Filed 6/8/15




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S064858
           v.                        )
                                     )
ROYCE LYN SCOTT,                     )
                                     )                        Riverside County
           Defendant and Appellant.  )                     Super. Ct. No. CR 16374
____________________________________)


        THE COURT.*
        Following a jury trial on a 15-count indictment, defendant Royce Lyn Scott
was convicted of sexually assaulting and murdering 78-year-old Della Morris in
her home. Specifically, Scott was convicted of the first degree murder of Morris
(Pen. Code, § 187, subd. (a); count 4), burglary (id., § 459; count 1), and the rape
and sodomy of Morris (id., §§ 261, subd. (a)(2), 286, subd. (c); counts 2 and 3).
(All undesignated statutory references are to the Penal Code.) The jury found true
the burglary, rape, and sodomy special circumstance allegations. (§ 190.2,
subd. (a)(17)(G), (C), (D).) The trial court found that Scott had one prior serious


        *      Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Corrigan, J., and
Cuéllar, J.
felony conviction (§ 667) and had served one prior prison term (§ 667.5,
subd. (b)).
        Before trial, the trial court granted Scott’s motion under section 995 to set
aside the burglary charge in count 5. In addition, Scott had pleaded guilty to four
counts of burglary (§ 459; counts 6 through 9), two counts of second-degree
robbery (§ 211; counts 10 and 11), two counts of assault with force likely to
produce great bodily injury (§ 245, subd. (a)(l); counts 12 and 13), and two counts
of battery (§ 242; counts 14 and 15). The charges in counts 6 through 15
concerned separate burglaries committed after the charged murder. Scott admitted
the personal use of a deadly weapon allegations as to counts 9 through 12.
(§ 12022, subd. (b).)
        After a penalty trial, the jury returned a verdict of death. The trial court
denied Scott’s automatic application to modify the penalty verdict (§ 190.4,
subd. (e)) and sentenced him to death on count 4. The court dismissed counts 14
and 15 under section 1385 and imposed a determinate sentence of 35 years and
eight months on the remaining charges and allegations.
        This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in
its entirety.
                                        I. FACTS

        A. Guilt Phase

              1. Prosecution Evidence

                 a. The Murder of Della Morris
        Della Morris (Morris) lived in Palm Springs with her brother, Webbie
Morris (Webbie). On Thursday, July 9, 1992, Webbie went to bed around 10:00
p.m., while Morris watched television in the living room. When Webbie woke up
the next morning around 8:00 a.m., he found her dead in her bedroom. He saw


                                               2
blood on the bed and underneath her body, and he noticed that the sliding door to
his room and the one in the living room were open. A VCR and Webbie’s wallet
were missing.

                b. Investigation
       Around 8:15 a.m., police arrived at the Morris residence. They found no
indication of forced entry or a struggle in Morris’s bedroom.
       Warren Horton, a deputy coroner with the Riverside County coroner’s
office, examined Morris’s body at the scene. He observed two small bruises under
her right eye. Horton rolled her body over and saw a small amount of blood
underneath her vaginal area. The blood appeared dried and had stained Morris’s
buttocks and the bedsheet. Horton found a small hair directly underneath her
pubic area that did not appear to be consistent with her pubic hair.
       Darryl Garber, a forensic pathologist and independent contractor with the
County of Riverside, performed an autopsy. Garber found multiple abrasions and
contusions on the right side of Morris’s face, left nostril, and left anterior neck.
He also found pinpoint hemorrhages in her eyes consistent with strangulation or
smothering. Inside Morris’s mouth, Garber found evidence of bruising on her
cheek and tongue associated with smothering. Garber also found evidence of
traumatic sexual assault, including contusions to Morris’s vaginal area and
abrasions to, and signs of dilatation of, her anus. Garber opined that the sexual
assault occurred before death and that she died from strangulation and smothering.
       Garber used a sexual assault kit to gather evidence from Morris’s body,
taking swabs from her mouth, vagina, and rectum, and collecting fingernail
clippings and hair samples from her head and pubic area.
       Ricci Cooksey, a senior criminalist with the state Department of Justice,
examined the contents of the sexual assault kit, blood samples taken from Morris,



                                               3
and bedding obtained during the investigation. Cooksey found sperm cells on the
vaginal and rectal swabs and two stains on a bedsheet.
      On November 4, 1992, police arrested Scott during a burglary of the home
of Kenneth Osburn and Jeffrey Cole, which is discussed below. While Scott was
in custody, Heather Gunkel, a registered nurse and independent contractor with the
Palm Springs Police Department, used a sexual assault kit to collect blood, saliva
and hair samples, including pubic hair, from Scott.
      Cooksey typed Scott’s blood, saliva, and hair samples, and analyzed the
hair samples and hair taken from the murder scene. Cooksey opined that four hair
strands taken from the crime scene were consistent with and could have come
from Scott’s pubic area and that there were no major discrepancies between the
crime scene hairs and Scott’s. The crime scene hairs did not come from Morris or
Webbie.
      Donald Jones, a criminalist with the San Bernardino Sheriff’s Department
crime laboratory, performed RFLP (restriction fragment length polymorphism)
analysis on DNA extracted from the blood samples taken from Morris and Scott,
the sperm cells found on the vaginal and rectal swabs obtained from Morris, and
the sperm cells found on the two stains on the bedsheet. Jones concluded that the
DNA extracted from the vaginal swabs and from each of the stains on the bedsheet
came from a single donor, and that the DNA profile of each of these samples
matched Scott’s. Jones testified that the DNA was “130 million times more likely
to come from [Scott] than it is from any other black chosen at random in the
population.”




                                            4
               c. Other Burglaries Nearby
       Scott pleaded guilty to each of the nearby Palm Springs burglaries
described below. Evidence of each crime was admitted in the guilt phase for the
limited purpose of showing his intent to burglarize Morris’s house.
       Around 2:30 a.m. on August 3, 1992, Dorothy Nancy Pruss heard a rustling
noise near her kitchen. Pruss was not certain whether she had locked the sliding
glass door near the kitchen that led outside. She checked the house and saw Scott
inside, holding her purse and fanny pack. Both items had been on a dining room
chair near the sliding glass door. Scott asked Pruss to tell him where her money
was. Press said she had no money and screamed. After Pruss’s roommate ran out
of her bedroom and confronted Scott, he ran out of the house through the sliding
glass door near the kitchen, taking the purse and fanny pack with him.
       Around midnight on August 9, 1992, Marc Daley had just returned home
when he saw that the sliding screen door in the kitchen area was open. The door
had been closed when he left earlier that evening. Daley walked through the
house and discovered Scott behind the door of a bedroom. Scott said that he did
not want to hurt Daley and that he only wanted his money. Daley ran to his
neighbor’s house, and Scott fled the scene. When Daley returned to his house, he
noticed the sliding glass door in the master bedroom was open. The door had been
closed the last time he had seen it. A television had been moved in the bedroom
where Daley had seen Scott. A fingerprint obtained from the television matched
Scott’s.
       Around midnight on August 25, 1992, Emily Pollard was watching
television in her living room when she heard a large crash. Pollard saw Scott in
her kitchen, screamed, and ran to a neighbor’s house. When she returned to her
house the following morning, her purse and a camera were missing; she had last




                                            5
seen both items on the kitchen counter. The sliding glass door that led from the
kitchen to the backyard had been smashed.
       Around 12:50 a.m. on November 4, 1992, Kenneth Osburn and Jeffrey
Cole were in their den watching television when Osburn heard the sliding glass
door that led from the dining room to the outside of the house open. Osburn saw
Scott standing in the dining room. Scott ordered him and Cole to get down on the
floor, and they complied. Scott took Osburn’s wallet and went into the kitchen.
He said he was going to take the microwave oven and told Osburn and Cole to
“stay put.” Minutes later, police apprehended Scott in the house and found
Osburn’s wallet in Scott’s possession and a microwave oven in the backyard.

           2. Defense Evidence
       For a few weeks in July 1992, Scott lived with his stepsister, Audrey
Mickens. Occasionally, Scott stayed out all night. Mickens did not recall whether
Scott was home on the morning of July 10, 11, or 12.
       In September 1992, Detective Barry Dallas received a report from Cooksey
that listed the names of 19 paroled registered sex offenders who had the same
genetic markers as the semen that was found on Morris’s sheets. Ten of those
individuals were black. In his police reports, Dallas did not refer to the list of 19
names submitted by Cooksey. He put the list into a folder or case file and forgot
about it. Dallas provided the prosecution with the list during trial.

       B. Penalty Phase

           1. Prosecution Evidence
       The prosecution introduced evidence of the following prior unadjudicated
offenses involving force or violence, or the threat to use force or violence, within
the meaning of section 190.3, factor (b).




                                              6
       On November 4, 1992, during the burglary of Osburn and Cole, Scott
kicked Osburn in the ribs, stomped on Cole’s back, and hit Cole with a fireplace
poker. After putting the microwave oven outside, Scott returned and stomped on
Osburn’s back and hit and kicked Cole. Scott demanded money, and Osburn put
his wallet on the coffee table. Osburn and Cole were very afraid and thought they
were going to die. Scott threatened to kill Cole and told him that he (Scott) was
going to stick Cole with the fireplace poker, which he held over Cole’s head.
Scott had the poker in his hands when the police arrived.
       In March 1988, Thomas Meyer and Dan King worked and lived at a
construction site in Palm Springs. One night, they were awakened in their camper
when Scott confronted them through a screen door and demanded money. Meyer
threw his jacket to Scott, who remained outside. After finding no money in it,
Scott became agitated, banged on the doorsill, and said, “I have a double barreled
sawed off shotgun here, and I am going to blow your mother fucking head off if
you don’t give me some money now.” King took a gun which he kept under his
pillow and fired four shots at Scott. Meyer thought Scott had returned fire from a
shotgun. Scott appeared to be injured and was rolling on the ground about 10 feet
from the door. He said, “God. I am never going to do this again.” Meyer and
King left the camper, and within minutes, the police arrived and arrested Scott.
       The prosecution presented victim impact evidence through the testimony of
Morris’s nephew, Raymond Abelin. Morris was more like a mother to him than
an aunt. Dancing was everything to her, and she enjoyed choreographing and
teaching dance. Before moving to Palm Springs, Morris lived in Los Angeles
where she organized theatrical shows at venues such as the Wilshire Theatre, Los
Angeles Street Scene Festival, and various fairs and parties. Dancing was a family
business, and Morris was in charge of the productions. Morris inspired many
people, including Abelin, to study and become involved in the arts.

                                            7
       When Abelin learned that Morris had been murdered, he was devastated.
Her death became a “horror, living nightmare.” He felt guilty for her murder
because he had encouraged her to move to Palm Springs.
       Morris had received numerous commendations and awards for her
contributions to the arts, including recognition as woman of the year by the wife of
Los Angeles Mayor Tom Bradley. Morris was an active member of the Lebanese
American community, which was outraged by her murder.

           2. Defense Evidence
       Scott was born in Jacksonville, Texas. He had eight living siblings.
Narlena Black, his mother, divorced his father soon after his birth. Scott’s father
lived in California. Scott was close to his stepfather, and the two enjoyed
spending time together and playing sports. During his upbringing, Scott’s parents
loved him and did their best to teach him right from wrong.
       Scott was close to his older brother, who was hit by a car and killed when
Scott was a high school senior. Scott was not the same after his brother’s death.
Scott had a good relationship with his younger brother Terry Roberts. They
played several sports together and had occasional disagreements but never any
fights. Scott was very protective of his siblings. He joined the military, and
family members noticed that after separating from service, he started “running
with the wrong type of boys” and engaging in “mischief.”
       Criminal justice consultant Anthony Casas reviewed Scott’s prison and
incarceration records, and learned that he had been confined in five or six prisons
since 1972. Except for an incident during which he used foul language and
another in which he used medication that caused him to hear voices, Casas found
nothing in Scott’s records to indicate that he had any attitude or behavior
problems. Casas opined that if Scott were sentenced to life in prison without



                                             8
possibility of parole, he would not be a threat to other inmates or to correctional
personnel.
                                  II. DISCUSSION

       A. Pretrial and Jury Selection Issues

             1. Challenge for Cause
       Scott contends that the trial court erroneously excused Prospective Juror
B.C. for cause based on her death penalty views in violation of the Sixth and
Fourteenth Amendments to the federal Constitution.

                a. Factual and Procedural Background
       At the time of jury selection, B.C. was a 71-year-old retired insurance
underwriter. When asked in the written questionnaire about her general feelings
about the death penalty, B.C. said, “I would not want to be on a case that would
require the death penalty.” She attributed her feelings about the death penalty to
her religious beliefs and indicated her feelings were not “very strong.” B.C. said
she did not feel obligated to accept the view of her religious organization
concerning the death penalty and that if the views of that organization were in
conflict with the law, she would follow the law. When asked if she would “follow
the instruction of the Judge that under our law, you may decide to impose the
death penalty only if, in your mind, after weighing and balancing all the evidence
in the case, you are persuaded that the aggravating factors substantially outweigh
the mitigating factors such that death is warranted,” she responded “yes.”
       Question 75 set forth five categories of thought about the death penalty and
asked each prospective juror to indicate which group best described his or her
views. The five categories were: “Group One [¶] I will always vote for death in
every case of murder with special circumstances. I cannot and will not weigh and
consider the aggravating and mitigating factors”; “Group Two [¶] I favor the death


