        IN THE SUPREME COURT OF
               CALIFORNIA

                      THE PEOPLE,
                 Plaintiff and Respondent,
                             v.
             JAMELLE EDWARD ARMSTRONG,
                 Defendant and Appellant.

                           S126560

              Los Angeles County Superior Court
                        NA051938-01



                        February 4, 2019

Justice Corrigan authored the opinion of the court, in which
Chief Justice Cantil-Sakauye and Justices Chin and Kruger
concurred.

Justice Liu filed a dissenting opinion in which Justices Cuéllar
and Perluss* concurred.




_____________________
*     Presiding Justice of the Court of Appeal, Second Appellate
District, Division Seven, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
                    PEOPLE v. ARMSTRONG
                             S126560


                Opinion of the Court by Corrigan, J.


      After a jury convicted defendant Jamelle Edward
Armstrong of kidnapping, robbing, raping, torturing, and
murdering Penny Sigler, it returned a death verdict. On
automatic appeal, we affirm Armstrong’s convictions but
reverse his death sentence because, under the standards of
Witherspoon v. Illinois (1968) 391 U.S. 510 and Wainwright v.
Witt (1985) 469 U.S. 412, multiple prospective jurors were
improperly excused for cause.

     I. FACTUAL AND PROCEDURAL BACKGROUND

      A. Guilt Phase Trial
      On the night of December 29, 1998, Penny Sigler, a 45-
year-old Long Beach woman, was attacked and killed by three
strangers: Kevin Pearson, Armstrong, and Armstrong’s older
half-brother, Warren Hardy. Each of them was tried separately,
convicted, and sentenced to death. We have previously resolved
the Hardy and Pearson appeals. (See People v. Hardy (2018) 5
Cal.5th 56; People v. Pearson (2012) 53 Cal.4th 306.)

          1. Prosecution Evidence
      Sigler lived with her husband and Joseph O’Brien in Long
Beach. On the evening of December 29, 1998, O’Brien asked
Sigler to buy him cereal and milk. She took the food stamps he
offered and left on foot between 10:00 p.m. and 10:30 p.m. She
never returned.


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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


      The following morning, a Caltrans worker found Sigler’s
body on an embankment near the 405 Freeway. The body was
in an area surrounded by a chain link fence and concrete
retaining wall. The body would have been difficult to see from
the road. There were blood spatters and drag marks near the
corpse. Shoe impressions were later identified as similar to the
treads on Hardy’s and Pearson’s shoes. Police noted a broken
wooden stake at the base of a nearby fence and recovered a food
stamp book cover matching the serial number of the stamps
O’Brien had given Sigler.
      Sigler died from asphyxiation and multiple other injuries.
Before she died, she suffered 11 broken bones, 20 distinct
internal injuries, and 94 separate external injuries. Her right
ear was partially torn. Lacerations and bruising of the genitalia
were consistent with forcible penetration. A large wooden
splinter was embedded in her vaginal tissue.
      Pearson, Hardy, and Armstrong were arrested the
following week, and Armstrong confessed. Detective Steven
Lasiter related remarks Armstrong made before the taping of
his statement began. The taped confession was played for the
jury.
      Armstrong told investigators that he, Pearson, and Hardy
were drinking with others at the house of a friend, Monte Gmur,
on the night of December 29. Sometime after 10:00 p.m.,
Pearson, Hardy, and Armstrong left. After failing to find
someone to buy alcohol for them, the three decided to go to the
home of Hardy’s girlfriend in Los Angeles. They rode a metro
train to its last stop, then proceeded toward a bus stop. Walking
under the 405 Freeway, Armstrong called out, “I can’t wait ‘til
’99.” A female voice responded. The three men approached the


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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


woman, Sigler, who said something like, “I hate you.” Hardy
offered Sigler money for oral sex. Sigler said no, pushed past
Pearson and Hardy, and slapped Armstrong as she went by.
       Sigler reached a leafy area near the street, turned, and
stuck out the middle fingers of both hands. Using racial slurs,
she said, “I hope they kill you all.” Pearson ran toward her,
saying, “I’m fixing to BKC this bitch.” Armstrong explained that
“BKC” was a Long Beach term, “bitch killer connect,” for
someone the speaker did not like who might get beaten up.
Pearson punched Sigler and knocked her down. Armstrong and
Hardy walked toward them. Armstrong heard Pearson say,
“Give me your money.” Pearson went through Sigler’s pockets,
found food stamps, then started to remove her pants. When she
struggled, he asked Hardy and Armstrong to hold her arms and
legs. They did so. Pearson removed Sigler’s pants and asked
where her money was. He tore open her shirt and underwear,
then unzipped his pants and asked for a condom. Hardy stood
off to the side. Armstrong was still holding Sigler’s arms and
said it appeared Pearson was engaging in intercourse.
      After he finished, Pearson said, “This ain’t over yet bitch.
Let’s kill this bitch.” He kicked and stomped her in the chest
and face. Armstrong also kicked her several times. She made
gurgling, moaning noises. Armstrong recognized Sigler was in
considerable pain.
       Pearson asked what to do with Sigler, then told Armstrong
to jump over a chain link fence and hold it down so they could
move her behind it. When Pearson and Hardy hoisted Sigler
over the fence, she landed head first in a concrete ditch. Pearson
dragged her 20 feet to a dark spot. He tripped over and broke
off a three-foot long wooden stake. Using the stake, he hit Sigler


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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


five to 15 times with a two-handed grip, swinging as hard as he
could. Sigler blinked and moaned in response to the blows.
Pearson then inserted the stake in Sigler’s vagina, pulling it in
and out. Hardy took the stake and did the same. When Sigler
finally made no more noise, Armstrong held a lighter to her face
and saw her eyes close.
       Pearson and Armstrong moved the body further up the
embankment toward the freeway. Armstrong threw away the
stake and a trash bag filled with Sigler’s clothes. The three men
caught a bus and spent the night at the residence of Hardy’s
girlfriend.
     Blood on a pair of Armstrong’s overalls matched Sigler’s
DNA. A stain on his shirt contained his own semen and blood
from an indeterminate source.
     Armstrong’s girlfriend, Jeanette Carter, testified that a
week after the murder Armstrong told her he had done
something very bad. He said Pearson had beaten and raped a
woman and put a stick in her vagina while Armstrong held her
down. A tape of an earlier police interview of Carter was also
played during which she related similar admissions by
Armstrong.
       Keith Kendrick, a friend of Pearson’s and Armstrong’s,
testified he was with them when they saw a news report of the
murder. Kendrick, to whom Pearson had already confessed,
said, “I know who did that. [¶] . . . [¶] Killer Kev did it.”
Armstrong whispered to Pearson, “How did he know?” and then
sat silently as Pearson recounted the details.




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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


        2. Defense Evidence
     Armstrong was the sole defense witness. He conceded he
had been with Pearson and Hardy during the crimes but
minimized his role.
       The three men were out walking the night of December 29,
1998. Armstrong was in a good mood and yelled out, “We are
going to have a Happy New Year for ’99.” He then heard Sigler
yell from across the street, “Fuck you niggers.” Hardy walked
across the street toward Sigler. Pearson and Armstrong
followed. Sigler and the three men were the only ones on the
street. Armstrong thought Sigler was on drugs.
      Hardy offered Sigler $50 to perform fellatio on all three
men, but Armstrong knew he was joking because Hardy did not
have that much money. Sigler ran past him, turned, displayed
the middle fingers of each hand, and said, “Fuck you niggers.
You niggers should die.” Pearson ran up to Sigler and struck
her in the face. Armstrong held her down because Pearson
demanded he do so. He saw Pearson go through her clothes, but
Armstrong did not intend to steal from her. He saw Pearson
take food stamps from Sigler’s pocket and place them in his own.
When Pearson stopped going through Sigler’s clothes,
Armstrong let her go.
      When Pearson renewed the assault, kicking and stomping
Sigler, Armstrong said they should leave. He did not leave by
himself because he had no money for bus fare. Armstrong held
Sigler down again at Pearson’s direction. Armstrong never
kicked Sigler himself, but at one point while restraining her he
had his foot on her chest and pushed her with his foot.
Armstrong did not try to stop Pearson because he feared
Pearson would turn on him. When Pearson raped Sigler,



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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


Armstrong was standing behind him, not holding Sigler down.
Pearson and Hardy threw Sigler over the chain link fence.
Armstrong thought the attack was scandalous and animal-like,
but helped Pearson move Sigler up the embankment. He threw
away both the stake and Sigler’s clothes because Pearson told
him to, and because he was afraid of Pearson. The encounter
lasted around 30 minutes.

         3. Charges and Guilt Phase Verdict
      Pearson, Hardy, and Armstrong were tried separately.
(See People v. Pearson, supra, 53 Cal.4th 306; People v. Hardy,
supra, 5 Cal.5th 56.)
      Armstrong was charged with various counts of murder,
kidnapping, robbery, rape, and torture, with six attendant
special circumstances.1 Armstrong was also charged with
kidnapping and torture as sentence enhancements. (§ 667.61,
subds. (a), (d).) The jury convicted Armstrong on every count
and found every special allegation true, except for the special
circumstance that Armstrong committed murder during a
kidnapping.




1
       The charged offenses included first degree murder, second
degree robbery, kidnapping for purposes of rape, rape, rape
while acting in concert, sexual penetration with a foreign object,
sexual penetration with a foreign object while acting in concert,
and torture. (Pen. Code, §§ 187, subd. (a), 189, 206, 209, subd.
(b)(1), 211, 261, subd. (a)(2), 264.1, subd. (a), 289, subd.
(a)(1)(A).)    The special circumstances included robbery,
kidnapping, kidnapping for purposes of rape, rape, rape by
instrument, and torture murder. (§ 190.2, subd. (a)(17)(A), (B),
(C), (K), (a)(18).) All further unlabeled statutory references are
to the Penal Code.


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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


     B. Penalty Phase Trial

         1. Prosecution Evidence
      Monte Gmur testified that on the evening of the murder,
Pearson asked him if Pearson, Hardy, and Armstrong could use
a bedroom to initiate a man named Chris into their gang. Gmur
refused because he did not want a violent initiation ritual in his
house. The three men left for 15 to 20 minutes. When they
returned, Hardy borrowed Gmur’s phone to call a man named
Capone and tell him Chris was “cool” and would be called
“Playboy.”
       Janisha Williams, a childhood friend of Armstrong’s,
testified he was a member of the Capone Thug Soldiers gang.
The gang required “jumping in,” i.e., fighting a gang member to
join. On occasion Williams had seen Armstrong kick people, hit
them with sticks, or stomp on them during fights.
      Sheriff’s Deputy Hugo Baraja testified that Armstrong
and three other African-American prisoners attacked a Hispanic
inmate.
      Sigler’s son testified he was unable to finish high school
after the murder because of the pain of her loss.

         2. Defense Evidence
      Detective Steven Lasiter testified that during his police
interview Armstrong appeared to feel badly about what he had
done.
      Reverend Larry Clark testified that he knew Armstrong
and his family, although he had not seen them since the
defendant was 14 or 15. The Armstrong family lived in a high-
crime neighborhood and had financial problems. Armstrong’s
father, James, was sometimes absent. Armstrong had potential


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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


as an artist and would sometimes help with church cleanup or
charity work.
      James Armstrong admitted he had been a poor parent. He
earned a living selling drugs and pimping, was frequently
absent, and never taught Jamelle right from wrong. He
supplied Jamelle with drugs and alcohol. Jamelle’s mother,
Pamela, was an alcoholic who drank and used drugs. James
beat his wife in their son’s presence.

           3. Rebuttal Evidence
       The People called Jamelle’s mother, Pamela, who
described a different family dynamic. Various police officers
testified to Jamelle’s gang membership.

          4. Penalty Phase Verdict and Sentence
      The jury returned a death verdict, which the court
imposed. It added consecutive terms of 30 years, 25 years to life,
and life with the possibility of parole.2




2
      The abstract of judgment indicates, incorrectly, that
Armstrong’s conviction on four counts was pursuant to a plea
rather than a jury verdict. The abstract of judgment also
incorrectly indicates Armstrong received nine years on the rape
count, not eight, and incorrectly lists a determinate term of 56
years, not 30 years. Finally, the abstract of judgment fails to
indicate that in addition to the determinate term for rape in
concert, sexual penetration with a foreign object, and sexual
penetration with a foreign object while acting in concert,
Armstrong received a 25-year-to-life term under section 667.61,
subdivisions (a) and (d), which was then stayed under section
667.61, subdivision (g). The People ask, without opposition, that
we order the abstract of judgment corrected. We will do so. (See
People v. Mitchell (2001) 26 Cal.4th 181, 185.)


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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.



                       II. DISCUSSION

     A. Juror Selection Issues

          1. Excusal of Prospective Jurors for Cause
      Prospective jurors initially completed a questionnaire.
The court then conducted Hovey voir dire, during which
potential jurors were asked outside the presence of others about
their death penalty views. (See Hovey v. Superior Court (1980)
28 Cal.3d 1, 80–81.) Armstrong contends the court erred by
excusing multiple jury candidates on the ground they could not
fairly and impartially consider whether death was the
appropriate punishment. We agree. During our discussion, we
refer to both written and oral responses.

             a. Legal Principles
       “[T]he Sixth Amendment’s guarantee of an impartial jury
confers on capital defendants the right to a jury not
‘uncommonly willing to condemn a man to die.’ ” (White v.
Wheeler (2015) 577 U.S. ___, ___ [136 S.Ct. 456, 460], quoting
Witherspoon v. Illinois, supra, 391 U.S. at p. 521.)           To
accommodate this right, “ ‘[p]ast decisions of the United States
Supreme Court and this court establish that “[a] prospective
juror may be challenged for cause based upon his or her views
regarding capital punishment only if those views would
‘ “prevent or substantially impair” ’ the performance of the
juror’s duties as defined by the court’s instructions and the
juror’s oath. (Wainwright v. Witt[, supra,] 469 U.S. [at p.] 424;
People v. Crittenden (1994) 9 Cal.4th 83, 121; People v. Mincey
(1992) 2 Cal.4th 408, 456.) ‘ “ ‘A prospective juror is properly
excluded if he or she is unable to conscientiously consider all of
the sentencing alternatives, including the death penalty where


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                      PEOPLE v. ARMSTRONG
                  Opinion of the Court by Corrigan, J.


appropriate.’ ” ’ ” ’ ” (People v. Pearson, supra, 53 Cal.4th at p.
327.) The party seeking excusal bears the burden of developing
evidence for dismissal. (Wainwright, at p. 423; People v. Stewart
(2004) 33 Cal.4th 425, 445.)
       A person’s particular views on the death penalty, the
strength with which those views are held, and their effect, if any,
on the person’s ability to perform a juror’s duties are often
nuanced questions. “ ‘[N]ot all who oppose the death penalty are
subject to removal . . . ; those who firmly believe that the death
penalty is unjust may nevertheless serve as jurors in capital
cases so long as they state clearly that they are willing to
temporarily set aside their own beliefs in deference to the rule
of law.’ (Lockhart v. McCree (1986) 476 U.S. 162, 176.) ‘The
critical issue is whether a life-leaning prospective juror — that
is, one generally (but not invariably) favoring life in prison
instead of the death penalty as an appropriate punishment —
can set aside his or her personal views about capital punishment
and follow the law as the trial judge instructs.’ ” (People v. Jones
(2017) 3 Cal.5th 583, 614.) Jurors are not required to like the
law, but they are required to follow it. A jury candidate who will
not, or cannot, follow a statutory framework, is not qualified to
serve. Yet so long as prospective jurors can obey the court’s
instructions and determine whether death is appropriate based
on a sincere consideration of aggravating and mitigating
circumstances, they are not ineligible to serve. (People v.
Stewart, supra, 33 Cal.4th at p. 447; People v. Lewis (2001) 25
Cal.4th 610, 633.)
      Whether a candidate is substantially impaired is an issue
for the trial court’s determination, and its ruling is entitled to
deference. (People v. Souza (2012) 54 Cal.4th 90, 122.)
Impairment need not be proven with “ ‘unmistakable clarity.’ ”

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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


(Wainwright v. Witt, supra, 469 U.S. at p. 424.) Excusal is
permitted when the trial judge has been “left with the definite
impression that a prospective juror would be unable to faithfully
and impartially apply the law.” (Id. at p. 426; accord, People v.
Thompson (2016) 1 Cal.5th 1043, 1066.) We review the ruling
for abuse of discretion. (People v. Scott (2015) 61 Cal.4th 363,
378; People v. Jones (2012) 54 Cal.4th 1, 41.)
      Here, the court improperly excused at least four
candidates. In doing so, it committed two kinds of errors: (1) it
applied an erroneous standard to the question of qualification;
and (2) it relied on factual bases not supported by the record. As
a result, the death verdict must be reversed. (People v. Heard
(2003) 31 Cal.4th 946, 966.)

              b. Prospective Juror S.R.
      S.R. wrote in his questionnaire that he supported the
death penalty and believed it was “a big deterrent to many
others who may wish to kill.” The death penalty should not be
mandatory, but should be available in “special circumstances.”
S.R. saw death as an appropriate punishment “if the crime was
horrendous enough,” as in cases of “mutilations [or] torture.” He
could vote for either life or death, but would not automatically
vote for either. He considered his “duty as a juror to be fair and
un-biased.” He was willing to serve because he was “a fair
person. I have always been one to listen to both sides of an
argument. I also know people [who] have done good things, and
people who have done bad things. A defendant/prosecution
deserves jurors that are not one-sided and biased.”
     During voir dire, S.R. confirmed he could vote for either
death or life, and would choose neither automatically. He could
keep an open mind, and would consider whatever factors the


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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


court instructed were relevant. S.R. could vote for death if the
aggravating circumstances substantially outweighed those in
mitigation, and for life if they were equal. S.R. saw death as a
“far worse” punishment than life in prison without possibility of
parole, and would reserve it for “a truly horrible crime.”
Nevertheless, “if it does fit the crime,” S.R. could choose death.
      The prosecutor focused S.R.’s questioning on three
hypotheticals involving a liquor store robbery, a beating death,
and a bank robbery. In the liquor store hypothetical, a
defendant walking by noticed the cash register was open,
entered the store on the spur of the moment, killed the cashier,
and stole the money. S.R. was unsure which penalty he would
select without having more facts, which the prosecutor declined
to supply. Based only on the information provided, S.R. said he
would probably not vote for death. Asked to assume that
unspecified     aggravating      circumstances      substantially
outweighed any mitigating circumstances, S.R. said he could
vote for death. The prosecutor stressed S.R. would be instructed
that life remained an option even if the aggravating
circumstances outweighed the mitigating circumstances and
asked again if S.R. could choose death. S.R. replied, “I’m sure I
probably could,” but voting for life or death was “not something
I would take lightly.”
      In the deadly beating hypothetical, one person held a
victim’s arms while a second person inflicted the beating. S.R.
thought the one restraining the victim to be nearly as guilty as
the beater, but not equally so. If the aggravating circumstances
substantially outweighed any in mitigation, S.R. affirmed he
could vote for death for the restraining participant. The
prosecutor challenged the plausibility of this answer in light of
S.R.’s belief that the restrainer was slightly less culpable and

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                      PEOPLE v. ARMSTRONG
                  Opinion of the Court by Corrigan, J.


the court’s instruction that death was not mandatory even if the
aggravating circumstances were substantially greater. S.R.
replied: “[Y]ou asked if I could [vote for death], if it was possible,
if [the aggravating circumstances were more than the
mitigating circumstances]. I could. I’m not saying I would, you
know, you’re [asking] could I?” The prosecutor challenged his
answer: “If you don’t think that the two people are equally
guilty, wouldn’t you give them different punishments, because
they weren’t equally guilty?”3 To explain why he could vote for
death, S.R. relied on the additional factor supplied by the
prosecutor, that the aggravating circumstances outweighed the
mitigating circumstances. The prosecutor asked a third time:
“So in your mind, because the person holding the arms is not as
guilty as the person actually doing the punching, wouldn’t you
impose life without the possibility of parole on him and give the
other guy, the one actually doing the punching, the death
penalty?” S.R. adhered to his answer: “I could do both in that
[circumstance]. Like I said, you asked, could I do either [life or
death]?”
      The prosecutor then turned to a scenario involving three
bank robbers: a getaway driver, a lookout, and the actual killer
who went inside and shot someone. Asked whether he would
consider the getaway driver equally or less culpable than the


3
      It appears the court and prosecutor used the term “guilty”
with some imprecision. As a matter of law, an aider and abettor
can be as “guilty” of an offense as a direct perpetrator, in the
sense that both may be convicted of the same crime. (People v.
McCoy (2001) 25 Cal.4th 1111, 1116–1117.) The term as used
here seemed to involve not legal guilt but respective degrees of
blameworthiness or culpability as that concept relates to
sentencing.


