambiguity before beginning general interrogation.”]; but cf. Berghuis v.
Thompkins, supra, 560 U.S. at p. 387 [rejecting the argument that a clear waiver
must always precede questioning because “[t]he Miranda rule and its requirements
are met if a suspect receives adequate Miranda warnings, understands them, and
has an opportunity to invoke the rights before giving any answers or
admissions.”].) We have occasionally implied the same rule as the Ninth
Circuit’s. (See, e.g., People v. Box (2000) 23 Cal.4th 1153, 1194 [“If a suspect’s
request for counsel or invocation of the right to remain silent is ambiguous, the
police may ‘continue talking with him for the limited purpose of clarifying
whether he is waiving or invoking those rights.’ ” Quoting People v. Johnson
(1993) 6 Cal.4th 1, 27, italics added].)
       Even so, no Miranda violation occurred here. If we assume Duff’s remark
was an equivocal invocation of the right to counsel and that Detective Winfield
was obligated to clarify Duff’s desire to waive his rights before proceeding with
the interrogation, she did so. Before asking any other questions, Detective
Winfield reiterated that the decision whether to talk was “entirely up to [Duff]”
and he could “at any time . . . stop the interview.” She then asked directly, “So are
you willing to talk about the—you know, where you were and that kind of a
thing?”; he replied, “Yeah.” She asked again, “I just want you to feel confident
with that. You do feel—you feel confident with that?”; he repeated, “Yeah.” She
confirmed a third time, “[Y]ou keep your rights in mind. And if at some time, you
know, you don’t feel like answering another question, then you—you just tell me
no. Okay?”; he assented a third time to speak with her. We agree with the trial

                                           28
court that Detective Winfield was not under a legal obligation to follow any
particular script in ascertaining Duff’s desires; she did not badger Duff but instead
lawfully “proceeded to talk to him to see whether or not he wanted to talk without
having to ask him specifically to clarify his ambiguous statement any more than he
did by continuing to talk.” (See People v. Clark (1993) 5 Cal.4th 950, 991 [no
Miranda violation where the “interrogators did not ask defendant substantive
questions until defendant’s position was clarified and a valid waiver was obtained”
and “no coercive tactics were employed in order to obtain defendant’s Miranda
waiver.”].)

               b. Duty to Readvise of Miranda Rights
       After less than an hour of questioning, Duff asked to stop, explaining that
his head was “kind of numb” and he was “kind of brain boggled.” Detective
Winfield ended her questioning and prepared to leave. As she did, Duff asked if
Detective Dick Woods was still around. Detective Winfield indicated Woods was
and asked if Duff wanted to talk with him. Duff affirmed that he did.
       Winfield left, and after 23 minutes, Detective Woods appeared. Woods and
Duff engaged in small talk for a few minutes. After Duff asked for and was
allowed a bathroom break, Woods indicated he wanted to ask Duff a few questions
and offered to bring Detective Winfield back. Duff declined, explaining, “Well, it
don’t really matter, just—I just want to hurry up and get this over with, man.”
Detective Woods proceeded to question Duff; eventually, Duff confessed to
shooting both Riley and Hagan.
       Duff contends everything he said to Detective Woods should have been
suppressed because he asked to stop the interview and because he did not receive
new Miranda warnings after the break between questioning by Detective Winfield
and Detective Woods.



                                         29
       The trial court correctly found no error. The record supports its conclusion
that Detective Winfield promptly stopped questioning Duff when he asked for the
interview to stop. It also supports the trial court’s conclusion that Detective
Woods only arrived to talk with Duff at Duff’s request. Under these
circumstances, no readvisement was required. “After a valid Miranda waiver,
readvisement prior to continued custodial interrogation is unnecessary ‘so long as
a proper warning has been given, and “the subsequent interrogation is ‘reasonably
contemporaneous’ with the prior knowing and intelligent waiver.” [Citations.]’
[Citation.] The necessity for readvisement depends upon various circumstances,
including the amount of time that has elapsed since the first waiver, changes in the
identity of the interrogating officer and the location of the interrogation, any
reminder of the prior advisement, the defendant’s experience with the criminal
justice system, and ‘[other] indicia that the defendant subjectively underst[ood]
and waive[d] his rights.’ ” (People v. Williams, supra, 49 Cal.4th at p. 434.) We
have permitted as “reasonably contemporaneous” the resumption of interrogation
without a readvisement even a day or two after the initial waiver. (E.g., Williams,
at p. 435; People v. Mickle (1991) 54 Cal.3d 140, 171.) Questioning here just
minutes later, in the very same location as before, by a detective specifically
summoned by the defendant, a defendant the trial court found had been in prison
four times before and was quite familiar with the criminal justice system, was
entirely constitutional notwithstanding the absence of renewed Miranda warnings.

               c. Involuntariness
       Finally, Duff argues his confession should have been suppressed because it
was involuntary. “ ‘A statement is involuntary if it is not the product of “ ‘a
rational intellect and free will.’ ” [Citation.] The test for determining whether a
confession is voluntary is whether the defendant’s “will was overborne at the time



                                          30
he confessed.” ’ ” (People v. McWhorter, supra, 47 Cal.4th at pp. 346-347.) In
assessing whether statements were the product of free will or coercion, we
consider the totality of the circumstances, including “ ‘ “the crucial element of
police coercion,” ’ ” the length, location, and continuity of the interrogation, and
the defendant’s maturity, education, and physical and mental health. (People v.
Williams, supra, 49 Cal.4th at p. 436.)
       Duff emphasizes his low intelligence, his past drug use, and pain he was
suffering from a scuffle with police when he tried to flee the night of his arrest.
As evidence of police coercion, Duff asserts Detective Woods threatened to cause
problems for Duff’s friends and family. Duff offers no record cites, and with good
reason; the transcript and videotape of his interview do not support the assertion.
To the contrary, as the trial court found, no threats were made. Our own review of
the transcript and videotape of Duff’s interrogation reveals Detectives Winfield
and Woods were trying not to get others in trouble and repeatedly steered clear of
questions that might incriminate anyone other than Duff. We thus affirm the trial
court’s finding that neither Detective Winfield nor Detective Woods ever
threatened or sought to coerce Duff. From the record, it appears Duff confessed to
shooting Riley and Hagan not because his will was overborne, but because he was
capable of making, and made, the rational choice to offer his side of events, in
which he shot Riley and Hagan in self-defense, rather than out of a premeditated
desire to obtain revenge for past slights. Accordingly, Duff’s confession was not
involuntary and was properly admitted.