                                              9
penalty but will not always vote for death in every case of murder with special
circumstances. I can and will weigh and consider the aggravating and mitigating
factors”; “Group Three [¶] I neither favor nor oppose the death penalty”; “Group
Four [¶] I have doubts about the death penalty, but I would not vote against it in
every case”; and “Group Five [¶] I oppose the death penalty. I will never vote for
the death of another person.” B.C. placed herself in group four. Question 61
asked, “If a defendant was found guilty of first-degree murder and the special
circumstance that ‘the murder was committed during the commission of a felony’
was found to be true, would you always vote for Life Without Parole, and reject
Death, regardless of the evidence presented at the penalty trial?” B.C. responded
“yes.”
         During voir dire on the death qualification issues, B.C. said that in the
penalty phase, she could consider the evidence presented and weigh the mitigating
and aggravating factors in determining the appropriate penalty. The court asked
B.C. whether would she vote for death if she felt the appropriate decision was
death, and whether she would vote for life if she felt the appropriate decision was
life. B.C. answered “Yes” and said she would make an individualized decision.
         Defense counsel questioned the prospective jurors, but he did not
specifically question B.C. During voir dire by the prosecutor, B.C. said her
feeling that she would not want to serve on a death penalty case was not so strong
that she would not be able to follow the law. B.C. confirmed that she would
weigh aggravating and mitigating factors. When asked whether she would keep
an open mind as to penalty, she answered, “Well, I could — I would probably be
more toward the other way.” The prosecutor then asked, “Toward life or death?”
B.C. replied, “Life, yes. But I’m not saying that I am set.”
         The prosecutor then questioned B.C. about her response to question 61, that
she would always vote for life if a defendant was found guilty of first degree

                                               10
felony murder, regardless of the evidence presented at the penalty trial. B.C.
explained, “Well, I prefer life without.” B.C. said that if this case proceeded to a
penalty phase, she would consider all of the evidence and weigh the aggravating
and mitigating factors. The prosecutor then asked B.C. whether, if the jury in this
case reached a verdict of death and the trial court polled the jurors as to their
personal verdict, she could say, “Yes, my verdict is death.” B.C. answered, “I
don’t know if I could,” “I really don’t,” and “I’m not sure that I could do that
part.” The prosecutor then asked all prospective jurors undergoing voir dire at the
same time as B.C., “Is there anybody among the group who could not come into
this courtroom, face [defendant] and return a verdict of death?” B.C. responded,
“I’m not sure.”
       After several prospective jurors were excused by stipulation, the prosecutor
challenged B.C. for cause. Defense counsel objected and said, “Well, Your
Honor, I think she was close. . . . I think she was close, but she never said that she
could not listen and make a decision. As a matter of fact, she said that she would
be willing to listen, though it would be extremely difficult for her and hard. But
she said she could sit and listen and make a decision as to death, even though she
would be leaning towards life without the possibility of parole. . . . At one point
she was kind of wavering back and forth, and it might be very difficult for her, but
I don’t think there’s a challenge for cause there based on what I heard.”
       The trial court granted the challenge, explaining as follows: “She is one of
these jurors that — it is my understanding in looking at these cases that there are
those jurors who — for example, if you asked them whether or not Adolph Hitler
— assuming he was the defendant in this case — whether he would deserve the
death penalty, they would say, ‘Yes.’ Then you ask them — and you bring them
back to the real world, . . . what they’re really saying is that although they could
conceive in an abstract sense of voting for the death penalty, that when you apply

                                              11
to — apply it to the real world, that what they’re saying is that they could not. [¶]
In listening to her testimony, and although this is certainly a close call, . . . it
seems to me that reading between the lines and watching her, her body language,
and the way she answered, her reluctance to look up, that what she’s really saying
is she couldn’t vote for the death penalty in the real world. [¶] . . . I’m going to
sustain the challenge. . . . [¶] And so I’m going to — I must admit to you that it is
an extremely close call, but it seems to me that what she was signaling to us is that
really she couldn’t vote for the death penalty in the real world if the — if the
factors were established by the People pursuant to law.”

                b. Discussion
       A trial court may excuse a prospective juror for cause upon determining
that the juror is “ ‘substantially impaired in his or her ability to impose the death
penalty under the state-law framework.’ ” (People v. McKinzie (2012) 54 Cal.4th
1302, 1328; see Wainwright v. Witt (1985) 469 U.S. 412, 424.) “A trial court’s
determination concerning juror bias is reviewed for abuse of discretion.
[Citation.] ‘[A]ppellate courts recognize that a trial judge who observes and
speaks with a prospective juror and hears that person’s responses (noting, among
other things, the person’s tone of voice, apparent level of confidence, and
demeanor) gleans valuable information that simply does not appear on the
record.’ ” (People v. Jones (2012) 54 Cal.4th 1, 41 (Jones); see Uttecht v. Brown
(2007) 551 U.S. 1, 9 [“Deference to the trial court is appropriate because it is in a
position to assess the demeanor of the venire, and of the individuals who compose
it, a factor of critical importance in assessing the attitude and qualifications of
potential jurors.”].)
       As an initial matter, Scott claims that the trial court’s examination of B.C.
was inadequate to determine whether her death penalty views would substantially



                                                12
impair her ability to serve as a capital juror. But because Scott did not object or
otherwise indicate that the court should have conducted additional voir dire of
B.C., he has forfeited this claim. (People v. Foster (2010) 50 Cal.4th 1301, 1324.)
       At any rate, substantial evidence supports the trial court’s determination
that B.C.’s death penalty views disqualified her from serving as a capital juror. In
her questionnaire, B.C. said that she would follow the law instead of her religious
views and that she would consider the evidence and weigh the aggravating and
mitigating circumstances in accordance with the judge’s instructions. But B.C.
also indicated that if a jury convicted a defendant of first degree felony murder,
she would always vote for life, regardless of the evidence presented at the penalty
trial. B.C. gave similarly conflicting responses during voir dire. She indicated a
willingness to remain open on the question of penalty, follow the trial court’s
instructions, and weigh and consider all of the evidence. But she also said she was
unsure she could state in open court that she voted for death if the jury in this case
decided death was the appropriate penalty.
       Faced with these conflicting responses, the trial court acknowledged that “it
is an extremely close call” but explained that “reading between the lines and
watching her, her body language, and the way she answered, her reluctance to look
up, what she’s really saying is she couldn’t vote for the death penalty in the real
world.” By stating its observations of B.C.’s demeanor, the trial court made clear
that it had “ ‘glean[ed] valuable information that simply does not appear on the
record.’ ” (Jones, supra, 54 Cal.4th at p. 41.) The trial court’s observations of
B.C.’s demeanor, along with B.C.’s written and verbal answers, comprise
substantial evidence supporting the conclusion that B.C.’s personal views would
substantially impair her ability to serve as a capital juror. We defer to the trial
court’s determination and find no abuse of discretion.



                                              13
             2. Batson/Wheeler Motion
         Scott, who is African American, contends that the prosecutor violated his
state and federal constitutional rights to equal protection and a jury drawn from a
fair cross-section of the community by peremptorily excusing two African
American prospective jurors. (See Batson v. Kentucky (1986) 476 U.S. 79
(Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) The claim lacks
merit.

                 a. Factual and Procedural Background
         The 87 prospective jurors qualified to serve on Scott’s jury identified
themselves in their juror questionnaires as follows: four as African American, 14
as Latino, one as African American and Latino, 59 as white, and nine either did
not indicate any racial or ethnic group or indicated some other group. The
prosecutor exercised his seventh peremptory challenge to excuse R.C. and
exercised his tenth challenge to excuse H.R. Both are African American.

                    Prospective Juror R.C.
         R.C. stated in her questionnaire that she was not personally acquainted but
had “been in court” with the deputy district attorney assigned to this case when he
prosecuted her son. According to the questionnaire, R.C. visited her son in prison
“as much as possible,” claimed that her son had had “unpleasant experiences” with
law enforcement and this district attorney’s office in particular, and believed that
her son was not treated fairly by those agencies.
         Prior to voir dire, the defense stipulated to R.C.’s excusal because the
assigned deputy district attorney had indeed prosecuted the prospective juror’s
son. At the time of her son’s trial, R.C. had claimed to the media “that the
prosecution was unwarranted and racially motivated.” The trial court did not
accept the stipulation, however, and said it felt obliged to make an inquiry into the
prospective juror’s ability to be fair.


                                               14
       When asked in voir dire whether there was anything in her life “that would
in any way affect [her] ability to be fair to both sides in this case,” R.C. reiterated
that the assigned deputy district attorney had successfully prosecuted her son and
sent him to prison a year or two earlier, that she thought her son was not treated
fairly by the district attorney’s office in “some parts,” and that she did not know
whether the district attorney would want someone like her on the jury. Although
she admitted having been very upset at the time of her son’s trial, she asserted that
she had “no hard feelings” about the prior prosecution and that she could be fair in
this case — despite the fact the same police department (Palm Springs) and the
same lead investigator were involved and “some of the situation is somewhat
similar.”

                   Prospective Juror H.R.
       H.R. stated in his questionnaire that he would consider all the aggravating
and mitigating evidence presented before deciding the question of penalty and
could vote for death in an appropriate case. However, in response to question 75,
which asked jurors to read five options that described views about imposing the
death penalty and to “check the one that best describes” their views, H.R. put a
checkmark next to group five, which stated, “I oppose the death penalty. I will
never vote for the death of another person.” Despite the instructions, H.R. also put
a checkmark next to group four, which stated, “I have doubts about the death
penalty, but I would not vote against it in every case,” and next to group three,
which stated, “I neither favor nor oppose the death penalty.”
       The trial court began voir dire by advising H.R. that membership in group
five meant that “not only do you oppose the death penalty,” but “you [could] never
vote for the death penalty regardless of the evidence.” When the trial court
subsequently asked H.R. whether he could consider the aggravating and mitigating



                                              15
circumstances in a penalty trial and vote for either penalty, H.R. said, “Sure” and
“Yes.” H.R. also said that if the jury in this case were to return a death verdict, he
could face Scott and affirm that this was his verdict. But when asked by the court
to clarify which of the three groups he checked off in question 75 best represented
his views about imposing the death penalty, H.R. hesitated and said he wanted to
“think about it.” After the court reiterated that “[y]ou understand if you are in
group five, you cannot serve; do you understand that?,” H.R. finally replied, “I
think group four would be more the way I feel.”
       Under questioning by the prosecutor, H.R. claimed he had misread question
75 and that when he looked at it again, he said he had made a mistake. He added
that he was still leaning “more toward group 4 than any other groups.” When
asked if he could ever imagine a crime or a defendant so terrible as to warrant the
death penalty, H.R. replied, “In a sense I guess that’s possible. . . . I guess I
could” and “I think I can.”

                   The Motion to Dismiss the Panel
       After the jurors were sworn but before the alternate jurors were selected,
Scott moved to dismiss the panel, asserting that the prosecutor’s decisions to strike
R.C. and H.R. were racially motivated. Defense counsel relied in particular on
R.C.’s statements that she could put aside the “situation” with her son and decide
the case solely on the evidence, and on H.R.’s statements that he could be a fair
and impartial juror and would be able to vote for death in an appropriate case.
       The trial court ruled that Scott’s motion appeared to be untimely and
therefore forfeited because he had not objected to the strikes until after the jurors
had been sworn, but nonetheless went on to address the merits. As to R.C., the
court acknowledged that she had said “all the right things” but doubted that “any
prosecutor” would have kept her on the jury: “I think that was — that was so



                                              16
obvious a point that I don’t think anyone could.” The court concluded that “no
prima facie case could be made” as to R.C.
       Turning to H.R., the trial court said it “suspect[ed] there may well be a
neutral race explanation,” but added, “I believe that it could be argued that a —
that a prima facie case could be made. You feel that you want to respond, or do
you want to rest on the Court’s ruling on the waiver? I’ll leave that to you, sir.”
The trial court also asked whether the prosecutor wanted “to say anything more
about Miss [C.]” The prosecutor replied, “Well, I don’t want to say anything until
I’m required to by the Court,” and inquired whether the court had already ruled
there was no prima facie showing of discrimination as to these jurors. The court
then clarified its position: “What I said was that in the case of Miss [C.], it was so
obviously there was no basis for [the Batson/Wheeler motion] that I want the
record to be abundantly clear on that point. I mean that — that was just
completely obvious.” With respect to H.R., the court explained, “I — my sense is
based upon his — his answers in the questionnaire to suggest that there are — that
there would probably be a legitimate basis. He had substantial reluctance to the
death penalty in his questionnaire. He placed himself at one point in category 5 as
I recall although he ultimately said he was in category 4, but I don’t want to get
into that exercise. [¶] . . . [¶] MR. BEST: Okay. And if you are saying that you
have not found a prima facie case, then I will state my reasons as to Mr. [R.] for
the record. But I am not agreeing that there has been a prima facie showing. But I
will say it out of an abundance of caution to preserve the record, but I am not
agreeing, and I want it clear whether or not the Court has made the ruling that
there is a prima facie case. [¶] THE COURT: . . . [B]efore the Court were to —
to find that — [¶] MR. BEST: There are cases where the court has declined to
find a prima facie case and then has solicited the prosecutor’s reasons anyway. If
that’s the situation we are in and the record clearly reflects that, then I will provide

                                              17
my reasons for the record. [¶] THE COURT: That would be my position. [¶]
MR. BEST: Then I will accept that and do that. As to both jurors or? [¶] THE
COURT: No. I mean — if anyone . . . who reads this transcript thinks that Miss
[C.] would be a fair juror to the People, then I would — then I give up making
decisions.”
       Accepting the invitation to discuss his reasons as to H.R., the prosecutor
explained that “the reasons for excusing him were what I considered inconsistent
answers on the death penalty. On the initial questionnaire, he marked groups 3, 4
and 5. Five being the group that would never under any circumstances vote for the
death penalty. [¶] Even under questioning, all he would indicate is he is leaning
toward group 4 which is the group that does not favor the death penalty but would
not rule it out. Based on that, I did not believe I knew where he stood on the death
penalty; and based on that, I excused him.”
       The trial court denied the defense motion, saying, “In looking at [People v.
Medina (1995) 11 Cal.4th 694], I read that case, gives some guidance on this point
and the Supreme Court confirmed in that case that an exercise of the challenge
based upon a reluctance to impose the death penalty is an appropriate basis for the
exercise of the challenge. It would seem to me that — I accept that. Those were
basically the reasons that I mentioned to you — [¶] . . . [¶] — before we began.”

