           IN THE SUPREME COURT OF
                  CALIFORNIA

                       THE PEOPLE,
                  Plaintiff and Respondent,
                              v.
                 ROBERT BOYD RHOADES,
                  Defendant and Appellant.

                            S082101

              Sacramento County Superior Court
                         98F00230

__________________________________________________________

                      November 25, 2019

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

Justice Liu filed a dissenting opinion.

__________________________________________________________




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                      PEOPLE v. RHOADES
                           S082101

                Opinion of the Court by Kruger, J.




      Defendant Robert Boyd Rhoades was convicted of the first
degree murder of Michael Lyons, with special circumstances of
murder in the commission of forcible sodomy, murder in the
commission of a lewd act on a child, and murder by torture. He
was sentenced to death for the crime. In this automatic appeal
(Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b)),
we now affirm the judgment.
                          BACKGROUND
      On May 16, 1996, eight-year-old Michael Lyons went
missing after attending school in Yuba City. His body was found
the next day on the banks of the Feather River. He had been
stabbed to death sometime between the late afternoon of May
16 and the early morning of May 17. Defendant was tied to the
crime mainly by physical evidence indicating that Michael was
attacked in defendant’s pickup truck, which was found stuck in
the muddy river banks on May 17, and that the murder weapon
was a fishing knife defendant kept in the back of his truck.
     Defendant was charged in Sutter County with first degree
murder (count 1; Pen. Code, § 187) with special circumstances
of murder in the commission of kidnapping, murder in the
commission of sodomy, murder in the commission of a lewd act
on a child, and intentional murder involving the infliction of


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                   Opinion of the Court by Kruger, J.


torture (id., § 190.2, subd. (a)(17)(B), (a)(17)(D), (a)(17)(E),
(a)(18)); kidnapping (count 2; id., § 207, subd. (a)); kidnapping
for the purpose of committing a lewd act with a child (count 3;
id., § 207, subd. (b)); torture (count 4; id., § 206); sodomy by force
or with a person under 14 years of age and more than 10 years
younger than the perpetrator (count 5; id., § 286, subd. (c)); a
lewd or lascivious act on a child under the age of 14 (count 6; id.,
§ 288, subd. (a)); a lewd or lascivious act on a child under the age
of 14 by force or duress (count 7; id., § 288, subd. (b)(1)); oral
copulation by force or with a person under 14 years of age and
more than 10 years younger than the perpetrator (count 8; id.,
former § 288a, subd. (c)1); and possession of methamphetamine
(count 9; Health & Saf. Code, § 11377, subd. (a)). The
information also alleged prior convictions and prison terms for
purposes of sentence enhancements and sentencing under the
“Three Strikes” law (Pen. Code, §§ 667, 667.5, 1170.12) and a
misdemeanor charge of possessing a hypodermic needle or
syringe (count 10; Bus. & Prof. Code, former § 4140, added by
Stats. 1996, ch. 890, § 3 and repealed by Stats. 2011, ch. 738,
§ 2, eff. Jan. 1, 2012).
       After the Sutter County court granted a motion for change
of venue, the case was tried in Sacramento County. The guilt
trial began on April 14, 1998, and concluded with jury verdicts
on June 17, 1998. The jury convicted on all counts except those
charging kidnapping (counts 2 and 3) and forcible oral
copulation (count 8), as to which it could not reach a verdict, and
found true the special circumstances, except that for murder in


1
      Former section 288a of the Penal Code was recently
renumbered as section 287. (Stats. 2018, ch. 423, § 49,
pp. 3218–3221.)
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                  Opinion of the Court by Kruger, J.