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                     PEOPLE v. ARMSTRONG
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actual killer, S.R. asked whether the driver knew the shooter
was going to kill someone. When told the driver did not, S.R.
concluded the driver was less culpable and he would probably
not impose death. Likewise with the lookout: If neither aider
and abettor knew a shooting was intended, S.R. would reserve
death for the actual killer.
       The prosecutor moved to excuse S.R. During argument
over the motion, defense counsel reasserted a continuing
objection to the prosecutor’s questioning using aiding and
abetting hypotheticals without any instruction on when, as a
matter of law, a person who was not the actual killer could be
eligible for death. The prosecutor argued against instruction:
“If a juror knew the law, the juror would then frame his [answer]
in accordance with the law. A true test of the juror’s state of
mind with regard to aiding and abetting, and accomplices, is to
find that out without pre-instructing them, because then we
know what their true views are. If they know what the law is,
in advance, we cannot find out what their true views are,
because they want to follow the law.” (Italics added.)
       The court embraced the prosecutor’s position against pre-
instruction because it would color the jurors’ responses. It
reasoned that those who wished to follow the law would shape
their answers to conform with legal requirements, and asking
uninstructed jurors would give better insight into their true
feelings: “By not giving the [aiding and abetting] instruction,
. . . wouldn’t that be a better way to test their mind, a true test
of their mind, as to whether or not they would be able to impose
the penalty of death, whether they could on an aider and
abettor?” The court further explained: “[N]ormal people . . .
understand that [there] should be different liabilities for an
aider and abettor [than] for the perpetrator. [¶] And given that

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                       PEOPLE v. ARMSTRONG
                   Opinion of the Court by Corrigan, J.


is the case, if that is, in fact, the true state of mind of a particular
prospective juror, that is a worthy test of whether or not, given
that they see a difference in liability in their state of mind,
would that create a variance as to their ability to be able to
impose punishment? Because that, effectively, would be a fair
way to determine whether the person would automatically, in
fact, not impose the penalty of death and would automatically
impose life without parole, because of their varying views on the
liability of an accomplice.[4] [¶] And that’s the reason why this


4
      In referring to what a candidate would “automatically” do,
the court overlooked how the United States Supreme Court’s
thinking on disqualification had developed, an evolution that
has shifted the focus to subtler considerations: “In Wainwright
v. Witt[, supra,] 469 U.S. 412 . . . , the United States Supreme
Court reconsidered language in Witherspoon v. Illinois[, supra,]
391 U.S. 510 . . . , to the effect that prospective jurors may be
excused for cause if they make it ‘unmistakably clear (1) that
they would automatically vote against the imposition of capital
punishment without regard to any evidence that might be
developed at the trial of the case before them, or (2) that their
attitude toward the death penalty would prevent them from
making an impartial decision as to the defendant's guilt.’ (Id. at
p. 522, fn. 21.) This standard had tended to be applied in
formulaic terms, with ‘lower courts stat[ing] that a
veniremember may be excluded only if he or she would
“automatically” vote against the death penalty, and even then
this state of mind must be “unambiguous,” or “unmistakably
clear.” [Citation.]’ (Witt, at p. 419.) [¶] In Witt, the high court
rejected such a narrow and formalistic approach and discarded
the Witherspoon formulation. It held instead that a trial court
may excuse a prospective juror for cause whenever ‘the juror’s
views would “prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and
his oath.” ’ (Witt, supra, 469 U.S. at p. 424, fn. omitted.)” (People
v. Heard, supra, 31 Cal.4th at p. 983 (conc. & dis. opn. of Brown,
J.).)


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court is not going to give a pre-instruction on aiding and
abetting. I believe that that is a fair way to test the true state
of mind of lay people, because that’s exactly what we are trying
to do. [¶] We don’t want to pre-instruct them just so that they
can fit their answer with the law.”
      The court excused S.R. for cause, concluding his fitness to
serve should be determined by his uninstructed views on the
relative culpabilities of hypothetical aiders and abettors: “[I]n
terms of an accomplice, or an aider or abettor, it is [S.R.’s] true
state of mind that they’re not equally guilty, and even if they are
guilty, they’re not equally guilty. In other words, in these folks’
eyes, the person is guilty, but there’s a degree of guilt. And that
is really the true test of whether or not they would be able to
consider the penalty of death or automatically vote for life
without parole.”
      We note several things here. First, the prosecutor’s
argument and the court’s ruling appear to presume that jury
candidates would violate their oath and commit misconduct by
shading their answers to secure a place on the jury. They also
misapprehend the appropriate test for qualification, which
turns on a willingness and ability to follow the law. It seems
counterintuitive to conclude that the “true test” of this ability
involves keeping candidates in the dark as to the law’s
requirements.     Advocates may certainly inquire about a
candidate’s broader death penalty views and take them into
account when exercising peremptory challenges. But those
broader views, even if leaning significantly toward one side or
the other, will not support a challenge for cause unless they
would substantially impair the ability to serve.




                                 16
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


      Second, the death penalty statutes reflect, as a matter of
policy and constitutional mandate, that a decision as to capital
punishment is to be made on an individualized basis. (Woodson
v. North Carolina (1976) 428 U.S. 280, 304.) Jurors are to
consider the nature of the crime, the circumstances of its
commission, and a variety of factors relating to the particular
defendant. These latter factors may include his past criminal
conduct and a variety of developmental and historical
experiences. This weighing can result in different degrees of
blameworthiness being assigned from case to case and among
co-participants. A juror willing to act in conformance with
statutory mandates, able to openly and honestly consider both
sentencing alternatives, may well identify different levels of
culpability for different participants in the same events. That a
juror can do so is not grounds for disqualification.
      In determining otherwise, the court applied a test for
ineligibility that was erroneous as a matter of law. Under
Witherspoon and Witt, the state is permitted to cull from the jury
pool only those who would be unable to set aside their personal
views and follow the law and the court’s instructions. (Lockhart
v. McCree, supra, 476 U.S. at p. 176; People v. Jones, supra, 3
Cal.5th at p. 614; People v. Stewart, supra, 33 Cal.4th at
pp. 446–447.) An unimpaired juror who perceives differences in
culpability might well be open to a variety of determinations: (1)
though an aider and abettor was comparatively less
blameworthy, the crime was sufficiently egregious, and his
participation and knowledge sufficient, that both he and the
actual killer merit death; (2) only the actual killer merits death;
or (3) neither defendant does. That S.R. ascribed different
degrees of culpability to some aiders and abettors in some
hypotheticals offered no basis for determining he would be


                                 17
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


unable to follow the court’s instructions and choose between a
life or death sentence in accordance with the law. Indeed, his
answers indicated the contrary.5 By framing the test of
eligibility to serve as it did, the court risked excluding jurors
who could follow the court’s instructions and appropriately use
evidence in aggravation and mitigation to differentiate between
those who merited the death penalty and those who did not.
      Third, when assessing a candidate’s ability to serve, fact-
based hypotheticals should be used with caution. “ ‘[T]he
Witherspoon-Witt . . . voir dire seeks to determine only the views
of the prospective jurors about capital punishment in the
abstract. . . . The inquiry is directed to whether, without
knowing the specifics of the case, the juror has an “open mind”
on the penalty determination.’ ” (People v. Zambrano (2007) 41
Cal.4th 1082, 1120, quoting People v. Clark (1990) 50 Cal.3d
583, 597.) Hypotheticals that too closely mirror the expected
facts of the case at hand may result in jurors prejudging a case
on a brief summary of the evidence. (Zambrano, at p. 1120;
People v. Pinholster (1992) 1 Cal.4th 865, 915.) Further,
questions focusing only on specific factual circumstances can
yield answers that might be used to erroneously cull competent
jurors. The way a question is posed may skew the answer. For
example, a hypothetical that emphasizes aggravating factors
might elicit an answer that leans heavily in favor of execution.


5
      When asked whether he could comply with the court’s
instructions, even if he did not agree with them, S.R. checked
“yes” and wrote: “It’s the court’s instructions, we must follow
them.” He affirmed that he could “consider all of the relevant
factors that the court will give you.” He explained that his
ability to vote for death would depend in part on “what the judge
says” about the law.


                                 18
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


(See People v. Mason (1991) 52 Cal.3d 909, 940.) Trial courts
may prohibit such hypotheticals. (People v. Sanders (1995) 11
Cal.4th 475, 538–539.)
      This case presents an obverse situation, with
hypotheticals describing defendants at, or beyond, the outer
reaches of death eligibility. The United States Constitution and
California’s sentencing scheme make lookouts, getaway drivers,
and others involved in, but absent from, a robbery or homicide
scene categorically ineligible for death without additional
showings as to the degree of their participation and the extent
of their awareness or intent that a fatality might result.
(§ 190.2, subd. (d); Enmund v. Florida (1982) 458 U.S. 782, 795–
798; People v. Banks (2015) 61 Cal.4th 788, 798–804.) As for the
prosecutor’s beating hypothetical, assault alone is not a basis for
special circumstance felony murder. (See § 190.2, subd. (a)(17).)
By definition, a competent juror who can consider both life and
death as options would be willing to vote for death in some cases
and for life in others. Given sufficiently mild hypothetical
scenarios, many competent jurors might say they would be quite
likely to vote for life without the possibility of parole. Such
responses do not necessarily reveal that the same juror would
not vote for death under more aggravating circumstances. (See
People v. Mason, supra, 52 Cal.3d at p. 940.)
      Here, the prosecutor supplied no additional facts that
would make the hypothetical robbery and beating aider and
abettors legally eligible for death or clearly deserving of that
punishment.      Instead, S.R. was required to assume an
unspecified special circumstance had been proven and
unspecified aggravating circumstances were present. Even so,
S.R., a death penalty supporter, consistently maintained that he
could vote for death under the appropriate circumstances, both

                                 19
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


in general and as applied to an aider and abettor. S.R.’s answers
give no indication he was unfit to serve.
      The court also relied on S.R. being unable to consider
death as an option for some charged special circumstances. It
asserted that S.R. “picks and chooses the special circumstances
that he believes he would be able to consider the penalty of death
on.” The record does not support this assertion. S.R. never
indicated he could not consider death as an option for the
charged special circumstances.           He simply expressed
uncertainty as to how he would vote if each of several of the
charged special circumstances was the only one found true. A
juror who indicates he could vote for death, but is unwilling to
guarantee he would do so, is not subject to excusal for cause.
(People v. Pearson, supra, 53 Cal.4th at p. 332.)
      A court can abuse its discretion by applying an erroneous
legal standard or by making a ruling unsupported by
substantial evidence. (Haraguchi v. Superior Court (2008) 43
Cal.4th 706, 712.) Both problems are present here. The court’s
remarks, and a comparison of its ruling with the record, reflect
that it was overlooking the crucial question of whether S.R.
could set aside his personal views and follow the court’s
instructions. Instead, the court concluded S.R.’s views might
lead him to vote against death under particular unrelated facts.
Standing alone, views of that nature do not support a challenge
for cause. Additionally, the record reveals no substantial
evidence that S.R. would have had any difficulty following the
court’s instructions in determining the appropriate sentence.
      The erroneous exclusion of S.R. was not an isolated
occurrence. The record reflects that the court applied the same
“true test” to other candidates, focusing on whether they would


                                 20
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


be equally willing to impose death on an aider and abettor as on
an actual killer, rather than on whether they could follow the
law and consider death as an option. Application of this test
excluded several essentially neutral candidates who professed
their ability to follow the court’s instructions and impose death
in an appropriate case.
     We discuss the others in turn.

             c. Prospective Juror M.M.
      In her questionnaire, M.M. agreed that California should
have a death penalty and should not abolish it because “it serves
as a deterrent for some offenders.” Death would be an
appropriate punishment for “repeat murderers,” among others,
and serves to “provide justice in the cases that warrant it.” M.M.
repeatedly stated she could vote for death, but would not
automatically do so. Whether death was appropriate should be
decided “on a case-by-case” basis. M.M. had no religious or
moral views that would make it difficult for her to vote for
execution.
      In voir dire, M.M. said that she was neutral as to sentence
and could vote for either. On six occasions, she affirmed her
ability to vote for death. When asked whether she could look at
the defendant and say, “I kill you,” M.M. replied: “I think that’s
a very hard position to be put in, but I think the approach I
would take is that I need to do the right thing, either not guilty
or guilty and where ever that falls, given the information, then
I would have to feel comfortable with that.”
     Given that M.M. was neither for nor against the death
penalty, the prosecutor asked how she could determine whether
M.M. would vote for death. M.M. said her decision would
depend on the evidence, not prior leanings: “I don’t know that

                                 21
                      PEOPLE v. ARMSTRONG
                  Opinion of the Court by Corrigan, J.


you can determine that [I would vote for death] at this point. I
think that determination or decision would be made after the
information was given to me or any other juror. [¶] At this
point, I don’t have a say one way or the other, because I haven’t
heard anything.” She went on: “I certainly would want to do
the right thing by the defendant or by the other side. [¶] I would
want to do whatever the evidence or the information warranted.
. . . [¶] It would be a very difficult decision if I had to decide
that it was a death penalty. I don’t think anybody would walk
away feeling great about doing that, but I feel I have to do what
was warranted by the case.” When asked again how she could
“impose the death penalty if you don’t even know what your
feelings are regarding it?,” M.M. said, “I really don’t have a set
decision like some people [where] I’m all for the death penalty
or totally opposed. [¶ Q.] You don’t have a feeling one way or
the other. [¶ A.] I don’t have a feeling one way or the other. I’m
neutral. My feeling would be each case would be individual and
unique in itself, and I think you need to go into [it] looking at it
like [that]. . . . Every case is different and unique.”
       M.M. affirmed that she could vote for death if the
aggravating circumstances outweighed the mitigating
circumstances and could impose death on an aider and abettor
such as a defendant who held a victim’s arms while a second
defendant beat the victim to death. She repeated that she could
tell the defendant he was going to die.
       The prosecutor then turned to the bank robbery
hypothetical with a getaway driver, a lookout, and the actual
killer. M.M. described the nonkillers as less culpable, but when
asked if she could impose death on the getaway driver if the
aggravating circumstances outweighed the mitigating
circumstances, she said she could. The prosecutor suggested

                                  22
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


those answers were inconsistent: “How can you impose the
death penalty on the person who is waiting out in the car, when
you believe he is not as guilty as the person who pulled the
trigger?” M.M. explained, “Because you said that . . . the bad
issues about him were more than the ones that weren’t bad.”
The prosecutor explained that under the law, a juror could, but
did not have to, impose death when aggravating circumstances
outweighed mitigating ones. She then asked, “[K]nowing that,
would you impose the death penalty on the person waiting in
the car?” (Italics added.) This time, M.M. said, “No.”
      The prosecutor challenged M.M. on the ground that M.M.
did not know whether she was for or against the death penalty
and would be unable to impose death on an aider and abettor.
The court granted the motion on the basis that M.M. would not
impose the death penalty in the getaway driver scenario, and
the People defend the excusal on that basis alone.
      The record offers no support for the prosecutor’s
assertions. M.M. consistently indicated, in her questionnaire
and in response to questions from the bench, defense attorney,
and prosecutor, that she could impose the death penalty in an
appropriate case based on the evidence submitted. She believed
California should have the death penalty and that it serves as a
deterrent. Being “neutral” on the death penalty before hearing
any evidence is not disqualifying. (People v. Pearson, supra, 53
Cal.4th at p. 332.) Indeed, M.M.’s answers show she was
unwilling to prejudge the matter. She confirmed that she could
impose the death penalty on a nonkilling aider and abettor, in
both the beating and bank robbery hypotheticals.
     M.M. did indicate that, given the option, she would not
choose death for the getaway driver. That answer did not


                                 23
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


demonstrate substantial impairment or views that would
prevent her from serving. Recognizing different degrees of
culpability, M.M. acknowledged that hypothetically she could,
but would choose not to, impose death on a less culpable
defendant. This response does not indicate an inability to follow
the court’s instructions. Her answers reflect an ability to listen
to and follow the law. She properly declined to guarantee how
she would vote based on the facts proven at trial. Her excusal
was error.

              d. Prospective Juror L.B.
      Prospective juror L.B. described himself as “for” the death
penalty and thought it was used too seldom. He approved of
California having the penalty because “[i]f [a] very violent crime
is committed, [the] death penalty is justified.” Death was
appropriate for “premeditated, and brutal” crimes; life in prison
without possibility of parole gave him pause because he was
“afraid that the law can be changed” so that the defendant could
get out on parole. L.B. held no religious or moral objections to
the death penalty and could vote for it. Death should not be
automatic for intentional murders, but should “depend[] on [the]
person’s state of mind before and during committing the act.”
To L.B., a death sentence meant “that society will be somewhat
safer.”
      Under questioning from the court and counsel, L.B.
indicated that before hearing the evidence, he was not leaning
toward life or death, would keep an open mind, could follow the
court’s instructions, and could vote for either sentence. He
indicated he could vote for death in the case of someone who,
seeing a cash register open, opportunistically killed the cashier
to steal the contents.


                                 24
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


       As she had with other jurors, the prosecutor asked L.B.
hypothetically about the three participants in a bank robbery
and the two participants in a beating death. In the bank robbery
scenario, L.B. agreed the getaway driver, lookout, and actual
killer were equally responsible. He could impose death on the
getaway driver or lookout, depending on the balance of
aggravating and mitigating factors, provided the person knew
the actual killer was armed. In the beating hypothetical, L.B.
considered the person holding the victim down equally culpable.
He hesitated to say that he could impose death on him, however,
because he “still assume[d] that the guy who is holding him
didn’t probably know that he is going to be severely beaten.”
Asked to reconcile that hesitation with his willingness to impose
death in the armed robbery scenario, L.B. explained: “[W]hen
you start beating on somebody, I don’t think . . . you [are] doing
it with the intention that you are killing, but when you have [a]
weapon then it’s a different story. You have a weapon for one
reason[,] to hurt somebody, in my opinion.” Based on that
distinction, he did not feel the person holding another’s arms
should be executed if the beating victim ultimately died.
      The prosecutor challenged L.B. for cause on the sole basis
that he could not apply the law with regard to aiding and
abetting. The court granted the motion on that basis, and the
People defend the excusal on the same ground.
      The excusal of L.B. was flawed for the same reasons
discussed in connection with S.R. and M.M. L.B. consistently
indicated that he could follow the law and the court’s
instructions and could impose death in a number of factual
situations. That the prosecutor could construct a murder
hypothetical for which L.B. thought one perpetrator should be
spared execution does not mean he was substantially impaired

                                 25
                      PEOPLE v. ARMSTRONG
                  Opinion of the Court by Corrigan, J.


within the meaning of Witt.       The prosecutor offered no
additional facts that might actually support a special
circumstance finding, nor sufficient aggravating factors to
justify a vote for death. Many competent jurors might react to
such a hypothetical by indicating they would vote for life, not
death.
      No other evidence supports the court’s ruling. The record
shows L.B. actively supported the death penalty, thought it was
used too infrequently, and would be able to consider either life
or death in a range of circumstances. Even the prosecutor
described L.B. as “good up until the last hypothetical.” The
excusal of L.B. was error.

               e. Prospective Juror G.P.
        Prospective juror G.P. had a slight proprosecution leaning,
but said he would try to avoid any prejudice and could follow the
court’s instructions. He felt the death penalty “is an appropriate
punishment in certain cases” and favored California having the
penalty because “in some cases it is called for,” such as cases
involving “plan[ned], premeditated” murder. In addition to
supporting the death penalty, G.P. could vote for it, though he
would not automatically do so. Neither death nor life should be
mandatory in all murder cases; instead punishment should
“depend[] on the circumstances.” G.P. had no philosophical or
religious convictions that would affect his ability to impose
death, but sitting on a capital jury would be difficult because
“[i]t is a very serious thing to have someone’s life in my hands.”
Still, G.P. could vote for death “[i]f the facts meet the criteria,”
such as when a defendant had “without any thought taken
another’s life to gain money [or] property, or hunted down
another to kill them.” Both death and life without possibility of


                                  26
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


parole were severe sentences to G.P. He stated in one part of
his questionnaire that life without parole was worse, but
reported in another that he was “torn” as to which was worse.
      When asked by the court whether, based on personal
views, he would refuse to vote for the death penalty without
considering aggravating and mitigating factors, G.P. replied,
“No, I don’t think so.” G.P. would not begin by immediately
favoring life or death; rather, “either defense or prosecution
would [have to] convince me that [the case] called for the death
penalty, I’d have to listen to the different circumstances. And
hopefully keep an open mind . . . .”
       When asked by the prosecutor how he could impose death
even though he was not sure it was a more severe sentence than
life in prison, G.P. explained: “I go back to what takes place
during the trial, during the penalty phase. I would listen to all
the evidence . . . [¶] [I]f the circumstances surrounding the
crime and all the factors leading up to it called for the death
penalty, then I think[] I could do that too.” The prosecutor asked
again, “[H]ow will we know you are able to impose the
appropriate punishment?” G.P. replied, “Well, I don’t know how
you would know. I really don’t. Again, you have to take my word
that I would listen to all the evidence and make the decision that
I think is right. And since you are the prosecution side, you
would have to convince me — not maybe convince me like I’m
resisting it, but show me that this man deserves the death
penalty in this case.” Pressed on what the prosecutor would
have to show him to get a death verdict, G.P. would not agree
that any single factor would be necessary or sufficient: “[U]ntil
I hear the evidence, I don’t know [what you would have to show
me].”     The prosecutor then went through each special
circumstance one by one and asked whether, if she proved only

                                 27
                      PEOPLE v. ARMSTRONG
                  Opinion of the Court by Corrigan, J.


first degree murder and that one special circumstance, G.P.
could vote for death. G.P. replied in each case some variation of
“probably” or “I’m not sure, I think I could,” but “might be
reluctant” if the only special circumstance was murder in the
course of a kidnapping.
        G.P. had written on his questionnaire that he thought life
without possibility of parole might serve as a replacement for
the death penalty. He explained that “a lot of so-called
industrial countries feel that life [in prison] is good enough
punishment for somebody,” but he still believed in execution
when “the circumstances surrounding the crime call for the
death penalty.” When asked for circumstances that might call
for death, he offered, “[M]aybe in [a] case like this case, possibly,
. . . the way the charges were read with torture and things like
that[,] rape with using the foreign object, the cruelty of this
crime, possibly, assuming that this all took place, and the
defendant committed these crimes, then it could call for the
death penalty.”
      After G.P. agreed he wasn’t sure how he felt about the
death penalty, the prosecutor asked, “And since you don’t know
how you feel about the death penalty, how am I able to
determine whether or not you could impose the death penalty, if
the circumstances warrant it?”               G.P. replied, “If the
circumstances warrant it, I would be able to impose it.” The
prosecutor described G.P.’s frame of mind as being “torn
between life without the possibility of parole and between the
death penalty”; G.P. disagreed, saying, “No, I think my frame of
mind [is], I’m willing to listen to all the circumstances from both
sides and make up my mind then about whether to impose the
death penalty on someone or life in prison.” If the aggravating
circumstances outweighed any mitigating circumstances, G.P.

                                  28
                      PEOPLE v. ARMSTRONG
                  Opinion of the Court by Corrigan, J.


could impose death. When asked to consider the beating
hypothetical and assume the aggravating circumstances
substantially outweighed the mitigating, G.P. affirmed that he
had “[n]o doubt” he could impose death on the aider and abettor.
        G.P. acknowledged that, as he had written in his
questionnaire, he did not think the death penalty was an
effective deterrent. He rejected the prosecutor’s suggestion that
he therefore would be incapable of imposing death: “Well, I don’t
think that just because my idea is that [the] death penalty is not
a deterrent doesn’t keep me from imposing the death penalty [¶]
. . . [¶] [I]f the circumstances surrounding the crime call for the
death penalty, then I can make that decision.”
      The prosecutor turned to the bank robbery hypothetical.
G.P. thought all three “equally guilty of murder,” but “probably
wouldn’t impose the death penalty” on the getaway driver who,
as the prosecutor described it, “didn’t go inside[,] he didn’t
shoot[,] he wasn’t the actual killer.”
      The prosecutor moved to excuse G.P. for cause, and the
court granted the challenge. The court highlighted two aspects
of G.P.’s views it was troubled by: G.P.’s belief that life in prison
without possibility of parole might substitute for the death
penalty, given that other industrial countries got by without
capital punishment, and his belief that the death penalty was
not a deterrent. The first view the court saw as a way many
“smart” prospective jurors discussed the death penalty,
discussions the court characterized as “some kind of intellectual
sophistry.” The second view, that the death penalty was not a
deterrent, the court saw as a basis for “infer[ring] that he could
not impose [the death penalty, and] that’s the inference that has
to be drawn based on the state of mind.”