           3. Admission of Victim Images
       At trial, the People sought to introduce several videotapes and photographs
of the victims. The videotapes were taken of the area where the car containing the
victims’ bodies was discovered and showed, inter alia, Riley’s and Hagan’s bodies



                                          31
in the state in which they were found. One set of still photographs likewise
showed the interior of the car and the bodies in situ; another consisted of autopsy
photos showing the location of the victims’ bullet wounds. Duff objected to the
jury being permitted to see close-ups of the victims’ wounds as unduly prejudicial,
but the trial court overruled the objection and concluded the evidence as a whole
was far more probative than prejudicial. The autopsy photographs were
introduced in conjunction with the expert testimony of Dr. Gregory Reiber, a
forensic pathologist; the videotapes were played in conjunction with the testimony
of Detective Jeffrey Gardner, the investigating officer who recorded them.
       Duff renews his objection here, asserting that the introduction of images of
the victims’ wounds was an abuse of discretion and violated his constitutional
rights to a fair trial and due process. (U.S. Const., 14th Amend.; Evid. Code,
§ 352.) 11 “ ‘The admission of allegedly gruesome photographs is basically a
question of relevance over which the trial court has broad discretion.’ [Citations.]
The further decision whether to nevertheless exclude relevant photographs as
unduly prejudicial is similarly committed to the trial court’s discretion: ‘A trial
court’s decision to admit photographs under Evidence Code section 352 will be
upheld on appeal unless the prejudicial effect of such photographs clearly
outweighs their probative value.’ ” (People v. Bonilla, supra, 41 Cal.4th at p. 353;
see also People v. McKinzie, supra, 54 Cal.4th at p. 1351; People v. D’Arcy (2010)
48 Cal.4th 257, 298; People v. Scheid (1997) 16 Cal.4th 1, 13-19.)
       The videotape and photographs were plainly relevant; indeed, Duff does
not offer any argument against their relevance. The critical issue in the case was
whether Duff acted in self-defense, firing at two men who were turned and facing

11     Duff’s constitutional argument was preserved by his trial objection on state
statutory grounds. (People v. Partida (2005) 37 Cal.4th 428, 435-437.)



                                          32
him with guns drawn, or whether he acted without provocation, shooting the
victims while they may have been facing away. Officer testimony about the
position of the victims’ bodies and forensic testimony about the location of bullet
wounds could help the jury reach a decision, but images of the victims necessarily
provided crucial corroboration as to their positions and injuries and would have
made it much easier to visualize which version of events fit. In these
circumstances, a picture could be worth a thousand words; the images were not
simply cumulative of other testimony. (See People v. McKinzie, supra, 54 Cal.4th
at pp. 1351-1352 [autopsy and crime scene photos of a victim can be “highly
probative of how the victim was killed”]; People v. Brents (2012) 53 Cal.4th 599,
617 [the People are not obligated to rely solely on live witnesses to the exclusion
of photographic evidence]; People v. Cruz, supra, 44 Cal.4th at p. 671 [autopsy
photos are admissible to corroborate coroner testimony].)
       Nor were the images more prejudicial than probative. While they carried
substantial probative value—showing, for example, that both Riley and Hagan
were shot from behind—they depicted minimal blood and were no more gruesome
than one would expect of any pictures of gunshot victims. (See People v. Moon
(2005) 37 Cal.4th 1, 35 [“ ‘ “ ‘[M]urder is seldom pretty, and pictures, testimony
and physical evidence in such a case are always unpleasant.’ ” ’ ”].) The trial
court’s exercise of discretion to admit images of the victims was neither statutory
nor constitutional error.

           4. Exclusion of Photo of Victim’s Tattoo
       Before trial, the People moved to exclude reference to and photographs of
Roscoe Riley’s tattoos, in particular a tattoo on his right arm of a hand pointing a
revolver. The trial court granted the motion. Duff contends exclusion of a
photograph of Riley’s gun tattoo violated his statutory and constitutional rights to



                                         33
admission of relevant evidence. (U.S. Const., 14th Amend.; Cal. Const., art. I,
§ 7; Evid. Code, § 351.) The trial court did not err.
       Evidence must be relevant to be admissible. (Evid. Code, § 350.)
Moreover, even if relevant, it may be excluded if the court determines that its
prejudicial impact substantially outweighs any probative value. (Id. § 352.) We
afford trial courts wide discretion in assessing whether in a given case a particular
piece of evidence is relevant and whether it is more prejudicial than probative.
(See People v. Homick (2012) 55 Cal.4th 816, 865; People v. Tully, supra, 54
Cal.4th at p. 1010.)
       Duff argues the photograph was relevant to show both that Riley was armed
(because it indicated an affinity for guns) and that Duff believed Riley to be armed
and dangerous and thus had acted in self-defense. As to the tattoo tending to
prove Riley carried a real gun on the day he was shot, the trial court correctly
recognized it would be cumulative of considerable other testimony showing Riley
was armed with a .357—a point, moreover, that the People freely conceded. As to
the tattoo bearing on Duff’s justifications for his actions, any such relevance
would depend entirely on proving as a foundational matter that Duff knew Riley
had such a tattoo, a point Duff acknowledges. The trial court invited Duff to
introduce evidence that he knew of the tattoo. Duff did not. In the absence of
such a foundation, it was not error to conclude the photograph of the tattoo was
cumulative or simply irrelevant. 12


12      The trial court did not specify whether it was provisionally excluding the
photograph on grounds of irrelevance or prejudice. To the extent its ruling rested
in part on a conclusion the photograph’s prejudicial impact outweighed any
slender relevance it might have, because of negative associations jurors might
have concerning people with tattoos, that conclusion would not have been an
abuse of discretion.