the commission of kidnapping, as to which it could not reach a
verdict. A mistrial was declared on the counts and allegation as
to which the jury was deadlocked, and those counts were
dismissed on the prosecutor’s motion.
      The first penalty trial ended in a mistrial on July 9, 1998,
when the jury was unable to reach a verdict. The penalty retrial
began on December 1, 1998, with selection of a new penalty jury
and concluded with a verdict of death on March 19, 1999. On
September 10, 1999, the Sacramento County Superior Court
sentenced defendant to death for first degree murder with
special circumstances, to life terms (stayed under Pen. Code,
§ 654) for sodomy, lewd act with a child, and torture, and to a
determinate term for his prior convictions and prison terms.
Defendant’s automatic appeal was noticed the same day.
     Guilt Phase Evidence
       Michael Lyons lived in Yuba City with his mother,
stepfather, and two younger sisters. He attended third grade at
a school in their neighborhood. Various witnesses saw him leave
school on the afternoon of May 16, 1996. Michael’s teacher
testified that Michael left the classroom when his last class
ended at 2:50 p.m. Another teacher, who was on gate duty that
day, testified that Michael left the school at 3:05 p.m. The
teacher noted the time because Michael was the last student to
leave, and she was anxious to get inside out of the rain.
Sometime after 3:00 p.m., a neighbor of Michael’s saw him
walking by himself, carrying a stick, along C Street in Yuba
City.
      Two witnesses testified to a possible child abduction on the
afternoon of May 16. Raymie Clark was standing on an
apartment balcony overlooking C and Boyd Streets. From a

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                  Opinion of the Court by Kruger, J.


distance of about 400 yards, Clark saw a boy walking and
playing with a stick. A pickup truck with a camper shell stopped
and the boy ran up to the truck, then backed up and started
pointing, then went back toward the truck. When the truck
pulled away, the boy was no longer there, and as the truck drove
away, the passenger door opened and then “slammed shut.”
Charlie Wilbur, who was Clark’s cousin, came out to the balcony
as the truck drove away and Clark drew his attention to it.
Wilbur described the truck as a creamy white, while Clark saw
it as a shiny gold color. (Although it was raining at the time, the
sun was also shining brightly.) Clark’s and Wilbur’s time
estimates for this occurrence varied between 2:45 p.m. and 3:30
or 4:00 p.m.
     After school, Michael sometimes went to stay with his
grandmother, who lived close to the school; otherwise, he was
supposed to walk home. On May 16, Michael’s grandmother was
working late and never saw Michael, and he never arrived at
home. A police-organized search for Michael began on the night
of May 16, around 8:00 p.m., was suspended later that night,
and resumed on the morning of May 17.
     At around 11:00 a.m. on May 17, a search team found
Michael’s body in the “river bottoms” along the banks of the
Feather River. The body was lying under some bushes in a wet,
muddy area near the river. He was found naked from the waist
down and with a dark green sweater pulled up over his head.
      Between Michael’s body and the river, which was 10 to 15
feet away, was a bloodstained blanket. Defendant’s wife later
told police the blanket appeared to be one defendant kept in his
pickup truck. Under the body, police found a silver bracelet.
Both defendant’s wife and the owner of the bracelet later

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                   Opinion of the Court by Kruger, J.


identified the bracelet as having recently been in defendant’s
truck. About 12 to 15 feet from the body, in the dirt and sand
by the river, were footprints, of which castings were made. The
impressions were later found to match defendant’s feet in
overall size, shape and toe form.
      Dr. James Dibdin performed Michael’s autopsy. Michael
had suffered a pair of deep cuts with a knife to the left side of
his neck, one superimposed on the other, which would in
themselves have been fatal. In addition, he had been cut across
the right side of his neck and stabbed on the left side of his chest,
puncturing his lung, and on the left abdomen through to his
back (the latter two both deadly wounds). He also suffered
defensive wounds to his hands. Dr. Dibdin found multiple
lacerations to Michael’s anus, one an inch long, internal
bleeding associated with these lacerations, and abrasions and
bruising on the buttocks. Dr. Dibdin opined that the cause of all
these injuries was forcible sodomization with a penis. Rectal
swabs and smears showed the presence of semen. Michael’s lips
were also bruised on the inside, having been forced against his
teeth. The cause could have been a penis being pushed into his
mouth, a hand placed hard over his mouth, or both. Finally,
Dr. Dibdin described a group of shallow stab wounds below
Michael’s chin, caused by repeatedly jabbing with the tip of a
knife, a set of straight line abrasions on Michael’s face and
buttocks, suggesting a serrated knife being scraped across the
skin, and four stab wounds to Michael’s buttocks and hip, one
three and one-half inches deep.
     The cause of death was multiple stab and incised wounds
with contributing factors of anal penetration and repetitive
minor injuries. From the degree of rigor mortis, Dr. Dibdin