                                  29
                      PEOPLE v. ARMSTRONG
                  Opinion of the Court by Corrigan, J.


       The inference that, simply because one has doubts about
the efficacy of the death penalty, one would refuse ever to impose
it and may be excused for cause has long been forbidden. That
a prospective juror may “voice[] general objections to the death
penalty or express[] conscientious or religious scruples against
its infliction” is an insufficient basis for excusal. (Witherspoon
v. Illinois, supra, 391 U.S. at p. 522.) The high court has
clarified that the prosecution “must demonstrate, through
questioning, that the potential juror lacks impartiality,” i.e.,
that the candidate’s views would substantially impair his or her
ability to follow the court’s instructions and vote for death in
appropriate cases. (Wainwright v. Witt, supra, 469 U.S. at
p. 423.) A trial court cannot simply assume that, because a
candidate doubts the death penalty is a deterrent, he or she
could never impose it. Here, G.P. directly rejected the
assumption: “Well, I don’t think that just because my idea is
that [the] death penalty is not a deterrent, [it] doesn’t keep me
from imposing the death penalty               [¶] . . . [¶] [I]f the
circumstances surrounding the crime call for the death penalty,
then I can make that decision.”
      The court also referenced several of G.P.’s specific
responses to questioning about whether he could impose the
death penalty. The court noted that when asked whether he
could give the death penalty based on each of the special
circumstances charged in the case, G.P. wavered before saying
he thought he could, or probably could. The court further noted
that G.P. “flat out said he could not [impose death on a getaway
driver]. And, if the theory of the People in this case is an aider
and abettor theory[,] that would preclude consideration of a
potential penalty.”



                                  30
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


       On the second point, the record is to the contrary. When
asked, “What penalty would you impose on the person in the car,
who didn’t go inside? He didn’t shoot. He wasn’t the actual
killer,” G.P. responded, “I probably wouldn’t impose the death
penalty.” That a juror “probably wouldn’t impose the death
penalty” on a hypothetical getaway driver is not evidence the
same juror could not impose the death penalty in an appropriate
case. Some getaway drivers, although guilty of first degree
felony murder, may not even be death eligible. (See People v.
Banks, supra, 61 Cal.4th 788.) Even those legally eligible might
rationally be seen by competent jurors as less deserving of death
than another who pulls the trigger. In contrast, G.P. affirmed
that he could cast a vote for death in other aiding and abetting
scenarios and pointed to the facts of this case as circumstances
that might justify a death sentence.
      The People agree that G.P.’s answers show he could vote
for death in a range of circumstances, but contend that because
he “probably wouldn’t” in others, he was impaired. The law does
not entitle the People to a jury composed only of those who would
impose death in every factual scenario, but instead to a jury that
can follow the court’s instructions and conscientiously consider
the appropriate penalty based on the proven aggravating and
mitigating circumstances. (See People v. Stewart, supra, 33
Cal.4th at p. 447.)
      The court’s remaining point, that G.P. hesitated before
affirming he probably could vote for death in various single
special circumstance hypotheticals, presents a closer question.
Only the trial court could observe G.P.’s demeanor and “the way
he answers the questions.” However, even accepting the court’s
view of G.P.’s demeanor, as we must, the record does not contain
substantial evidence that G.P. held views that would

                                 31
                      PEOPLE v. ARMSTRONG
                  Opinion of the Court by Corrigan, J.


“substantially impair” his ability to follow the law and the
court’s instructions. G.P.’s responses uniformly indicate he
could maintain an open mind as to either life or death. Indeed,
G.P. offered the facts of this case as precisely the sort of case in
which he might be able to consider a death sentence.
      “[U]nder applicable law, even a juror who ‘might find it
very difficult to vote to impose the death penalty’ is not
necessarily substantially impaired unless he or she was
unwilling or unable to follow the court’s instructions in
determining the appropriate penalty.” (People v. Merriman
(2014) 60 Cal.4th 1, 53.) The prosecution, as the party seeking
G.P.’s removal, had the burden of establishing he lacked
impartiality and could not follow the court’s instructions.
(Wainwright v. Witt, supra, 469 U.S. at p. 423; People v. Stewart,
supra, 33 Cal.4th at p. 445.) Here, nothing in the record
suggests G.P. held inalterable anti-death penalty views or would
find it difficult to vote for death when appropriate, nor does
anything in the record give reason to doubt G.P. could act in
accordance with the law and the court’s instructions, as he
repeatedly and without reservation indicated he would do. The
court erred in excusing G.P. for cause.

             f. Harmless Error
      In a capital case, the erroneous excusal of even one
prospective juror for cause requires automatic reversal of the
death sentence, although not the preceding guilt
determinations. (Witherspoon v. Illinois, supra, 391 U.S. at
pp. 516–518, 521–523; People v. Riccardi (2012) 54 Cal.4th 758,
783; People v. Pearson, supra, 53 Cal.4th at p. 333; People v.
Heard, supra, 31 Cal.4th at p. 966.)




                                  32
                      PEOPLE v. ARMSTRONG
                  Opinion of the Court by Corrigan, J.


      The People ask us to revisit this rule and hold any error
harmless. The rule is not ours to revisit. It has been established
in United States Supreme Court case law. (Gray v. Mississippi
(1987) 481 U.S. 648, 659–668 (plur. opn. of Blackmun, J.); id. at
p. 672 (conc. opn. of Powell, J.); see People v. Riccardi, supra, 54
Cal.4th at p. 783.) Even if a harmless error standard were to
apply, the People fail to explain how the erroneous exclusion of
at least four jurors could be deemed harmless. (See Riccardi, at
p. 845 & fn. 6 (conc. opn. of Cantil-Sakauye, C. J.) [whatever
doubt there might be about the impact of a single erroneous
excusal for cause, the erroneous exclusion of numerous jurors
inevitably will have an “appreciable impact on the final
composition of the jury”].)

          2. Wheeler/Batson Motions
      We turn now to a different aspect of jury selection. The
foregoing Witherspoon/Witt analysis involved the court’s excusal
of prospective jurors for cause. In this section we consider the
prosecution’s exercise of peremptory challenges against jurors
not excused for cause. As we explain, the questions involve
different principles.
      Penny Sigler was a White woman. Armstrong, like
Pearson and Hardy, is an African-American man. During jury
selection, the prosecution exercised four peremptory challenges
against African-American male prospective jurors. Armstrong
objected to the first two peremptories as racially discriminatory.
The court denied these motions, ruling no prima facie case of
discrimination had yet been established. After the third
peremptory, the court found a prima facie case, but after
considering the prosecutor’s proffered explanation, concluded
the peremptory was being exercised for racially neutral reasons.


                                  33
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


The court also revisited the two earlier challenges and asked the
prosecutor to justify these peremptories. In light of the reasons
given, the court ruled these excusals likewise were not based on
race.
      The court initially granted a fourth motion, but after a
recess reversed itself and denied the motion. With the last
African-American male eliminated from the pool, Armstrong
moved for a mistrial. The court denied the motion, noting that
both African-Americans and males were represented on the
jury. The jury as seated included one African-American woman
and five Caucasian men, but no African-American men.
     Armstrong renews his objections on appeal, arguing that
he was deprived of the right to equal protection and trial by a
representative jury. (U.S. Const., 6th, 8th & 14th Amends.; Cal.
Const., art. I, §§ 7, 16.) We conclude there was no error.

             a. Legal Principles
      Peremptory challenges are “designed to be used ‘for any
reason, or no reason at all.’ ” (People v. Scott, supra, 61 Cal.4th
at p. 387, quoting Hernandez v. New York (1991) 500 U.S. 352,
374 (conc. opn. of O’Connor, J.).) But there are limits:
Peremptory challenges may not be used to exclude prospective
jurors based on group membership such as race or gender.
(J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 129; Batson
v. Kentucky (1986) 476 U.S. 79, 97; People v. Wheeler (1978) 22
Cal.3d 258, 276; Code Civ. Proc., § 231.5.) Such use of
peremptory challenges violates both a defendant’s right to 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



                                 34
                      PEOPLE v. ARMSTRONG
                  Opinion of the Court by Corrigan, J.


the United States Constitution.         (People v. Parker (2017) 2
Cal.5th 1184, 1211.)
      “[T]here ‘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. Hensley (2014) 59 Cal.4th 788, 802; see Purkett v.
Elem (1995) 514 U.S. 765, 768.) Under a now familiar three-
step process, 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.’ ” (Johnson
v. California (2005) 545 U.S. 162, 168, fn. omitted; see People v.
Scott, supra, 61 Cal.4th at p. 383.) The defendant’s ultimate
burden is to demonstrate that “it was more likely than not that
the challenge was improperly motivated.” (Johnson, at p. 170.)
The same rules apply to state constitutional claims. (People v.
Chism (2014) 58 Cal.4th 1266, 1313.)
      Different standards apply to the review of first-stage and
third-stage rulings. (Compare People v. Sánchez (2016) 63
Cal.4th 411, 434–435 [first-stage standard] with People v.
Winbush (2017) 2 Cal.5th 402, 434–435 [third-stage standard].)
Armstrong and the People agree that the third-stage standard
applies to Armstrong’s final two motions, but disagree as to the
standard applicable to Armstrong’s first two motions.
Armstrong is correct that the third-stage standard applies to all
four rulings.

                                  35
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


       In response to Armstrong’s first two motions, following
challenges to prospective jurors S.L. and R.C., the court
originally found no prima facie case. However, after finding a
prima facie case in connection with Armstrong’s third motion,
the court chose to revisit its earlier rulings and asked the
prosecutor for a statement of reasons as to each. Upon
reconsideration, the court reaffirmed its determination that
these peremptories rested on race-neutral grounds. The court’s
actions were consistent with the law as it stood at the time of
trial, which required courts finding a prima facie case to solicit
and consider the prosecution’s reasons for every other challenge
against a member of the same group. (People v. McGee (2002)
104 Cal.App.4th 559, 570, disapproved by People v. Avila (2006)
38 Cal.4th 491, 549–550.)
      Trial courts are no longer obligated to revisit their rulings
on earlier Wheeler/Batson motions when they conclude the
defendant has made out a prima facie case in connection with a
later motion. (People v. Hamilton (2009) 45 Cal.4th 863, 899, fn.
10; People v. Williams (2006) 40 Cal.4th 287, 311; People v.
Avila, supra, 38 Cal.4th at p. 549.) However, they have the
power to do so in cases when a subsequent challenge places an
earlier challenge in a new light. (Avila, at p. 552.) When a trial
court revisits an earlier ruling, determines a prima facie case
has been made, solicits reasons from the prosecutor, and rules
on those reasons, its ruling is reviewed in the same fashion as
any other third-stage ruling.
      The court’s reconsidered rulings on prospective jurors S.L.
and R.C. based on reasons solicited from the prosecutor must be
reviewed under the standards applicable to third-stage rulings.
The record does not reveal whether the court reconsidered its
earlier determination that no prima facie case had been made,

                                 36
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


but when a trial court solicits reasons for earlier strikes it had
previously found did not support a prima facie case, we will
assume the court has reversed its earlier determination unless
the record affirmatively demonstrates otherwise. Moreover,
when the sincerity of the reasons given for excusing one juror
bears on the sincerity of the reasons given for excusing a later
juror, those reasons may be considered in evaluating the
peremptory strike against the original juror. (People v. Scott,
supra, 61 Cal.4th at p. 392; People v. Riccardi, supra, 54 Cal.4th
at pp. 786–787.) There is some overlap in the reasons given for
striking S.L. and R.C., and for later striking E.W. and R.P.
Accordingly, we will review all four strikes as third-stage
rulings.
       At the third stage, the genuineness of the justification
offered, not its objective reasonableness, is decisive. (Purkett v.
Elem, supra, 514 U.S. at p. 769; People v. Gutierrez (2017) 2
Cal.5th 1150, 1158.) “[T]he issue comes down to whether the
trial court finds the prosecutor’s race-neutral explanations to be
credible. Credibility can be measured by, among other factors,
the prosecutor’s demeanor; by how reasonable, or how
improbable, the explanations are; and by whether the proffered
rationale has some basis in accepted trial strategy.” (Miller-El
v. Cockrell (2003) 537 U.S. 322, 339; accord, People v. Winbush,
supra, 2 Cal.5th at p. 434.) Because the trial court’s credibility
determination may rest in part on contemporaneous
observations unavailable to the appellate court, we review that
determination “ ‘ “with great restraint” ’ ” and will accord it
deference “[s]o long as the trial court makes a sincere and
reasoned effort to evaluate the nondiscriminatory justifications
offered,” affirming when substantial evidence supports the



                                 37
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


ruling. (People v. Burgener (2003) 29 Cal.4th 833, 864; accord,
People v. Lenix (2008) 44 Cal.4th 602, 613–614.)
      Armstrong contends no deference is due the trial court’s
determinations. We cannot cast aside these findings so lightly.
The record shows that over the course of Armstrong’s four
motions, the prosecutor made a comprehensive record of her
reasons for every strike, whether challenged or not. The trial
judge took the opportunity to debate at length with counsel and
consider thoughtfully the genuineness of the proffered reasons
in light of his own observations. Discussion of the final
Wheeler/Batson challenge alone consumed more than 80 pages
of transcript. In the trial court, Armstrong bore the burden only
of showing by a preponderance of the evidence that purposeful
discrimination was behind the prosecutor’s use of strikes. (See
Johnson v. California, supra, 545 U.S. at p. 170; People v.
Woodruff (2018) 5 Cal.5th 697, 753.) Once the trial court
engaged in a reasoned examination of Armstrong’s showing in
light of the record and determined he had not proven
discrimination, its findings became entitled to “ ‘ “great
deference on appeal” and will not be overturned unless clearly
erroneous.’ ” (People v. Riccardi, supra, 54 Cal.4th at p. 787,
quoting Miller-El v. Cockrell, supra, 537 U.S. at p. 340.)

            b. African-American Men Are a Cognizable Class
      In the trial court, Armstrong argued the use of
peremptories on S.L., R.C., E.W., and R.P. was motivated by
race. Once all four had been excused and his motions denied,
Armstrong sought a mistrial on the ground that all African-
American men had been removed from the jury panel. The court
denied the motion. In this court, Armstrong contends the
prosecutor’s peremptories were exercised to discriminate


                                 38
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


against African-American men specifically, rather than all
African Americans.
      Motions under Wheeler and Batson protect against the
systematic exclusion of distinctive and protected groups from
the jury pool. Armstrong, as the moving party, has the burden
of establishing the challenged jurors are members of a
cognizable class. (People v. Jones (2013) 57 Cal.4th 899, 916.)
The record confirms that the four excluded jurors were African-
American men, and this court’s precedent establishes that, in
addition to groups defined by either race or gender, groups lying
at the intersection of race and gender are cognizable under
Wheeler. (People v. Cleveland (2004) 32 Cal.4th 704, 734; People
v. Boyette (2002) 29 Cal.4th 381, 422; People v. Clair (1992) 2
Cal.4th 629, 652; People v. Motton (1985) 39 Cal.3d 596, 605.) In
line with that precedent, the Court of Appeal has held African-
American men a cognizable class for Wheeler purposes. (People
v. Gray (2001) 87 Cal.App.4th 781, 788–790.) The People
contend that African-American men should not be considered a
cognizable group, pointing to federal cases and to a concurring
opinion disagreeing with the approach this court has taken.
(People v. Young (2005) 34 Cal.4th 1149, 1235–1238 (conc. opn.
of Brown, J.).) Settled law dictates otherwise.

             c. Prospective Juror S.L.
      After Hovey voir dire, the prosecutor moved to excuse S.L.
for cause. She expressed concern that S.L. “hesitated on quite a
few of his decisions, especially those asking whether or not he
could impose the death penalty.” S.L favored rehabilitation, and
the prosecutor was unsure whether S.L. was for or against the
death penalty. Based on these and other views, the prosecutor




                                 39
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


was of the “opinion that [S.L.] would be unable to impose the
death penalty.” The court denied the motion.
      Following regular voir dire, the prosecutor used a
peremptory on S.L. When initially denying Armstrong’s
Wheeler/Batson motion, the court referenced its earlier denial of
excusal for cause, which it described as “a very close challenge,”
and concluded based on courtroom observations that the strike
rested on S.L.’s reluctance to impose death: “I can understand
why [the prosecutor] would want to excuse this juror, because at
the Hovey challenge, even though this court did not grant the
challenge for cause, this juror had some reservations about
imposing the penalty of death, based on his demeanor, [and] my
belief is based upon the earlier challenge for cause during the
Hovey process, that the motive to excuse this juror is not based
on race, but because of [the prosecutor’s] perceived perception of
this juror’s inability to be able to impose death at the penalty
phase.” When denying the challenge for cause, the court had
anticipated the juror later would be the subject of a peremptory:
“In making that ruling at that time I realized that there is an
issue that this juror may, as the prosecutor [had] perceived at
the time, may not be suitable, because that person waffled on
whether they could impose death or not, believing in a
rehabilitation system, and [that the defendant] has to commit a
hateful crime.”
      As noted, the parties and court returned to the strike of
S.L. when the court found a prima facie case in response to a
subsequent Wheeler/Batson motion in connection with a
different juror. Defending the strike, the prosecutor highlighted
numerous answers S.L. had given that might suggest reluctance
to impose the death penalty. The court credited this reason,



                                 40
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


again noting that in its view S.L. nearly could have been excused
for cause based on his death penalty views.
        Initially, we note rulings made in response to assertions
that “the juror did hesitate for [a] very long time before finally
indicating that he could impose the death penalty” and based in
part on observations of a juror’s “demeanor” are particularly
difficult to second guess. Only the trial court is in a position to
observe these matters. The court can hear the juror’s tone and
inflection and see whether a juror hesitates or struggles with
particular answers in a way the record may never reveal. (See
People v. Lenix, supra, 44 Cal.4th at pp. 626–627.) Because the
“trial court is best situated to evaluate both the words and the
demeanor of jurors who are peremptorily challenged, as well as
the credibility of the prosecutor who exercised those strikes[,]
. . . ‘these determinations of credibility and demeanor lie
peculiarly within a trial judge's province,’ and ‘in the absence of
exceptional circumstances, we [will] defer to the trial court.’ ”
(Davis v. Ayala (2015) 576 U.S. ___, ___ [135 S.Ct. 2187, 2201].)
       What can be discerned from the record supports the
prosecutor’s and trial court’s assessments of S.L. As the
prosecutor recited, S.L. thought rehabilitation “important” and
said, “[I]f there is anything about [a defendant’s] background
that I would feel maybe he could be rehabilitated, then I would
vote for life imprisonment.” For a first time offender without a
prior history of “hateful decisions,” S.L. thought “maybe life in
prison would be better” and thus would lean toward voting for
life. He gave conflicting answers as to whether he would require
the People to prove just one, multiple, or all special
circumstances before voting for death. S.L. would require proof
of an intent to kill. S.L. “probably would” vote for life without
the possibility of parole absent evidence the defendant would

                                 41
                      PEOPLE v. ARMSTRONG
                  Opinion of the Court by Corrigan, J.


reoffend in prison. S.L. thought life in prison was a more severe
punishment than death because “the person would have the rest
of their lives to think about what they had done.”6 S.L. was
unsure whether California should abolish the death penalty.
      A juror’s reservations about imposing the death penalty
are an acceptable race-neutral basis for exercising a
peremptory. (E.g., People v. Winbush, supra, 2 Cal.5th at p. 436;
People v. Lomax (2010) 49 Cal.4th 530, 572; People v. Taylor
(2010) 48 Cal.4th 574, 603; People v. Burgener, supra, 29 Cal.4th
at 864.) The view that life without possibility of parole is a more
severe punishment than death is also an “obvious race-neutral
ground[]” for challenging a prospective juror. (People v. Davis
(2009) 46 Cal.4th 539, 584.)
      Armstrong models his claim after Miller-El v. Dretke
(2005) 545 U.S. 231. Two factors the Supreme Court weighed
heavily there, the apparently discriminatory use of a Texas
procedure called “jury shuffling” and direct evidence of a
systemic, historical policy of excluding African-Americans from
juries in the county, are absent here. (Miller-El, at pp. 253–255,
263–265.) Armstrong points to two other factors: the argument
that similar White jurors were not challenged, and that the
prosecutor engaged in disparate questioning. Neither of these
factors is demonstrated in the record.
     Armstrong identifies four jurors and an alternate who, in
response to one of the two questions on the juror questionnaire


6
      In his questionnaire, S.L. also said life without possibility
of parole meant a defendant would “have to live with [his crime]
for the rest of [his] life” and “you have the rest of your life to be
punished.”



                                  42
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


comparing death and life without possibility of parole, indicated
life was, or were unsure whether it might be, a worse
punishment for a defendant.7 That these jurors were allowed to
serve does not refute the trial court’s determination that the
prosecutor’s concern was sincere. Examining the voir dire as a
whole, the prosecutor showed by word and deed that she
afforded significance to whether prospective jurors thought life
in prison without parole a more severe penalty than death. She
routinely questioned White jurors of both genders about the
respective severity of death and life without parole. She
challenged for cause or used peremptories against many White
jurors who did not clearly view death as more severe. The
prosecutor’s concern extended even to jurors who considered the
question in terms of how they themselves would compare the
punishments if each were imposed on them.
      In response to Armstrong’s Wheeler/Batson motions, the
prosecutor articulated her thinking about this consideration: “I
don’t believe that somebody . . . who believe[s] that life without
the possibility of parole is a more severe punishment than death
can actually impose the death penalty, because they believe that
spending the rest of their life in prison would be the more severe
punishment that could be imposed. [¶] I have exercised my
peremptory challenges with respect to those jurors who have
indicated” they hold that belief. Whether the prosecutor was


7
      The jury questionnaire asked: “Overall, in considering
general issues of punishment, which do you think is worse for
a defendant,” death or life in prison without the possibility of
parole? A second question asked, “Which do you believe is a
more severe punishment,” death or life without parole? In
response to the second question, these jurors and the alternate,
unlike S.L., indicated death was the more severe punishment.