                                         34
       Nor was exclusion of the photograph a violation of Duff’s equal protection
rights simply because the trial court simultaneously admitted numerous
photographs of the decedents’ gunshot wounds. Gunshot wound photographs, in
combination with expert forensic testimony, supported the People’s theory as to
how Duff shot Riley and Hagan. The photograph of Riley’s tattoo had no
comparable relevance.

           5. Dismissal of Two Jurors for Illness
       At two different junctures during trial, jurors called in sick. Each time, the
trial court consulted with counsel and, over defense objection, elected to replace
the juror with an alternate. Duff contends these changes in the composition of the
jury were an abuse of discretion and violated both his statutory rights and his
federal and state constitutional rights to trial by an impartial jury. (U.S. Const.,
6th & 14th Amends.; Cal. Const., art. I, § 16; § 1089.) We disagree.
       On October 30, 2001, during presentation of guilt phase evidence, Juror
No. 6 called in sick with the stomach flu and indicated she would likely be out for
at least the next two days. Duff argued for a two-day continuance but volunteered
that if the juror was then still sick, she would likely have to be replaced. The
People opposed any continuance because the cross-examination of Cynthia
Fernando, their most important witness, was scheduled to begin. Though
Fernando was present and ready to testify, she had proved difficult to get to court;
she had already failed to appear on two other occasions in the immediately
preceding few days. If Fernando failed to show again after a continuance, the
People feared either a motion to strike the direct testimony Fernando had already




                                          35
given 13 or, in light of the significance of Fernando’s testimony and the absence of
any opportunity for cross-examination, a motion for mistrial. The trial court
shared these concerns and replaced Juror No. 6.
       On November 28, the first day of the penalty phase, Juror No. 3 called in
sick. On November 24, while court was out of session over Thanksgiving, the
juror was taken ill and went to the emergency room because of bouts of vomiting.
By the fifth day of her illness, she was still sufficiently unwell to appear. Defense
counsel expressed reservations about substituting an alternate who had not
participated in guilt phase deliberations and asked the court to continue the matter
for one day before replacing the juror. Relying on its evaluation of the juror’s
voice on the voice mail she left, the juror’s subsequent conversation with the court
clerk, and concerns the juror had expressed about her health during voir dire, 14 the
trial court removed her and substituted an alternate. To address Duff’s concerns
about the alternate’s absence from guilt phase deliberations, the court offered to
give, and ultimately gave, a pinpoint instruction approved by the defense.
       Trial courts may remove any juror who “becomes ill, or upon other good
cause shown to the court is found to be unable to perform his or her duty . . . .”
(§ 1089.) A trial court learning of grounds for dismissal “has an affirmative
obligation to investigate.” (People v. Bonilla, supra, 41 Cal.4th at p. 350.)
However, “[b]oth the scope of any investigation and the ultimate decision whether
to discharge a given juror are committed to the sound discretion of the trial court.”

13      That testimony included Duff’s statements to Fernando that he was angry
with Riley, that he planned to set him up, rob him, and kill him, and that he had in
fact killed Riley and his friend, as well as her testimony that in the immediate
aftermath of the shootings Duff never mentioned self-defense. (See ante, pp. 3-4.)
14      Before trial, the juror asked to be excused for cause on health grounds, but
the trial court at that point declined to excuse her.



                                         36
(Ibid.; see also People v. Nunez and Satele (2013) 57 Cal.4th 1, 57; People v.
Thompson, supra, 49 Cal.4th at p. 137.)
       Duff emphasizes that in reviewing a decision to excuse a juror, we do not
ask only whether substantial evidence supports the decision—i.e., whether there is
evidence from which a reasonable trial court could have concluded dismissal was
warranted—but further whether it appears as a “demonstrable reality” that the trial
court actually did rely on such evidence as the basis for its decision. (People v.
Barnwell (2007) 41 Cal.4th 1038, 1052-1053.) He contends reversal under this
standard is required because the trial court dismissed the jurors as a matter of
administrative convenience without obtaining proof to a demonstrable reality that
each juror would be unable to continue.
       This argument mistakes the effect of the “less deferential review” (People
v. Barnwell, supra, 41 Cal.4th at p. 1052) we apply to decisions to remove jurors.
The requirement we add to traditional substantial evidence review is that the
record establish the actual basis for the trial court’s decision. So long as it does,
we ask only whether the evidence relied upon was sufficient to support that basis
as grounds for dismissal; we do not independently reweigh the evidence or
demand more compelling proof than that which could satisfy a reasonable jurist.
(Id. at pp. 1052-1053.)
       Here, it is undisputed each excused juror was ill and that the illnesses
occasioned their dismissals. By statute, illness is cause to dismiss a juror.
(§ 1089; People v. Roberts (1992) 2 Cal.4th 271, 324.) The demonstrable reality
test does not demand of trial judges confronted with sick jurors that they elicit
conclusive proof of the length of future incapacitation; judges are lawyers, not




                                          37
doctors. 15 Nor does it demand that incapacitation exceed some preset length; in
the right circumstances, an absence of a day or less may warrant excusal. (People
v. Bell (1998) 61 Cal.App.4th 282, 286-289; People v. Hall (1979) 95 Cal.App.3d
299, 305-307.) Whether a juror’s illness can best be accommodated by a
continuance or replacement with an alternate is a matter committed to the trial
court’s discretion.
       With respect to Juror No. 6, the trial court shared the People’s concern
about witness Fernando’s unreliability and the consequent risks a continuance
would pose; additionally, it was concerned that a two-day continuance would
result in a lengthy gap between presentation of evidence and closing arguments on
one or both sides, a gap that might impair either party’s presentations or impact
juror deliberations. With respect to Juror No. 3, the trial court was presented with
a juror who had already been ill for five days and was not guaranteed to be well on
the sixth day. Neither decision to substitute an alternate was an abuse of
discretion.