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estimated Michael died 12 to 24 hours before the autopsy, or
between 4:00 p.m. on May 16 and 4:00 a.m. on May 17.
      On the morning of May 17, 1996, a party of volunteers
searching the river bottoms for Michael had encountered
defendant, who was wearing pants and no shirt and seemed
nervous or shocked. Defendant asked for help getting his truck
out, saying he was in a hurry to leave town. The volunteers
continued their search.
       Later that morning, a Sutter County Sheriff’s Department
patrol boat went to the site where Michael’s body had been
found, and from there proceeded south downstream looking for
evidence or for other people in the area. Between a quarter-mile
and a half-mile from where the body was found, the sheriff’s
patrol came upon defendant’s truck, a white or beige pickup with
a camper shell, stuck in the mud right at the river’s edge.
Despite the loud noise of the boat’s exhaust system and its
official markings, defendant, who was sitting motionless in the
driver’s seat, did not react to its presence until the boat came
closer. Defendant made eye contact with the patrol sergeant, at
which point he got out of the truck and stood on the bank.
Defendant was wearing only a pair of wet blue jeans; despite the
cold, breezy and intermittently wet weather he was shirtless,
barefoot, and (it was later discovered) wore no underwear.
According to the sheriff’s sergeant, defendant also appeared
unenthusiastic about encountering the sheriff’s boat, even
though his situation appeared somewhat perilous.
      Defendant was brought aboard the boat and handcuffed.
As officers took defendant north to the Yuba City boat ramp,
they passed the scene of the body’s discovery, where several



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                       PEOPLE v. RHOADES
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people in white coveralls were now working. Defendant stared
straight ahead and did not look at the scene.
      Defendant’s truck was at the river’s edge, partly in the
water. The cable of a small come-along winch was wrapped at
one end around the rear axle and at the other around a tree. On
the open tailgate, there was a fishing knife, a thin bladed fillet
knife with a serrated edge. The knife had blood underneath
some sandy river soil in corners where the blade met the handle;
DNA testing showed the blood was Michael’s.
      Footprints matching Michael’s were found on the inside of
the truck’s windshield. Pubic hairs found on Michael’s clothing
(which could not have belonged to the eight-year-old victim)
were consistent in color, shape, and structure with samples
taken from defendant. On brushing defendant’s pubic area, a
criminalist found silty river-bottom soil and a green polyester
fiber. The fiber matched a fiber from Michael’s sweater in color,
shape, diameter, fiber type, and internal structure. There was
blood on Michael’s sweater and on defendant’s jeans and
underwear. There was also a large bloodstain on defendant’s
shirt. The blood on defendant’s underwear and shirt, which
were found in his truck, was dilute. Examination of defendant’s
body after his arrest showed he had abrasions and scratches on
his arm, hips, and inner thigh, and a possible bruise on his
penis.   Methamphetamine and a syringe were found in
defendant’s truck; defendant’s blood tested positive for
methamphetamine.
      The prosecution presented witnesses to show defendant’s
whereabouts on the afternoon of May 16, 1996. Defendant’s
father, who ran a barbershop where defendant worked, testified
defendant left the shop at around 11:00 a.m., saying he was

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taking his truck to Sears for a repair. Defendant called at about
1:00 p.m. to say the repair was not finished yet but he would
come in when it was.2 The father did not hear from defendant
again until defendant called from jail the next day. Employees
and a fellow card player at Rooney’s Card Room in Marysville
testified that defendant played cards there from 1:00 p.m. until
sometime after 3:00 p.m.; he tried to quit at 2:15 p.m., but
because the house had staked him some money when he started
playing, he had to play for at least two hours or share his
winnings with the house. Defendant left Rooney’s sometime
between 3:00 p.m. and 3:30 p.m.; the other card player, who saw
the clock when defendant left, remembered the time as 3:15 p.m.
or 3:17 p.m. A police investigator timed the drive from Rooney’s
to the intersection of C and Boyd Streets in Yuba City (where
Clark saw the possible child abduction) at under four minutes.
      The prosecution introduced no statements by defendant to
the police, but a Sutter County deputy sheriff testified to a
statement defendant made during a recess in the preliminary
hearing. After the time of death had been discussed in the
proceedings, the deputy sheriff overheard defendant tell his
attorney, “I can give them a better time of death than what they
have.”
      The prosecution also presented two witnesses to describe
defendant’s behavior on a Yuba City public bus on May 14, 1996,
two days before Michael’s killing. Alicia Tapia testified she saw
an unkempt, dirty man, whom she later identified as defendant,
get on the bus wearing a long knife in a sheath. The man then