                                 43
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


right in her thinking, or whether we would share her concerns,
is irrelevant. What matters is the genuineness of this view and
its use as a criterion to distinguish among jurors. Exercising a
peremptory to strike a juror who thinks death is a less severe
punishment than life in prison without possibility of parole can
be a “reasonable,” race-neutral basis (Miller-El v. Dretke, supra,
545 U.S. at p. 248) if not used in a racially discriminatory way.
This is not a case like Miller-El where the prosecutor displayed
only selective concern. Instead, the issue was a frequent part of
the prosecutor’s questioning of both White and African-
American jurors throughout the Hovey voir dire.8
      That the prosecutor did not eliminate every juror who had
even some doubt as to the relative severity of the penalties does
not demonstrate that the trial court committed clear error in
finding the concern genuine. The jury questionnaire asked both
generally whether a death or life sentence was more severe and
specifically which penalty was worse for the defendant. (See
ante, fn. 7.) More than 30 percent of the jury pool indicated that
life was the harsher penalty in response to both questions, and
nearly half indicated as much on at least one of the two
questions.9 Based on this representation in the jury pool, one
would have expected six of the 18 jurors and alternates to think


8
      In addition to her use of peremptories, the prosecutor
successfully moved to excuse for cause a juror who believed life
without possibility of parole was the more severe penalty and
for that reason would vote for life when the aggravating
circumstances outweighed the mitigating circumstances.
9
      By our count, of the 406 prospective jurors who answered,
fully 190 indicated life was a harsher penalty than death in
response to one question or the other, and 133 so indicated in
response to both.


                                 44
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


a life sentence was harsher both in general and specifically, and
eight to have answered that way on at least one of the two
questions. The prosecutor’s focus on the issue produced a jury
that contained no one in the first category, and only four jurors
in the second.
      The prosecutor focused on these questions because she
believed they indicated a reluctance to impose death, but they
were not the only ones that might reveal reluctance. The
prosecutor was entitled to consider the full set of each juror’s
responses in deciding whether they could be persuaded to vote
for death if appropriate. Each of the jurors who sat had other
answers that might temper concern. For example, in contrast
to S.L., each rejected the idea that the death penalty should be
abolished.
      Armstrong also identifies two jurors and an alternate who
indicated rehabilitation or redemption might play a role in their
thinking. Juror No. 4 believed that life might be appropriate for
a remorseful first time offender who still had something to
contribute to society, but did not think she could identify
whether someone was remorseful, and was unequivocal about
her ability to vote for death for a first time offender; S.L. would
lean toward life for all first offenders. Juror No. 11 thought of
death as an acceptable way to punish the unredeemable and
would consider whether there was “hope for [the defendant] in
our society” when weighing life and death. But unlike S.L.,
Juror No. 11 believed death was a more severe punishment.
Unlike S.L., Juror No. 11 was clear that the death penalty
should not be abolished. Her collective answers suggest
openness to the death penalty in a wider range of




                                 45
                      PEOPLE v. ARMSTRONG
                  Opinion of the Court by Corrigan, J.


circumstances.10 Finally, Alternate Juror No. 6 endorsed life in
prison for those who are “truly sorry and can be rehabilitated to
some usefulness and good.”          But nothing else in her
questionnaire or voir dire suggested hesitation about imposing
the death penalty.
      Armstrong objects that the prosecutor used differential
questioning for S.L. and other prospective jurors, who were not
asked whether they could impose the death penalty under
specific special circumstances and whether they would require
that more than one special circumstance be proven. The record
refutes this contention. The prosecutor employed the same
general line of questioning with numerous prospective jurors
who were not African-American men.
      Finally, Armstrong argues that S.L.’s answers in his
questionnaire and on voir dire gave no suggestion he could not
follow the law. While this may be true, the argument misses the
point. Unlike a for-cause challenge under Witherspoon and Witt,
the issue here is not whether a juror held views that would
impair his or her ability to follow the law. Unimpaired jurors
may still be the subject of valid peremptory strikes. The issue
instead is whether the prosecutor held a genuine race-neutral
reason for exercising a strike.
      “In a capital case, it is not surprising for prospective jurors
to express varying degrees of hesitancy about voting for a death
verdict. Few are likely to have experienced a need to make a
comparable decision at any prior time in their lives. As a result,
both the prosecution and the defense may be required to make

10
      S.L. described the death penalty’s only purpose as a tool to
punish “people [who] murder and can’t or won’t stop even if they
were in prison for life.”


                                  46
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


fine judgment calls about which jurors are more or less willing
to vote for the ultimate punishment. These judgment calls may
involve a comparison of responses that differ in only nuanced
respects, as well as a sensitive assessment of jurors’ demeanor.”
(Davis v. Ayala, supra, 576 U.S. at p. ___ [135 S.Ct. at p. 2201].)
The trial court determined the use of a peremptory to excuse
S.L. was the product of just such a judgment call. Its
determination was supported by substantial evidence and thus
not clear error.11

             d. Prospective Juror R.C.
      Armstrong challenged the prosecution’s use of its eleventh
peremptory on R.C. The court initially found no prima facie
case. It noted both R.C.’s failure to give direct answers and a
developing friction between R.C. and the prosecutor as
providing neutral reasons for the peremptory. When the court
retroactively solicited a statement of reasons following use of a
peremptory to strike a third African-American male, the
prosecutor explained she struck R.C. because he had memory
issues, expressed an unwillingness to set aside his belief system,
repeatedly gave nonanswers or revealed no opinions about the
death penalty, and clashed with the prosecutor during voir dire.

11
       Armstrong relies on People v. Silva (2001) 25 Cal.4th 345,
385 to argue that no deference is due the trial court’s
determinations and we should consider de novo the validity of
this strike. In Silva, we carved out an exception to the usual
rule of deference because the record contained no support for the
prosecutor’s stated reasons and the trial court did not inquire
into those reasons. (Id. at pp. 376–377, 385–386.) No similar
justification for applying the exception appears here where, as
discussed, the record supports the prosecutor’s reasons and the
trial court correctly recalled and considered the Hovey voir dire
that bore on those reasons.


                                 47
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


After hearing the prosecutor’s explanations, which aligned with
the reasons identified in the earlier ruling, the court accepted
them.
      The record supports the court’s determination. R.C.’s
questionnaire revealed little to nothing about his death penalty
views. In voir dire, the prosecutor had an equally difficult time
discovering his feelings on the subject. R.C. acknowledged he
had memory difficulties. He also wrote on his questionnaire
that he would not set aside his religious, social, and
philosophical beliefs, although he later indicated he had
misunderstood the question. Finally, review of the voir dire
transcript confirms that exchanges between the prosecutor and
R.C. became so combative that counsel and the court needed a
sidebar to discuss whether the prosecutor could ask ancillary
questions about why R.C. was resisting her inquiries.12 The

12
     Sample exchanges:
     Q: . . . what subjects did you teach?
     A: You’re amazing. You’re amazing. . . .
     Q: You said I was amazing.            Did you mean that
sarcastically?
     A: I don’t think I was laughing.
     Q: Okay. So why did you say I’m amazing?
     A: I think you are. It’s simple to me.

     Q: . . . would you say that you are for or against the death
penalty?
     A: Lady, I keep telling you the same thing. I don’t
understand why you keep asking me the same thing.
     Q: Can you —
     A: I do not know your name, that’s why I called you lady.



                                 48
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.




       Q: That’s nice. At least you didn’t call me something else.
       A: I don’t have any of that other in my heart or in my mind.
I just want some clear questions, so I can get some clear answers
and get out of here.
       Q: Okay. The question I have in my mind is based on your
answers. Are you for or against the death penalty?
       A: My opinion is the same as it was when we started this.
       Q: So you have no opinion one way or the other?
       A: No.

     Q: Based on what you just said, it sounds like, to me, that
you believe in the death penalty. Is that an accurate statement?
     A: Whatever you want to believe is fine with me.

      Q: But I’ve asked you what your opinion is about the death
penalty, and you say you have no opinion. So that doesn’t make
sense to me that you can impose it, but you don’t have an opinion
about it.
      A: I’m pretty clear, and it’s okay with me. . . . Where I’m
coming from is that I’m very clear about what I’m saying to you.
And what you believe is personal, you know, I don’t — I don’t
even — I’m not even willing to help you, but that’s personal, I
think.

      Q: Can you come out here, look him in the eye and say
“Death”?
      A: Why are you asking me that?
      Q: Because that’s what you have to do at the end, if you
come back with a death verdict. The court is going to poll you,
he’s going to ask what your verdict is, and the defendant is going
to be sitting right there looking you in the eye. Can you look
him back in the eye and say “Death”?
      A: If you were the defendant, I could look you in your eye
and say “Death.”


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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


prosecutor “felt that my client would not be best served by a
juror who has a personality conflict with me as the lawyer,
because I think that would get in the way of being able to
evaluate the evidence . . . and would cause him to sway towards
the defense.” She was entitled to exercise a peremptory on these
bases, and the court had ample basis for viewing the reason as
genuine.
      Armstrong concedes a conflict developed between the
prosecutor and R.C., but lays blame for that conflict solely on
the prosecutor for allegedly provocative, confrontational, and
insulting questions. Our review of the voir dire does not support
this interpretation. More fundamentally, the trial judge
observed the questioning and concluded the personality conflict
was genuine rather than manufactured by the prosecutor. In
later explaining its ruling, the court said: “This juror . . . was,
in this court’s observation, a belligerent and hostile juror toward
the prosecutor during her questioning. He refused to answer
many of the same reasonable questions posed to the other jurors,
specifically whether he could impose death . . . . The sum and
substance of his answers were that You’ll have to find out later.”
Armstrong dismisses that determination, but it appears to be a
legitimate conclusion based explicitly on the court’s
observations.
      Armstrong also contends that comparative juror analysis
shows the reasons for R.C.’s excusal were pretextual, identifying
a handful of other jurors who he asserts had similarly ill-formed
views of the death penalty. That other prospective jurors may
have been similar in one or two regards is not decisive. (People
v. Winbush, supra, 2 Cal.5th at p. 443.) No other juror engaged
the prosecutor in pointed verbal sparring in the way R.C. did.
What occurred here was unique. Consequently, no other juror’s

                                 50
                      PEOPLE v. ARMSTRONG
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combination of questionnaire and voir dire responses is
comparable to R.C.’s. The court did not abuse its discretion in
determining that the prosecutor’s race-neutral reasons for
excusing R.C., including his nonresponsiveness and the tenor of
the exchanges during voir dire, were genuine.

              e. Prospective Juror E.W.
       When Armstrong challenged the use of a peremptory on
prospective juror E.W., the court found a prima facie case and
solicited the prosecution’s reasons. After discussing a number
of responses from E.W. that gave her pause, the prosecutor
identified two as dispositive: “The two things that really bother
me [are] that he believes that life without the possibility of
parole is the most severe sentence and he also believes that since
if the death penalty is imposed it cause[s] so much additional
litigation, he doesn’t believe it should be, just let it go, is what
he says. To me that is indicative of what his verdict is going to
be.” Later, she reiterated that E.W.’s view of life without
possibility of parole as the more severe sentence was her
“primary motivation for exercising the peremptory challenge,”
and she had exercised peremptories against Whites who held
the same view. The trial court evaluated these concerns and
concluded they were genuine. Because the prosecutor’s “concern
has nothing to do with race[,] it has to do with whether or not
[E.W.] could impose the death penalty,” the court denied the
motion.
       The record substantiates that E.W. held the views the
prosecutor ascribed to him. He wrote that the death penalty in
its “current form is so slow that it’s really useless. Justice
delayed.” He was “OK [with the death penalty] in principle, but
if it creates so much additional litigation, maybe [the state]


                                  51
                     PEOPLE v. ARMSTRONG
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should just let it go.” He circled that life in prison without
possibility of parole was a more severe punishment than death
and added, “To me, I’d rather die.” E.W. confirmed this view in
voir dire. E.W. also thought “the appeals process so long that it
tends to be life in prison.”
       Armstrong stresses that in E.W.’s questionnaire and voir
dire, E.W. said his views would not affect his verdict. So does
the dissenting opinion. (Dis. opn., post, at pp. 18–20.) They are
correct about the record, but incorrect about its significance.
E.W. was not excused for cause. Instead, the prosecution was
entitled to use a peremptory if, as an advocate, she was
concerned he would resist her view of the case. The ultimate
issue in a Wheeler/Batson motion is not whether E.W.’s views
would substantially impair his ability to vote for execution. The
question instead is whether the prosecutor genuinely believed
those views would incline E.W. to vote for life, and whether that
belief was the true basis for the exercise of a peremptory. The
trial court accepted this reason after voir dire. Armstrong and
the dissent must do more than argue that the prosecutor’s
concerns might have been unfounded. The “inquiry is focused
on whether the proffered neutral reasons are subjectively
genuine, not on how objectively reasonable they are.” (People v.
Melendez (2016) 2 Cal.5th 1, 15.) The reasons must be sincere
and nondiscriminatory, but they need not be universally shared.
      The dissenting opinion accepts that “ ‘we exercise great
restraint in reviewing a prosecutor’s explanations and typically
afford deference to a trial court’s Batson/Wheeler rulings.’ ”
(Dis. opn., post, at p. 23, quoting People v. Gutierrez, supra, 2
Cal.5th at p. 1172; see People v. Melendez, supra, 2 Cal.5th at
p. 15 [“We review the trial court’s determination with restraint,
presume the prosecutor has exercised the challenges in a

                                 52
                     PEOPLE v. ARMSTRONG
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constitutional manner, and defer to the trial court’s ability to
distinguish genuine reasons from sham excuses.”].)           We
departed from that stance of deference in Gutierrez, but only
because the proffered reasons lacked inherent plausibility or
were contradicted by the record, and the trial court did not ask
the prosecutor to elaborate. (Gutierrez, at pp. 1169–1172; see
People v. Silva, supra, 25 Cal.4th at p. 386.) Here, in contrast,
the reasons the prosecutor relied upon could well make a juror
less desirable for a prosecution seeking the death penalty and
were borne out by the record.
      The dissenting opinion nevertheless offers two reasons for
according the trial court’s finding no deference. First, it
suggests the court failed to challenge the prosecutor’s assertion
that she was striking all prospective jurors who believed life
without parole was a more severe sentence than death. The
dissenting opinion accepts that E.W. indicated he thought life
without parole a more severe penalty than death, and that the
prosecutor was correct in stating every seated juror had
answered differently. But, according to the dissent, the trial
court should have noticed that four other jurors or alternates
indicated in response to a different question that life without
possibility of parole was worse for defendants, and these
answers should have spurred further inquiry from the court.
(Dis. opn., post, at p. 16.)
      However, when the prosecutor struck E.W. and the trial
court considered the Wheeler/Batson challenge, only one of the
four supposedly comparable jurors (Juror No. 5) was in the




                                 53
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box.13 That is, no juror in the box save E.W. had indicated life
was the more severe punishment, and only one other thought
life worse for a defendant. That the trial court failed to observe
one juror had answered one of the two questions on the
questionnaire asking about the two penalties’ relative
harshness (see ante, fn. 7) in a manner that could have
concerned the prosecutor does not show that the court’s inquiry
was insufficiently “ ‘sincere and reasoned.’ ” (People v. Lenix,
supra, 44 Cal.4th at p. 614.)
      The meager representation of these views on the panel,
notwithstanding that nearly half the prospective jurors held
such views, was the product of weeks the prosecutor spent
pressing, challenging for cause, and striking jurors who did not
consider death more severe than life in prison without parole.
(See ante, pp. 42–45.)14 The trial court, unlike this one, observed


13
      The prospective jurors who ultimately served as Jurors
No. 4 and No. 9 were drawn randomly late in the process, after
E.W. had been struck, when both sides were low on strikes and
had to weigh carefully the pros and cons of the provisional panel
against the characteristics of the dwindling pool of potential
replacements. Alternate Juror No. 5 was chosen much later as
part of a separate process.
14
      Two examples illustrate the prosecutor’s approach.
Prospective Juror No. 255, a White female, indicated in her
questionnaire that life and death were equally severe penalties.
The prosecutor questioned her about this and got her to agree
that death was actually more severe.            Unsatisfied, the
prosecutor later exercised a peremptory against the woman, and
explained on the record that her sole reason was because she
thought the juror still felt life was as severe a punishment as
death.
      Prospective Juror No. 9803, a White male, indicated on his
questionnaire that life was more severe than death. The


                                 54
                     PEOPLE v. ARMSTRONG
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those weeks of questioning directed at jurors of all races and
genders. Its observations informed its judgments about whether
the prosecutor’s stated concern was genuine. If the deference
we are required to accord the trial court’s finding (Davis v.
Ayala, supra, 576 U.S. at p. ___ [135 S.Ct. at p. 2199]) means
anything, it means that first-hand experience merits some
weight. Given a justification that (1) was inherently plausible,
(2) was largely supported by the record of the prosecutor’s
behavior, and (3) appeared to the trial court to be subjectively
genuine, the trial court was not legally obligated to inquire
further.
       The record offers factual and statistical support for the
genuineness of the prosecutor’s concern about jurors who, like
E.W., thought life without parole a more severe penalty. Unable
to contest that the prosecutor winnowed out all jurors who
thought life the more severe penalty, and nearly all who thought
it a fate worse than death for the defendant, the dissent would
shift the focus from whether the prosecutor’s concern was
genuine to whether specific statements she made in illustrating
that concern were not just substantially accurate but
universally true. This misstates the nature of the trial court’s
inquiry, and ours. That the prosecutor may have succeeded in
eliminating only nearly all, rather than all, the jurors the


prosecutor asked him whether this answer meant he would vote
for life. The juror said it did not. Again unsatisfied, the
prosecutor struck him and gave as her sole reason that the juror
felt life a more severe punishment than death.
        These and other instances also reflect the prosecutor’s
consistent reluctance, for prospective jurors of all races and
genders, to put faith in voir dire answers that hedged on views
expressed in the jurors’ questionnaires.


                                 55
                     PEOPLE v. ARMSTRONG
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dissent deems comparable does not call into question the
sincerity of her concern.
        Second, the dissenting opinion concludes that, on its view
of the cold record, the prosecutor should have been no more
concerned by E.W.’s death penalty views than those of several
jurors the prosecutor did not strike. (Dis. opn., post, at pp. 18–
20.) The conclusion fails because the jurors are not comparable.
E.W. thought life without possibility of parole the more severe
penalty; Juror No. 5, the only one of the comparison jurors on
the panel when E.W. was struck, did not, explaining that
“[d]eath is the end forever — prison for life is still life.” Where
E.W. described the death penalty as “useless” and a candidate
for abandonment, Juror No. 5 saw the death penalty as a
“needed though sad way to punish someone.” The same is true
of other jurors later added to the panel and now compared to
E.W. with the benefit of hindsight. Juror No. 4 thought death
more severe (“Death is final”) and wrote: “The punishment has
to fit the crime and I think that some[]times [the death penalty]
is warranted.” Juror No. 9 believed death the more severe
penalty and wrote “I have no problem with this law” and “In
some cases[,] it is justice.” Finally, Alternate Juror No. 5
thought the death penalty more severe and wrote of the penalty,
“There may be times when it is necessary.” A prosecutor could
rationally distinguish between prospective jurors who thought
death a more severe and necessary penalty and one who thought
it less severe and useless. The record supports the prosecutor’s
assertion that she had more reason to be concerned about E.W.’s
potential verdict than a verdict from jurors the dissent and
Armstrong posit as comparable.
     Armstrong also identifies jurors who indicated they had
not thought about their support or opposition for the death

                                 56
                     PEOPLE v. ARMSTRONG
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penalty before. But the proffered explanation was not that E.W.
had never thought about the death penalty. The prosecutor was
concerned instead about the views he had actually developed:
E.W. could not say he was affirmatively in favor of the death
penalty, and he thought perhaps it should be abandoned.
Finally, Armstrong points out other jurors who, like E.W.,
indicated that they thought the death penalty was imposed too
seldom or too randomly. But the prosecutor never identified this
as a basis for striking E.W. Her concern was that E.W. thought
a life sentence more severe than the death penalty, which should
perhaps be discontinued. Seated jurors and alternates did not
share these views.
       Armstrong and the dissenting opinion also highlight that
the prosecutor mentioned E.W.’s profession, engineering, as an
area of concern, explaining she feared he might put her to a
higher standard of proof. (Dis. opn., post, at p. 8.) The
prosecutor did not identify this as one of the “two things that
really bother me” about E.W., and the trial court did not
originally consider the prosecutor to have proffered it as a
justification. We may infer that in the prosecutor’s eyes the
juror’s profession alone was an insufficient reason to exercise a
strike.15
      The fact another engineer, Juror No. 11, remained on the
jury does not demonstrate the expressed doubt about engineers,
as part of the overall calculus, was insincere. The seated juror

15
      Later in voir dire, the prosecutor described her general
approach to strikes and listed five areas of principal concern,
none of which focused on a juror’s profession: (1) belief that life
in prison was as or more severe a punishment than death; (2)
belief in rehabilitation; (3) bad experiences with the police; (4)
reluctance to judge others; and (5) prior service on a hung jury.