              6. Refusal to Instruct on Lesser Included Offenses
       At the close of the guilt phase, Duff sought instructions on second degree
murder and voluntary manslaughter under theories of imperfect self-defense and
heat of passion. The trial court denied the request and confined its instructions to


15      While Duff takes issue with the extent of the trial court’s investigation, the
Legislature has left the procedure for determining whether grounds for dismissal
exist in the trial court’s hands. (People v. Bonilla, supra, 41 Cal.4th at p. 350;
People v. Dell (1991) 232 Cal.App.3d 248, 256.) In cases of illness, a court is not
obligated to call a juror into court to substantiate his or her excuse and can rely on
phone calls instead. (Dell, at p. 256.) Moreover, in neither instance here does
Duff dispute the facts surrounding the jurors’ unavailability; instead, he takes issue
with the trial court’s chosen remedy. It is unclear what, if any, impact further
investigation would have had on that choice.



                                          38
first degree murder and justifiable homicide in perfect self-defense. In this court,
Duff argues the refusal to instruct on voluntary manslaughter as a lesser included
offense of first degree murder violated his federal constitutional rights by foisting
on the jury an all-or-nothing choice between capital murder and acquittal. (U.S.
Const., 8th & 14th Amends.; see Beck v. Alabama (1980) 447 U.S. 625, 627.)
       A trial court must instruct on all lesser included offenses supported by
substantial evidence. (People v. Booker, supra, 51 Cal.4th at p. 181; People v.
Breverman (1998) 19 Cal.4th 142, 154-155.) The duty applies whenever there is
evidence in the record from which a reasonable jury could conclude the defendant
is guilty of the lesser, but not the greater, offense. (People v. Verdugo (2010) 50
Cal.4th 263, 293; People v. Avila (2009) 46 Cal.4th 680, 705.) That voluntary
manslaughter is a lesser included offense of murder is undisputed. (Booker, at
p. 181; Verdugo, at p. 293; Avila, at p. 705, Breverman, at p. 154.)
       Imperfect self-defense, which reduces murder to voluntary manslaughter,
arises when a defendant acts in the actual but unreasonable belief that he is in
imminent danger of death or great bodily injury. (People v. Booker, supra, 51
Cal.4th at p. 182; People v. Manriquez (2005) 37 Cal.4th 547, 581; In re Christian
S. (1994) 7 Cal.4th 768, 771.) Heat of passion, which likewise reduces murder to
voluntary manslaughter, arises when the defendant is provoked by acts that would
“render an ordinary person of average disposition ‘liable to act rashly or without
due deliberation and reflection, and from this passion rather than from judgment’ ”
(People v. Beltran (2013) 56 Cal.4th 935, 957) and kills while under the actual
influence of such a passion (People v. Enraca, supra, 53 Cal.4th at p. 759). Duff
is correct that if substantial evidence supported either theory, the trial court was
obligated to agree to instruct on voluntary manslaughter.
       The difficulty for Duff is that, as the People argued below and reiterate
here, there simply was no such evidence. Duff points to the confession that was

                                          39
played for the jury, in which he described Riley and Hagan pulling multiple guns
on him and then opening fire, and argues the jury could have credited that version
of events. Indeed it could have. But the problem, at least for finding an obligation
to instruct on voluntary manslaughter, is that if believed, Duff’s version could lead
only to a finding of justifiable homicide and a total acquittal on the homicide
charges. The use of lethal force in response to being shot at repeatedly is perfect
self-defense and no crime. (§ 197; People v. Randle (2005) 35 Cal.4th 987, 991.)
While Duff argues the jury could have concluded he unreasonably misperceived
the situation, the circumstances described by Duff leave no room for such shades
of gray. Either he was attacked, in which case he committed no crime, or he was
not, in which case he committed murder.
       Accordingly, it was not state law error to refuse an instruction on voluntary
manslaughter. Nor was it federal constitutional error. As Duff concedes, the
constitutional requirement that capital juries be instructed on lesser included
offenses extends only to those lesser included offenses supported by substantial
evidence. (See Schad v. Arizona (1991) 501 U.S. 624, 648; Beck v. Alabama,
supra, 447 U.S. at p. 627.) Here, none were.
           7. Cumulative Guilt Phase Error
       Duff contends that if we do not conclude that any individual guilt phase
error mandates guilt phase reversal, the cumulative effect of the guilt phase errors
nevertheless rendered his trial unreliable. We disagree. We have identified no
errors. In the absence of error, there is nothing to cumulate.

       C. PENALTY PHASE ISSUES

           1. Use of Prior Crimes
       The People’s penalty phase case consisted principally of evidence of Duff’s
extensive history of prior violent criminal acts. (§ 190.3, factor (b).) Duff