               b. Discussion
       Both the state and federal Constitutions prohibit the use of peremptory
strikes to remove prospective jurors on the basis of group bias. (Batson, supra,
476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276–277.) The now familiar
Batson/Wheeler inquiry consists of three distinct steps. First, the opponent of the
strike must make out a prima face case by showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose in the exercise of



                                              18
peremptory challenges. Second, if the prima facie case has been made, the burden
shifts to the proponent of the strike to explain adequately the basis for excusing the
juror by offering permissible, nondiscriminatory justifications. Third, if the party
has offered a nondiscriminatory reason, the trial court must decide whether the
opponent of the strike has proved the ultimate question of purposeful
discrimination. (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).)
       At the outset, we find erroneous the trial court’s ruling that Scott’s
Batson/Wheeler motion was untimely. The trial court determined that Scott’s
motion was untimely because he did not object to the prosecutor’s challenges to
R.C. and H.R. until after the 12 jurors were sworn. A Batson/Wheeler motion is
timely if it is made before jury impanelment is completed, which does not occur
“ ‘until the alternates are selected and sworn.’ ” (People v. McDermott (2002) 28
Cal.4th 946, 970, italics added.) As we explained in McDermott, “discriminatory
motive may become sufficiently apparent to establish a prima facie case only
during the selection of alternate jurors, and a motion promptly made before the
alternates are sworn, and before any remaining unselected prospective jurors are
dismissed, is timely not only as to the prospective jurors challenged during the
selection of the alternate jurors but also as to those dismissed during selection of
the 12 jurors already sworn.” (Id. at p. 969.) Because Scott objected before the
alternate jurors were selected and sworn, his Batson/Wheeler motion was timely.
We therefore turn to the merits of Scott’s motion.
       A prima facie case of racial discrimination in the use of peremptory
challenges is established if the totality of the relevant facts “ ‘gives rise to an
inference of discriminatory purpose.’ ” (Johnson, supra, 545 U.S. at p. 168.) In
this case, the trial court ruled that Scott had not raised an inference of
discrimination as to either prospective juror. We review that ruling independently
where, as here, the trial predated Johnson and it is not clear from the record

                                               19
whether the trial court analyzed the Batson/Wheeler motion with this low
threshold in mind. (People v. Thomas (2012) 53 Cal.4th 771, 794.)
       Although the question at the first stage concerning the existence of a prima
facie case depends on consideration of the entire record of voir dire as of the time
the motion was made (People v. Lenix (2008) 44 Cal.4th 602, 624), we have
observed that certain types of evidence may prove particularly relevant. (People v.
Bonilla (2007) 41 Cal.4th 313, 342 (Bonilla).) Among these are that a party has
struck most or all of the members of the identified group from the venire, that a
party has used a disproportionate number of strikes against the group, that the
party has failed to engage these jurors in more than desultory voir dire, that the
defendant is a member of the identified group, and that the victim is a member of
the group to which the majority of the remaining jurors belong. (Wheeler, supra,
22 Cal.3d at pp. 280–281.) A court may also consider nondiscriminatory reasons
for a peremptory challenge that are apparent from and “clearly established” in the
record (People v. Box (2000) 23 Cal.4th 1153, 1189; see People v. Turner (1994) 8
Cal.4th 137, 168) and that necessarily dispel any inference of bias. (People v.
Taylor (2010) 48 Cal.4th 574, 644; accord, United States v. Stephens (7th Cir.
2005) 421 F.3d 503, 516, 518 [“the examination of ‘apparent’ reasons in the
record . . . involves only reasons for the challenges that are objectively evident in
the record” such that “there is no longer any suspicion, or inference, of
discrimination in those strikes”]; cf. Williams v. Runnels (9th Cir. 2006) 432 F.3d
1102, 1110 [“refutation of the inference requires more than a determination that
the record could have supported race-neutral reasons for the prosecutor’s use of
his peremptory challenges”].)
       Scott points out that the prosecutor struck two of the three African
Americans and three of an unknown number of Latinos who made it into the jury
box, that he is African American, and that the victim was white. He urges us to

                                             20
find a prima facie case of discrimination on those facts alone. Although those
facts may be probative on the issue of discriminatory intent (Bonilla, supra, 41
Cal.4th at p. 342), the high court has directed us to consider the totality of the
relevant facts in determining whether an inference of discrimination exists.
(Johnson, supra, 545 U.S. at p. 168.) Viewed as a whole, the record in this case
clearly establishes nondiscriminatory reasons for excusing R.C. and H.R. that
dispel any inference of bias.
       R.C. was familiar with the deputy district attorney because he had
successfully prosecuted R.C.’s son a year or two earlier and had committed her
son to prison — with the assistance of the same lead investigator who would be
testifying in the current prosecution. Moreover, R.C. had criticized her son’s
prosecution as racially motivated, and she admitted having been very upset about
it. Like the trial court, we doubt that any prosecutor would have kept R.C. on the
jury, despite her assertion that she could be fair and impartial in this case. No
inference of purposeful discrimination arose from this strike. (People v. Lancaster
(2007) 41 Cal.4th 50, 77–78.)
       The record also established compelling reasons to excuse H.R., who in his
questionnaire said he was so opposed to the death penalty as to be unwilling to
impose it under any circumstances. Although H.R. elsewhere said in his
questionnaire that while he was opposed to the death penalty, he would be able to
impose it in some circumstances (and that he neither favored nor opposed the
death penalty) — and claimed in voir dire that the confusing responses were a
“mistake” — he nonetheless struggled in voir dire to explain which category best
accorded with his own views, even after being told twice that a complete
unwillingness to impose the death penalty would render him ineligible for jury
service. Even if the conflicting questionnaire responses and the voir dire on the
subject would not have justified a for-cause challenge, a prosecutor would

                                              21
reasonably want to avoid the risk that H.R. actually would, as he stated in the
questionnaire, “never vote for the death of another person.” (See People v.
Sattiewhite (2014) 59 Cal.4th 446, 470; People v. Panah (2005) 35 Cal.4th 395,
441.) This risk was sufficient to dispel an inference of discrimination.

               c. Clarification of Our Practice in Reviewing Batson/Wheeler
                   Motions
       In this case, the trial court determined first that Scott had failed to raise an
inference of discrimination in connection with the strikes of R.C. and H.R. It then
granted the prosecutor an opportunity to state his reasons for excusing those
jurors. After being assured that the trial court had found no prima facie case of
discrimination, the prosecutor made a record of his reasons for excusing H.R. The
prosecutor did not offer reasons for excusing R.C., presumably because of the trial
court’s statement that the reasons for excusing her were so obvious that it would
“give up making decisions” if anyone thought she could have been a fair juror.
The trial court, as an alternative holding, then credited the prosecutor’s reasons
and determined that the strike of H.R. did not constitute purposeful discrimination.
       The United States Supreme Court has not established whether an appellate
court in such circumstances should review the trial court’s first-stage ruling that
there was no prima facie case of discrimination or, instead, its third-stage ruling
that there was no purposeful discrimination. Appellate tribunals therefore have
some flexibility in fashioning a workable procedure, so long as the approach
complies with the familiar three-step Batson/Wheeler framework. (People v. Mata
(2013) 57 Cal.4th 178, 183; see Johnson, supra, 545 U.S. at p. 168 [“States do
have flexibility in formulating appropriate procedures to comply with Batson”];
Batson, supra, 476 U.S. at p. 99 [“We decline . . . to formulate particular
procedures to be followed upon a defendant’s timely objection to a prosecutor’s




                                              22
challenge”]; accord, State v. Jacobs (La. 2001) 803 So.2d 933, 940; People v.
Hameed (N.Y. 1996) 666 N.E.2d 1339, 1341.)
       Neither the parties nor Justice Liu disputes that an appellate court properly
reviews the first-stage ruling if the trial court has determined that no prima facie
case of discrimination exists, then allows or invites the prosecutor to state reasons
for excusing the juror, but refrains from ruling on the validity of those reasons.
(E.g., People v. Taylor, supra, 48 Cal.4th at pp. 612-614; People v. Hawthorne
(2009) 46 Cal.4th 67, 78–79 & fn. 2; accord, United States v. Johnson (7th Cir.
2014) 756 F.3d 532, 536–537; see United States v. Valencia-Trujillo (11th Cir.
2009) 573 F.3d 1171, 1184, fn. 8.) What divides them is whether the same
procedure applies when the trial court, having determined that no prima facie case
was established and having heard the proffered justifications, goes ahead and
makes an alternative holding that those reasons were genuine.
       We recognize that our jurisprudence on this issue has not always been
entirely consistent. (Compare, e.g., People v. Banks (2014) 59 Cal.4th 1113, 1146
[in “ ‘such a circumstance,’ ” “ ‘ “we express no opinion on whether defense
counsel established a prima facie case of discrimination and instead skip to
Batson’s third stage to evaluate the prosecutor’s reasons” ’ ”] with People v. Lopez
(2013) 56 Cal.4th 1028, 1049–1050 [where trial courts choose “ ‘to request and
consider a prosecutor’s stated reasons for excusing a prospective juror even when
they find no prima facie case of discrimination,’ ” the request does “ ‘ “not convert




                                             23
[this] first-stage Wheeler/Batson case into a third-stage case” ’ ”].) We therefore
take this opportunity to clarify our practice.1
       In formulating an approach to the question before us, we must be mindful
of the interests at stake. The Batson/Wheeler framework is designed to enforce the
constitutional prohibition on exclusion of persons from jury service on account of
their membership in a cognizable group. It is also designed to otherwise preserve
the historical privilege of peremptory challenges free of judicial control, which
“traditionally have been viewed as one means of assuring the selection of a
qualified and unbiased jury.” (Batson, supra, 476 U.S. at p. 91.) A balancing of
these competing interests explains why the party exercising a peremptory
challenge has the burden to come forward with nondiscriminatory reasons only
when the moving party has first made out a prima facie case of discrimination.
(J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 145; accord, Brown v. Dixon
(4th Cir. 1989) 891 F.2d 490, 497.) Although mandating further inquiry, even
when the opponent of the strike was unable to raise an inference of discrimination


1       We distinguish at the outset the situation here, where the trial court made
independent rulings that no prima facie case existed and that no purposeful
discrimination occurred, from the situation where a trial court skips over the first
stage altogether (e.g., Hernandez v. New York (1991) 500 U.S. 352, 359
(Hernandez) (plur. opn. of Kennedy, J.); People v. Elliott (2012) 53 Cal.4th 535,
560) or purported to rule on the first stage only after the prosecutor had already
offered a statement of reasons (e.g., People v. Chism (2014) 58 Cal.4th 1266,
1311–1312; People v. Mills (2010) 48 Cal.4th 158, 173–174). When a trial court
solicits an explanation of the strike without first declaring its views on the first
stage, we infer an “implied prima facie finding” of discrimination and proceed
directly to review of the ultimate question of purposeful discrimination. (People v.
Arias (1996) 13 Cal.4th 92, 135 [“The court cannot undo an implied ruling once
made by stating after explanations have been received that it never intended to
find a prima facie case”].)




                                              24
from the existing record, might either help confirm the trial court’s first-stage
ruling or refute it, we must harmonize the constitutional interest in combating
discrimination with the United States Supreme Court’s preservation of the
peremptory challenge in Batson. (See Rice v. Collins (2006) 546 U.S. 333, 343
(conc. opn. of Breyer, J.).)
       Our approach to Batson/Wheeler motions has also been shaped by practical
considerations. Even though a peremptory challenge is designed to be used “for
any reason, or no reason at all” (Hernandez, supra, 500 U.S. at p. 374 (conc. opn.
of O’Connor, J.)) — and a party exercising a strike thus has no obligation to
articulate a reason until an inference of discrimination has been raised (People v.
Williams (1997) 16 Cal.4th 635, 663–664) — we have nonetheless repeatedly
encouraged trial courts to offer prosecutors the opportunity to state their reasons so
as to enable creation of an adequate record for an appellate court, should it
disagree with the first-stage ruling, to determine whether any constitutional
violation has been established. (People v. Howard (2008) 42 Cal.4th 1000, 1020;
Bonilla, supra, 41 Cal.4th at p. 343, fn. 13; accord, United States v. Collins (9th
Cir. 2009) 551 F.3d 914, 927–928 (conc. opn. of Graber, J.) [“Judicial economy
would be well served,” as “would confidence in the fairness of a trial”]; State v.
Holloway (Conn. 1989) 553 A.2d 166, 172; Robinson v. United States (D.C. 2006)
890 A.2d 674, 683 [“such voluntary proffers should be encouraged”]; State v.
Sledd (Kan. 1992) 825 P.2d 114, 119; Brawner v. State (Miss. 2004) 872 So.2d 1,
10–11 [such a practice “would allay the difficulties caused by lost or misplaced
documentation and faded memories,” and, if the reviewing court determines a
prima facie case was made, “this procedure gives the Court a complete record for
reviewing the issue of pretext”].) After all, when a trial court erroneously fails to
discern an inference of discrimination and terminates the inquiry at that point, an
appellate court is generally required to order a remand to allow the parties and the