                                 57
                     PEOPLE v. ARMSTRONG
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differed from E.W. on each of the two grounds the prosecutor
gave as her principal reasons for exercising a strike. Unlike
E.W., Juror No. 11 indicated death was a more severe
punishment than life in prison. Unlike E.W., Juror No. 11 did
not think the state should consider abandoning the death
penalty. An engineer with these views might be acceptable,
even if not ideal, while an engineer with views like E.W.’s was
deemed too big a risk to take in selecting the jury. Comparative
juror analysis has force “when the compared jurors have
expressed ‘a substantially similar combination of responses,’ in
all material respects, to the jurors excused.” (People v. Winbush,
supra, 2 Cal.5th at p. 443.) No such combination appears here.
      The dissenting opinion is unclear how other
considerations, such as more prosecution-friendly views at the
penalty phase, might outweigh concerns that a prospective juror
would be harder to persuade at the guilt phase. (Dis. opn., post,
at p. 9.) This is not a conundrum. A prosecutor with an
exceptionally strong guilt phase case but a weaker penalty
phase case might be willing to trade some small risk of an
unfavorable guilt phase verdict for better odds of a desired
penalty phase verdict. A prosecutor need not strike every single
juror with a particular trait, even those with other redeeming
qualities, to demonstrate that concerns about the trait are
genuine.16


16
      Alternatively, it is possible that in the course of reviewing
50-page questionnaires, each containing responses to 237
questions, from more than 400 jurors — more than 20,000 pages
in all — the prosecutor, defense counsel, and trial court all
overlooked Juror No. 11’s profession. Neither at the time nor in
a later new trial motion rearguing the Wheeler/Batson motions


                                 58
                     PEOPLE v. ARMSTRONG
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       This court and the United States Supreme Court have
previously recognized that comparative juror analysis can be a
useful tool, but also one that has some “inherent limitations.”
(People v. Lenix, supra, 44 Cal.4th at p. 622; see Snyder v.
Louisiana (2008) 552 U.S. 472, 483.) “Moreover, the selection of
a jury is a fluid process, with challenges for cause and
peremptory strikes continually changing the composition of the
jury before it is finally empanelled. As we noted in People v.
Johnson (1989) 47 Cal.3d 1194: ‘[T]he particular combination
or mix of jurors which a lawyer seeks may, and often does,
change as certain jurors are removed or seated in the jury box.
It may be acceptable, for example, to have one juror with a
particular point of view but unacceptable to have more than one
with that view. If the panel as seated appears to contain a
sufficient number of jurors who appear strong-willed and
favorable to a lawyer’s position, the lawyer might be satisfied
with a jury that includes one or more passive or timid appearing
jurors. However, if one or more of the supposed favorable or
strong jurors is excused either for cause or [by] peremptory
challenge and the replacement jurors appear to be passive or
timid types, it would not be unusual or unreasonable for the
lawyer to peremptorily challenge one of these apparently less
favorable jurors even though other similar types remain. These
same considerations apply when considering the age, education,
training, employment, prior jury service, and experience of the
prospective jurors.’ (Id. at p. 1220.)” (Lenix, at p. 623.)
      “Each juror becomes, to a certain degree, a risk taken.
Voir dire is a process of risk assessment. As the Supreme Court


did defense counsel argue the challenge to E.W. and the failure
to strike Juror No. 11 were inconsistent.


                                 59
                      PEOPLE v. ARMSTRONG
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observed, ‘potential jurors are not products of a set of cookie
cutters.’ (Miller-El [v. Dretke], supra, 545 U.S. at p. 247, fn. 6.)
Two panelists might give a similar answer on a given point. Yet
the risk posed by one panelist might be offset by other answers,
behavior, attitudes or experiences that make one juror, on
balance, more or less desirable. These realities, and the
complexity of human nature, make a formulaic comparison of
isolated responses an exceptionally poor medium to overturn a
trial court’s factual finding.” (People v. Lenix, supra, 44 Cal.4th
at p. 624.)
      Four months later, when denying Armstrong’s motion for
a new trial, the court determined E.W.’s profession was an
additional genuine race-neutral basis for the strike. In opposing
the new trial motion, the People did not identify E.W.’s
profession as the principal reason for the strike. The court
compared E.W. to Prospective Juror No. 5128, a White male
engineer. As with E.W., the prosecutor questioned No. 5128
about whether his training would lead him to speculate about
every conceivable possibility. Like E.W. and unlike seated Juror
No. 11, this prospective juror also gave other answers reflecting
views on the criminal justice system that concerned the
prosecutor. She unsuccessfully moved to excuse him for cause,
and then was able to excuse him by stipulation.17 The
prosecutor’s approach to No. 5128 is consistent with the
subjective view that while an engineering background alone



17
      The prosecution and defense settled on the final set of
alternate jurors by mutual agreement, rather than by exercising
alternating peremptory challenges. Prospective Juror No. 5128
was not on the agreed-upon list.



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may not warrant a peremptory, in combination with other
factors it may make the juror less desirable.18
       The prosecutor also mentioned a handful of reasons she
deemed less significant, which the trial court did not rule on.
We have cautioned against a trial court “tak[ing] a shortcut in
its determination of the prosecutor’s credibility, picking one
plausible item from [a] list and summarily accepting it without
considering whether the prosecutor’s explanation as a whole”
suggests pretext. (People v. Smith (2018) 4 Cal.5th 1134, 1157.)
No cherry-picking was involved here. The prosecutor herself
highlighted the considerations that concerned her most. The
trial court took her at her word and evaluated those reasons for
their genuineness and neutrality. Once they passed muster, it
was not error to omit express consideration of secondary factors.
      Nor, in any event, do these lesser factors undermine the
trial court’s credibility finding. The voir dire transcript and
E.W.’s questionnaire show that E.W. indicated prosecutors
“tend to be overzealous to convict,” and had had negative
experiences with the police. He believed misconduct by police
and lawyers was inadequately punished and that failure was
one of the most important problems with the criminal justice
system. In addition, E.W. was neither firmly for nor against the

18
      The trial court specifically relied on the prosecution’s
approach to No. 5128 in finding the prosecution’s concerns about
E.W.’s profession genuine. The dissenting opinion would
consider the prosecution’s questioning of that prospective juror
de novo and conclude it demonstrates the prosecution actually
sought to rehabilitate other engineers. (Dis. opn., post, at
pp. 12–14.) We do not read the cold record as revealing any
significant disparity. We should be most hesitant to substitute
our judgment, long after the fact, for the trial court’s comparison
of the examinations it observed.


                                 61
                     PEOPLE v. ARMSTRONG
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death penalty, thought the system needed reform, and was
familiar with legal terminology. These are factors that,
considered with all other circumstances, could fairly give an
advocate pause. They provide no basis for us to substitute our
judgment for that of the trial court’s and conclude the prosecutor
acted with racial bias. (See People v. Lenix, supra, 44 Cal.4th at
p. 613.)
      An advocate who chooses jurors based on racial bias
commits grievous misconduct, for “the very integrity of the
courts is jeopardized when a prosecutor’s discrimination ‘invites
cynicism respecting the jury’s neutrality,’ [citation], and
undermines public confidence in adjudication.” (Miller-El v.
Dretke, supra, 545 U.S. at p. 238.) In guarding against such
corrosive impropriety, judges on the trial court, and on appellate
panels, must be vigilant. The first line of vigilance rests with
those in the trial court, who see and hear the questions,
responses and nuances of the interaction.
      The rules of review also require vigilance, and humility.
Appellate courts must surely call out misconduct. But we are
aided in this endeavor by the trial judge who ruled in the first
instance. In the face of a trial court’s supported factual findings
regarding the genuineness of the prosecutor’s racially neutral
reasons for exercising a strike, we should be hesitant to draw a
contrary conclusion unless well-founded on fair inference,
rather than surmise.
      The trial court in this case determined that the strike of
E.W. was made on genuine, race-neutral bases. Reviewing that
ruling with the deference precedent requires, the record
supports the trial court’s conclusion.




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                     PEOPLE v. ARMSTRONG
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             f. Prospective Juror R.P.
      R.P. was the last African-American man in the jury pool.
Before seeking to excuse him, the prosecutor requested a sidebar
and offered the reasoning behind every peremptory she had
exercised. The prosecutor then gave detailed reasons for
striking R.P. As with S.L. and E.W., she struck him in part
because he thought life in prison a more severe sentence than
death. He also believed that the death penalty was overused,
especially against African-Americans, and that African-
Americans in general were overincarcerated. Third, R.P. had
sat on two prior murder cases, and his service had troubled him.
Finally, one of R.P.’s sons had had a negative experience with
the Long Beach Police Department. A second son had recently
been robbed at gunpoint in Long Beach, and the investigation
was ongoing. The prosecutor feared any future negative
interactions with the Long Beach police could impair R.P.’s
impartiality.
      The court concluded that the prosecutor’s peremptory was
based on her belief R.P. would not impose the death penalty, and
that reason was race-neutral. Nonetheless, it initially granted
the Wheeler/Batson motion because it believed R.P. could impose
a death verdict. Because the prosecutor’s race-neutral reason
was “mistaken,” the court rejected the prosecutor’s exercise of a
peremptory.
      The prosecutor pointed out that the court was applying the
wrong standard. Whether R.P. was unable to vote for death was
a consideration in a for-cause challenge. A Wheeler/Batson
motion, by contrast, examines whether the prosecutor genuinely
believes a juror will be resistant to her side of the case and is
striking him for that race-neutral reason. After asking the
prosecutor to restate her reasons, the court reversed itself and


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denied the Wheeler/Batson motion. The court specifically
concluded that three of the prosecutor’s reasons were genuine
and race-neutral: R.P. found judging others disturbing; thought
the death penalty was overused, especially against African-
Americans; and was concerned about the overincarceration of
African-Americans in general.
      The record supports the court’s determination. R.P. had
served as a juror in two noncapital murder trials. He wrote that
“the aftermath is always disturbing.” Asked about this answer,
R.P. explained: “I carry it with me. I go back over it, I guess —
I don’t want to say second guess, but it’s disturbing. It’s
disturbing to a certain degree when you do judge your fellow
man — for me it is.” Twice more in follow-up questioning he
described the process of jury service as disturbing. In later
questioning, R.P. described his jury experience as “unsettling.”
      R.P. thought the death penalty was “[s]ometimes
overused,” especially on “certain segments of our society.” His
views were informed by other states that imposed moratoriums
on executions and reports of prisoners released based on DNA
evidence. In light of this, R.P. believed the death penalty was “a
serious thing, and we . . . shouldn’t take it lightly. [¶] [M]y
bottom line is, it’s a very serious thing and . . . we shouldn’t rush
to anything. I think we should look at all the facts.” Sometimes
death could be the correct punishment, but “[i]n other instances,
as we’ve seen — in some instances there have been mistakes
made, so I think we should be very careful about what we do.”
      R.P. later clarified that his concerns extended to
incarceration in general: “[T]here are people being released
across the country, where either evidence was not
substantiated, DNA, a lot of different avenues, and my thought


                                  64
                     PEOPLE v. ARMSTRONG
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behind that was we have to look at things beyond just face value,
we have to make certain that things are true.” R.P. was
concerned as well that, in his view, the African-American
community was substantially overrepresented both generally in
prison, and on death row in particular. This disparity suggested
something was “fundamentally wrong” with the criminal justice
system.
       R.P.’s expressed concerns are held by many. Yet they also
provide a legitimate reason why a prosecutor, tasked with
securing the conviction of an African-American defendant for a
crime heavy with racial overtones, might view R.P. as a
problematic juror. The court’s determination that the reason
was genuine and race-neutral finds support in the record. The
concerns R.P. had about the criminal justice system are not
unique to African-Americans: A prospective juror of any
ethnicity might equally share them. In exercising peremptory
challenges, advocates may excuse jurors who have such
concerns, so long as their reasoning does not rest on
impermissible group bias. (See People v. Smith, supra, 4 Cal.5th
at p. 1153; People v. Winbush, supra, 2 Cal.5th at p. 439.)
     Further, given R.P.’s responses about jury service in
noncapital cases, the prosecutor might be legitimately
concerned that he might lean toward a verdict that would be
emotionally less taxing. The record supports the court’s
acceptance of that reason. No other juror gave such answers.
      Armstrong relies on comparative juror analysis to argue
that the prosecutor’s reasons were pretextual. He contends
seated White Juror Nos. 2, 4, 5, 10, and 11, and Alternate Juror
Nos. 5 and 6 were likewise apprehensive in varying degrees
about the prospect of imposing a death verdict. But unlike R.P.,


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none of these jurors had had the visceral experience of serving
on two murder juries and dealing with the emotional aftermath.
Moreover, the court did not rely on a single concern expressed
by the prosecutor, but on three. None of the jurors Armstrong
identifies also expressed concern about overuse of the death
penalty or bias in the criminal justice system. Overlap on one
concern will seldom be sufficient: “Two panelists might give a
similar answer on a given point. Yet the risk posed by one
panelist might be offset by other answers, behavior, attitudes or
experiences that make one juror, on balance, more or less
desirable.” (People v. Lenix, supra, 44 Cal.4th at p. 624.)
      The Constitution makes clear that group bias is
unacceptable. Cases decided over decades have condemned it.
Prospective jurors must be evaluated as individuals, in light of
all the information gleaned during voir dire. What matters is
the full range of responses and whether, because of widespread
similarities aside from race or gender, a reasonable comparison
casts doubt on the honesty of the neutral reasons offered.
Armstrong has not identified jurors with such similarities as to
cast doubt on the trial court’s acceptance of the prosecutor’s
reasons as genuine. Accordingly, he has failed to carry his
burden.

     B. Guilt Phase Evidentiary Issues

         1. Refusal to Admit Out-of-court Evidence of Racial
             Slurs
      Before trial, the prosecutor advised that she intended to
introduce the statement defendant gave to detectives after his
arrest. She offered it as a statement of a party opponent (Evid.
Code, § 1220), but sought to redact parts of it as “self-serving
hearsay.” Armstrong had related that as he, Hardy, and


                                 66
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


Pearson were walking toward the bus stop, “some racial slurs
were said by somebody that was on the opposite side. [¶] . . . [¶]
They was like ‘I hope—like I hope you all die niggers.’ ‘Niggers
I hope you all die.’ ” In response to further questioning,
Armstrong said he heard: “Like, ‘Fuck you niggers’ or ‘the
niggers are gonna die.’ ” After the statements were made,
Hardy started walking across the street and encountered a
woman, later identified as Sigler. Pearson and Armstrong
followed him. Over defense objection, the court ordered the
quoted statements redacted.        Armstrong contends his
statements as to what he heard should have been admitted. He
is correct; the ruling was error.
      The interview Armstrong gave to detectives was an out-of-
court statement offered against him by the prosecution, thus
falling within the hearsay exception for statements of a party.
(Evid. Code, § 1220 [“Evidence of a statement is not made
inadmissible by the hearsay rule when offered against the
declarant in an action to which he is a party”].)19 The prosecutor
argued, in essence, that the words Armstrong attributed to

19
      The text of Evidence Code section 1220 defines the
exception as embracing “a statement” made by a party offered
by an opposing party. The exception is listed in Division 10,
Chapter 2, Article I of the Code, titled “Confessions and
Admissions,” and section 1220 is titled “Admission of party.”
However, Evidence Code section 5 provides: “Division, chapter,
article, and section headings do not in any manner affect the
scope, meaning, or intent of the provisions of this code.” As a
result, and as a general rule, any otherwise relevant “statement”
of a party is admissible against him, regardless of whether the
statement would meet the narrower definition of a confession or
admission. (People v. Rodriguez (2014) 58 Cal.4th 587, 637;
People v. Carpenter (1999) 21 Cal.4th 1016, 1049; Simons, Cal.
Evid. Manual (2018) § 2:28, p. 105.)


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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


Sigler were a second level of hearsay.           They were not
Armstrong’s statements but those of Sigler, who was not a party
to the litigation. As a result, Sigler’s statements, recounted by
Armstrong, did not fall within the exception. If Sigler’s
statements had been offered for their truth, the prosecutor
would have been correct. Sigler’s words were nonetheless
admissible for two reasons: (1) they were not hearsay, and (2)
they were admissible under Evidence Code section 356.
      In arguing that the redacted statements should remain,
the defense was not seeking to prove that all members of
Armstrong’s race, which Sigler rudely maligned, would die, or
even that Sigler hoped for such an outcome. Accordingly, the
defense did not seek to offer Sigler’s words for the truth of their
content. Instead, the defense urged the victim’s statements
were relevant to explain the subsequent conduct of Armstrong
and his companions and to support a conclusion that when they
assaulted Sigler, their motive was revenge, rather than robbery
or rape. “When evidence that certain words were spoken . . . is
admitted to prove that the words were uttered and not to prove
their truth, the evidence is not hearsay. (People v. Smith
[(2009)] 179 Cal.App.4th 986, 1003 . . . .)” (Simons, Cal. Evid.
Manual, supra, § 2:5, p. 84.)
      To the extent the prosecution argued Sigler’s slurs fell
outside Evidence Code section 1220, because the prosecution
was not seeking to introduce them, they nevertheless were
admissible under section 356, often called the rule of
completeness. That rule provides: “Where part of an act,
declaration, conversation, or writing is given in evidence by one
party, the whole on the same subject may be inquired into by an
adverse party; when a letter is read, the answer may be given;
and when a detached act, declaration, conversation, or writing

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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


is given in evidence, any other act, declaration, conversation, or
writing which is necessary to make it understood may also be
given in evidence.” (Evid. Code, § 356.)
      “The purpose of [Evidence Code section 356] is to prevent
the use of selected aspects of a conversation, act, declaration, or
writing, so as to create a misleading impression on the subjects
addressed. [Citation.] Thus, if a party’s oral admissions have
been introduced in evidence, he may show other portions of the
same interview or conversation, even if they are self-serving,
which ‘have some bearing upon, or connection with, the
admission . . . in evidence.’ ” (People v. Arias (1996) 13 Cal.4th
92, 156.) The rule reflects the “ ‘ “equitable notion” ’ ” that a
party seeking introduction of one part of a statement cannot
selectively object to introduction of other parts necessary to give
context. (People v. Melendez, supra, 2 Cal.5th at p. 26.)
“Although framed as an expansion of the concept of relevancy,
Evidence Code [section] 356 most often operates in the manner
of a hearsay exception.” (Simons, Cal. Evid. Manual, supra,
§ 1.16, p. 21.)
      The redaction here allowed the prosecution to create a
misleading impression. As Armstrong originally recounted, the
men were walking toward a bus stop when someone shouted
racial slurs from across the street. The yelling prompted Hardy
to cross the street and confront the person who had shouted.
When he approached Sigler, Hardy asked if she would perform
an act of oral sex on all three men for $50. Sigler responded with
a grunted “no,” walked past Hardy and Pearson, and slapped
Armstrong as she passed him as well. Sigler then walked a
distance away, extended both middle fingers, and hurled
additional racial epithets. The full version recounts that the
men were unaware of Sigler’s presence and only approached her

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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


after she insulted them in a racially-charged manner. The
redacted version makes it appear that the men approached
Sigler because she was a woman walking alone at night and
began the encounter by asking her to engage in an act of
prostitution. If the prosecution wanted to introduce the
remainder of Armstrong’s statement under Evidence Code
section 1220, Armstrong was entitled to include the redacted
portion under section 356 to avoid mischaracterization.20
      As we discuss in greater detail when addressing the claim
of prosecutorial misconduct, we conclude that the error does not
require reversal of the guilt judgments. (See post, pt. II.D.1.)

          2. Refusal To Admit Victim’s Toxicology Report
      Before trial, the prosecution moved to exclude a medical
examiner’s toxicology report showing Sigler was intoxicated on
the night she was killed. Defense counsel argued Sigler’s
intoxication was relevant to corroborate Armstrong’s testimony
about the racial epithets, and to support an argument that
Armstrong acted out of revenge rather than an intent to rob,
rape, or kill. The court granted the motion, ruling the relevance,
if any, of Sigler’s potential intoxication was substantially
outweighed by other considerations. (Evid. Code, § 352.)



20
      A defendant may not use the prosecution’s introduction of
his out-of-court-statements as an opportunity to introduce
“extraneous statements contained in the recording” that might
favor him, without the burden of testifying and submitting to
cross-examination. (People v. Gurule (2002) 28 Cal.4th 557, 604;
see id. at p. 605.) But the rule is different when, as here, the
portions the prosecution seeks to redact are not extraneous but
integral to an understanding of the course of conduct the
admitted portions describe.


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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


      The toxicology report is the same report we concluded was
properly excluded as irrelevant in People v. Hardy, supra, 5
Cal.5th at pages 86–87. In Hardy, as here, the defendant
argued the report tended to corroborate allegations that Sigler
had issued racial slurs before she was raped and killed. The
report was properly excluded there because “the prosecution
never argued that Sigler did not yell a racial slur; indeed, she
said during her opening statement that the jury would ‘hear
testimony or evidence that [Sigler] made some racial remarks,
and that [Hardy] and his companions approached her as a result
of these.’ ” (Id. at p. 87.) In Hardy’s trial, the prosecution
acknowledged Sigler’s shouted slurs.           The fact she was
intoxicated at the time carried little to no relevance because the
content of her shouting was not a “disputed fact.” (Evid. Code,
§ 210.)
      The calculus is somewhat different here. Unlike Hardy’s
trial, the prosecution successfully excluded portions of
Armstrong’s original statement to police about Sigler’s racial
slurs. It then contended no slurs were made. When the
prosecution chose to deny the slurs took place, its tactical
decision put the intoxication question in a different light. Given
alcohol’s effect on judgment and self-control, her intoxication
could have a “tendency in reason” (Evid. Code, § 210) to explain
why a diminutive woman, alone at night on a deserted street,
would start a confrontation with three larger strangers. That
explanation would have been consistent with the defense theory
and Armstrong’s testimony.
      We need not decide whether exclusion of the toxicology
report was an abuse of discretion. Any error was harmless, as
explained in greater detail in connection with our discussion of
prosecutorial misconduct. (See post, pt. II.D.1.)