                                         40
objected on Evidence Code section 352 and unspecified state and federal
constitutional grounds but conceded that settled law permitted the People to prove
these acts. The trial court deemed Duff’s objection a continuing one and over his
objection permitted extensive evidence of past bad acts.
       On appeal, relying on a panoply of out-of-state decisions, Duff asks that we
reconsider whether the Legislature’s decision to permit penalty phase
consideration of unrelated, and occasionally unadjudicated, violent acts renders
death penalty decisions unreliable in violation of the Eighth and Fourteenth
Amendments of the federal Constitution. We have repeatedly reaffirmed the
constitutionality of section 190.3, factor (b), and Duff offers no persuasive reason
to overrule these decisions. (See, e.g., People v. Tully, supra, 54 Cal.4th at p.
1029; People v. Thomas, supra, 51 Cal.4th at p. 504; People v. Booker, supra, 51
Cal.4th at pp. 187-188; People v. Taylor (2010) 48 Cal.4th 574, 651-652.)
       In the alternative, Duff argues that even if section 190.3, factor (b) is not
per se unconstitutional, to permit the jury to consider together a series of unrelated
incidents from a 20-year time period that in some instances resulted in neither
charges nor convictions was unconstitutional. The objection that the incidents
involved neither charges nor convictions is a rephrasing of the objection to the
Legislature’s decision to permit consideration of unadjudicated conduct under
factor (b) and fails in light of our long-standing reaffirmation of the
constitutionality of that factor. As for the objection that the incidents were
unrelated and covered a long time frame, “[t]he purpose of section 190.3, factor
(b) ‘is to enable the jury to make an individualized assessment of the character and
history of a defendant to determine the nature of the punishment to be imposed.’ ”
(People v. Tully, supra, 54 Cal.4th at p. 1029.) If permitting the jury to consider
the presence or absence of a prior pattern of violent misfeasance is constitutional,
it surely is no less constitutional to allow the jury to consider that factor where, as

                                          41
here, a defendant has compiled a two-decade history of widespread and varied
misconduct. While some acts the People relied on were far removed in time from
the double homicide, “[r]emoteness of the prior criminal conduct affects the
weight of the evidence, not its admissibility.” (People v. Tafoya, supra, 42 Cal.4th
at p. 186.)
       Finally, Duff argues that admission of his extensive prior misconduct was
enormously prejudicial and thus unfairly skewed the jury’s deliberations. But
“ ‘[p]rejudice’ in the context of Evidence Code section 352 is not synonymous
with ‘damaging’: it refers to evidence that poses an intolerable risk to the fairness
of the proceedings or reliability of the outcome. [Citation.] Although the
evidence of his violent criminal activity likely was damaging to defendant, he fails
to demonstrate how it was unduly prejudicial—the inference that he was
dangerous was entirely proper. Accordingly, the trial court did not abuse its
discretion in admitting this evidence, and defendant’s constitutional rights were
not violated.” (People v. Booker, supra, 51 Cal.4th at p. 188.)

              2. Exclusion of Rebuttal Victim Impact Evidence
       Before the start of the penalty phase, Duff moved to be permitted to
introduce rebuttal evidence of the decedents’ character in the event the People
presented positive victim impact evidence. The trial court agreed that to the extent
testimony opened the door to rebuttal, Duff should be permitted to introduce
evidence to controvert the picture the prosecution presented of Hagan and Riley
and the impact their deaths had on others. For example, testimony that Riley’s
children were saddened by his death would, in the court’s eyes, open the door to
testimony that the children had witnessed and/or been the victims of domestic
violence at Riley’s hand.




                                         42
       In light of the court’s comments, and to avoid extensive rebuttal, the People
confined their victim impact evidence to testimony that (1) Riley was survived by
grandparents, a mother, a sister, and two children; (2) it had been difficult for his
children’s mother, Marie Correa, to tell them of his death; (3) Hagan was likewise
survived by family; and (4) Hagan’s best friend had fainted when she learned of
his death and had kept some of his ashes and devoted a shelf in her bedroom to
mementos of him. The People also introduced without comment a photo of Correa
with her and Riley’s two daughters. Given an offer of proof as to this abbreviated
presentation, the trial court precluded Duff from presenting evidence of Riley’s
and Hagan’s criminal backgrounds and child support delinquency histories,
Riley’s domestic violence toward Correa, and a Correa statement reflecting her
relief that Riley was dead. Duff contends this exclusion violated his right to rebut
favorable victim impact testimony.
       In the course of concluding that victim impact evidence is constitutionally
admissible at the penalty phase of a capital trial, the United States Supreme Court
has recognized that a defendant necessarily may have the opportunity to cross-
examine prosecution witnesses and submit contrary relevant evidence. (Payne v.
Tennessee (1991) 501 U.S. 808, 823; see also Booth v. Maryland (1987) 482 U.S.
496, 506-507, overruled on other grounds by Payne, at p. 830; Booth, at p. 518
(dis. opn. of White, J.).) The right to present rebuttal, or “negative,” victim impact
evidence to counter evidence offered by the People in their penalty case-in-chief is
subject to the usual evidentiary constraints that proffered evidence must be
relevant and more probative than prejudicial. (Evid. Code, §§ 350, 352; People v.
Rogers (2013) 57 Cal.4th 296, 346; People v. Harris (2005) 37 Cal.4th 310, 352-
353; see Harris, at pp. 374-375 (conc. & dis. opn. of Kennard, J.) [agreeing that
proffered evidence must be relevant while disagreeing with the majority over
whether the specific excluded evidence actually was].) We review the trial court’s

                                          43
decision to limit or exclude rebuttal victim impact evidence on these grounds for
abuse of discretion. (Rogers, at p. 347; see also People v. Ramos (2004) 34
Cal.4th 494, 528.)
       The admissibility of evidence as rebuttal depends on the nature of the case-
in-chief evidence a defendant seeks to rebut. In People v. Boyette (2002) 29
Cal.4th 381, 444-445, for example, we upheld exclusion of evidence of the murder
victims’ poor character the defendant sought to introduce as a rejoinder to
testimony from survivors about their grief and love for the decedents. Payne
endorses the introduction of two types of impact evidence: (1) “ ‘a quick glimpse
of the life’ which a defendant ‘chose to extinguish’ ” and (2) a demonstration of
“the loss to the victim’s family and to society which has resulted from the
defendant’s homicide” (Payne v. Tennessee, supra, 501 U.S. at p. 822)—what
may be thought of as decedent impact evidence and survivor impact evidence.
The prosecution in Boyette limited itself to survivor impact evidence in a way that
left no misleading portrayal of the victim to which the defendant’s proffered
negative impact evidence might offer relevant rebuttal; evidence of the victims’
character could do nothing to rebut the genuineness of any loss felt by survivors.
(Boyette, at p. 445.)
       The same is true here. The prosecution called only two impact witnesses,
Marie Correa, the mother of Riley’s daughters, and Makala Tiller, a friend of
Hagan’s. In light of the trial court’s rulings, the prosecutor omitted any originally
intended questions that might have shed light on Riley’s and Hagan’s character,
questions the trial court made clear would have permitted the defense to elicit
testimony about their criminal conduct, Riley’s domestic abuse of Correa, and the
mixed emotions Correa felt at the death of her abuser. Given the very limited
scope of the actual direct examination, it was not an abuse of discretion for the
trial court to foreclose the defense from cross-examining Correa or Tiller about