                                             25
trial court to continue the three-step Batson/Wheeler inquiry. (See, e.g., People v.
Johnson (2006) 38 Cal.4th 1096, 1103–1104.) An investigation into the
prosecutor’s motives many years after the fact, when memories have faded and the
parties’ written notes can no longer be found, is an inferior substitute for a
contemporaneous record of the prosecutor’s justification and the defendant’s
response.
       Yet prosecutors may be reluctant to state their reasons for the record if
doing so would jeopardize or nullify a ruling in their favor that the defense failed
to raise an inference of discrimination. (Robinson v. United States, supra, 890
A.2d 674 at p. 683 [“to treat the prosecution’s proffer as a waiver by the
government of the trial court’s ruling in its favor” would “deter prosecutors from
making such proffers”].) Indeed, this case provides solid proof that Robinson’s
concerns were not mere speculation. The prosecutor here declared unequivocally,
“I don’t want to say anything until I’m required to by the Court” and continued to
resist offering any statement of reasons until he was satisfied the record “clearly
reflect[ed]” the trial court’s finding that Scott had failed to present a prima facie
case of discrimination. (See People v. Howard, supra, 42 Cal.4th at p. 1020
[“emphasiz[ing]” that when a trial court has concluded “that a prima facie showing
has not been made, the request” for a statement of reasons “does not convert a
first-stage Wheeler/Batson case into a third-stage case”].)
       Our appellate procedure, then, should seek to advance several objectives.
We must ensure that the discriminatory use of peremptory challenges is
discovered and remedied, that the right to unexplained peremptory challenges is
otherwise preserved, and that the parties are not discouraged from creating a
record that is sufficient for resolution of the Batson/Wheeler claim on appeal. Our
rule should also be clear, predictable, and easy to apply. We therefore consider



                                              26
closely the operation of the approaches proposed by the Attorney General and by
Scott and Justice Liu.
        If (as Scott and Justice Liu propose) an appellate court should proceed
directly to the third stage whenever the trial court has determined both that no
prima facie case of discrimination existed and that no purposeful discrimination
occurred, then the trial court may be discouraged from ever making the threshold
determination whether a prima facie case exists. (See Serr & Maney, Racism,
Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a
Delicate Balance (1988) 79 J. Crim. L. & Criminology 1, 41.) Even when the trial
court addresses the first-stage inquiry, prosecutors will not want to jeopardize the
favorable ruling by placing their reasons on the record. (Robinson v. United
States, supra, 890 A.2d at p. 683.) A remand will thus be needed to create that
record, years after the trial, whenever an appellate court disagrees with the trial
court’s first-stage ruling. And even when the prosecutor has offered reasons,
Scott’s rule will prove uncertain of application where, as here, the parties disagree
as to whether the trial court actually made a ruling on the ultimate issue of
purposeful discrimination. (Cf. People v. Taylor, supra, 48 Cal.4th at pp. 613–
614.)
        By contrast, if (as the Attorney General proposes) an appellate court can
review the first-stage ruling when, as here, the trial court has made alternative
rulings at both the first and third stages, then the trial court has no incentive to skip
over the first-stage inquiry. Likewise, the prosecutor has no incentive to withhold
his or her reasons for the peremptory challenge. In addition, the Attorney
General’s rule is simple and predictable: when the trial court finds there is no
prima facie case of discrimination before the proponent of the strike has been
asked for or has volunteered a statement of reasons, then the appellate court should
begin its review with the first-stage ruling.

                                                27
       The approaches proposed by Scott and the Attorney General each rely on
the same three-step Batson/Wheeler framework and thus each is equally sensitive
to the possibility of discrimination. Scott, however, contends the approaches do
not equally remedy unlawful discrimination and posits a scenario in which a trial
court correctly finds no prima facie case of discrimination, the prosecutor then
offers a discriminatory reason, but the trial court nonetheless rejects the
defendant’s Batson/Wheeler objection. He contends that an appellate court’s
focus on the first-stage ruling would “insulate” the discriminatory reason from
scrutiny in that instance.
       But the prospect that a strike motivated by unlawful bias could evade full
review arises any time a trial court terminates the Batson/Wheeler inquiry at the
first stage, and is a legacy of the Batson framework itself. This troubling scenario
could also arise whenever the prosecutor chooses not to place his or her
justifications for the strike on the record — a result that the approach endorsed by
Scott and Justice Liu would actively encourage. Even when — as Justice Liu
hypothesizes — comparative analysis could demonstrate that the prosecutor’s
stated reasons may have been pretextual, the prosecutor’s reasons would
nonetheless be insulated from appellate review as long as the trial court had not
ruled on the sincerity of the proffered reasons. Indeed, under the approach
proposed by Scott, a facially discriminatory reason that is placed on the record
would be insulated from review as long as the trial court refrained from actually
deciding the ultimate issue of discrimination. Scott’s hypothetical scenario,
therefore, does not afford a basis for choosing one approach over the other. We
should, however, consider more closely the role a prosecutor’s discriminatory
reason may play in an appellate court’s review of a finding that no prima facie
case existed.



                                             28
       As the parties have acknowledged, a reviewing court may not rely on a
prosecutor’s statement of reasons to support a trial court’s finding that the
defendant failed to make out a prima facie case of discrimination. Although a
court reviewing a first-stage ruling that no inference of discrimination exists “may
consider apparent reasons for the challenges discernible on the record” as part of
its “consideration of ‘all relevant circumstances’ ” (United States v. Stephens,
supra, 421 F.3d at pp. 515–516), the fact that the prosecutor volunteered one or
more nondiscriminatory reasons for excusing the juror is of no relevance at the
first stage. Because an inference of discrimination rises or falls based on the
circumstances in the record, “[t]o say ‘the prosecutor gave a reason, therefore
there is no prima facie case’ is to scramble the analysis in a way that potentially
eliminates the need to evaluate the prosecutor’s honesty.” (Hooper v. Ryan (7th
Cir. 2013) 729 F.3d 782, 787; see Johnson, supra, 545 U.S. at p. 171 [“ ‘It is not
until the third step that the persuasiveness of the justification becomes
relevant’ ”].)2
       The legal calculus is different when the reason offered by the prosecutor is
not used by the reviewing court to defeat a prima facie case, but to bolster it. Both
Batson and Wheeler emphasized that the purposeful exclusion of identifiable
groups from participation on juries undermines public respect for our criminal
justice system. (Batson, supra, 476 U.S. at p. 99; Wheeler, supra, 22 Cal.3d at
p. 270.) When discriminatory intent is “ ‘inherent’ ” in the explanation offered by
the prosecutor (Purkett v. Elem (1995) 514 U.S. 765, 768), the public’s confidence



2     To the extent that People v. Mayfield (1997) 14 Cal.4th 668, 723–724,
suggested otherwise, it should no longer be followed.




                                             29
in the rule of law suffers, regardless of whether the defendant was able to make
out a prima facie case of discrimination. In these circumstances, “justice must
satisfy the appearance of justice.” (Offutt v. United States (1954) 348 U.S. 11, 14.)
Reviewing courts, therefore, should not blind themselves to the record in the
“rare” circumstance that a prosecutor volunteers a justification that is
discriminatory on its face. (Kesser v. Cambra (9th Cir. 2006) 465 F.3d 351, 373
(conc. opn. of Wardlaw, J.).) A proffered justification that is facially
discriminatory must be weighed with the totality of the relevant facts to determine
whether they give rise to an inference of discriminatory purpose and thus compel
analysis of the subsequent steps in the Batson/Wheeler framework.
       In sum, where (1) the trial court has determined that no prima facie case of
discrimination exists, (2) the trial court allows or invites the prosecutor to state his
or her reasons for excusing the juror for the record, (3) the prosecutor provides
nondiscriminatory reasons, and (4) the trial court determines that the prosecutor’s
nondiscriminatory reasons are genuine, an appellate court should begin its analysis
of the trial court’s denial of the Batson/Wheeler motion with a review of the first-
stage ruling. (People v. Lopez, supra, 56 Cal.4th at pp. 1047–1050; People v.
Clark (2011) 52 Cal.4th 856, 904-908; People v. Howard, supra, 42 Cal.4th at pp.
1017–1019; People v. Guerra (2006) 37 Cal.4th 1067, 1101–1103 (Guerra);
People v. Boyette (2002) 29 Cal.4th 381, 421–423; People v. Farnam (2002) 28
Cal.4th 107, 135-139; People v. Mayfield, supra, 14 Cal.4th at pp. 722–723;
People v. Turner, supra, 8 Cal.4th at pp. 165–171; accord, United States v. Ervin
(6th Cir. 2008) 266 Fed.Appx. 428, 432–433; Sorto v. Herbert (2d Cir. 2007) 497
F.3d 163, 175, fn. 9; State v. Sledd, supra, 825 P.2d at p. 119 [“it is the better
practice to have the State respond, and then for the court to make a determination
on whether the reasons are racially neutral,” which “would eliminate remands for
such a determination if the trial court is held to have erred in holding the defendant

                                              30
had failed to make the prima facie showing”]; State v. Joe (La.Ct.App. 1996) 678
So.2d 586, 591 [“this is undoubtedly the better practice”]; Brawner v. State, supra,
872 So.2d at pp. 9–11; People v. Bruton (N.Y.App.Div. 2002) 735 N.Y.S.2d
759.)3 If the appellate court agrees with the trial court’s first-stage ruling, the
claim is resolved. If the appellate court disagrees, it can proceed directly to review
of the third-stage ruling, aided by a full record of reasons and the trial court’s
evaluation of their plausibility.
       In the circumstance where (1) the trial court has determined that no prima
facie case of discrimination exists, (2) the trial court allows or invites the
prosecutor to state his or her reasons for excusing the juror on the record, (3) the
prosecutor provides a reason that is discriminatory on its face, and (4) the trial
court nonetheless finds no purposeful discrimination, the appellate court should
likewise begin its analysis of the trial court’s denial of the Batson/Wheeler motion
with a review of the first-stage ruling. In that (likely rare) situation, though, the
relevant circumstances, including the facially discriminatory justification
advanced by the prosecutor, would almost certainly raise an inference of
discrimination and therefore trigger review of the next step of the Batson/Wheeler
analysis.
       Our case law recognizes an additional wrinkle when the appeal involves
multiple Batson/Wheeler challenges. Where the appellate court is already
evaluating the sincerity of the proffered reason for excusing one juror as part of its
review of all the evidence as it bears on the question whether the excusal of



3     To this limited extent, People v. Banks (2014) 59 Cal.4th 1113, 1146, and
People v. McKinzie (2012) 54 Cal.4th 1302, 1320, should no longer be followed.




                                              31
another juror constituted unlawful discrimination (see Miller-El v. Dretke (2005)
545 U.S. 231, 252; People v. Lenix, supra, 44 Cal.4th at p. 616), the appellate
court may likewise begin its review of the denial of the Batson/Wheeler motion as
to the first juror by evaluating the sincerity of the proffered reason. In People v.
Riccardi (2012) 54 Cal.4th 758, for example, the trial court denied the defendant’s
first, second, and fourth Batson/Wheeler motions after hearing the prosecutor’s
reasons and without making any express findings as to the existence of a prima
facie showing of discrimination. (Riccardi, at pp. 784–786.) Review of those
rulings necessarily began with the third stage. (See People v. Jurado (2006) 38
Cal.4th 72, 104 [“By asking the prosecutor to explain the peremptory challenges,
the trial court here implicitly found that defendant had made a prima facie
showing”].) Only as to the third motion did the trial court deny it without first
hearing from the prosecutor, although the prosecutor did eventually supply a
reason for excusing that juror in connection with the last Batson/Wheeler motion
(and the trial court “appeared implicitly to agree with the prosecutor’s reasons”).
(Riccardi, supra, at p. 786.) Because our assessment of the lawfulness of the
strikes exercised against the first, second, and fourth jurors included an evaluation
of the legitimacy of the prosecutor’s reason for striking the third juror — and
because it would have been wholly artificial to consider those reasons as to the
first, second, and fourth jurors but not as to the third juror herself — we elected in
those particular circumstances to review the trial court’s third-stage ruling as to all
four jurors. (Id. at pp. 786–787; see People v. Chism, supra, 58 Cal.4th at pp.
1313–1314; People v. Montes (2014) 58 Cal.4th 809, 852–857.)
       This case, however, is governed by the general rule. For the reasons set
forth in the preceding section, the trial court correctly concluded that Scott failed
to make out a prima facie case of discrimination as to either strike. That is
sufficient to resolve his claim of Batson/Wheeler error.