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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


         3. Refusal To Admit Evidence of Alternate Theory
            Concerning Semen Deposit
      Armstrong sometimes stayed at his mother’s home, which
was searched pursuant to warrant. Police recovered a stained
cream-and-black shirt. Tests revealed the stain consisted of a
large amount of semen and small amount of blood. DNA in the
stain matched Armstrong.21 The prosecution argued that
Armstrong wore the shirt during the attack and the semen
deposit showed his direct participation in Sigler’s rape.
       The People called Armstrong’s girlfriend, Jeanette Carter,
to testify. On cross-examination, Carter said she had never seen
the cream-and-black shirt before. Defense counsel then began
to ask about Armstrong’s practices after having intercourse.
The court sustained a relevance objection.
      During a recess, defense counsel offered that he was trying
to find out whether Armstrong sometimes put his shirt back on
after intimacy with Carter. If he did, the presence of semen on
the shirt might be explained. The court adhered to its ruling.
Carter had never seen the shirt, so any response to such a
question would have been irrelevant.
      Armstrong renews his evidentiary claim, but the court’s
ruling was correct. Carter twice said she had never seen the
shirt. Whether Carter had ever seen Armstrong put on a
different shirt after intercourse with her could have no bearing
on how semen found its way on to that shirt. Nor did Armstrong




21
      The laboratory was unable to determine the source of the
blood.



                                 72
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


urge that the semen might have been deposited after a liaison
with a different partner.22

         4. Admission of Kendrick’s Testimony
      Keith Kendrick testified that on December 30 or 31, 1998,
he was watching the news with Pearson, Armstrong, and a third
man when a report about the Sigler murder came on the air.
Kendrick said, “Oh, I know who did that. [¶] . . . [¶] Killer Kev
[Kevin Pearson] did it.” Armstrong whispered to Pearson, “How
did [Kendrick] know?” Pearson then recounted details of the
crime, including that Hardy, Armstrong, and he had
encountered a woman, raped her in the bushes, and then beat
her with a stick. The People introduced a tape of Kendrick’s
January 1999 police interview, which included additional
specifics from Pearson and Kendrick’s conversation in
Armstrong’s presence. Armstrong sat silently throughout the
discussion.
      Before Kendrick’s testimony, Armstrong objected that
Pearson’s statements were inadmissible hearsay and allowing
Kendrick to testify about them would violate his confrontation
clause and due process rights. The People argued that
Armstrong, by listening and saying nothing, had adopted
Pearson’s statements as his own admissions. The court agreed,
finding neither a hearsay bar nor a confrontation clause
problem. Armstrong renews his constitutional claims on appeal.




22
      Armstrong did not offer this evidence as that of “habit or
custom” under Evidence Code section 1105. Thus, the record
contains no evidence he could have satisfied the foundational
requirements of that provision.


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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


      The court was correct. “Evidence of a statement offered
against a party is not made inadmissible by the hearsay rule if
the statement is one of which the party, with knowledge of the
content thereof, has by words or other conduct manifested his
adoption or his belief in its truth.” (Evid. Code, § 1221.)
“ ‘Under this provision, “[i]f a person is accused of having
committed a crime, under circumstances which fairly afford him
an opportunity to hear, understand, and to reply, and which do
not lend themselves to an inference that he was relying on the
right of silence guaranteed by the Fifth Amendment to the
United States Constitution, and he fails to speak, or he makes
an evasive or equivocal reply, both the accusatory statement and
the fact of silence or equivocation may be offered as an implied
or adoptive admission of guilt.” ’ ” (People v. Chism, supra, 58
Cal.4th at p. 1297.)       Armstrong implied that Kendrick’s
accusation of Pearson was true when he asked, “How did he
know?” Armstrong then did not challenge the recitation of
events, instead sitting silently as Pearson recounted
Armstrong’s participation in the crime. Kendrick’s recitation of
Pearson’s statements fell within the adoptive admission
exception to the hearsay rule.
      Nor does introduction of this testimony raise
constitutional concerns. Adoptive admissions pose no problem
under the Sixth Amendment of the United States Constitution
and Crawford v. Washington (2004) 541 U.S. 36 because “ ‘[t]he
“witness” against the defendant is the defendant himself,’ ”
notwithstanding that the words the defendant adoptively
admitted were spoken by someone else. (People v. Jennings
(2010) 50 Cal.4th 616, 662; see People v. Cruz (2008) 44 Cal.4th
636, 672–673; People v. Roldan (2005) 35 Cal.4th 646, 711,



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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


fn. 25.) The high court has never suggested that the Crawford
rule bars admission of a defendant’s own statement.
      Armstrong objects that Pearson was potentially
unavailable for cross-examination because he might choose to
invoke his right against self-incrimination. But Pearson’s
availability is immaterial. Through his silence, Armstrong
adopted Pearson’s statements as his own and bore witness
against himself. Armstrong cannot complain that he was
deprived of his confrontation clause rights by the introduction of
his own admissions.
      Moreover, only testimonial hearsay falls under the
Crawford doctrine. (Ohio v. Clark (2015) 576 U.S. __, __ [135
S.Ct. 2173, 2179–2180]; People v. Rangel (2016) 62 Cal.4th 1192,
1214.) Whether a statement is testimonial turns on “ ‘whether,
in light of all the circumstances, viewed objectively, the
“primary purpose” of the conversation was to “creat[e] an out-of-
court substitute for trial testimony.” ’ ” (Rangel, at pp. 1214–
1215, quoting Clark, at p. 2180.) Determining whether a
statement is testimonial can often be challenging, but is
straightforward here:        Pearson’s casual, conversational
statements to Kendrick, adopted by Armstrong, were not
intended to substitute for court testimony. Because the hearsay
was not testimonial, its admission did not give rise to a
Crawford violation.

         5. Refusal To Admit Evidence of Pearson’s
             Reputation
     On direct examination, Armstrong described things he did
at Pearson’s direction. After Armstrong testified he was afraid
of Pearson, counsel asked why. The court overruled the
prosecutor’s relevance objection, but when Armstrong


                                 75
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


answered, “Because of his reputation —,” the court interrupted
and directed a sidebar. This exchange followed:
     “The Court: The defendant was ready to testify about
Kevin Pearson’s reputation.
      “[Defense Counsel]: I was not aware of that.
       “The Court: It would be hearsay, obviously, because it
would be something that he heard from sources. There’s no
foundation for reputation evidence. We’re not going to have a
trial on Kevin Pearson’s reputation, are we?
      “[Defense Counsel]: No.
      “The Court: I just want to make sure it’s not an area that
I cut you off.
      “[Defense Counsel]: No. [¶] . . . [¶]
      “The Court: After the word ‘Yes,’ the rest of the answer is
stricken.
      “[Defense Counsel]: Okay.”
      Armstrong argues that his fear of Pearson and the reason
for it was improperly excluded. The argument fails. His
testimony that he was afraid of Pearson was allowed to stand.
As for evidence of Pearson’s reputation, counsel indicated he did
not intend to explore this subject and lodged no objection to its
exclusion. Accordingly, the claim is forfeited. (Evid. Code,
§ 354, subd. (a); People v. Capistrano (2014) 59 Cal.4th 830, 867.)
Nor, as Armstrong now argues, would an objection and offer of
proof have been futile. (See Evid. Code, § 354, subd. (b).)
Throughout the trial, the court showed a willingness to rethink
its rulings in light of arguments from counsel. If counsel had
wanted to explain what Armstrong would say and why it was



                                 76
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


either not based on hearsay or otherwise properly admissible,
he could have done so.
      Further, Armstrong fails to show how the omitted
testimony would have significantly altered the evidentiary
picture. The jury heard a great deal about Pearson’s callous
violence on the night of the crime and that Kendrick called him
“Killer Kev.” Nothing in this record undermines the conclusion
that Pearson was a man rightly to be feared.

          6. Sufficiency of the Evidence To Support the
             Torture-murder Special Circumstance
      Armstrong contends there was insufficient evidence to
support the torture-murder special-circumstance finding. On
review, we examine the entire record in the light most favorable
to the prosecution to determine whether a rational jury could
have found the circumstance true beyond a reasonable doubt.
(People v. Hardy, supra, 5 Cal.5th at p. 89.)
       To prove a torture-murder special circumstance, the
prosecution must show that the defendant intended both to kill
and “ ‘to cause extreme pain or suffering for the purpose of
revenge, extortion, persuasion, or another sadistic purpose.’ ”
(People v. Brooks (2017) 3 Cal.5th 1, 65.) Intent may be inferred
“ ‘from the circumstances of the crime, the nature of the killing,
and the condition of the victim’s body.’ ” (People v. Hajek and Vo
(2014) 58 Cal.4th 1144, 1187.)
      Here, there was ample evidence that Armstrong intended
to cause extreme pain. Prosecution evidence showed Armstrong
assisted Pearson and Hardy in raping, stomping, and beating
Sigler, and repeatedly inserting a wooden stake into her vagina.
Armstrong himself kicked the victim several times. Armstrong
had reason to know Sigler was alive until the end of the assault


                                 77
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


and that she was in considerable pain. The autopsy showed 11
broken bones and more than 100 distinct injuries. Contrary to
Armstrong’s assertion, the jury was not limited to considering
only his self-serving statements that he thought Hardy’s and
Pearson’s actions were “wrong” and “scandalous.” Given the
extended duration of the encounter, the brutal escalation of the
attack, and Sigler’s extraordinary pre-mortem injuries, a
rational jury could conclude that Armstrong intended to inflict
extreme pain and suffering.

     C. Instructional Issues

         1. Circumstantial Evidence Instructions
      The jury received four standard instructions on
circumstantial evidence, CALJIC Nos. 2.01, 2.02, 8.83, and
8.83.1. These instructions advised that if circumstantial
evidence supported two reasonable interpretations, the jury
“must” adopt the interpretation more favorable to the
defendant. If, instead, one interpretation appeared reasonable
and the other unreasonable, the jury “must” adopt the
reasonable interpretation. Armstrong argues that telling the
jury it must adopt a reasonable interpretation of the evidence if
the alternative was unreasonable deprived him of the right to
have a jury convict only upon proof beyond a reasonable doubt.
      We have repeatedly rejected this contention. (E.g., People
v. Delgado (2017) 2 Cal.5th 544, 572–573; People v. Watkins
(2012) 55 Cal.4th 999, 1030; People v. Bonilla (2007) 41 Cal.4th
313, 338; People v. Koontz (2002) 27 Cal.4th 1041, 1084–1085.)
“[T]hese instructions properly direct the jury to accept an
interpretation of the evidence favorable to the prosecution and
unfavorable to the defense only if no other ‘reasonable’
interpretation can be drawn. Particularly when viewed in


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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


conjunction with other instructions correctly stating the
prosecution’s burden to prove defendant’s guilt beyond a
reasonable doubt, these circumstantial evidence instructions do
not reduce or weaken the prosecution’s constitutionally
mandated burden of proof or amount to an improper mandatory
presumption of guilt.” (People v. Kipp (1998) 18 Cal.4th 349,
375.) Armstrong offers no new authority that would support
reconsideration.

          2. Instruction on Juror Unanimity Concerning the
              Theory of Murder
      The jury was instructed on three different theories:
deliberate and premeditated murder (CALJIC No. 8.20), felony
murder (CALJIC No. 8.21), and murder by torture (CALJIC No.
8.24). (See Pen. Code, § 189.) At the People’s request, the court
instructed the jury that it need not unanimously agree on which
theory was correct in order to find Armstrong guilty of murder
in the first degree.
      Armstrong contends the court was required to instruct
that the jury must agree unanimously on which theory, if any,
supported a guilty finding, and the failure to do so violated the
state and federal Constitutions. He acknowledges that we have
repeatedly rejected this claim, but seeks to preserve the issue
for federal court review. Armstrong relies on People v. Dillon
(1983) 34 Cal.3th 441, which, he contends, establishes that
premeditated murder and felony murder have distinct elements
and must be distinct crimes. He then urges that under Schad v.
Arizona (1991) 501 U.S. 624, 636–637, due process required the
jury be instructed it must unanimously agree on one theory or
another.




                                 79
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


      We have consistently stated this argument is a misreading
of Dillon. While it is true that under Dillon “ ‘the two forms of
murder have different elements[, nevertheless] there is but a
single statutory offense of murder.’ [Citations.] When, as here,
the evidence shows only a single discrete crime but leaves room
for disagreement as to exactly how that crime was committed,
the jury need not unanimously agree on the theory under which
the defendant is guilty.” (People v. Benavides (2005) 35 Cal.4th
69, 101; see People v. Sattiewhite (2014) 59 Cal.4th 446, 479.)
Schad v. Arizona, supra, 501 U.S. 624, does not require
otherwise. (People v. Grimes (2016) 1 Cal.5th 698, 727–728;
Benavides, at p. 101.)

          3. Instructions on Conspiracy
      Although no conspiracy was charged, the jury was
instructed on its elements. (CALJIC Nos. 6.10.5, 6.11, 6.12.)
Armstrong contends the instructions should not have been
given. The claim is forfeited for lack of objection. (People v.
Virgil (2011) 51 Cal.4th 1210, 1260.) Armstrong does not argue
that the forfeiture should be excused on the ground his
substantial rights were affected. (See Pen. Code, § 1259; People
v. Henriquez (2017) 4 Cal.5th 1, 33.)
      The claim is also meritless. Armstrong’s undeveloped
assertion is unclear. To the extent he argues a conspiracy
charge is a prerequisite to these instructions, the law is to the
contrary. The prosecution may prove an uncharged conspiracy
as a means of establishing liability for the underlying
substantive crime. (People v. Hajek and Vo, supra, 58 Cal.4th
at pp. 1200–1201; People v. Valdez (2012) 55 Cal.4th 82, 150.)
Evidence of a conspiracy, whether charged or not, is sufficient to
support the giving of conspiracy instructions. (People v.


                                 80
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


Rodrigues (1994) 8 Cal.4th 1060, 1134.)           To the extent
Armstrong argues “there was no evidence that such a conspiracy
ever existed,” he concedes otherwise in his briefing, complaining
that the court “permitted the jury to hear extensive evidence of
the uncharged conspiracy.”
      Armstrong also urges that the instructions reduced the
prosecution’s burden of proof. We have rejected this argument
before and do so again. (People v. Hajek and Vo, supra, 58
Cal.4th at pp. 1201–1202; People v. Valdez, supra, 55 Cal.4th at
p. 150.) He contends the lack of a charged conspiracy deprived
him of notice and an opportunity to defend himself. He did not
make this argument below, and it is likewise without merit.
Armstrong had ample pretrial notice that the prosecution would
proceed in part on the theory that Armstrong, Pearson, and
Hardy conspired to rob and murder Sigler. The prosecutor’s voir
dire questioning and the preceding trials of Pearson and Hardy
demonstrated this theory was likely to be pursued. Given
Armstrong’s awareness of the prosecution’s theory, there was no
unfair surprise and no due process violation. (See Hajek and Vo,
at pp. 1201–1202.)
      Finally, Armstrong argues that the conspiracy
instructions allowed the jury to find him death-eligible based on
a crime that cannot be subject to the death penalty. It is true
conspiracy to commit murder will not support a death sentence
in California. (People v. Hernandez (2003) 30 Cal.4th 835, 864–
870.) However, Armstrong was not found eligible for the death
penalty based on conspiracy, but on a jury determination that
he was guilty of first degree murder with special circumstances.




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                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


     D. Misconduct and Bias

         1. Prosecutorial Misconduct
      Armstrong contends that the prosecutor committed
misconduct in empaneling the jury, seeking to exclude
admissible evidence, and engaging in other improper conduct
throughout trial. Most challenges fail. One is well-founded but
did not prejudice Armstrong.
      Prosecutorial misconduct requires reversal when it “so
infect[s] a trial with unfairness [as to] create a denial of due
process. [Citations.] Conduct by a prosecutor that does not
reach that level nevertheless constitutes misconduct under state
law, but only if it involves the use of deceptive or reprehensible
methods to persuade the court or jury.” (People v. Watkins,
supra, 55 Cal.4th at p. 1031.)
       Armstrong’s first few claims derive from and duplicate his
other assignments of error. He objects that the prosecutor
improperly had qualified jurors excused. Several jurors were
erroneously excused for cause, an error requiring reversal of the
penalty verdict. He is obtaining relief on that basis. He
contends that the prosecutor based peremptory challenges on
race and gender. This argument has been rejected. (See ante,
pt. II.A.)
     Most of the allegations of misconduct not tied to claims we
have already addressed are also without merit. Armstrong
contends that the prosecutor was aggressive and hostile toward
defense counsel and twice accused counsel of lying to the court.
Defense counsel responded in equal measure with his own
accusations of lying. Because it occurred outside the jury’s
presence, this acrimony could not have affected the verdict.




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                      PEOPLE v. ARMSTRONG
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       Armstrong complains the prosecutor used “hypertechnical
and unnecessary objections” during his direct testimony. To the
extent these objections were meritorious, making them could not
have been misconduct.         Evidentiary objections often are
technical and their “necessity” a question of tactics and
perspective. While a handful of objections were overruled, there
is no reason to conclude they would have injected unfairness into
the trial.     Armstrong also takes issue with the cross-
examination, which he characterizes as hostile, repetitive, and
argumentative, with frequent accusations of lying. Even
accepting this characterization at face value, it supplies no basis
for a claim of misconduct. This was the cross-examination of the
defendant in a capital murder case. Effective and legitimate
cross-examination may involve assertive and even harsh
questioning. It is permissible to accuse a witness of being
untruthful. Simply because an examination is confrontational
does not make it argumentative.23 Armstrong identifies no line
of questioning, and the transcript reveals none, that crossed
over any boundaries of fair play or that would have led the jury
to decide this case on anything other than the facts and the law.
       Armstrong objects that the prosecutor asked leading
questions of direct witnesses. He cites no question or questions,
simply pointing to the entire transcript for a half-dozen
witnesses. To the extent Armstrong failed to object, the claim is
forfeited. (People v. Pearson (2013) 56 Cal.4th 393, 426.) To the

23
      “An argumentative question is a speech to the jury
masquerading as a question. . . . An argumentative question
that essentially talks past the witness, and makes an argument
to the jury, is improper because it does not seek to elicit relevant,
competent testimony . . . .” (People v. Chatman (2006) 38
Cal.4th 344, 384.)


                                  83
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


extent Armstrong objected and the court sustained the
objection, we discern no effect on the jury or its verdict. As for
the third possible category, leading questions and answers
erroneously allowed to stand, Armstrong identifies not a single
such question and does not explain how any such questions or
their answers could have engendered unfairness.
       However, Armstrong is correct that the prosecutor misled
the jury during closing argument. She told the jury, as a matter
of fact, that in response to Armstrong’s loud comments about the
coming new year, Sigler called back, “Happy New Year.” There
was no such evidence. The prosecutor directly asked Armstrong
during cross-examination whether Sigler had made such a
statement. He unequivocally denied it and no other testimony
supported the prosecutor’s assertion.
       Some inaccuracies in closing argument may flow from
innocent misrecollection, but it is difficult to credit that
explanation here when what Sigler said was a principal point of
contention. The prosecutor moved to redact from Armstrong’s
initial police statement the assertion that Sigler yelled racial
slurs before the attackers encountered her on the street. (Ante,
pt. II.B.1.) She also persuaded the court to exclude evidence of
Sigler’s intoxication. (Ante, pt. II.B.2.)
      To be clear, assertively arguing fine points of evidence will
seldom constitute misconduct, and an advocate is generally
entitled to rely on a court’s ruling, even one held erroneous on
appeal. What an advocate cannot do is knowingly mislead the
jury. (People v. Daggett (1990) 225 Cal.App.3d 751, 758.)
“[S]tatements of facts not in evidence by the prosecuting
attorney in his argument to the jury constitute misconduct.”
(People v. Kirkes (1952) 39 Cal.2d 719, 724; accord, People v. Hill


                                 84
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


(1998) 17 Cal.4th 800, 828 [“ ‘Statements of supposed facts not
in evidence . . . are a highly prejudicial form of misconduct’ ”];
People v. Bolton (1979) 23 Cal.3d 208, 212.)
      These principles are not new ones. In People v. Kelley
(1977) 75 Cal.App.3d 672, 680, Justice Fleming observed, “As
the representative of the government a public prosecutor is not
only obligated to fight earnestly and vigorously to convict the
guilty, but also to uphold the orderly administration of justice
as a servant and representative of the law. . . . As the court said
in Berger v. United States (1935) 295 U.S. 78, 88: . . . . ‘[The
Prosecutor] may prosecute with earnestness and vigor —
indeed, he should do so. But, while he may strike hard blows,
he is not at liberty to strike foul ones.’ ”
      A prosecutor may honestly urge that a defendant lied.
Convincing the jury that he did so is a potent weapon. An
advocate may argue that the record contains no evidence of a
given fact when that is the case. She may invite the jury to
accept reasonable inferences from the record, even if the
evidence is in dispute. (People v. Daggett, supra, 225 Cal.App.3d
at p. 757.) But she may not mislead the jury as to what the
record actually contains.
      However, as inappropriate as the prosecutor’s argument
was here, that argument and the actual or assumed evidentiary
errors that preceded it (see ante, parts II.B.1 and II.B.2) are
insufficient to warrant reversal of the guilt determinations.
Defense counsel conceded in closing argument that there was
ample evidence of Armstrong’s guilt on charges of robbery, rape,
rape in concert and kidnapping. Even under Armstrong’s own
version of events, he facilitated each of the crimes he attributed
to his compatriots. After Pearson said he was “fixing to BKC


                                 85
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


this bitch,” Armstrong held Sigler down while Pearson robbed,
beat, and raped her. After Pearson said, “This ain’t over yet,
bitch. Let’s kill this bitch,” Armstrong kicked Sigler repeatedly,
knowing she was in great pain. Aware of Pearson’s intent to kill
Sigler, Armstrong jumped over a fence and held it down so Sigler
could be thrown over it and moved to a more remote area.
Rather than leaving, he stood at the ready while Pearson beat
Sigler with the stake and while Pearson and Hardy sexually
penetrated her with it. Armstrong then helped Pearson move
Sigler a second time, further up the freeway embankment. After
they abandoned the body, Armstrong disposed of both the stake
and Sigler’s clothes.
      Of course, it would have been no defense to argue that
Sigler engaged in offensive conduct.       Nevertheless, it is
noteworthy that no heat of passion argument was made here.
Indeed, excised statements and toxicology results would have
also been consistent with a theory that the torturous brutality
of the 30-minute assault was sparked by Sigler’s drunken
insults.
       Based on Armstrong’s statements to investigators and his
girlfriend, his adoptive admission of Pearson’s statements, and
his own trial testimony, it is not “reasonably probable that a
result more favorable to [Armstrong] would have been reached”
at the guilt phase. (People v. Watson (1956) 46 Cal.2d 818, 836.)
      While the excluded evidence would not have provided a
defense against guilt for these offenses, the calculus of prejudice
might well be different at the penalty phase. In determining
whether to impose the ultimate punishment, the jury could
consider evidence of Sigler’s conduct as “[a]ny other
circumstance which extenuates the gravity of the crime even


                                 86
                      PEOPLE v. ARMSTRONG
                  Opinion of the Court by Corrigan, J.


though it is not a legal excuse for the crime.” (§ 190.3, factor
(k).) Because the death verdict is being set aside for error in jury
selection, we need not discuss this question further.
      “Our public prosecutors are charged with an important
and solemn duty to ensure that justice and fairness remain the
touchstone of our criminal justice system. In the vast majority
of cases, these men and women perform their difficult jobs with
professionalism, adhering to the highest ethical standards of
their calling. This case marks an unfortunate exception . . . .
We are confident the prosecutors of this state need no reminder
of the high standard to which they are held, and that the rule
prohibiting reversals for prosecutorial misconduct absent a
miscarriage of justice in no way authorizes or justifies the type
of misconduct that occurred in this case.” (People v. Hill (1998)
17 Cal.4th 800, 847–848.)