                                         44
domestic violence, child support, or criminal conduct. There was no misleading
favorable testimony of Riley’s and Hagan’s roles as family men to discredit, nor
was there testimony about survivors’ reactions that painted for the jury a
misleadingly incomplete picture. (See Evid. Code, §§ 761, 773, subd. (a) [scope
of cross-examination limited by scope of direct examination]; People v. Farley
(2009) 46 Cal.4th 1053, 1109 [cross-examination permitted to disabuse jury of
misimpressions created by direct examination].)
       Duff relies heavily on People v. Rogers, supra, 57 Cal.4th 296, in which the
trial court, while excluding some evidence as cumulative or unduly prejudicial,
permitted considerable defense evidence concerning the murder victim’s
character. Rogers is inapposite; there, unlike here, the prosecution introduced
extensive victim impact evidence relating not only to survivor impact but to the
decedent’s character, and the defendant was accordingly afforded an opportunity
to respond. (Id. at pp. 345-347.)

           3. Prosecutorial Misconduct: Penalty Phase Closing Argument
       During penalty phase closing argument, the prosecution sought to defuse
defense expert testimony that Duff had a diminished IQ by illustrating the sorts of
books he read. Defense mental health expert Dr. Albert Globus had testified on
direct that Duff read novels and the Bible; on cross-examination, the prosecutor
elicited the names of particular authors Duff read, including Stephen King, John
Grisham, Dean Koontz, and L. Ron Hubbard. During closing, the prosecutor
displayed to the jury five novels and told the jury, “All these books, not
necessarily these particular books, but are books that apparently the defendant
likes to read. Doctor Globus told us that although [Duff] has this incredibly low
IQ, he actually enjoys reading novels. He reads these. [¶] He reads—some of his
favorite authors are, I don’t know, Grisham, Dean Koontz, and Stephen King, and



                                         45
I think he mentioned L. Ron Hubbard also. Books he reads, books he can digest,
books he has the mental capacity to understand. [¶] Probably some or all of you
have read some of these authors, and what does that tell us[?] Really when you
come down to it, what does it say about his IQ[?] So his IQ is 87, upper end of
low normal. You make whatever you want out of his IQ.”
       During a break between the prosecutor’s and defendant’s closing argument,
Duff’s counsel was for the first time able to see what books the prosecutor had
shown the jury: Dean Koontz’s Mr. Murder (1993) and The Bad Place (1990),
John Grisham’s The Runaway Jury (1996) and The Client (1993), and Stephen
King’s The Tommyknockers (1987). Counsel moved for a mistrial, arguing that
the titles prejudiced Duff and could impermissibly sway the jury. The prosecutor
argued that he had cautioned these were not necessarily books Duff himself had
read, and offered that the court could admonish the jury again that there should be
no suggestion Duff had ever read the particular books the prosecutor showed
them. The trial court took the matter under advisement, simultaneously asking
defense counsel to mull over the prosecution’s suggested admonishment.
       After a break, the court denied the motion for mistrial. Off the record,
defense counsel apparently elected to waive admonishment in lieu of an
opportunity to directly respond during closing argument, and the court made note
of the fact that at the defense’s request the five novels remained on display in the
courtroom. During closing, Duff’s counsel addressed the issue and dismissed the
display of books as a cheap gimmick: “Then he brings up some books here. And
I have to comment on them because they were sitting here for about an hour. And
first one—Dean Koontz, The Bad Place—a good choice for the type of
environment here. The Bad Place. What we found out during the break here—
during lunch—is—all of these books here didn’t come from Mr. Duff obviously—
they came from [the prosecutor’s] personal library. So he’s—these selections

                                         46
have nothing to do with Mr. Duff. But they’re interesting choices by [the
prosecutor] to put them here. So we have The Bad Place. We have Mr. Murder
by Dean Koontz. We have The Runaway Jury by John Grisham. And we have
Stephen King The Tommyknockers anyway.[ 16] [¶] I will say this. What you hear
the doctor say was when he talked to Mr. Duff he was reading the Bible. We
don’t have the Bible here. But—I guess that that should have been placed on there
by [the prosecutor]. But he chose not to. But this is what you do—kind of bolster
your case with little bitty gimmicks here—the books, the photos, which really
don’t have much to do with anything.”
       Following the death verdict, Duff moved for a new trial based, inter alia, on
the display of the five novels to the jury. The trial court denied the motion,
explaining that Duff had waived the issue by electing to respond rather than have
the jury admonished and, in any event, “the remedy that was employed was far
more effective than whatever curative instruction I would have given, and that was
essentially to embarrass [the prosecutor] in front of the jury by having to admit
that all of those books were his.”
       On appeal, Duff contends that the prosecutor’s misconduct deprived him of
a fair trial and a reliable penalty determination. (U.S. Const., 8th & 14th
Amends.) The claim is forfeited. Although Duff timely objected, he thereafter
elected to forego a curative instruction in favor of highlighting the prosecutor’s
argument and using it to argue that the case for death rested on a series of
gimmicks. To preserve a claim of prosecutorial misconduct, a defendant must
seek a jury admonition or show one would have been futile. (E.g., People v.