2
     The parties stipulated that the Sears Automotive shop in
Yuba City had no record of providing services to defendant on
May 16, 1996.
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                  Opinion of the Court by Kruger, J.


had a conversation with another man about child abuse and
molestation. Tapia complained to the bus driver and the driver
told defendant to change the subject and stop upsetting the
passengers. Kevin Buchanan testified to a conversation he had
on the bus that day with a man with a knife, whom he identified
at trial as defendant. After they saw a woman on the street
striking a child, the conversation turned to child abuse and child
molestation. When Buchanan said he disliked molesters and
would beat them up, defendant admitted he had been in prison
for molesting a child and sometimes thought he would do it
again. If he did, defendant said, he would kill the child. To
Buchanan’s further questions about how he would do it,
defendant said he would take the child to the river bottoms and
kill the child with his knife, which he displayed to Buchanan. A
woman Buchanan described as a “Mexican lady” told them to
change the subject because they were scaring her children.
      Finally, the prosecution presented evidence of defendant’s
two prior sex offenses through the testimony of the victims.
Sharon T. testified that in 1985, she became acquainted with
defendant at the restaurant where she worked. After gaining
entry to her apartment on a pretext, defendant put a large
hunting knife to her throat, demanded money, handcuffed her,
and forced her to orally copulate him. He then said he was
taking her down to the river where he had to meet some people.
As defendant drove her toward the river, he started laughing
and said, “This is just like Bonnie and Clyde, but Bonnie’s not
going to make it.” When they neared the levee, Sharon opened
the passenger door and, after a struggle, jumped from the
moving car. Defendant backed up toward her, but she rolled
under the open door, then ran to a nearby public building.


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                  Opinion of the Court by Kruger, J.


Based on this incident, defendant was convicted of kidnapping,
forcible oral copulation, and robbery.
     The other victim, Crystal T., testified that in 1993, when
she was four years old, defendant—who was married to
Crystal’s grandmother—touched her vagina and put his penis in
her mouth. Defendant was convicted of a lewd act with a child.
      Defendant testified in his own defense. He denied any
contact with Michael Lyons. On May 16, 1996, he went to work
at his father’s barbershop but left before noon so that his father,
who needed the money, could have more work. Instead of having
his truck repaired as he had intended, he bought $60 worth of
methamphetamine from a friend and, after injecting a small
amount, went to Rooney’s Card Room. He arrived at 1:00 p.m.,
played poker for two and a half hours and left around 3:30 p.m.
He then drove to various places in Yuba City and Marysville
looking for another friend who had told him she needed a ride,
but did not find her. Defendant drove home to the town of Sutter
and stayed there about an hour, then came back to Yuba City
and down to the river bottoms, where he could use drugs without
fear of encountering his family, the police, or his parole officer.
      After defendant drove around the river bottoms, fished,
and did some dope, defendant’s truck got stuck sometime around
8:00 or 8:30 p.m. He tried unsuccessfully to free his truck for a
couple of hours, but realized he needed his come-along winch,
which was back at his house. During the night, he walked out
of the river bottoms to his father’s barbershop, stopped there to
inject more methamphetamine, then walked and hitchhiked to
his house in Sutter. After retrieving the come-along, he walked
and hitchhiked back to Yuba City and returned to his truck in
the river bottoms. He probably walked 10 miles during the

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                 Opinion of the Court by Kruger, J.