          2. Judicial Bias
      Armstrong argues he was deprived of a fair trial, in
violation of various constitutional guarantees, because the court
was biased against him. The rulings and remarks Armstrong
relies upon do not demonstrate bias.
      As with Armstrong’s prosecutorial misconduct claim, his
allegation of judicial bias is largely derivative. Armstrong
contends the court demonstrated bias by erroneously excusing
jurors for cause. On the merits, some jurors were improperly
excused, requiring reversal of the penalty verdict. However, a
judge’s “rulings against a party — even when erroneous — do
not establish a charge of judicial bias, especially when they are
subject to review.” (People v. Guerra (2006) 37 Cal.4th 1067,
1112.) The same is true of Armstrong’s argument that the court
showed bias by failing to see through the prosecutor’s assertedly


                                  87
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


pretextual reasons for excusing African-American men and by
excluding various items of evidence. We have evaluated and
rejected the underlying claims on the merits. The court’s
rulings, supported by substantial evidence and rules of
evidence, do not demonstrate bias against Armstrong.
       To the extent Armstrong’s claim is not derivative, it is
largely forfeited. Armstrong “never claimed during trial . . . that
his constitutional rights were violated because of judicial bias.
‘It is too late to raise the issue for the first time on appeal.’ ”
(People v. Guerra, supra, 37 Cal.4th at p. 1111.) Only claims of
“pervasive judicial bias” are preserved in the absence of an
objection, on the ground that objection in that instance may be
futile. (People v. Banks (2014) 59 Cal.4th 1113, 1177.)
       No pervasive bias is evident here. Armstrong identifies
three times when the court derided defense counsel’s questions
as “unintelligent,” “unintelligible,” or “incomplete.” Armstrong
also points to a handful of occasions when, in response to a
prosecution objection, the court supplied a basis for the
objection, then sustained it, or otherwise handled objections in
ways with which Armstrong disagrees. Finally, Armstrong
identifies as indicative of bias one sidebar conversation.
Armstrong had been personally admonished before testifying to
not discuss remorse. Both sides agreed the issue was irrelevant
at the guilt phase. After he violated that admonition, the court
remarked at sidebar that Armstrong “knows better” than to
testify as he did.
       Without reciting every remark Armstrong identifies as
signifying bias, we observe that the court’s statements were
justified. For example, the court described as “unintelligible”
this defense question: “Between you and Jeanette — when you


                                 88
                       PEOPLE v. ARMSTRONG
                   Opinion of the Court by Corrigan, J.


talked to Jeanette, did the subject matter of how it was that you
were in contact with this lady?” The court made its remark only
in the context of asking counsel to rephrase after the prosecutor
and witness both indicated they could not understand the
question. The court’s sidebar remark that Armstrong knew
better than to testify as he did was warranted in light of an
express direction not to do so.24 Collectively, the statements
Armstrong points to do not suggest “any judicial misconduct or
bias, let alone misconduct or bias that was ‘so prejudicial that it
deprived defendant of a “ ‘fair, as opposed to a perfect, trial.’ ” ’ ”
(People v. Maciel (2013) 57 Cal.4th 482, 540.)




24
      Before Armstrong took the stand, the following exchange
occurred:
      “The Court: On the remorse and sympathy issue, do you
agree remorse and sympathy are not issues in the guilt phase?
      “[Defense Counsel]: That’s correct.
      “The Court: And your client is not going to testify how
sorry he is . . . and he is asking for their forgiveness, is that
correct?
      “[Defense Counsel]: That’s correct.
      “The Court: Mr. Armstrong is present in court. I make
that [a] court order. He is not to do so. If he is to do so, I will
interrupt immediately during the proceedings and advise the
jury that we have had this instruction and your client has failed
to obey the court’s instructions. All right, I want to make that
crystal clear.”
      Despite this instruction, when asked why he confessed,
Armstrong testified, “I wanted to tell [the police I knew nothing],
but since it was on my heart, heavy, I just told them.” An
objection ensued. At sidebar, the court accepted that counsel
was not trying to elicit testimony in violation of its order, but
observed that Armstrong knew better than to answer as he did.


                                   89
                     PEOPLE v. ARMSTRONG
                 Opinion of the Court by Corrigan, J.


       E. Cumulative Error
       Armstrong contends errors during the guilt phase of his
trial were prejudicial when considered in combination. We have
evaluated the two actual or assumed evidentiary errors and
related prosecutorial misconduct together for purposes of
assessing prejudice and have concluded Armstrong was not
prejudiced at the guilt phase. (Ante, pt. II.D.1.)

      F. Penalty Phase Evidentiary Errors and Challenges to
          the Constitutionality of California’s Death Penalty
      Armstrong asserts various evidentiary errors occurred
during his penalty phase trial. He also contends California’s
death penalty is unconstitutional.         Because the penalty
judgment is reversed based on erroneous exclusion of jurors for
cause, we need not address these claims. The People retain the
discretion to determine whether to retry the penalty phase on
remand.

                       III. DISPOSITION
      We reverse the judgment of death. We remand to the
superior court with directions that it correct the abstract of
judgment to reflect that (1) each of Armstrong’s convictions was
pursuant to a jury verdict, not a guilty plea; (2) Armstrong was
sentenced to 8 years for rape on count six; (3) the determinate
portion of his sentence is 30 years; and (4) in addition to the
determinate term for rape in concert, sexual penetration with a
foreign object, and sexual penetration with a foreign object while
acting in concert, on counts four, six and seven, Armstrong
received a 25-year-to-life term under section 667.61,
subdivisions (a) and (d), which was then stayed under section




                                 90
                    PEOPLE v. ARMSTRONG
                Opinion of the Court by Corrigan, J.


667.61, subdivision (g). We affirm the judgment in all other
respects.
                                            CORRIGAN, J.


We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
KRUGER, J.




                                91
                   PEOPLE v. ARMSTRONG
                            S126560


               Dissenting Opinion by Justice Liu


      Defendant Jamelle Armstrong, a black man, was
sentenced to death for raping, torturing, and murdering Penny
Sigler, a white woman. Armstrong objected to the prosecutor’s
peremptory strikes of four black men in the jury venire. (See
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978)
22 Cal.3d 258.) The prosecutor gave reasons for each strike, and
the trial court rejected Armstrong’s Batson claims. Today’s
opinion upholds the trial court’s rulings.
       This is a case with “definite racial overtones” that
“ ‘raise[ ] heightened concerns about whether the prosecutor’s
challenge was racially motivated.’ ” (People v. Hardy (2018) 5
Cal.5th 56, 78 (Hardy).) In the capital trial of Armstrong’s
confederate, Warren Hardy, the same prosecutor struck every
black juror she could have removed and gave six reasons for
striking a black man, Frank G., from the main panel. Although
this court rejected Hardy’s Batson claim, our opinion
acknowledged that three of the reasons for striking Frank G. on
their own appeared “weak” or “not . . . very convincing.” (Hardy,
at pp. 82, 83.)
      In this case, the prosecutor struck four black male jurors,
leaving no black man on the jury. As to the strike of Prospective
Juror R.C., I agree the record supports the trial court’s finding
that the prosecutor was credibly concerned that she and R.C.
had a “personality conflict.” (Maj. opn., ante, at pp. 48–50.) But
                      PEOPLE v. ARMSTRONG
                          Liu, J., dissenting


as to the other three strikes, Armstrong raises more substantial
objections. Especially troublesome, in my view, is the strike of
Prospective Juror E.W. The prosecutor gave eight reasons for
this strike, but in several respects, the reasons were not
supported by the record. The discrepancies were numerous and
significant; they were not “ ‘isolated’ ” misstatements or “slight”
misrepresentations. (Hardy, supra, 5 Cal.5th at p. 80.) The
trial court did not probe these discrepancies, nor did it probe the
prosecutor’s disparate treatment of nonblack jurors who were
more similar to E.W. than she suggested in explaining her
strike. Had the trial court examined these anomalies, perhaps
the prosecutor could have elaborated further on her concerns.
But “the duty of [the trial court] and counsel to ensure the record
is both accurate and adequately developed” was not fulfilled
here (People v. Gutierrez (2017) 2 Cal.5th 1150, 1172
(Gutierrez)), and we are left with a record that is not sufficient
to sustain the trial court’s ruling. Because “[e]xcluding by
peremptory challenge even ‘a single juror on the basis of race or
ethnicity is an error of constitutional magnitude’ ” (ibid.) that
requires reversal, I must dissent from today’s affirmance of
Armstrong’s convictions.
                                  I.
       “We review a trial court’s determination regarding the
sufficiency of tendered justifications with ‘ “great restraint,” ’ ”
upholding the ruling if it is supported by substantial evidence.
(Gutierrez, supra, 2 Cal.5th at p. 1159.) But “[a] trial court’s
conclusions are entitled to deference only when the court made
a ‘sincere and reasoned effort to evaluate the nondiscriminatory
justifications offered.’ ” (Ibid.; accord, maj. opn., ante, at p. 37.)
A “reasoned” effort involves, at a minimum, evaluating whether
a proffered justification is supported by the record and, where a

                                  2
                     PEOPLE v. ARMSTRONG
                         Liu, J., dissenting


proffered reason is “not borne out by the record,” either
“reject[ing] [the] reason or ask[ing] the prosecutor to explain
further.” (Gutierrez, at p. 1172.) A trial court “should be
suspicious” and should probe further when “ ‘the facts in the
record are objectively contrary to the prosecutor’s
statements . . . .’ ” (People v. Silva (2001) 25 Cal.4th 345, 385.)
To prevail on a Batson claim, the defendant must show “it was
more likely than not that the challenge was improperly
motivated.” (Johnson v. California (2005) 545 U.S. 162, 170.)
      Prospective Juror E.W., the third black man struck by the
prosecutor, was a 28-year-old homeowner in Signal Hill who
worked as a satellite engineer for Boeing and had been the
student body vice-president at the University of California at
Irvine. He planned on returning to school for postgraduate
studies and considered focusing on astronautics, law, or
business. At voir dire, E.W. said he could vote for either life
imprisonment without the possibility of parole (LWOP) or death
in the appropriate case, and that his decision would depend on
the evidence.
       Today’s opinion concludes that the trial court properly
focused its evaluation on those reasons the prosecutor said
“really bother[ed]” her about E.W. — i.e., E.W.’s belief that
LWOP is a more severe sentence than death, and his belief that
the death penalty, when imposed, causes too much additional
litigation. (Maj. opn., ante, at p. 51.) The court acknowledges
that the prosecutor mentioned E.W.’s profession, engineering,
as an additional area of concern. But the court says that because
“[t]he prosecutor did not identify this as one of the ‘two things
that really bother [her]’ about E.W., . . . [w]e may infer that in
the prosecutor’s eyes the juror’s profession alone fell short of a
sufficient reason to exercise a strike.” (Id. at p. 57.)

                                 3
                      PEOPLE v. ARMSTRONG
                          Liu, J., dissenting


     At the outset, it must be noted that this characterization
of the record is significantly incomplete. What the record
actually shows is that the prosecutor gave eight different
reasons for striking E.W. (numbered (1) to (8) below), and it is
dubious to say the prosecutor did not regard E.W.’s engineering
background as a main reason for the strike.
      When the prosecutor began her explanation for striking
E.W., she said, (1) “[F]irst of all, the one thing that really bothers
me” is that E.W. “believes that life without the possibility of
parole is the most severe sentence.” But the prosecutor did not
stop there. (2) “The next thing that concerns me,” she said, “is
his training, as an engineer. He is trained to look at all possible
doubt. There is no way I can prove this case to him beyond a
reasonable doubt.” As discussed further below, the prosecutor
devoted significant effort to exploring this issue with E.W.
during voir dire.
       The prosecutor went on to give six additional reasons: (3)
“He also in his questionnaire has indicated that he believes that
the prosecutor tends to be over-zealous to convict. I find that to
be a problem. I personally am a very assertive and aggressive
prosecutor.” (4) “He also, in his questionnaire has indicated that
he feels that the death penalty needs to be reformed just like
affirmative action . . . .” (5) “[H]e indicates that he has had bad
experience with police officers in his questionnaire. . . . [¶] . . .
[H]e indicated during Hovey voir dire, . . . ‘Police officers have
pulled me over more than once for questionable reasons.’ He
also indicated today that more often than not it’s happened here
in Long Beach. This case involves Long Beach police officers, in
fact, the majority of my witnesses will be related to the Long
Beach Police Department.” (6) “He also indicates that what he
thinks are the three most important problems with the criminal

                                  4
                      PEOPLE v. ARMSTRONG
                          Liu, J., dissenting


justice system is bad police officers, and lawyers and that the
system is biased against economically disadvantaged
defendants.” (7) “He indicated on his questionnaire, as well as,
during Hovey voir dire that he finds that the death penalty
causes so much additional litigation that we should just let it
go. [¶] I asked him during Hovey voir dire, ‘Would it be accurate
to say that you are for the death penalty?’ He said, ‘I don’t have
feelings one way or the other for it.’ And he kept indicating that
he is neither for nor against. [¶] To me, if someone cannot say
that they believe in the death penalty, I don’t believe they can
impose it.” (8) “Then another thing that bothers me about this
particular juror, he seems to have a lot of information about the
law. . . . He already has additional information that other jurors
don’t have. He is not in the same position that other jurors are
currently.”
       The prosecutor concluded by saying: “The two things that
really bother me [are] that he believes that life without the
possibility of parole is the most severe sentence and he also
believes that since if the death penalty is imposed it caused so
much litigation, he doesn’t believe it should be, just let it go, is
what he says. To me that is indicative of what his verdict is
going to be. [¶] . . . Also the fact that he is an engineer, there
are no other engineers in this panel and he is the only engineer
and he is trained to look for all possible doubt. [¶] And I find
that I can never reach that standard. I cannot possibly prove
this case beyond all possible doubt nor is that the standard and
that’s what he does in life look for all possible doubt.” After a
reply from defense counsel, the prosecutor then said her
“primary motivation” for striking E.W. was that he “indicated
life without the possibility of parole is the most severe sentence.”
At that point, the trial court credited the prosecutor’s first


                                  5
                      PEOPLE v. ARMSTRONG
                          Liu, J., dissenting


reason and, without examining any of the other reasons, upheld
the strike.
      Four months later, in denying Armstrong’s motion for a
new trial, the trial court returned to the Batson issue and said:
“[E.W.] is an engineer and very articulate. This juror, however,
indicated that he believes that life without parole is the most
severe sentence. If this is the crime that deserves the most
severe punishment, the People believe that he automatically
would vote for life without parole. Therefore, it is unlikely
under any circumstances that he would vote for death. More
importantly, the People articulated that, as an engineer, this
juror will likely require to make the People prove the case more
than beyond a reasonable doubt. Both these reasons are race-
neutral; this court found and now finds that [E.W.] was excused
with the use of People’s peremptory for race-neutral
reasons . . . .” (Italics added.)
       There is no question that E.W.’s belief that LWOP is a
more severe sentence than death was, according to the
prosecutor, an important reason for the strike. But so was the
prosecutor’s concern about E.W.’s training as an engineer. The
fact that the trial court originally upheld the strike of E.W. after
examining and crediting only the LWOP concern does not mean
“the trial court did not originally consider the prosecutor to have
proffered [the engineering concern] as a justification.” (Maj.
opn., ante, at p. 57.) As the record shows, the prosecutor
thoroughly explored the engineering concern during voir dire,
and she repeatedly identified it as a reason for the strike. The
trial court, in later ruling on the new trial motion, described this
concern not merely as an “additional genuine” reason for the
strike (maj. opn., ante, at p. 60), but as more important to the
prosecutor’s credibility than the LWOP concern. In today’s

                                  6
                     PEOPLE v. ARMSTRONG
                         Liu, J., dissenting


opinion, the court substitutes its own judgment and refuses to
acknowledge what the record clearly indicates: that both the
prosecutor and the trial court considered the engineering
concern to be a significant reason for the strike.
      As I explain in a moment, a careful examination of the
engineering concern reveals significant cause for suspicion, and
the LWOP concern does not fare any better. But before
undertaking that analysis, it bears mention that the trial court’s
and this court’s narrow focus on those reasons implicates
concerns we recently expressed in People v. Smith (2018) 4
Cal.5th 1134 (Smith). Our unanimous opinion in Smith
cautioned that a prosecutor’s “ ‘laundry list’ ” approach to
justifying a peremptory strike “carries a significant
danger: that the trial court will take a short-cut in its
determination of the prosecutor’s credibility, picking one
plausible item from the list and summarily accepting it without
considering whether the prosecutor’s explanation as a whole,
including offered reasons that are implausible or unsupported
by the prospective juror’s questionnaire and voir dire, indicates
a pretextual justification. A prosecutor’s positing of multiple
reasons, some of which, upon examination, prove implausible or
unsupported by the facts, can in some circumstances fatally
impair the prosecutor’s credibility. [Citation.] In assessing
credibility at the third stage of a Batson/Wheeler decision, trial
courts should attempt to evaluate the attorney’s statement of
reasons as a whole rather than focus exclusively on one or two
of the reasons offered.” (Id. at pp. 1157–1158.)
      As Smith instructs, the trial court should have examined
the prosecutor’s stated reasons for striking E.W. “as a whole.”
(Smith, supra, 4 Cal.5th at p. 1157.) To be sure, the trial court
could have assigned greater weight to the reasons that appeared

                                 7
                     PEOPLE v. ARMSTRONG
                         Liu, J., dissenting


more important to the prosecutor. And it follows that problems
with such reasons should carry greater weight in the trial court
and on appellate review. (See Foster v. Chatman (2016) 578 U.S.
__, __ [136 S.Ct. 1737, 1752] (Foster) [“[W]e would expect at least
one of the two purportedly principal justifications for the strike
to withstand closer scrutiny. Neither does.”].) At the same time,
if other reasons are implausible or unsupported by the record,
that is a relevant consideration bearing on the prosecutor’s
credibility. In Hardy, the same prosecutor gave six reasons for
striking a black male juror, Frank G.; we upheld the strike, but
not before examining all six reasons and finding them
race-neutral when “[c]onsidered in combination.” (Hardy,
supra, 5 Cal.5th at p. 79; see Foster, at p. __ [136 S.Ct. at
pp. 1751–1754] [finding Batson violation upon considering all
relevant circumstances, including analysis of “principal” and
“secondary” justifications among the 10 reasons stated by the
prosecutor for striking a black juror].) By minimizing the
engineer issue and by conducting no meaningful examination of
other proffered reasons that the trial court also left unexamined,
today’s opinion fails to properly account for weaknesses in those
reasons that provide cause for suspicion.
                                II.
      Let us begin with the prosecutor’s stated concern that “as
an engineer,” E.W. “is trained to look at all possible doubt.
There is no way I can prove this case to him beyond a reasonable
doubt.” In articulating this concern, the prosecutor said,
“[T]here are no other engineers in this panel and he is the only
engineer.” This was not true. Juror No. 11, whom the
prosecutor had accepted, was a white woman who had worked
as an engineer for Conoco Phillips for over 20 years. The trial
court did not notice this discrepancy, and the record contains no

                                 8
                     PEOPLE v. ARMSTRONG
                         Liu, J., dissenting


explanation for the prosecutor’s misstatement. Today’s opinion
says that Juror No. 11 had more favorable views on the death
penalty than E.W. (maj. opn., ante, at pp. 57–58) and that the
prosecutor “might be willing to trade some small risk of an
unfavorable guilt phase verdict for better odds of a desired
penalty phase verdict” (id. at p. 58). But if the prosecutor’s
concern was, as she put it, that engineers are “trained to look at
all possible doubt” and that she “cannot possibly prove this case
beyond all possible doubt,” it is not clear how an engineer’s views
on the death penalty could outweigh that concern.
      Had the trial court noticed that Juror No. 11 was an
engineer, the court might also have recalled that when Juror
No. 11 came up for voir dire, the prosecutor asked no questions
about Juror No. 11’s engineering training or how that training
would affect her application of the beyond a reasonable doubt
standard. In fact, there were 20 prospective jurors in the overall
pool who had engineering training or who had worked in jobs
involving engineering. Thirteen were dismissed by stipulation
without the prosecutor questioning them about their
engineering training. Among the remaining engineers, four
came up for voir dire before E.W.: Juror No. 11, who was seated;
then Prospective Juror No. 7420 and Prospective Juror
No. 9961, both of whom the prosecutor excused for cause; and
then Prospective Juror No. 8423, whom the defense excused
with a peremptory strike.          The prosecutor extensively
questioned all four of these jurors about a variety of topics, but
she did not ask them any questions about their training or work
as engineers.
      E.W. was the first engineer whom the prosecutor
questioned about his engineering background, and it was only
after questioning E.W. that the prosecutor questioned other

                                 9
                     PEOPLE v. ARMSTRONG
                         Liu, J., dissenting


engineers (the remaining two) about their engineering
background. Moreover, it is evident that the prosecutor pursued
a different line of questioning with E.W. than with the
remaining two engineer jurors after E.W. Here is what the
prosecutor asked E.W.:
     “Ms. Locke-Noble: Okay. Now, in your training does that
     cause you to look for all possible doubt?
     “[E.W.]: To look for all possible doubt?
     “Ms. Locke-Noble: Yes.
     “[E.W.]: I would say that it helps me to see many different
     angles.
     “Ms. Locke-Noble: Okay. Do you look for all the possible
     doubts there might be in your job?
     “[E.W.]: Yeah. I certainly consider them, sure.
     “Ms. Locke-Noble: And do you have this okay, what if this,
     what if this, then this? ‘What if this’ type bantering about
     in your job?
     “[E.W.]: We tend to try to, like I said, see things from
     many different angles. And yeah, what if this happened,
     then what will happen because of it? Cause and effect,
     sure.”
     The prosecutor also questioned E.W. about the role that
speculation played in how he approached a specific area of his
work, i.e., writing operations manuals for telemetry satellites:
     “Ms. Locke-Noble: Okay. So do you write into these
     chapters if this happens, do this?
     “[E.W.]: Correct.