                                              32
       Justice Liu and the cases he cites rely heavily on the plurality opinion in
Hernandez to conclude that the first-stage inquiry is moot. (Conc. opn., post, at
pp. 1, 7–9.) We respectfully disagree with their reading of Hernandez.
Hernandez held that the issue of whether the defendant had made a prima facie
showing of discrimination was moot only in the particular circumstance where the
trial court failed to consider whether a prima facie showing had been made, and
ruled instead on the ultimate question of intentional discrimination. (Hernandez,
supra, 500 U.S. at p. 359 (plur. opn. of Kennedy, J.).) Indeed, the prosecution
never disputed, in state court or in the high court, that the first stage had been
satisfied. (People v. Hernandez (N.Y. 1990) 553 N.Y.S.2d 85, 87; Hernandez,
supra, 500 U.S. at p. 378 (dis. opn. of Stevens, J.).) Accordingly, as we have
previously explained, Hernandez has no application where, as here, the trial court
“expressly found that a prima facie case of discrimination was not established.”
(Guerra, supra, 37 Cal.4th at p. 1103; accord, State v. Allen (La. 2005) 913 So.2d
788, 802 [“the defendant’s reliance upon the rule set forth . . . in Hernandez is
misplaced,” since “it is obvious from the district court’s ruling that the defense’s
Batson challenge had already failed when the State proffered its reasons for appeal
purposes only”]; Brawner v. State, supra, 872 So.2d at p. 10, fn. 1 [distinguishing
Hernandez on the ground that “the State offered neutral reasons without the trial
judge first finding that a prima facie case has been made”]; State v. Williams (N.C.
1996) 471 S.E.2d 379, 386–387 [explaining that Hernandez “does not apply in this
case because the trial court made a ruling that defendant failed to make a prima
facie showing before the prosecutor articulated his reasons for the peremptory
challenges”].)
       Justice Liu also posits that our analysis “cannot be reconciled with the
Batson framework” (conc. opn., post, at p. 2), which (as the high court has
explained) “is designed to produce actual answers to suspicions and inferences

                                              33
that discrimination may have infected the jury selection process.” (Johnson,
supra, 545 U.S. at p. 172.) But “suspicions” and “inferences” of discrimination
are precisely what appear to be missing when, as here, a trial court permissibly
finds that the moving party has failed to satisfy the first stage of the Batson
framework but nonetheless allows the other party to place its reasons on the
record. (Cf. Johnson v. Love (3d Cir. 1994) 40 F.3d 658, 665-667 [finding the
trial court erred in ruling that no prima facie case existed].) Notably, Justice Liu
does not claim that the record here supported any inference or suspicion of
discrimination. Nothing in Batson required the trial court or an appellate court to
supply actual answers to a question that did not arise.
       Justice Liu cites a handful of cases that have taken an approach similar to
the one he espouses. These cases reflect a diversity of practice among state and
federal appellate courts — and often within a state — where, as here, the trial
court has determined that no prima facie case of discrimination exists, the trial
court allows or invites the prosecutor to state his or her reasons for excusing the
juror for the record, the prosecutor provides nondiscriminatory reasons, and the
trial court determines that the prosecutor’s nondiscriminatory reasons are genuine.
The flexibility granted by the high court in implementing Batson, while limited,
appears to tolerate these diverse approaches. Moreover, our approach is consistent
with prior precedent and the balance struck by the high court with respect to
remedying unlawful discrimination in jury selection within a system that permits
peremptory challenges. (People v. Lopez, supra, 56 Cal.4th at pp. 1047–1050;
People v. Clark, supra, 52 Cal.4th 856 at pp. 904–908; People v. Howard, supra,
42 Cal.4th at pp. 1017–1019; Guerra, supra, 37 Cal.4th at pp. 1101–1103; People
v. Boyette, supra, 29 Cal.4th at pp. 421–423; People v. Farnam, supra, 28 Cal.4th
at pp. 135–139; People v. Mayfield, supra, 14 Cal.4th at pp. 722–723; People v.
Turner, supra, 8 Cal.4th at pp. 165–171; accord, United States v. Ervin, supra, 266

                                              34
Fed.Appx. at pp. 432–433; Sorto v. Herbert, supra, 497 F.3d at p. 175, fn. 9; State
v. Sledd, supra, 825 P.2d at p. 119; State v. Joe, supra, 678 So.2d at p. 591;
Brawner v. State, supra, 872 So.2d at pp. 9–11; People v. Bruton, supra, 735
N.Y.S.2d at p. 759.) Because Hernandez explicitly found “no error” when the
New York appellate courts began their analysis with the trial court’s first-stage
ruling (Hernandez, supra, 500 U.S. at p. 372 (plur. opn. of Kennedy, J.)), we are
confident that our analytical model rests within the discretion granted us by Batson
and Johnson.

           3. Severance Motion
       The trial court denied Scott’s pretrial motion to sever the homicide charges
in counts 1 through 4 from the charges in counts 6 through 9 alleging four nearby
burglaries following the murder. Thereafter, Scott pleaded guilty to the four
subsequent burglaries. On appeal, Scott claims that the trial court erred in denying
his severance motion. In the alternative, he contends that his trial resulted in gross
unfairness amounting to a denial of due process.
       At the outset, we note that in this and certain other appellate claims, Scott
contends that the asserted error violated his constitutional rights to due process, a
fair trial, and reliable verdicts under the Fifth, Eighth, and Fourteenth
Amendments to the federal Constitution. Because the trial court granted defense
counsel’s pretrial motion to consider all of his trial objections and motions under
the Fifth, Sixth, Eighth, and Fourteenth Amendments, these additional
constitutional claims are not forfeited on appeal. (See People v. Boyer (2006) 38
Cal.4th 412, 441, fn. 17.) In any event, “[a]s is our usual practice, we resolve
defendant’s multiple constitutional claims without separate discussion. Rejection
of a claim on its merits necessarily disposes of the additional constitutional
‘gloss.’ ” (People v. Hartsch (2010) 49 Cal.4th 472, 493, fn. 19.)



                                              35
       “The law favors the joinder of counts because such a course of action
promotes efficiency.” (People v. Myles (2012) 53 Cal.4th 1181, 1200.) Section
954 provides that “[a]n accusatory pleading may charge two or more different
offenses connected together in their commission . . . or two or more different
offenses of the same class of crimes or offenses, under separate counts, and if two
or more accusatory pleadings are filed in such cases in the same court, the court
may order them to be consolidated.” Even where the statutory requirements for
joinder are satisfied, however, “a trial court has discretion to order that properly
joined charges be tried separately.” (People v. Merriman (2014) 60 Cal.4th 1, 37;
see § 954.) “[A] defendant must make a clear showing of prejudice to establish
that the trial court abused its discretion in denying the defendant’s severance
motion.” (People v. Mendoza (2000) 24 Cal.4th 130, 160 (Mendoza).)
       Here, the statutory requirements for joinder were satisfied. The homicide
charges included a burglary that is plainly of the same class of crimes as the
subsequent burglaries. In addition, the underlying facts of each of the charged
offenses share certain characteristics. Each offense occurred within a five-month
period and within an eight-block radius of Morris’s house in Palm Springs. Each
incident took place in a residence between midnight and 3:00 a.m. The residences
were structurally similar, and the perpetrator invariably entered through a sliding
glass door. Further, although the subsequent burglaries were committed at
different times and locations against different victims, they are “ ‘connected
together in their commission’ ” to the homicide-related burglary because “they are
. . . linked by a ‘ “common element of substantial importance” ’ ”: they all
involved the intent to unlawfully take property. (People v. Lucky (1988) 45 Cal.3d
259, 276; see ibid. [“ ‘[T]he element of intent to feloniously obtain property runs
like a single thread through the various offenses.’ ”]; Mendoza, supra, 24 Cal.4th
at p. 160 [each of the robberies and commercial burglaries involved the intent to

                                              36
illegally obtain property].) Under these circumstances, joinder of the offenses was
permissible. Therefore, Scott must make the requisite clear showing of prejudice
to establish that the trial court abused its discretion in denying his severance
motion. (Mendoza, at pp. 160–161.)
        “Refusal to sever may be an abuse of discretion where: (1) evidence on the
crimes to be jointly tried would not be cross-admissible in separate trials; (2)
certain of the charges are unusually likely to inflame the jury against the
defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another
‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges
might well alter the outcome of some or all of the charges; and (4) any one of the
charges carries the death penalty or joinder of them turns into a capital case.”
(People v. Sandoval (1992) 4 Cal.4th 155, 172.) In determining whether denial of
the severance motion was an abuse of discretion, we examine the record before the
trial court at the time of its ruling. (People v. McKinnon (2011) 52 Cal.4th 610,
630.)
        “Cross-admissibility is the crucial factor affecting prejudice. [Citation.] If
evidence of one crime would be admissible in a separate trial of the other crime,
prejudice is usually dispelled.” (People v. Stitely (2005) 35 Cal.4th 514, 531–
532.) As we explain further below, the subsequent burglaries and the burglary
committed in connection with the homicide are sufficiently similar under the
standard set forth in People v. Ewoldt (1994) 7 Cal.4th 380, 402, to support the
inference that if Scott committed the subsequent burglaries, he probably harbored
the same intent in burglarizing the murder victim’s home. Thus, evidence of the
subsequent burglaries would have been cross-admissible at a separate trial of the
homicide-related burglary charge to demonstrate his felonious intent to take
property. Moreover, no other circumstance supports an inference of prejudice
here: Evidence of the subsequent burglaries was unlikely to inflame the jury,

                                              37
compared to the evidence of the sexual assault and killing of the 78-year-old
murder victim. Although the evidence of the subsequent burglaries was solid, the
potential for a spillover effect was minimal because the evidence against Scott on
the homicide-related charges, including DNA evidence, was also substantial. And
joinder of the subsequent burglary charges did not change a noncapital case into a
capital case. In sum, Scott has not made a showing of prejudice that establishes an
abuse of discretion by the trial court in denying his severance motion.
       Scott further contends that the trial court’s denial of his severance motion
actually resulted in a fundamentally unfair trial in violation of due process of law.
“Even if a trial court’s severance or joinder ruling is correct at the time it was
made, a reviewing court must reverse the judgment if the ‘defendant shows that
joinder actually resulted in “gross unfairness” amounting to a denial of due
process.’ ” (Mendoza, supra, 24 Cal.4th at p. 162.) Scott argues that the
prosecutor improperly urged the jury to consider the evidence of the subsequent
burglaries as proof of his propensity to commit crimes, including all the homicide-
related offenses. But Scott provides no citation to the assertedly improper
argument in the record, and our review of the record reveals no such argument.
Instead, the record shows that the prosecutor properly argued, consistent with the
trial court’s ruling and instructions to the jury, that the jury could consider
evidence of the subsequent burglaries in determining whether Scott intended to
steal property when he entered the murder victim’s home.
       Finally, Scott contends that his trial was fundamentally unfair because
during the penalty phase, the prosecutor improperly argued that the jurors could
consider evidence of the subsequent burglaries as an aggravating circumstance.
(See § 190.3, factor (b) [“[t]he presence or absence of criminal activity by the
defendant which involved the use or attempted use of force or violence or the
express or implied threat to use force or violence”].) The prosecutor commented

                                              38
that “you have people minding their own business in their own house, and again
we have this screen door element, [defendant] coming in where he does not
belong; [defendant] bringing his violence on people that are minding their own
business.” Scott’s claim is that the prosecutor’s reference to “people minding their
own business in their own house” coupled with his reference to a “screen door
element” reminded the jurors of all of the burglaries, including all of the
subsequent burglaries, and thus misled them into believing all the burglaries were
proper aggravating factors.
       In context, however, the prosecutor referred to only two specific burglaries:
the March 1988 incident involving Scott’s attempted robberies of Thomas Meyer
and Dan King, and the November 1992 burglary in which Scott assaulted Kenneth
Osburn and Jeffrey Cole. Specifically, the prosecutor urged the jury to consider
under factor (b) “the incidents involving Thomas Meyer and Dan King in March
of 1988,” during which Scott brandished a simulated weapon and demanded
money from “people who are minding their own business . . . in their . . . camper.”
The prosecutor similarly argued that factor (b) applied to the “incidents with
Jeffrey Cole and Kenneth Osburn,” during which Scott threatened and demanded
money from “people minding their own business in their own house, and again we
have this screen door element.” Evidence of these offenses was admissible as
aggravating circumstances because each involved the use or attempted use of force
or violence. (§ 190.3, factor (b).) We thus reject Scott’s claims challenging the
trial court’s denial of his severance motion.




                                                39
       B. Guilt Phase Issues

           1. Other Crimes Evidence
       Scott contends that the trial court erred in admitting evidence of the four
burglaries committed after the homicide to show he entered the murder victim’s
home with the intent to steal. (Evid. Code, § 1101, subd. (b).)

                a. Factual and Procedural Background
       At trial, the prosecutor sought to admit evidence of the subsequent
burglaries to prove Scott’s intent to steal when he entered Morris’s home and to
show a common design or plan in the commission of all of the burglaries. (Evid.
Code, § 1101, subd. (b).) The prosecutor argued that the burglaries shared the
following characteristics: (1) they were committed within an eight-block radius in
Palm Springs; (2) they occurred between midnight and 3:00 a.m.; (3) the houses
were of similar design and build; (4) the perpetrator entered each residence
through a rear sliding door; and (5) the perpetrator took or attempted to take
property in each instance. In addition, like the homicide that occurred during the
burglary of Morris’s residence, the burglary that occurred on November 4, 1992
(count 9), involved assaultive conduct. Over a defense objection, the trial court
ruled the other-crimes evidence admissible on the issue of intent based on the first
four similarities identified by the prosecutor.

                b. Discussion
       “Evidence of a person’s character, also known as propensity evidence, is
inadmissible to prove conduct in conformity with that character trait.” (People v.
Villatoro (2012) 54 Cal.4th 1152, 1170.) However, under Evidence Code section
1101, subdivision (b), evidence of other crimes “can be admitted for other relevant
purposes, such as proving . . . intent,” even if it is inadmissible “to prove the
defendant had a disposition to commit similar bad acts.” (Villatoro, at pp. 1170–
1171, fns. omitted.) “In order to be admissible to prove intent, the uncharged

                                              40
misconduct must be sufficiently similar to the charged offense to support the
inference that the defendant probably acted with the same intent in each instance.”
(People v. Lindberg (2008) 45 Cal.4th 1, 23.) “ ‘The inference to be drawn is not
that the actor is disposed to commit such acts; instead, the inference to be drawn is
that, in light of the first event, the actor, at the time of the second event, must have
had the intent attributed to him by the prosecution.’ ” (People v. Gallego (1990)
52 Cal.3d 115, 171.)
       Here, the fact that Scott committed the subsequent burglaries was relevant
to the issue of intent on the burglary charge connected with the murder. As noted,
all of the burglaries shared a number of similarities. Each occurred over a period
of five months and within an eight-block radius in Palm Springs. In each incident,
Scott entered the house between midnight and 3:00 a.m. through a sliding glass
door. He took or attempted to take items from each house. The residences had a
similar design and build. Based on these similarities, evidence of the subsequent
burglaries would reasonably support an inference that Scott harbored the same
intent to steal when he entered the murder victim’s home.
       Scott argues that admitting evidence of the subsequent burglaries allowed
the jury to infer his propensity to commit burglary, including the burglary of the
victim’s home. But during the guilt phase, the trial court instructed the jury under
CALJIC No. 2.50 as follows: “Evidence has been introduced for the purposes of
showing that the defendant committed crimes other than that for which he is on
trial. This evidence, if believed, may not be considered by you to prove that
defendant is a person of bad character or that he has a disposition to commit
crimes. . . . [¶] It may be considered by you only for the limited purposes of
determining if it tends to show the existence of intent which is a necessary element
of the crime of burglary. For the limited purpose for which you may consider this
evidence, you must weigh it in the same manner as you do all other evidence in