night. Defendant testified that when the deputy sheriff
overheard him talking about the time of Michael’s death, he
meant only that Michael must have been killed during this
period when he was away from his truck.
      Arriving back at his truck between 3:00 and 4:00 a.m. on
May 17, defendant testified, he found it ransacked, with papers
and tools strewn about. Though he thought he had locked the
cab when he left, the camper shell did not lock and he found the
sliding windows between the cab and the camper open. After
freeing his truck with the come-along, defendant decided to head
to the Shanghai Bend area of the river bottoms because he knew
some people who stayed there. On the way there, his truck
again became stuck in the mud. For the next eight hours,
defendant tried but failed to free it. He did not seek help from
his father because his father would have been angry at him for
using drugs; he had various reasons not to contact other
relatives or acquaintances. Though his truck was quite stuck,
he believed he would eventually get it out by himself.
      Defendant was not pleased to see the sheriff’s patrol boat
because he had drugs in his truck. On the boat, defendant saw
the people who looked like astronauts working on the shore but
was not concerned by it. He did not know why he was being
arrested.
      Defendant denied being on a bus on May 14 or behaving
on the bus at any time as Tapia had described. That day, he was
occupied with returning a boat to his father and getting his
wife’s car repaired.
      Defendant testified that the scratches on his body and the
blood on his shirt were from dragging logs while trying to free
his truck from the mud. He did not know how much he was

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                  Opinion of the Court by Kruger, J.


bleeding or how his shirt got a large bloodstain running from
one shoulder to the opposite armpit area.
      In addition to presenting defendant’s testimony, the
defense presented evidence to discredit the testimony about the
May 14 bus incident and to suggest that another person living
in the river bottoms was involved in Michael’s death.
Defendant’s father corroborated defendant’s account of his
activities on May 14, and the bus driver testified that had a
passenger displayed a knife in a threatening manner she would
have immediately reported the event to the police. The driver
knew both Tapia and Buchanan and did not recall the events
they described. Donald Dugger, who lived in a trailer in the
river bottoms, testified that a couple of days after Michael’s
disappearance, Bobbie Lemmons—another bottoms resident,
who had found Michael’s shoes and pants while scavenging in
the area—asked Dugger to provide him with an alibi for the
night of May 16. Police found a pocket knife with “L” and “R”
(defendant’s wife’s initials) engraved on its two sides in
Lemmons’s storage locker; he did not recall where he had gotten
it. Defendant identified the knife as his wife’s and a fishing pole
found in the locker as one that had been in his truck. A man
walking on the river bank around 4:15 p.m. on May 16 testified
that he saw Michael (whom he did not know but later recognized
from a photograph in the newspaper) playing there with another
boy his age, and a woman who was fishing on the Marysville side
of the river on May 16 (who also later recognized Michael from
a photograph in the newspaper) testified she saw him with two
men, one of whom she thought was defendant, on the Yuba City
bank in the late afternoon.



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      Penalty Retrial Evidence
      On retrial of penalty after the first jury hung, the parties
presented extensive evidence replicating that given at the guilt
phase. In addition, Michael’s aunt testified to the impact of
Michael’s death on her and on Michael’s mother and sister. The
prosecution also presented evidence that defendant had suffered
convictions for check forgery in the 1980’s, in addition to his
convictions for the crimes against Sharon T. and Crystal T.
      The defense presented three witnesses to support
defendant’s claim he had gone to a house looking for his friend
on the afternoon of May 16, 1996. But of these witnesses, the
only one who remembered seeing a man resembling defendant
at the house was using drugs heavily at the time and had told
the prosecution investigator she could not identify the man and
did not really know what day he was there. The defense also
presented evidence that Michael’s stepfather had been convicted
in 1995 of spousal abuse of Michael’s mother and of evading a
police officer, as well as the testimony of a forensic pathologist
who disagreed with Dr. Dibdin’s opinions in other cases but who
had not reviewed any materials relating to Michael’s death.
      Defendant’s father, mother, aunt, and sister testified
about defendant’s childhood and family life. Until defendant
was about 10, his father gambled, drank, and cheated on
defendant’s mother, which caused a lot of turmoil in the family.
After that, defendant’s father returned to his religion, Seventh
Day Adventism, and defendant was sent to a church school and
was restricted in his activities. In his teens defendant fought
with his father over the strict rules of their religion, over going
to church, and over a boarding school he was sent to.
Defendant’s sister thought their father was overly strict and