16     The fifth novel, The Client, had only author John Grisham’s name on the
spine. Because the jury had not been exposed to the title, counsel at the court’s
direction did not disclose it.



                                         47
Blacksher, supra, 52 Cal.4th at p. 829; People v. Ledesma, supra, 39 Cal.4th at
p. 726.) Notwithstanding Duff’s “ ‘ritual incantation’ [citation] that a jury
admonition would have made no difference, [he] identifies nothing in the record to
suggest this would have been so.” (People v. Gamache, supra, 48 Cal.4th at
p. 388.)
       In any event, we find no prejudicial misconduct. “A prosecutor commits
misconduct when his or her conduct either infects the trial with such unfairness as
to render the subsequent conviction a denial of due process, or involves deceptive
or reprehensible methods employed to persuade the trier of fact.” (People v. Avila,
supra, 46 Cal.4th at p. 711.) A defendant asserting prosecutorial misconduct must
further establish a reasonable likelihood the jury construed the remarks in an
objectionable fashion. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.)
       The prosecutor’s choice of books to show the jury was ill-considered. To
make the point that Duff was not especially low-functioning by illustrating the
sorts of “books that apparently the defendant likes to read,” the prosecutor surely
could have found novels with titles less inflammatory and potentially prejudicial
than Mr. Murder. But the prosecutor simultaneously cautioned that these
particular books were not necessarily ones Duff had read, and defense counsel
reiterated that the chosen novels were from the prosecutor’s personal collection,
not Duff’s. The prosecutor’s remarks are neither reprehensible nor alone a due
process violation and, considering everything that was said during closing
argument, there is no reasonable likelihood the jury was deceived into believing
Duff in fact read any of the proffered books.

           4. Cumulative Prejudice from Errors
       Duff contends that even if we do not conclude any individual error
mandates reversal, the cumulative effect of the penalty phase errors requires



                                         48
reversal of the penalty verdict. We disagree. We have identified no errors; there
is, accordingly, nothing to cumulate.

             5. Constitutionality of California’s Death Penalty
         Finally, Duff raises a series of challenges to the constitutionality of
California’s death penalty. We have rejected each before. As Duff offers no
compelling arguments in favor of reconsidering any of these rulings, we do so
again.
         California’s special circumstances (see § 190.2) adequately narrow the
class of murderers eligible for the death penalty. (People v. Williams (2013) 56
Cal.4th 165, 201; People v. Homick, supra, 55 Cal.4th at p. 903; People v. Tully,
supra, 54 Cal.4th at p. 1067; People v. Lightsey (2012) 54 Cal.4th 668, 731;
People v. McDowell (2012) 54 Cal.4th 395, 443; People v. Streeter (2012) 54
Cal.4th 205, 267.) While Duff contends the ballot arguments in favor of
Proposition 7, “which became the current death penalty law, reflect an intent to
expose every murderer to the death penalty, we have rejected that assertion as a
misconstruction of the ballot arguments.” (People v. Bonilla, supra, 41 Cal.4th at
p. 358; People v. Gray (2005) 37 Cal.4th 168, 237, fn. 23.)
         Section 190.3, factor (a), which permits the jury to consider the
circumstances of the crime in deciding whether to impose the death penalty, does
not license the arbitrary and capricious imposition of the death penalty. (Tuilaepa
v. California (1994) 512 U.S. 967, 975-976; People v. Williams, supra, 56 Cal.4th
at p. 201; People v. Valdez (2012) 55 Cal.4th 82, 179; People v. Tully, supra, 54
Cal.4th at p. 1067; People v. Thomas (2012) 54 Cal.4th 908, 949; People v.
Lightsey, supra, 54 Cal.4th at p. 731; People v. McDowell, supra, 54 Cal.4th at
p. 443.)




                                            49
       Nothing in the state or federal Constitution requires that the penalty jury
(1) issue written findings, (2) unanimously agree on any particular aggravating
circumstances, (3) find true beyond a reasonable doubt any particular aggravating
circumstances, or (4) find that aggravating factors outweigh mitigating factors
beyond a reasonable doubt. (E.g., People v. Homick, supra, 55 Cal.4th at pp. 902-
903; People v. Valdez, supra, 55 Cal.4th at pp. 179-180; People v. Gamache,
supra, 48 Cal.4th at pp. 406-407; People v. Loker (2008) 44 Cal.4th 691, 755.)
Duff argues we should reconsider these conclusions in light of Apprendi v. New
Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, Blakely v.
Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S.
270, cases which impose procedural constraints on fact finding in criminal trials,
but we have repeatedly explained that this argument rests on a misconception of
the nature of California’s capital sentencing scheme. “[T]he ultimate
determination of the appropriateness of the penalty and the subordinate
determination of the balance of evidence of aggravation and mitigation do not
entail the finding of facts that can increase the punishment for murder of the first
degree beyond the maximum otherwise prescribed. Moreover, those
determinations do not amount to the finding of facts, but rather constitute a single
fundamentally normative assessment [citations] that is outside the scope of”
Apprendi and its progeny. (People v. Griffin (2004) 33 Cal.4th 536, 595; accord,
People v. Lightsey, supra, 54 Cal.4th at p. 731; People v. McDowell, supra, 54
Cal.4th at p. 443; People v. Jones, supra, 54 Cal.4th at p. 86; People v. Taylor,
supra, 47 Cal.4th at p. 899; Loker, at p. 755.)
       The inclusion of the adjectives “extreme” and “substantial” in the list of
mitigating factors (§ 190.3, factors (d) & (g)) does not impermissibly constrict
consideration of mitigating evidence and is consistent with the state and federal
Constitutions. (People v. Valdez, supra, 55 Cal.4th at p. 180; People v. Tully,