                                              41
the case. You are not permitted to consider this evidence for any other purpose.”
We presume the jurors followed the trial court’s instructions. (People v. Houston
(2012) 54 Cal.4th 1186, 1211.)
       Scott also argues that evidence of the subsequent burglaries should have
been excluded because it might have been misused as evidence in aggravation in
the penalty trial. Before counsel argued at the penalty trial, however, the trial
court limited the scope of evidence the jury could consider under section 190.3,
factor (b), to the evidence of the crimes committed during the March 1988 and
November 1992 incidents. As discussed, the prosecutor did not suggest that
evidence of all of the subsequent burglaries could be considered in aggravation.
Under these circumstances, we are unable to conclude that the jury potentially
misused evidence of the August 1992 burglaries as aggravating factors.
       Finally, Scott argues that the trial court should have excluded evidence of
the subsequent burglaries because it was cumulative to the prosecutor’s other
evidence of Scott’s intent to burglarize the murder victim’s home and thus, under
Evidence Code section 352, its probative value was substantially outweighed by
the probability that its admission would confuse the jury or necessitate undue
consumption of time. We disagree. “Evidence that is identical in subject matter to
other evidence should not be excluded as ‘cumulative’ when it has greater
evidentiary weight or probative value.” (People v. Mattson (1990) 50 Cal.3d 826,
871.) Here, the prosecutor’s theory that Scott committed burglary was based on
evidence that he entered Morris’s home with the sole intent to steal property. It is
true that Webbie’s missing wallet was probative of this intent. But it is reasonable
to view the evidence of the subsequent burglaries as even more strongly probative
on this point. Moreover, the jury was properly instructed on how to use the other-
crimes evidence, thereby minimizing any risk of confusion or undue consumption



                                             42
of time. Exclusion of this evidence under Evidence Code section 352 was not
required.
       In sum, the trial court did not abuse its discretion in admitting evidence of
the subsequent burglaries for the limited purpose of proving Scott’s intent to
burglarize Morris’s home.

            2. Murder Charge
       The indictment charged Scott with murdering Morris willfully and
unlawfully and with malice aforethought in violation of section 187. Scott was not
charged specifically with first degree murder in violation of section 189, i.e.,
murder committed in the course of committing an enumerated felony. On appeal,
Scott raises a number of federal and state constitutional claims related to the
failure to charge felony murder under section 189 separately from, and in addition
to, charging murder with malice under section 187. But we have previously
rejected such arguments, including Scott’s claim that the indictment’s failure to
separately allege a violation of section 189 violates Apprendi v. New Jersey (2000)
530 U.S. 466, and we decline to revisit our precedent. (See People v. Contreras
(2013) 58 Cal.4th 123, 147–149.)

            3. The Prosecution’s Burden of Proof
       Scott claims that reversal is required because the trial court’s instructions
under CALJIC Nos. 2.01, 2.21.l, 2.21.2, 2.22, 2.27, 2.51, and 8.83 effectively
reduced the prosecution’s burden of proving his guilt beyond a reasonable doubt.
       Preliminarily, the Attorney General contends that the doctrine of invited
error procedurally bars Scott from presenting his claim on appeal because his trial
counsel did not object to any of the guilt phase instructions and also requested and
then withdrew his request that CALJIC No. 2.51 be given. “Invited error,
however, will only be found if counsel expresses a deliberate tactical purpose in



                                             43
resisting or acceding to the complained-of instruction.” (People v. Valdez (2004)
32 Cal.4th 73, 115.) Because the record does not show that counsel expressed a
tactical basis for either making or withdrawing his request that CALJIC No. 2.51
be given, or for acceding to the court giving the remaining instructions, Scott’s
claim is not procedurally barred. To the extent Scott claims the instructions
affected his substantial rights, we may review his claim under section 1259 despite
the failure to raise this challenge below.
       Scott contends that the instructions on circumstantial evidence (CALJIC
Nos. 2.01 and 8.83) effectively told the jurors that if he “reasonably appeared”
guilty, they could find him guilty even if they entertained a reasonable doubt as to
guilt. As a result, Scott argues, these instructions reduced the prosecution’s
burden of proof beyond a reasonable doubt. In addition, he says, the instructions
on the credibility and weight of the evidence (CALJIC Nos. 2.21.1, 2.21.2, and
2.22) and motive (CALJIC No. 2.51) similarly diluted the proof beyond a
reasonable doubt standard because they informed the jury that it could decide
material issues by determining which side had presented relatively stronger
evidence. But we have rejected nearly identical claims, as Scott acknowledges,
and we decline to revisit our precedent. (See People v. Cook (2007) 40 Cal.4th
1334, 1361–1362; People v. Stewart (2004) 33 Cal.4th 425, 521; People v. Maury
(2003) 30 Cal.4th 342, 428; People v. Millwee (1998) 18 Cal.4th 96, 160; People
v. Crittenden (1994) 9 Cal.4th 83, 142–144.)

       C. Penalty Phase Issues

           1. Felony-Murder Special-Circumstance Allegations
       The jury found true the felony-murder special-circumstance allegations that
Scott murdered Morris during the commission of the crimes of burglary, rape, and
sodomy. Each of these special circumstances standing alone made him eligible to



                                             44
receive the death penalty. Scott contends that his death sentence violates the
Eighth Amendment’s proportionality requirement and international law because
the prosecution was not required to prove he had a “culpable state of mind” with
regard to the homicide. Again, as Scott acknowledges, we have rejected these
contentions, and we decline to revisit our precedent. (See People v. Rountree
(2013) 56 Cal.4th 823, 854; People v. Watkins (2012) 55 Cal.4th 999, 1034;
People v. Letner and Tobin (2010) 50 Cal.4th 99, 194.)

           2. Victim Impact Evidence
       The trial court admitted three photographs offered by the prosecution as
victim impact evidence under section 190.3, factor (a). Two photos had been
taken over 30 years before the crimes: One depicted the victim in a dancing
costume, and the other showed the victim with three children, one of whom was
prosecution witness Raymond Abelin. The third was a photo of the victim in a
costume with her brother Webbie taken at a performance some 11 years before the
crime. On appeal, Scott contends that these photos were unduly prejudicial and
beyond the scope of permissible victim impact evidence.
       As an initial matter, we reject the Attorney General’s assertion that the
claim is forfeited because defense counsel objected solely on the ground that the
evidence was cumulative under Evidence Code section 352. During argument on
the objection, the parties addressed these issues, and the trial court, in denying the
objection, stated that the photographs simply reflected milestones throughout the
victim’s life and thus did not pose a risk of undue prejudice that substantially
outweighed its probative value. Under these circumstances, the claim is preserved
for review. (Cf. People v. Scott (1978) 21 Cal.3d 284, 290 [“In a criminal case,
the objection will be deemed preserved if, despite inadequate phrasing, the record
shows that the court understood the issue presented”].)



                                             45
       Victim impact evidence is inadmissible at the penalty phase of a capital
trial if it is “so inflammatory as to elicit from the jury an irrational or emotional
response untethered to the facts of the case.” (People v. Pollock (2004) 32 Cal.4th
1153, 1180.) We have held that victim impact evidence may include photographs
of the victim while alive and with family members. (See People v. Edwards
(2013) 57 Cal.4th 658, 755.) The fact that the photos here were taken many years
earlier during Morris’s adult life does not cause them to fall outside of permissible
parameters. The prosecutor used the photos to convey that the victim celebrated
and enjoyed life to the fullest as a dancer. Having reviewed the photos, we agree
with the trial court that they were “just ordinary pictures” that provided “a neat,
brief, succinct” glimpse of the victim’s life. We do not find the photos to be
particularly inflammatory, and Scott cites nothing in the record to support his
assertion that the prosecutor placed special emphasis on the photos in his closing
argument.

            3. Imposition of the Upper Term on Count 11 and Upper and Full
                Consecutive Terms as to Counts 2 and 3
       The trial court imposed a determinate sentence of 35 years and eight
months for Scott’s convictions on the noncapital charges and enhancements. Scott
claims that under Cunningham v. California (2007) 549 U.S. 270, imposition of
this determinate sentence violated his Sixth Amendment right to a jury trial
because the trial court relied on facts that were neither found by the jury nor
admitted by him in imposing the upper term on count 11 (second robbery) and
upper and full consecutive terms on counts 2 (rape) and 3 (sodomy). He
additionally claims that remand for resentencing is required because the trial court
erred by failing to state reasons for imposing full consecutive terms on counts 2
and 3 under section 667.6, subdivision (c), and merely incorporating by reference




                                              46
the circumstances in the probation report as its statement of reasons for imposing
his sentence. The claims are without merit.

                a. Factual and Procedural Background
       As noted, Scott was convicted of the special circumstances murder of
Morris and the following offenses: five counts of first degree burglary (counts 1,
6–9); one count of rape (count 2); one count of sodomy (count 3); two counts of
second degree robbery (counts 10 and 11); and two counts of assault with force
likely to produce great bodily injury (counts 12 and 13). The trial court found true
that Scott had suffered one prior serious felony conviction and had served one
prior prison term. (§§ 667, 667.5, subd. (b).) Scott admitted the personal use of a
deadly weapon allegations (§ 12022, subd. (b)) on counts 9 through 12.
       After sentencing Scott to death on the capital charge, the trial court
sentenced him to a determinate sentence of 35 years and eight months as follows:
The court determined the robbery in count 11 was the principal term and, “for the
reasons set forth in the probation report by weighing the aggravating and
mitigating factors pursuant to the sentencing rules,” imposed the upper term of
five years plus a one-year enhancement for personal use of a deadly weapon. On
counts 12 and 13, the court imposed a one-year term (one-third the midterm) for
each conviction, to be served consecutively to count 11 “based upon the
sentencing factors discussed . . . in the probation report” and then stayed each
sentence pursuant to section 654. On counts 1 and counts 6 through 10, the court
imposed a total term of seven years and eight months (the aggregate of the
midterm for each conviction), consecutive “for the reasons previously stated.”
The court imposed a full consecutive eight-year upper term on counts 2 and 3
under section 667.6, subdivision (c), “for the reasons . . . stated in the [probation]
report.” For the true findings on the prior conviction (§ 667) and prior prison term



                                              47
(§ 667.5, subd. (b)) allegations, the court imposed a sentence of five years and one
year, respectively, each “full and consecutive for the reasons set forth [in the
probation report].” The trial court stayed imposition of Scott’s sentences on the
enhancements for personal use of a deadly weapon on counts 9 and 12.
       The probation report listed the following aggravating circumstances related
to the crimes: (1) “the crimes involved great violence, great bodily harm, threat of
great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or
callousness”; (2) “[t]the defendant was armed with or used a weapon at the time of
the commission of the crime”; (3) “[t]he victim was particularly vulnerable”; (4)
“[t]the manner in which the crime was carried out indicates planning,
sophistication, or professionalism”; and (5) “[t]he crimes involved an attempted or
actual taking or damage of great monetary value” (see Cal. Rules of Court, rule
4.421, (a)(1), (2), (3), (8), (9)).
       The probation report also listed the following aggravating circumstances
related to Scott: (1) “[t]he defendant has engaged in violent conduct which
indicates a serious danger to society”; (2) “[t]he defendant’s prior convictions as
an adult or sustained petitions in juvenile delinquency proceedings are numerous
or of increasing seriousness”; (3) “[t]he defendant has served a prior prison term”;
(4) “[t]he defendant was on probation or parole when the crime was committed”;
and (5) “[t]he defendant’s prior performance on probation or parole was
unsatisfactory” (see Cal. Rules of Court, rule 4.421, (b)(1), (2), (3), (4), (5)).

                 b. Discussion
       “Apprendi v. New Jersey (2000) 530 U.S. 466 holds that, under the Sixth
Amendment, ‘any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.’ [Citation.] In Blakely v. Washington (2004) 542 U.S. 296, the high court



                                              48
extended the scope of Apprendi by defining ‘statutory maximum’ as the
‘maximum sentence a judge may impose solely on the basis of the facts reflected
in the jury verdict or admitted by the defendant.’ [Citations.] Applying Blakely,
the court later held in Cunningham v. California, supra, 549 U.S. 270, that
California’s determinate sentencing law did not comport with a defendant’s Sixth
Amendment jury trial right. As Cunningham explained, ‘If the jury’s verdict alone
does not authorize the sentence, if, instead, the judge must find an additional fact
to impose the longer term, the Sixth Amendment requirement is not satisfied.’ (Id.
at p. 290.) Because the aggravating circumstances necessary for imposition of an
upper term ‘depend on facts found discretely and solely by the judge’ (id. at
p. 288), the ‘statutory maximum’ prescribed in California’s sentencing scheme is
not the upper term but rather the middle term. (Ibid.)” (People v. Myles, supra,
53 Cal.4th at p. 1220.)
       In his reply brief, Scott acknowledges our decision in People v. Black
(2007) 41 Cal.4th 799, 812 (Black), in which we concluded that under
Cunningham “imposition of the upper term does not infringe upon the defendant’s
constitutional right to jury trial so long as one legally sufficient aggravating
circumstance has been found to exist by the jury, has been admitted by the
defendant, or is justified based upon the defendant’s record of prior convictions.”
(Black, at p. 816.) Moreover, as long as a single aggravating circumstance
complying with Cunningham “renders a defendant eligible for the upper term
sentence,” “any additional fact finding engaged in by the trial court in selecting the
appropriate sentence among the three available options does not violate the
defendant’s right to jury trial.” (Black, at p. 812.)
       The Apprendi rule does not apply to “the fact of a prior conviction.”
(Apprendi, supra, 530 U.S. at p. 490.) Under Cunningham, aggravating
circumstances based on a defendant’s criminal history that render the defendant