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critical with defendant. Defendant’s family knew he had a drug
problem, which began at the end of his high school years, but
they loved him.
      James Park, a consultant on adult prison operations and
prisoner classification, reviewed the records of defendant’s prior
imprisonments, from 1986 to 1990 and 1993 to 1994. Although
defendant had four disciplinary actions, there were also work
reports indicating he was productive, did not cause trouble, and
could help train other inmates and assist the employee-
supervisor. Park opined that defendant would make a positive
adjustment to state prison confinement.
                           DISCUSSION
     Guilt Phase Issues
     I. In Camera Review of Medical and Psychological
        Records
      The Federal Bureau of Investigation (FBI) conducted part
of the investigation into Michael’s death. Certain FBI interview
reports produced before trial indicated that Michael had
previously been molested by a relative. On several occasions
both before and during trial, defendant subpoenaed and sought
to compel production of various medical and psychological
records concerning the prior molestation. On the basis of the
FBI interview reports, defense counsel asserted the molestation
may have continued to the time of Michael’s death; counsel
further argued that defendant had a due process right to the
disclosure of the records because they might lead to
development of exculpatory evidence. Seeking the records again
before the second penalty trial, counsel also argued they were
potentially relevant to impeach Dr. Dibdin, the autopsy


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physician, and Tina Lyons, Michael’s aunt, a penalty phase
victim impact witness.
      Before trial, the Sutter County Superior Court reviewed
the records in camera, weighed their value to defendant’s
exercise of his constitutional rights against the various
evidentiary privileges and privacy interests asserted, including
the psychotherapist-patient privilege, and denied defendant’s
request to compel discovery of the records. Noting the
documents were remote in time from Michael’s murder, the
court found nothing that would assist defendant in his
presentation of a defense or confrontation of witnesses. The
court denied the motion subject to renewal during trial if the
material became relevant, however.          During trial, the
Sacramento County Superior Court also reviewed the materials
and, on two occasions, again denied defense motions to compel
their discovery on the ground that nothing in the records would
assist the defense.
      Defendant contends the trial court’s refusal to order
production of the medical and psychological records deprived
him of his rights to due process, to confront witnesses, and to
present a defense. Without access to the materials, defendant
acknowledges he cannot argue their specific relevance, but he
asserts they may have been relevant to show the existence of
“other molestations and suspects” and to impeach “the rosy
picture painted of Michael and his family in the victim impact
portion of the penalty phase.” He requests that this court review
the materials, which are under seal, to determine if any of them
should have been produced. The Attorney General does not
oppose the request, and we agree that review of the sealed
materials is appropriate to determine what relevance, if any,


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they bear to the posited defenses or impeachment. (See People
v. Gurule (2002) 28 Cal.4th 557, 592–595; People v. Hammon
(1997) 15 Cal.4th 1117, 1122–1128; People v. Webb (1993) 6
Cal.4th 494, 517–518.)3
       After our own review of the sealed records, we agree with
the two superior courts that considered the issue: the records
contain nothing of significance to the defense. As the lower
courts observed, most of the materials relate to events remote in
time from Michael’s murder, and nothing in them casts
suspicion for that crime on any person. Nor do the materials
contradict Dr. Dibdin’s testimony that he found no indications
on Michael’s anus or rectum of scarring from a previous
molestation, or Tina Lyons’s testimony that Michael’s murder
had taken away a part of Michael’s mother, Sandra, and
rendered her “lifeless,” no longer carefree and happy as she had
been before. We therefore find no error in denial of defendant’s
motions to compel discovery. (People v. Webb, supra, 6 Cal.4th
at p. 518.)
     II.   Admission of Hearsay Statements Made by
           Defendant’s Wife
      Defendant’s wife, Lynnette Rhoades, invoked her marital
privilege not to be called as a witness against her spouse. (Evid.
Code, § 971.) Over defendant’s hearsay objection, the court
admitted the testimony of Yuba City Police Sergeant Michael
Johnson that on May 20, 1996 (three days after defendant’s
arrest), Lynnette identified from photographs the blanket found
near Michael’s body and the bracelet found under the body.