                                 10
                     PEOPLE v. ARMSTRONG
                        Liu, J., dissenting


     “Ms. Locke-Noble: Okay. So you kind of speculate as to a
     problem that might occur, and then you write a solution
     for it?
     “[E.W.]: Sure.”
      After E.W., the next engineer up for voir dire was
Prospective Juror No. 4629, a white male. The prosecutor also
questioned this juror about his engineering background, first (as
with E.W.) eliciting statements that he was “trained to
speculate” in his work. But then, the prosecutor pursued a line
of questioning that she had not pursued with E.W., focusing on
whether Juror No. 4629’s engineering training would impair his
ability to apply the beyond a reasonable doubt standard of proof:
     “Ms. Locke-Noble: Okay. As an engineer, do you always
     say, well, what if this and what if that? Is that how you
     approach things?
     “[Juror No. 4629]: What? Please rephrase.
     “Ms. Locke-Noble: Do you look at all of the possibilities?
     “[Juror No. 4629]: As many as possible.
     “Ms. Locke-Noble: Okay. In this case there is a standard
     of proof, and the standard of proof is beyond a reasonable
     doubt; you can’t look at all of the possibilities. Can you
     follow that law?
     “[Juror No. 4629]: Oh, certainly, of course.
     “Ms. Locke-Noble: Because if you start looking at all of
     the possibilities, you then become an advocate or a
     partisan for one side of the other, you become the lawyer
     for one person or the other. Does that make sense?
     “[Juror No. 4629]: This would be a violation of my civic
     duty to be impartial. If you are an advocate and defense

                                11
                     PEOPLE v. ARMSTRONG
                         Liu, J., dissenting


     counsel are advocates, I am not an advocate and I will
     never act as one.
     “Ms. Locke-Noble: Right. And that’s what I’m getting at.
     Because you’re an engineer, and engineers are trained to
     look at all of the various possibilities, and in human affairs
     we cannot — I cannot prove all of the possibilities.
     “[Juror No. 4629]: Oh, heavens. That’s wrong about
     engineering too, for that matter. There are significant
     factors and there are things that are insignificant. The
     insignificant digits, you do not concern yourself with.
     That’s putting it in language that you’re — a proper
     answer.”

This juror was ultimately dismissed by stipulation because he
had discussed his questionnaire answers with another juror.
      The prosecutor also questioned the final engineer in the
panel, Prospective Juror No. 5128, a white male. As she did
with Juror No. 4629, the prosecutor first asked Juror No. 5128
about the role that speculation played in his work and then
pivoted to whether he could refrain from speculating in his role
as a juror:
     “Ms. Locke-Noble: Are you trained to say, what if this?
     What about that possibility?
     “[Juror No. 5128]: Yes, very much so.
     “Ms. Locke-Noble: You can’t do that in this case.
     “[Juror No. 5128]: That’s right, I don’t know — I’ll accept
     that I can’t do that.
     “Ms. Locke-Noble: You cannot come up with a hypothesis
     and then prove it.



                                 12
                     PEOPLE v. ARMSTRONG
                         Liu, J., dissenting


     “[Juror No. 5128]: I understand. [¶] . . . [¶] . . .
     “Ms. Locke-Noble: And so for twenty years you have been
     on a daily basis going through this process, what if this?
     This could happen. What if that? This could happen,
     correct?
     “[Juror No. 5128]: That’s right, my profession involves the
     design of systems that go on [airplanes], so it’s a natural
     type of occurrence.
     “Ms. Locke-Noble:        You are taught to look at all
     possibilities?
     “[Juror No. 5128]: Yes, definitely. Well, I’ve learned to do
     that. [¶] . . . [¶] . . .
     “Ms. Locke-Noble: As you know you can’t go back and
     speculate. You can only base your verdict on the
     testimony that is presented in this courtroom?
     “[Juror No. 5128]: Yes ma’am. I understand that.
     “Ms. Locke-Noble: You can’t do what if this, or what if
     that, because if you do that, you have now become the
     lawyer for either one of the sides.
     “[Juror No. 5128]: I understand.
     “Ms. Locke-Noble: Would you agree with that?
     “[Juror No. 5128]: I agree, yes.”
After voir dire, the prosecutor attempted to strike this juror for
cause for two reasons unrelated to his engineering background.
Juror No. 5128 was ultimately dismissed by stipulation.
     In sum, the record shows that before questioning E.W., the
prosecutor did not question any of several engineers about their
engineering training, even though she did question those jurors


                                 13
                      PEOPLE v. ARMSTRONG
                          Liu, J., dissenting


about other topics. Only after she questioned E.W. did she
question the remaining two engineers about their engineering
training. In doing so, the prosecutor elicited from E.W., Juror
No. 4629, and Juror No. 5128 answers that acknowledged the
role of speculation in their work and training. But the
prosecutor elicited only from Juror No. 4629 and Juror
No. 5128, and not from E.W., answers that confirmed their
ability as jurors to avoid looking at “all possibilities” and instead
to stick to the evidence presented and apply the proper standard
of proof. These disparities “at least raise[ ] a question as to how
interested [the prosecutor] was in meaningfully examining
whether” E.W.’s training as an engineer would impair his ability
to apply the beyond a reasonable doubt standard. (Gutierrez,
supra, 2 Cal.5th at p. 1170.) Today’s opinion does not dispute
the accuracy of the voir dire record quoted above; the court’s only
response is a bald assertion, with no analysis of the prosecutor’s
questioning, that the record does not “reveal[ ] any significant
disparity.” (Maj. opn., ante, at p. 61, fn. 18.)
      I would add one more observation: In explaining this area
of concern, the prosecutor said she was troubled not only by
E.W.’s engineering training, but also by the fact that E.W. was
“working on his master’s in pneumatics,” which she
characterized as “also a study of looking for all possible doubts.”
This assertion at best “left some lucidity to be desired.”
(Gutierrez, supra, 2 Cal.5th at p. 1169.) Pneumatics, according
to various dictionaries, is the study of the mechanical properties
of air and other gases. It is hardly “an obvious or natural
inference” (ibid.) to say that pneumatics is “a study of looking
for all possible doubts.” The trial court did not probe this
statement, and the prosecutor’s questioning of E.W. “failed to
shed light on the nature of [her] apprehension or otherwise


                                  14
                     PEOPLE v. ARMSTRONG
                         Liu, J., dissenting


indicate [her] interest in meaningfully examining the topic, and
the matter was far from self-evident.” (Id. at p. 1171.)
                                III.
      Let us now consider the prosecutor’s concerns about E.W.’s
views on LWOP and the death penalty. In its original ruling on
the strike of E.W., the trial court determined that these concerns
were genuine, race-neutral justifications, and today’s opinion
concludes that “[t]he record substantiates that E.W. held the
views the prosecutor ascribed to him.” (Maj. opn., ante, at p. 51.)
But there are several problems here.
      In explaining her concern that E.W. believed LWOP is a
more severe sentence than death, the prosecutor said, “All the
other jurors currently sitting in the box have indicated that
death is the most severe punishment that can be given, with the
exception of [the juror then seated in the fourth position], who
has indicated both are equal.” Later, the prosecutor said that
“all peremptory challenges have been on that basis, if they said
they believe in life without the possibility of parole is the most
severe punishment then I have pre-empted them or challenged
them for cause.” Later still, the prosecutor said that “none of
the other jurors up on that panel right now have indicated life
without the possibility of parole is the most severe sentence,
with the exception of one who has indicated it is both.”
      The trial court, in its ruling, did not make a reasoned
attempt to evaluate the prosecutor’s claim that she had sought
to remove every juror who said LWOP is more severe than
death. It merely said that “if Ms. Locke-Noble is consistently
challenging by way of peremptory, folks who cannot impose the
death penalty or feel that life without parole is the most severe
sentence and that is not a race basis for excusing a juror.”


                                 15
                     PEOPLE v. ARMSTRONG
                        Liu, J., dissenting


(Italics added.) As it turns out, the prosecutor’s claim was
materially incomplete and potentially misleading.
       The prosecutor was correct in her characterization of the
seated jurors’ answers to an item on the juror questionnaire
asking whether death or LWOP is a “more severe punishment.”
But, as today’s opinion acknowledges (maj. opn., ante, at p. 56),
the prosecutor accepted no fewer than three seated jurors (Juror
No. 4, Juror No. 5, and Juror No. 9) and one alternate (Alternate
Juror No. 5) who, like E.W., had selected LWOP as opposed to
death in response to a separate item on the questionnaire asking
which punishment is “worse for a defendant.” To be sure, the
prosecutor did remove many jurors with views similar to E.W.’s.
(Id. at pp. 54–55.) But not only did she accept four jurors who,
like E.W., indicated that LWOP is a worse punishment than
death; one of those jurors, Juror No. 5, had already been seated
by the time the prosecutor made her assertion about the
composition of the panel. The prosecutor’s repeated and
emphatic assertion that none of the seated jurors had identified
LWOP as the most severe sentence was potentially misleading
and presented a significant concern that the trial court, in its
initial ruling and especially when it revisited the Batson issue
in its new trial ruling, should have noticed and addressed.
      The Attorney General contends that the seated jurors
differed from E.W. insofar as they indicated that LWOP was
worse than death on only one of two items on the questionnaire,
whereas E.W. indicated that view on both items. The Attorney
General also suggests it is significant that the seated jurors
chose death as opposed to LWOP on the item asking “Which do
you believe is a more severe punishment” because this question,
he says, is designed to elicit a juror’s objective rather than
subjective views.

                                16
                     PEOPLE v. ARMSTRONG
                        Liu, J., dissenting


       Today’s opinion does not endorse the Attorney General’s
argument, and rightly so. The two items on the questionnaire
are virtually indistinguishable (see maj. opn., ante, at p. 43,
fn. 7), and the court does not suggest otherwise. The record
shows that the prosecutor herself did not see a distinction
between the two questions. In questioning Prospective Juror
No. 9807, she engaged in the following exchange:
     “Ms. Locke-Noble: Question 198 says, ‘If a defendant
     convicted of first degree murder, and one or more of the
     special circumstances is found true, the law provides for
     one of only two possible punishments, death or life in
     prison without the possibility of parole. Overall in
     considering the general issue of punishment, which do you
     think worse[,] death or life in prison without the
     possibility of parole.’ Which do you believe?
     “[Juror No. 9807]: I think we have already answered that.
     For me, personally, I would have rather have death, but I
     don’t know what is best for everybody else.
     “Ms. Locke-Noble: Would you personally want death?
     “[Juror No. 9807]: I couldn’t stand to spend the rest of my
     life in jail.
     “Ms. Locke-Noble: So would you say that it is your belief
     that life without the possibility of parole is a more severe
     punishment because, personally, you believe that
     spending the rest of your life in jail would be worse?
     “[Juror No. 9807]: Yes, I think I would agree with that.”
      Moreover, on both items, E.W. made clear that his answer
indicated his subjective view on the severity of LWOP compared
to death; on one item, he wrote, “I would hate to be incarcerated


                                17
                     PEOPLE v. ARMSTRONG
                         Liu, J., dissenting


that long — useless,” and on the other, he wrote, “To me, I’d
rather die . . . .” His view is indistinguishable from the view of
Juror No. 4, a white woman, who answered that she thought
LWOP would be worse for a defendant because “I can only base
this on my own personal choice. And I value freedom.”
Similarly, Juror No. 5, a white man, answered that he thought
LWOP would be worse because “I don’t know how [the]
defendant feels, but myself.”
      Today’s opinion attempts to distinguish these jurors from
E.W. on the ground that E.W. used the word “useless” to
describe the death penalty, whereas Juror No. 4, Juror No. 5,
Juror No. 9, and Alternate Juror No. 5 each hedged their
responses with some support for the death penalty in some
circumstances. (Maj. opn., ante, at p. 56.) But E.W.’s views also
had nuance. As E.W. explained: “I guess it’s kind of like the
question [i.e., whether he was ever for or against the death
penalty] is asking like political views almost, because the
answer that I gave was kind of like, ‘Okay, well, I’m okay with
it, but realizing also the social ramifications of what it does to
the court system and the criminal system and whatnot, maybe
we should find another way.’ I’m thinking in the terms of the
legislators. I’m not saying when I sit here that I can’t apply the
law.”
      During voir dire, the prosecutor questioned E.W. about his
views at length. When questioned about his objective views,
E.W. left no doubt that he — like the seated jurors — understood
death, not LWOP, to be the more severe sentence under the law.
The prosecutor asked E.W., “So my question to you, if you
personally believe that in this case and it’s a severe case, and
you believe that it deserves the most severe punishment, would
you be able to impose death instead of life without the possibility

                                 18
                      PEOPLE v. ARMSTRONG
                          Liu, J., dissenting


of parole?” E.W. answered, “Yes.” The prosecutor then gave
E.W. a hypothetical scenario of a bank robbery involving three
people: one who goes into the bank with a gun, one who waits
outside the bank as a lookout, and one who waits in the car with
the motor running. In the prosecutor’s hypothetical, the three
people agree to rob the bank; all three know that the first person
has a gun and that the gun is loaded; and during the robbery,
the person with the gun shoots and kills someone. The
prosecutor then asked, “So in your mind would all three be
equally guilty of the murder?” E.W. responded, “Yes.” Next, the
prosecutor asked, “Now . . . in your mind would you be able to
impose the death penalty on the person waiting out in the car,
if the aggravating circumstances substantially outweigh the
mitigating circumstances?” E.W. responded, “I would say, based
on the circumstances you gave me, I lean towards life on the
person — the people outside.” When the prosecutor asked E.W.
to explain his answer, E.W. said that the people outside “did not
have the opportunity to make the decision at the moment of the
crime of murder, whether or not it would take place. [¶] . . .
[T]hey are guilty for aiding someone in participating in the
crime, but they are not as guilty.” E.W. further explained, “Once
again, because they created a situation where a murder could
happen, they are all guilty of it, but as far as punishment, I don’t
believe that all three are equal and should be punished in the
same way.”
      This exchange, in which E.W. said he would give LWOP to
the hypothetical bank robbers who were “not as guilty,” makes
clear that E.W. was able to separate his subjective view about
the severity of death from an objective understanding that
death, not LWOP, is reserved for the most serious offenses.
Today’s opinion suggests that the only “significance” of this


                                  19
                      PEOPLE v. ARMSTRONG
                          Liu, J., dissenting


exchange is that it shows E.W.’s views would not “substantially
impair his ability to vote for execution.” (Maj. opn., ante, at
p. 52; see ibid. [“E.W. was not excused for cause.”].) But the
court ignores the key point: E.W.’s voir dire responses show that
his views on the relative severity of death and LWOP were no
different than how the prosecutor purportedly understood the
views of Juror No. 4, Juror No. 5, Juror No. 9, and Alternate
Juror No. 5.      The LWOP concern, “while not explicitly
contradicted by the record, [is] difficult to credit because the
State willingly accepted white jurors with the same traits that
supposedly rendered [E.W.] an unattractive juror.” (Foster,
supra, 578 U.S. at p. __ [136 S.Ct. at p. 1750].)
       The trial court did not examine whether the record of voir
dire supported the prosecutor’s concern that E.W. believed
LWOP is the more severe punishment. Although it is possible
that the prosecutor was somehow left unconvinced by E.W.’s
answers at voir dire, that is not apparent in the record. If the
trial court had probed the discrepancy between the prosecutor’s
statements and the voir dire responses of E.W. and the seated
jurors above, the prosecutor could have elaborated further on
her concern. But as the record stands, we are left with a stated
reason that is unsupported by the record of voir dire. “The court
may have made a sincere attempt to assess the [prosecutor’s]
rationale,” but in light of its failure to probe further, “we cannot
find under these circumstances that the court made a reasoned
attempt to determine whether the justification was a credible
one.” (Gutierrez, supra, 2 Cal.5th at p. 1172.)
                                 IV.
     As the discussion above shows, the main reasons credited
by the trial court — the engineering concern and the LWOP


                                  20
                     PEOPLE v. ARMSTRONG
                         Liu, J., dissenting


concern — present significant questions about the prosecutor’s
credibility. Let us now consider the rest of the prosecutor’s
stated reasons, which today’s opinion dismisses with only
cursory analysis. (Maj. opn., ante, at p. 61.) Those reasons have
their own weaknesses and do not bolster the prosecutor’s
credibility when considered in combination with the others.
      As to the prosecutor’s concern that E.W. believed
prosecutors are too zealous to convict, E.W. wrote in his juror
questionnaire that he based this opinion on “T.V. shows —
obviously I don’t give this opinion much weight.” E.W. identified
a similar concern regarding defense attorneys (they “[t]end to
manipulate [the] system to win”) and said he based this opinion
on “T.V. shows. Obviously I don’t give this opinion much
weight.” The prosecutor did not question E.W. about this issue
during voir dire, and the trial court briefly observed that “he is
really talking about television shows” and does not “give this
opinion much weight.”
       As to the prosecutor’s concern that E.W. believed “the
death penalty needs to be reformed just like affirmative action,”
E.W. made this statement during voir dire in response to the
prosecutor asking him whether the death penalty should be
abolished. E.W. answered, “No,” and then explained that the
death penalty needed reform, “just like affirmative action. . . .
[¶] I’m not against it.”
      As to the prosecutor’s concern that E.W. said he had been
subject to questionable stops by Long Beach police officers, it
gives me pause to credit a reason that is so widely applicable to
African Americans and that may itself be the product of racial
bias, whether conscious or unconscious. (See Floyd v. City of
New York (S.D.N.Y. 2013) 959 F.Supp.2d 540, 572–589


                                 21
                      PEOPLE v. ARMSTRONG
                          Liu, J., dissenting


[discussing expert analyses of 4.4 million police stops in New
York City between 2004 and 2012, and finding that blacks and
Hispanics are far more likely than whites to be stopped and
frisked, and that police stops of blacks or Hispanics are
substantially less likely than police stops of whites to uncover a
weapon or contraband]; Pierson et al., A Large-scale Analysis of
Racial Disparities in Police Stops Across the United States
(2017) <https://5harad.com/papers/traffic-stops.pdf> [as of
Feb. 4, 2019] [analyzing 60 million traffic stops in 20 states
between 2011 and 2015, and finding that black drivers are
stopped more often than white drivers after controlling for age,
gender, location, and other variables, and that black and
Hispanic drivers are searched on the basis of less evidence than
white drivers]; all Internet citations in this opinion are archived
by    year,    docket      number,      and     case    name     at
<http://www.courts.ca.gov/38324.htm>.)
      As to the prosecutor’s assertion that E.W. was “neither for
nor against” the death penalty, the record indicates that E.W.
was “for” the death penalty according to how the prosecutor
defined the term. During voir dire, the prosecutor explained to
E.W. that “when I say ‘for it’ not that you are out there
protesting for it, something like that, but you are not against it.”
In response, E.W. clarified, “Right, I’m not against it.” The
prosecutor then asked, “You don’t believe that California should
abolish it?” E.W. answered, “No.”
      That leaves the prosecutor’s concern that E.W. identified
“bad police officers, and lawyers and . . . bias[ ] against
economically disadvantaged defendants” as “the three most
important problems with the criminal justice system,” as well as
her concern that E.W. seemed to know more about the law than
other jurors. Although these concerns are not inherently

                                  22
                      PEOPLE v. ARMSTRONG
                          Liu, J., dissenting


implausible, they are somewhat underwhelming, and the
prosecutor did not question E.W. about them. The trial court
did not find, nor does this court suggest, that these reasons
weigh significantly in favor of the prosecutor’s credibility.
                                  V.
      In light of the problematic record in this case, it is worth
underscoring some guidance we recently provided: “Though we
exercise great restraint in reviewing a prosecutor’s explanations
and typically afford deference to a trial court’s Batson/Wheeler
rulings, we can only perform a meaningful review when the
record contains evidence of solid value. Providing an adequate
record may prove onerous, particularly when jury selection
extends over several days and involves a significant number of
potential jurors. It can be difficult to keep all the panelists and
their responses straight. Nevertheless, the obligation to avoid
discrimination in jury selection is a pivotal one. It is the duty of
courts and counsel to ensure the record is both accurate and
adequately developed.” (Gutierrez, supra, 2 Cal.5th at p. 1172.)
      The record here contains a number of proffered
explanations for the strike of a black juror that are implausible,
misleading, contradicted by the record, or difficult to credit in
light of the prosecutor’s disparate treatment of similarly
situated jurors. The trial court should have pressed the
prosecutor on these points, but it did not. As in Gutierrez, we
are left with anomalies and inconsistencies that are simply too
numerous and significant to permit a conclusion that the trial
court’s ruling rests on a reasoned effort to evaluate the
prosecutor’s reasons in light of all relevant circumstances.
(Gutierrez, supra, 2 Cal.5th at p. 1175.) “Rarely does a record
contain direct evidence of purposeful discrimination. More


                                  23
                      PEOPLE v. ARMSTRONG
                          Liu, J., dissenting


often, . . . the inquiry calls on courts to assess the credibility of
reasons given for a strike by drawing inferences from ‘ “such
circumstantial . . . evidence of intent as may be available,” ’
including comparative juror analysis.” (Id. at p. 1182 (conc. opn.
of Liu, J.), quoting Foster, supra, 578 U.S. at p. __ [136 S.Ct. at
p. 1748].) On this record, I cannot say with certainty that the
prosecutor’s strike of E.W. was improper; had the trial court
probed further, the prosecutor might have clarified the
discrepancies. But we must take the record as it comes to us,
and certainty is not the standard. In this case, the record leads
me to conclude that the trial court’s denial of Armstrong’s claim
that “it was more likely than not that the challenge was
improperly motivated” (Johnson v. California, supra, 545 U.S.
at p. 170) was unreasonable. I respectfully dissent.
                                                LIU, J.


We Concur:
CUÉLLAR, J.
PERLUSS, J.*




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


                                  24
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Armstrong
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S126560
Date Filed: February 4, 2019
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Tomson T. Ong

__________________________________________________________________________________

Counsel:

Glen Niemy, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Lance E. Winters, Assistant Attorney General, Keith H. Borjon, Joseph P. Lee
and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Glen Niemy
257 Washington Street, Unit 6
Salem, MA 01970
(207) 699-9713

Yun K. Lee
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6078