                                              49
eligible for the upper term include a trial court’s finding that the defendant
suffered a prior conviction (Black, supra, 41 Cal.4th at pp. 818–820); that the
defendant suffered prior convictions that are numerous or increasingly serious
(ibid.); that the defendant was on probation or parole at the time the offense was
committed (People v. Towne (2008) 44 Cal.4th 63, 80–81 (Towne)); and that the
defendant performed unsatisfactorily while on probation or parole to the extent
such unsatisfactory performance is established by the defendant’s record of prior
convictions (id. at p. 82).
       Here, the aggravating circumstances enumerated in the probation report
included, among others, the facts that Scott’s prior convictions as an adult or his
sustained petitions in juvenile delinquency proceedings were numerous or of
increasing seriousness, that Scott was on probation or parole at the time of the
crimes, and that Scott performed unsatisfactorily while on probation or parole.
Because each of these aggravating circumstances was established by information
obtained from Scott’s criminal history records, each circumstance independently
satisfies Sixth Amendment requirements under Cunningham and rendered him
eligible for imposition of the upper term on counts 2, 3, and 11. (See Towne,
supra, 44 Cal.4th at pp. 80–82; Black, supra, 41 Cal.4th at pp. 818–820.) Under
these circumstances, the additional aggravating circumstance findings the trial
court considered in deciding to impose the upper term on those counts did not
violate Scott’s right to a jury trial. (Black, at p. 812.)
       In addition, as Scott also acknowledges in his reply brief, the high court has
held that “the Sixth Amendment’s restriction on judge-found facts” is
“inapplicable” when a trial judge makes factual findings necessary to the
imposition of consecutive terms. (Oregon v. Ice (2009) 555 U.S. 160, 170; Black,
supra, 41 Cal.4th at p. 823; see also People v. Wilson (2008) 44 Cal.4th 758, 813
[rejecting defendant’s claim that the trial court violated his 6th Amendment rights

                                               50
by imposing full consecutive terms under § 667.6, subd. (d), “[b]ecause the
Cunningham/Black rule does not apply to the sentencing choice to impose
consecutive rather than concurrent sentences”].) Thus, Scott’s claim that the trial
court’s imposition of consecutive sentences violated his Sixth Amendment right to
a jury trial under Cunningham is without merit.
       Scott further claims that the trial court erred by failing to state its reasons
for imposing full consecutive terms under section 667.6, subdivision (c), for his
convictions for rape (count 2) and sodomy (count 3) (People v. Belmontes (1983)
34 Cal.3d 335, 347–348), and by merely incorporating by reference the
aggravating and mitigating circumstances in the probation report as its reasons for
imposing the elevated, full, and consecutive terms for individual counts and the
corresponding enhancements. Because Scott failed to object on these grounds at
trial, he has forfeited the claims.
       In People v. Scott (1994) 9 Cal.4th 331, 356, “this court prospectively
announced a new rule: A party in a criminal case may not, on appeal, raise
‘claims involving the trial court’s failure to properly make or articulate its
discretionary sentencing choices’ if the party did not object to the sentence at trial.
[Citation.] The rule applies to ‘cases in which the stated reasons allegedly do not
apply to the particular case, and cases in which the court purportedly erred because
it double-counted a particular sentencing factor, misweighed the various factors, or
failed to state any reasons or give a sufficient number of valid reasons.’ ” (People
v. Gonzalez (2003) 31 Cal.4th 745, 751; see People v. McCullough (2013) 56
Cal.4th 589, 594–595, 597, 599.)
       The sentencing hearing in this case was conducted in 1997. The record
reveals that during the hearing, the trial court informed the parties of the sentence
it intended to impose and provided counsel adequate opportunity to object both at
the hearing and when it actually pronounced sentence and stated its reasons. (See

                                              51
People v. Gonzalez, supra, 31 Cal.4th at p. 752 [“It is only if the trial court fails to
give the parties any meaningful opportunity to object that the Scott rule becomes
inapplicable”].) At no time during the sentencing hearing did Scott object on the
grounds he now raises. Accordingly, the claims are forfeited on appeal.

           4. Challenges to California’s Death Penalty Law and Related
               Instructions
       Scott raises numerous challenges under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the constitutionality of the California’s death penalty
law and its application to his case. Many of these claims concern standard
instructions given at his penalty trial or instructions that the court declined to give
at his request. We have previously rejected such claims as follows:
       “Section 190.2 is not impermissibly broad in violation of the Eighth
Amendment.” (People v. Loker (2008) 44 Cal.4th 691, 755.) “The sentencing
factor of ‘circumstances of the crime’ (§ 190.3, factor (a)) is not unconstitutionally
vague and does not result in the arbitrary and capricious imposition of the death
penalty.” (People v. Valencia (2008) 43 Cal.4th 268, 310.) “[S]ection 190.3,
factor (b) (violent criminal activity) is not vague. (Tuilaepa v. California (1994)
512 U.S. 967, 980.) Nothing bars use of the same crime under factor (b) and
factor (c) (prior felony convictions). No sua sponte instruction against such
double-counting is required.” (People v. DePriest (2007) 42 Cal.4th 1, 59.)
       “[T]he death penalty statute is not unconstitutional because it does not
require ‘unanimity as to the truth of aggravating circumstances, or findings beyond
a reasonable doubt that an aggravating circumstance (other than § 190.3, factor (b)
or (c) evidence) has been proved, that the aggravating factors outweighed the
mitigating factors, or that death is the appropriate sentence.’ [Citation.] Nothing
in Cunningham v. California (2007) 549 U.S. 270, Blakely v. Washington (2004)
542 U.S. 296, Ring v. Arizona (2002) 536 U.S. 584, or Apprendi v. New Jersey


                                              52
(2000) 530 U.S. 466, affects our conclusions in this regard. [Citations.] No
burden of proof is constitutionally required, nor is the trial court required to
instruct the jury that there is no burden of proof. [Citations.] That certain
noncapital sentencing proceedings may assign a burden of proof to the prosecutor
does not mean the death penalty statute violates a [capital] defendant’s rights to
equal protection or due process.” (People v. Dement (2011) 53 Cal.4th 1, 55–56.)
Written findings by the jury are not constitutionally required. (People v. Morrison
(2004) 34 Cal.4th 698, 730.) “Use of prior criminal activity in aggravation was
proper.” (People v. Livingston (2012) 53 Cal.4th 1145, 1180.)
        The trial court is not required to delete inapplicable sentencing factors from
the jury instructions. (People v. Jones (2013) 57 Cal.4th 899, 980.) “The
instruction that jurors may impose a death sentence only if the aggravating factors
are ‘ “so substantial” ’ in comparison to the mitigating circumstances that death is
warranted does not create an unconstitutionally vague standard.” (People v.
Carrington (2009) 47 Cal.4th 145, 199.) The trial court is not required to instruct
the jury that “statutory mitigating factors are relevant solely as potential
mitigators” (People v. Streeter (2012) 54 Cal.4th 205, 268); that if the mitigating
evidence outweighs the aggravating evidence, the jury must return a verdict of life
without the possibility of parole (People v. DeHoyos, supra, 57 Cal.4th at p. 150);
that there is a presumption of life (People v. McKinnon, supra, 52 Cal.4th at
p. 698); or that the jury could return a verdict of life without possibility of parole
even if the circumstances in aggravation outweighed those in mitigation (People v.
Rogers (2009) 46 Cal.4th 1136, 1179). “Including in the list of potential
mitigating factors adjectives such as ‘extreme’ (§ 190.3, factors (d), (g)) and
‘substantial’ (id., factor (g)) does not erect an impermissible barrier to the jury’s
consideration of mitigating evidence.” (People v. Valdez (2012) 55 Cal.4th 82,
180.)

                                              53
       CALJIC No. 8.88, which defines the scope of the jury’s sentencing
discretion under section 190.3, “does not prevent either the proper weighing of
aggravating and mitigating factors, or an individualized sentencing determination.
[Citation.] The presumption that jurors understood such instructions, and
particularly the concept of mitigation, is not rebutted by extraneous empirical
claims.” (People v. DePriest, supra, 42 Cal.4th at p. 60.) Neither federal nor state
law requires the court to give a lingering doubt instruction because this “concept is
encompassed in section 190.3, factor (k) and related [standard capital case]
instructions.” (Id. at pp. 59–60.)
       CALJIC Nos. 8.85 and 8.88 sufficiently convey to the jury that it can
consider mercy and compassion for the defendant in determining the appropriate
penalty. (People v. Thomas, supra, 53 Cal.4th at p. 827.) “The trial court did not
err in declining defendant’s request to define life imprisonment without the
possibility of parole as meaning that he would stay in prison for the rest of his
natural life.” (People v. DePriest, supra, 42 Cal.4th at p. 58.)
       “Intercase proportionality review is not required.” (People v. Livingston,
supra, 53 Cal.4th at p. 1180.) “The California death penalty scheme does not
violate equal protection by treating capital and noncapital defendants differently.”
(Ibid.) “California’s death penalty scheme does not violate international law and
norms.” (People v. Mai (2013) 57 Cal.4th 986, 1058.)
       We decline to reconsider these precedents.

            5. Cumulative Error
       Scott contends that the cumulative effect of the asserted errors in his case
requires reversal of his convictions and death sentence even if none individually
compels reversal. We conclude that any errors or assumed errors were not
prejudicial. We find no reversible error by considering the claims cumulatively.



                                             54
                         CONCLUSION
For the reasons above, we affirm the judgment.




                                   55
                         CONCURRING OPINION BY LIU, J.


       During jury selection, defendant Royce Lyn Scott objected to the
prosecutor’s peremptory strike of Prospective Juror H.R., an African American.
(See Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978)
22 Cal.3d 258.) The trial court found no prima facie case of discrimination but
invited the prosecutor to state his reason for striking H.R. The prosecutor cited
H.R.’s “inconsistent answers on the death penalty,” and the trial court accepted
that explanation as a valid race-neutral reason.
       I agree that Scott’s Batson claim lacks merit. But I would reject the claim
on the ground that substantial evidence supports the trial court’s ruling that the
prosecutor offered a credible race-neutral explanation for striking H.R. Because
the prosecutor stated a reason for the strike and the trial court ruled on that reason,
the first stage of the Batson inquiry — i.e., whether Scott made a prima facie
showing of discrimination — is moot. (See People v. Banks (2014) 59 Cal.4th
1113, 1146; People v. McKinzie (2012) 54 Cal.4th 1302, 1320.)
       Today’s opinion holds that the trial court’s first-stage ruling is not moot and
denies Scott’s claim at the first stage without evaluating the prosecutor’s stated
reason for striking H.R. (Maj. opn., ante, at pp. 21–22, 32.) In so doing, the court

                                              1
opts to resolve Batson’s inquiry into discriminatory purpose based on “needless
and imperfect speculation” as to why the prosecutor might have struck H.R., even
though “actual answers” to that question were stated by the prosecutor and
evaluated by the trial court. (Johnson v. California (2005) 545 U.S. 162, 172
(Johnson).) This approach cannot be reconciled with the Batson framework and
risks weakening the constitutional prohibition on racial discrimination in jury
selection.
       Under today’s decision, when a prosecutor has stated a facially neutral
reason that nonetheless reveals discrimination in light of all relevant
circumstances, the Batson violation will evade appellate review so long as the trial
court did not err in its first-stage ruling. This is readily illustrated by considering a
variation on the facts of Snyder v. Louisiana (2008) 552 U.S. 472 (Snyder), a case
in which the high court concluded, upon a careful review of all relevant
circumstances, that the prosecutor’s facially neutral explanation for a strike was in
fact pretextual.
       Suppose that during jury selection in a capital case involving a black
defendant and a white victim, the prosecutor strikes a black prospective juror, and
defense counsel objects. The trial court correctly finds no prima facie showing of
discrimination because that juror was the only black juror struck among a handful
of black jurors in the venire. The trial court nonetheless asks the prosecutor to
explain the strike. She explains she struck the juror because he is a student teacher
and might rush through deliberations to avoid missing class if he served on the
jury. (Snyder, supra, 552 U.S. at p. 478.) The trial court finds this facially neutral
explanation to be credible. (Id. at p. 479.) On appeal, however, a proper third-
stage analysis reveals that the prosecutor’s explanation was implausible: The trial
would not have conflicted with the juror’s teaching obligations, and the prosecutor

                                               2
did not challenge similarly situated white jurors. (Id. at pp. 482–484.) Under
today’s opinion, a reviewing court would simply affirm the trial court’s first-stage
ruling. It would not examine whether the prosecutor’s facially neutral reason was
supported by the record, nor would it conduct any comparative juror analysis. As
a result, it would not evaluate whether the pretextual nature of the prosecutor’s
stated reason, when considered with all other relevant circumstances, was
sufficient to establish purposeful discrimination.
       The court does not disagree that its approach mandates this result. Yet this
result is plainly at odds with Batson. As the Third Circuit has explained, “to allow
the absence of a prima facie case to be case dispositive when the record raises
serious questions about the prosecutor’s motivations would defeat one of Batson’s
principal purposes — to provide assurance to the defendant and the community
that criminal judgments are not tainted by invidious discrimination. Where the
record as a whole as ultimately developed permits a reasonable argument that the
judgment is so tainted, the issue of taint must be resolved; it cannot be avoided by
a finding that the defendant failed to present a prima facie case.” (Johnson v. Love
(3d Cir. 1994) 40 F.3d 658, 665.)
       Today’s decision founders on a key question: What role, if any, should the
prosecutor’s stated reason play in appellate review of a first-stage Batson ruling?
The court says “the fact that the prosecutor volunteered one or more
nondiscriminatory reasons for excusing the juror is of no relevance at the first
stage.” (Maj. opn., ante, at p. 29.) I agree. But today’s opinion goes on to say
that a reviewing court, as part of the first-stage inquiry, must take a peek at the
stated reason to determine whether it is “discriminatory on its face.” (Id. at p. 30.)
If the stated reason is facially neutral and the first-stage ruling is correct, then the