3
      In the trial court, the parties disputed whether privileges
had been validly asserted as to some of the records. Defendant
does not renew those arguments on appeal.
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According to Johnson, during an interview he conducted with
her, Lynnette said the blanket appeared to be one defendant
kept in the back of his pickup truck and that she had seen the
bracelet in the truck a few days before Michael’s murder.
      On appeal, defendant contends admission of the hearsay
statements violated his federal confrontation and due process
rights. He argues that neither of the hearsay exceptions cited
by the trial court as a basis for admission (namely, spontaneous
statement (Evid. Code, § 1240) and statement against social
interest (id., § 1230)) applies. He also argues that admission of
the statements violated his right of confrontation under the
Sixth and Fourteenth Amendments to the United States
Constitution. (See Crawford v. Washington (2004) 541 U.S. 36,
53–55, 68 (Crawford) [testimonial hearsay inadmissible under
6th Amend. unless declarant is unavailable and there has been
a prior opportunity for cross-examination].)
       The Attorney General defends the application of both
hearsay exceptions but concedes that the statements—which
were made in response to questioning by law enforcement
officers seeking information to be used at a criminal trial—were
testimonial and therefore barred under Crawford. The Attorney
General maintains, however, that defendant forfeited his
confrontation clause claim by failing to object on that ground at
trial and that, in any event, admission of Lynnette’s statements
was harmless beyond a reasonable doubt.
     We reject the Attorney General’s forfeiture argument.
Because defendant’s trial preceded the decision in Crawford, his
claim of a confrontation clause violation was preserved despite
the absence of an objection on that ground. (People v.
Rangel (2016) 62 Cal.4th 1192, 1215 [concluding that “in a case

                                 17
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


tried before Crawford, a defendant does not forfeit a Crawford
challenge by failing to raise a confrontation clause objection at
trial”]; People v. Chism (2014) 58 Cal.4th 1266, 1288, fn. 8
[“[B]ecause      defendant’s    counsel      could   not    have
anticipated Crawford’s      sweeping     changes    to    federal
confrontation clause case law, he did not forfeit this claim by
failing to object to the admission of [the] statements on federal
constitutional grounds.”].)
      We further agree with both parties that Lynnette
Rhoades’s statements were testimonial and were inadmissible
under Crawford. At an in limine hearing on their admissibility,
Sergeant Johnson testified that he and an FBI agent
interviewed Lynnette at her family home in Stockton on May 20,
1996. She told them she had just spoken to defendant’s attorney
and would not talk to them unless they could show her that
defendant had committed a crime. They told her the victim’s
footprints had been found inside defendant’s truck. She became
extremely upset, crying, hyperventilating, and even vomiting.
After about five minutes, she calmed down somewhat, though
she was still crying, and agreed to talk with them. She then
answered their questions in detail, including identifying the
bracelet and blanket, and signed a written statement.
Statements made to law enforcement officers in an interview
primarily designed to obtain evidence of a past crime are
considered testimonial. (Davis v. Washington (2006) 547 U.S.
813, 829–831; Crawford, supra, 541 U.S. at p. 53, fn. 4; People
v. Cage (2007) 40 Cal.4th 965, 984.) As defendant had no
opportunity to cross-examine the declarant, Lynnette’s
statements were inadmissible under the rule of Crawford.



                                 18
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


      We are, however, convinced beyond a reasonable doubt
that this federal constitutional violation did not affect the jury’s
verdict. (Chapman v. California (1967) 386 U.S. 18, 24.)
Because this harmlessness standard is more demanding than
that applicable to errors under California evidence law (People
v. Watson (1956) 46 Cal.2d 818, 836), we need not decide
whether the trial court erred in finding either of the posited
hearsay exceptions applicable. Other evidence more strongly
tied the murder to defendant’s truck, especially Michael’s
footprints on the inside of the windshield and his blood on
defendant’s knife, which police found on the truck tailgate.
Moreover, the bracelet’s owner identified it as one she had
recently placed with other belongings in the truck. And
defendant was linked to the murder by other physical evidence,
including the blood on his clothing, the fiber found in his pubic
area, and the pubic hairs on Michael’s clothing and the
footprints in the mud near Michael’s body, both of which were
consistent with defendant’s.
      Defendant argues the hearsay statements were
particularly damaging in that they tended to show Lynnette had
“turned on” defendant and believed him guilty, but in
comparison to the physical evidence tying the murder to
defendant such an implication bore little if any significance.
Admission of Lynnette’s statements, though error under the
confrontation clause, was harmless beyond a reasonable doubt.
      III. Admission of Defendant’s Remark Overheard
           by Deputy
      As noted, Sheriff’s Deputy Carlton Dinwiddie testified
that during a recess in the preliminary hearing, he overheard
defendant say to his attorney, “I can give them a better time of