                                         50
supra, 54 Cal.4th at pp. 1068-1069; People v. Thomas, supra, 54 Cal.4th at p. 949;
People v. Lightsey, supra, 54 Cal.4th at pp. 731-732; People v. McDowell, supra,
54 Cal.4th at p. 444; People v. Hartsch (2010) 49 Cal.4th 472, 516.) Nor was the
trial court constitutionally required to instruct the jury that section 190.3’s
mitigating factors could be considered only as mitigating factors and that the
absence of evidence supporting any one of them should not be viewed as an
aggravating factor. (E.g., Lightsey, at p. 731; People v. Jones, supra, 54 Cal.4th at
p. 87; People v. Gamache, supra, 48 Cal.4th at p. 406.)
       Neither the state nor the federal Constitution requires intercase
proportionality review, also known as comparative proportionality review. (E.g.,
People v. Homick, supra, 55 Cal.4th at p. 903; People v. Valdez, supra, 55 Cal.4th
at p. 180; People v. Tully, supra, 54 Cal.4th at p. 1068; People v. Thomas, supra,
54 Cal.4th at p. 950; People v. Lightsey, supra, 54 Cal.4th at p. 732; People v.
McDowell, supra, 54 Cal.4th at p. 444.)
       Consideration by the jury of unadjudicated criminal conduct at the penalty
phase does not violate the state or federal Constitution. (E.g., People v. Tully,
supra, 54 Cal.4th at p. 1068; People v. Thomas, supra, 54 Cal.4th at p. 949;
People v. Streeter, supra, 54 Cal.4th at p. 268; People v. Loker, supra, 44 Cal.4th
at p. 756.) Nor do Apprendi v. New Jersey, supra, 530 U.S. 466 and its progeny
require the jury to unanimously agree beyond a reasonable doubt on any prior
criminal conduct before considering it; as previously discussed, these decisions are
inapplicable to California’s capital sentencing scheme. (People v. Bonilla, supra,
41 Cal.4th at p. 359; People v. Griffin, supra, 33 Cal.4th at p. 595; People v. Snow
(2003) 30 Cal.4th 43, 126, fn. 32.)
       The equal protection clause does not require California to include in its
capital sentencing scheme every procedural protection provided noncapital
defendants. (People v. Valdez, supra, 55 Cal.4th at p. 180; People v. Tully, supra,

                                          51
54 Cal.4th at p. 1069; People v. Thomas, supra, 54 Cal.4th at p. 949; People v.
Lightsey, supra, 54 Cal.4th at p. 732; People v. Loker, supra, 44 Cal.4th at p. 756;
People v. Manriquez, supra, 37 Cal.4th at p. 590.)
       Duff’s “argument that the use of capital punishment ‘as regular punishment
for substantial numbers of crimes’ violates international norms of human decency
and hence the Eighth Amendment to the United States Constitution fails, at the
outset, because California does not employ capital punishment in such a manner.
The death penalty is available only for the crime of first degree murder, and only
when a special circumstance is found true; furthermore, administration of the
penalty is governed by constitutional and statutory provisions different from those
applying to ‘regular punishment’ for felonies. (E.g., Cal. Const., art. VI, § 11;
§§ 190.1-190.9, 1239, subd. (b).)” (People v. Demetrulias (2006) 39 Cal.4th 1,
43-44; accord, People v. Homick, supra, 55 Cal.4th at p. 904; People v. Tully,
supra, 54 Cal.4th at p. 1070; People v. Thomas, supra, 54 Cal.4th at p. 950;
People v. Lightsey, supra, 54 Cal.4th at p. 732.)
       Finally, Duff’s sentence is not so disproportionate to his conduct, the
double murders of a virtual stranger and a second man over a possible $100 debt,
as to shock the conscience, offend fundamental notions of human dignity, and
violate the Eighth and Fourteenth Amendments. (See People v. Rountree, supra,
56 Cal.4th at pp. 860-862; People v. Loker, supra, 44 Cal.4th at p. 756.)
       We thus adhere to our conclusion that, whether considered individually or
collectively, the aspects of California’s death penalty Duff challenges do not
render it unconstitutional.




                                         52
                                 III. DISPOSITION
       The trial court’s judgment is affirmed in its entirety.

                                         WERDEGAR, J.


WE CONCUR:


BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
MCCONNELL, J. *




*Presiding Justice of the Court of Appeal, Fourth Appellate District, Division
One, assigned by the Acting Chief Justice pursuant to article VI, section 6 of the
California Constitution.



                                          53
          CONCURRING OPINION BY KENNARD, ACTING C. J.



       I concur in the majority opinion, except for its analysis concerning the
exclusion of defendant’s rebuttal victim impact evidence. (Maj. opn., ante, at
pp. 42-45.) On that issue, I agree with the majority that the trial court did not err
in excluding the evidence defendant offered to rebut the prosecution’s victim
impact evidence, a conclusion that is consistent with the views I expressed in my
concurring and dissenting opinion in People v. Harris (2005) 37 Cal.4th 319, 372-
376. Defendant here did not seek to introduce the evidence in question as
evidence pertaining to the circumstances of the crime under Penal Code section
190.3’s subdivision (a), and it was not relevant to rebut the prosecution’s limited
victim impact evidence. (People v. Harris, supra, 37 Cal.4th at pp. 372-376
[conc. & dis. opn. of Kennard, J.].)


                                           KENNARD, ACTING C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Duff
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S105097
Date Filed: January 30, 2014
__________________________________________________________________________________

Court: Superior
County: Sacramento
Judge: Thomas M. Cecil

__________________________________________________________________________________

Counsel:

Jonathan P. Milberg, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Harry Joseph Colombo and John A.
Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Jonathan P. Milberg
225 South Lake Avenue, Suite 300
Pasadena, CA 91101
(626) 432-5427

John A. Bachman
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 322-5221