                                                3
reviewing court must affirm without examining whether the reason is contradicted
by the record or otherwise suspicious.
       As both parties here agree, however, a prosecutor’s stated reason plays no
role in the first-stage inquiry because the purpose of the first stage is only to
determine whether the prosecutor must state a reason. When a prosecutor states a
reason and a court inquires whether the stated reason is facially discriminatory, the
analysis has necessarily moved past the first stage. Such inquiry properly occurs
at Batson’s second stage, where the issue is whether the prosecution has carried its
burden “to come forward with a neutral explanation.” (Batson, supra, 476 U.S. at
p. 97.) At that point, the analysis must take one of two paths: If the stated reason
is discriminatory on its face, then a finding of purposeful discrimination is
warranted. If the stated reason is facially neutral, then a court must proceed to
Batson’s third stage and evaluate the reason “in light of all evidence with a bearing
on it.” (Miller-El v. Dretke (2005) 545 U.S. 231, 252 (Miller-El).) Such evidence
may include record material that supports or undermines the stated reason, the
prosecutor’s conduct of voir dire or pattern of strikes, the prosecutor’s acceptance
of jury panels with varying compositions, comparative juror analysis, and other
factors. (See Snyder, supra, 552 U.S. at pp. 479–485; Miller-El, at pp. 241–266.)
The third-stage inquiry will also take into account the evidence that was found
insufficient to establish a prima facie case at the first stage.
       Today’s opinion scrambles this clear and well established procedure.
According to the court, the second-stage inquiry into whether the prosecutor has
stated a facially neutral reason may backwardly inform the first-stage inquiry into
whether there is an inference of discriminatory purpose requiring the prosecutor to
state a reason at all. (Maj. opn., ante, at p. 30 [“A proffered justification that is
facially discriminatory must be weighed with the totality of the relevant facts to

                                                4
determine whether they give rise to an inference of discriminatory purpose”]; id. at
p. 31 [“facially discriminatory justification advanced by the prosecutor” at the
second stage “would almost certainly [almost certainly?] raise an inference of
discrimination” at the first stage].) Further, the court says, if the stated reason is
facially neutral and the first-stage ruling is correct, then appellate review must
come to an end and ignore the trial court’s third-stage ruling — regardless of
whether the stated reason is supported by the record, whether the prosecutor struck
other similarly situated jurors, or whether other aspects of jury selection suggest
unlawful bias. This approach — requiring a peek, but only a peek, at the
prosecutor’s stated reason — falls short of the fulsome analysis Batson requires to
identify purposeful discrimination and ensure “public confidence in the fairness of
our system of justice.” (Batson, supra, 476 U.S. at p. 87.)
       The court says its approach balances several objectives: (1) discovering
and remedying discrimination, (2) preserving the use of unexplained peremptory
challenges, and (3) encouraging the development of a record that will allow for
efficient resolution of Batson claims on appeal. (Maj. opn., ante, at pp. 26–27.)
As to the first two objectives, the Batson framework already reflects a balance that
we are not free to redraw. (See Batson, supra, 476 U.S. at pp. 98–99 [“While we
recognize, of course, that the peremptory challenge occupies an important position
in our trial procedures, we do not agree that our decision today will undermine the
contribution the challenge generally makes to the administration of justice.”].)
       As to the third objective, today’s opinion speculates that if reviewing courts
deem the first stage moot and proceed to the third stage in this circumstance, trial
courts “may be discouraged from ever making the threshold determination
whether a prima facie case exists,” and “prosecutors will not want to jeopardize
the favorable [first-stage] ruling by placing their reasons on the record.” (Maj.

                                               5
opn., ante, at p. 27.) Such a rule, the court fears, may result in situations where an
appellate court overturns the trial court’s first-stage ruling and must remand for a
Batson hearing many years after trial.
       Although these are plausible concerns, they do not provide a complete
account of the incentives at work. If a trial court finds no prima facie case of
discrimination, the prosecutor can choose to stand pat on that ruling. Or the
prosecutor can choose to state a reason in order to create a record that will better
support affirmance on appeal, to rebut a perceived affront to his or her fairness, or
to promote transparency and confidence in the justice system. If the prosecutor
decides to state a reason and the trial court finds it credible, the trial court’s third-
stage ruling is entitled to “ ‘much deference’ ” on appeal. (Snyder, supra, 552
U.S. at p. 479; see id. at p. 477.)
       Under any of these scenarios, the prosecutor is exposed to little risk. As I
have previously documented, in more than 100 cases presenting Batson issues
over the past 24 years, this court has never found first-stage error on appellate
review, and it has only once found third-stage error (in an obvious case). (See
People v. Chism (2014) 58 Cal.4th 1266, 1352 (conc. & dis. opn. of Liu, J.);
People v. Harris (2013) 57 Cal.4th 804, 885 (conc. opn. of Liu, J.).) Because our
case law shows no sign of overenforcing Batson — that is, finding violations
where stated reasons are actually nondiscriminatory — it is hard to say that a
mootness rule would pose much if any disincentive for prosecutors to state reasons
where the reasons are actually nondiscriminatory.
       Moreover, in worrying about cases where an appellate court ends up
overturning the trial court’s first-stage ruling, today’s opinion focuses on
situations where a prosecutor has good reason not to stand pat on the first-stage
ruling. In such cases, the vulnerability of the first-stage ruling is, in all likelihood,

                                                6
already apparent when rendered by the trial court, and the prosecutor has a strong
incentive to put the matter to rest by stating a reason for the record. That reason
will be evaluated by the same trial court that already found no prima facie case of
discrimination, and the trial court’s credibility finding will be afforded deference
on appeal. Moreover, even when the first-stage inquiry is moot on appeal, any
weakness in the evidence of discrimination at the first stage will factor into the
third-stage determination of whether the defendant has carried his “ultimate
burden of persuasion regarding racial motivation.” (Purkett v. Elem (1995) 514
U.S. 765, 768.) Thus, the marginal effect of the mootness rule in dissuading
prosecutors from volunteering reasons is likely to be minimal in cases where a
trial court’s first-stage ruling is questionable. The marginal effect may be greater
in cases where a trial court’s first-stage ruling is solid, but those are cases where
the trial court’s first-stage ruling is virtually certain to be affirmed — i.e., cases
where the prosecutor’s refusal to state a reason is fully justified.
       Of course, “the prospect that a strike motivated by unlawful bias could
evade full review arises any time a trial court terminates the Batson/Wheeler
inquiry at the first stage.” (Maj. opn., ante, at p. 28.) But that is not a reason for
reviewing courts to dispense with the usual and complete inquiry into unlawful
bias when the prosecutor has stated a reason and the trial court has found it
credible. Speculative concerns about prosecutorial incentives do not justify
today’s truncated approach, which insulates facially neutral reasons from appellate
review. When “actual answers” have been stated by the prosecutor and evaluated
by the trial court, “[t]he inherent uncertainty present in inquiries of discriminatory
purpose counsels against engaging in needless and imperfect speculation . . . .”
(Johnson, supra, 545 U.S. p. 172.) A reviewing court should not resolve a Batson
claim by hypothesizing reasons for a strike, as the court does today (maj. opn.,

                                                7
ante, at pp. 21–22), when it can readily examine the actual reason stated by the
prosecutor and upheld by the trial court.
       The plurality’s reasoning in Hernandez v. New York (1991) 500 U.S. 352
(Hernandez) is persuasive. Although the trial court in Hernandez had skipped the
first stage altogether, there is no indication that that fact played a role in the
plurality’s mootness analysis. The plurality explained by analogy to Title VII
employment discrimination cases that “ ‘[w]here the [employer] has done
everything that would be required of him if the plaintiff had properly made out a
prima facie case, whether the plaintiff really did so is no longer relevant.’ ” (Id. at
p. 359 (plur. opn. of Kennedy, J.).) It then made clear that “the same principle
applies under Batson”: “Once a prosecutor has offered a race-neutral explanation
for the peremptory challenges and the trial court has ruled on the ultimate question
of intentional discrimination, the preliminary issue of whether the defendant had
made a prima facie showing becomes moot.” (Ibid.)
       The court today says: “Because Hernandez explicitly found ‘no error’
when the New York appellate courts began their analysis with the trial court’s
first-stage ruling (Hernandez, supra, 500 U.S. at p. 372 (plur. opn. of Kennedy,
J.)), we are confident that our analytical model falls within the discretion granted
us by Batson and Johnson.” (Maj. opn., ante, at p. 35.) But Hernandez’s finding
of “no error” expressed nothing beyond agreement with the state courts’
conclusions on the merits of the Batson claim: “[T]he prosecutor offered a race-
neutral basis for his exercise of peremptory challenges,” and “[t]he trial court did
not commit clear error in choosing to believe the reasons given by the prosecutor.”
(Hernandez, at p. 372.) Indeed, in the sentence immediately following its finding
of “no error,” the plurality reiterated that the first-stage inquiry had been
“unnecessary” on appeal. (Ibid.) Moreover, because Hernandez was a case where

                                                8
the courts at all levels proceeded to a third-stage ruling, it provides no reason to be
“confident” (maj. opn., ante, at p. 35) that a reviewing court may end the inquiry
at the first stage without fully analyzing the prosecutor’s stated reason. The high
court in Hernandez had no occasion to consider that scenario, which is what we
have here.
       Today’s opinion puts this court at odds with the majority of state high
courts and federal circuit courts that have considered the issue, many of which
have read Hernandez as I do. (See Manning v. State (Miss. 1998) 726 So.2d 1152,
1183, overruled on another ground in Weatherspoon v. State (Miss. 1999) 732
So.2d 158 [quoting Hernandez and concluding that because trial court ruled on
prosecutor’s stated reason, “the issue of whether a prima facie showing was made
is moot”]; State v. Williams (N.C. 2002) 565 S.E.2d 609, 638–639 [quoting
Hernandez and concluding that because trial court ruled on validity of
prosecutor’s explanations, “ ‘the only issue for us to determine is whether the trial
court correctly concluded that the prosecutor had not intentionally
discriminated’ ”]; Malone v. State (Tex.Crim.App. 1996) 919 S.W.2d 410, 412
[quoting Hernandez and stating that “we, like the Supreme Court, will not review
the issue of whether the defendant established a prima facie case where the
prosecutor has articulated reasons for the contested peremptory strike and the trial
judge has ruled on the ultimate question of intentional discrimination”]; Johnson v.
Love, supra, 40 F.3d at p. 665; United States v. Castorena-Jaime (10th Cir. 2002)
285 F.3d 916, 928; see also Stubbs v. Gomez (9th Cir. 1999) 189 F.3d 1099, 1104–
1105 [on federal habeas corpus review, prosecutor’s stated reasons and federal
district court’s ruling on those reasons rendered first-stage inquiry moot even
though state court determined there was no prima facie showing]; People v.
Boyette (2002) 29 Cal.4th 381, 469–470 (dis. opn. of Kennard, J.) [citing cases

                                              9
from intermediate state appellate courts holding that trial court’s ruling on
prosecutor’s stated reasons renders the first stage moot, despite first-stage ruling
that there was no prima facie showing].) Tallying authority is of course no
substitute for legal reasoning. But the number of jurisdictions that treat the first
stage as moot under these circumstances — and have long done so — casts doubt
on the practical concerns emphasized in today’s opinion.
       The court dismisses these non-California decisions as a “handful of cases.”
(Maj. opn., ante, at p. 34.) Apart from our own inconsistent precedent, today’s
opinion cites an unpublished disposition (United States v. Ervin (6th Cir. 2008)
266 Fed.Appx. 428, 432–433), an opinion explicitly distinguishing mootness
procedures on habeas corpus from those on direct review (Sorto v. Herbert (2d
Cir. 2007) 497 F.3d 163, 175, fn. 9), one sentence of dicta (State v. Joe (La. Ct.
App. 1996) 678 So.2d 586, 591), a decision from an intermediate state appellate
court that is contradicted by another division of the same court (compare People v.
Bruton (2002) 735 N.Y.S.3d 231, 232, with People v. Dalhouse (1997) 658
N.Y.S.2d 408, 410), a case in which the trial court made no third-stage ruling
(Brawner v. State (Miss. 2004) 872 So.2d 1, 10–11), and a single relevant state
high court opinion (State v. Sledd (Kan. 1992) 825 P.2d 114, 119). If the cases I
have cited are a mere handful, then the pertinent non-California authority cited by
the court could fit in a thimble.
       Because the first-stage inquiry is moot, I would analyze Scott’s Batson
challenge at the third stage. H.R.’s responses on the juror questionnaire indicated
that he simultaneously held four inconsistent attitudes about the death penalty.
When asked about these attitudes during voir dire, H.R. did little to clarify his
views. In light of H.R.’s written and oral responses, the trial court had ample basis
to credit the prosecutor’s facially neutral explanation for striking H.R.

                                              10
Comparative juror analysis does not aid Scott’s claim. No other prospective juror
expressed death penalty views as inconsistent or confusing as H.R.’s.
       In sum, I would reject Scott’s Batson claim as to H.R. at the third stage
rather than the first stage. In all other respects, I join the court’s opinion.
                                                    LIU, J.


       I CONCUR: KRUGER, J.




                                               11
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Scott
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S064858
Date Filed: June 8, 2015
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: H. Morgan Dougherty

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Susan Ten Kwan and
Arnold Erickson, Deputy State Public Defenders, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Jennifer A.
Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.




                                                       1
Counsel who argued in Supreme Court (not intended for publication with opinion):

Arnold Erickson
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607-4139
(510) 267-3367

Jennifer A. Jadovitz
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2204




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