                                 19
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


death than what they have.” Defendant renews his contention
that the statement was within the attorney-client privilege and
therefore should have been excluded under Evidence Code
sections 952 and 954. He also argues the admission of the
statement deprived him of his rights to counsel and to a fair
trial. We find no error.
      Deputy Dinwiddie testified at an in limine hearing to the
circumstances in which he overheard the remark: Dinwiddie
and another deputy were assigned to transport and guard
defendant at the preliminary hearing. During a recess after
testimony about the time of Michael’s death, defendant, his
attorney, and the defense investigator went into the jury room
to confer. Each sheriff’s deputy sat by one of the two open doors
of the room; Dinwiddie was about 10 or 15 feet from defendant.
At first, Dinwiddie could not hear what defendant or the others
were saying, but at some point defendant stood up, raised his
voice and said, “I can give them a better time of death than what
they have.” Defendant’s attorney told him to be quiet, noting
that the walls, or in this case the doors, have ears. The three
men continued their conversation, but Dinwiddie could not hear
what more they said.
      Defendant’s statement was not a confidential
communication protected by the attorney-client privilege.
(Evid. Code, § 954.) Only communications made “in confidence
by a means which, so far as the client is aware, discloses the
information to no third persons other than those who are
present to further the interest of the client in the consultation
or those to whom disclosure is reasonably necessary . . .” (id.,
§ 952) qualify as confidential.      “Thus, where the client
communicates with his attorney in the presence of other persons


                                 20
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


who have no interest in the matter . . . he is held to have waived
the privilege.” (D. I. Chadbourne, Inc. v. Superior Court (1964)
60 Cal.2d 723, 735.) In circumstances similar to those here,
California courts have applied these principles to hold that
clients’ oral communications to their lawyers during court
proceedings or recesses were unprivileged because they were
made so loudly as to be overheard by others who were openly
and permissibly present.        (People v. Urbano (2005) 128
Cal.App.4th 396, 402–403; People v. Poulin (1972) 27 Cal.App.3d
54, 64; People v. Castiel (1957) 153 Cal.App.2d 653, 659.)
      While defendant may be correct that he had no choice of
locations for consulting with his attorney, he did have a choice
about how loudly to speak. He chose to do so in a manner that
the deputy, who was openly and permissibly present, could
overhear. The facts show there was no need for the defendant
to make the reported remark so loudly: For most of the
remainder of the conversation, the parties had spoken so quietly
that Dinwiddie was unable to hear their words, and after
defendant made the overheard remark his attorney told him to
speak more quietly. (See People v. Urbano, supra, 128
Cal.App.4th at pp. 402–403 [trial court “found that Urbano had
no need to speak in a voice ‘loud enough for individuals in the
audience to hear,’ as his attorney was sitting right next to him
in the jury box, but nevertheless made his communication in a
way that ‘clearly disclose[d] it to third persons’ ”].) And while
defendant alludes to the deputies’ “unnecessary proximity” and
argues they were “essentially spying” on him, he refers to no
evidence to support those characterizations. The deputies were
10 to 15 feet away by the open doors of the jury room; the record
does not suggest they deliberately positioned themselves so as
to overhear defendant or his attorney.
                                 21
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


      The trial court properly overruled defendant’s attorney-
client privilege objection. Although on appeal defendant claims
admission of the statement violated his federal constitutional
rights, he makes no argument for such violation other than that
the communication was privileged. Defendant’s constitutional
claim therefore fails along with the Evidence Code claim.
      IV.   Admission of Evidence of Defendant’s Prior
            Offenses
       Through in limine motions, defendant contested the
admissibility of defendant’s prior crimes against Sharon T., the
acquaintance whom defendant sexually assaulted in her home,
robbed, and drove toward the river bottoms, and Crystal T., the
four-year-old relative whom defendant molested. The trial court
ruled evidence of both crimes admissible under Evidence Code
sections 1101, subdivision (b), and 1108, and declined to exclude
the evidence under Evidence Code section 352, though the court
excluded evidence of a third prior incident as more prejudicial
than probative. On appeal, defendant contends the court abused
its discretion under Evidence Code section 352 in admitting the
Sharon T. and Crystal T. evidence. He also argues that the
admission of the evidence violated his federal constitutional
rights to due process and a fair jury trial. We find no statutory
or constitutional error.
      The facts of the Sharon T. and Crystal T. incidents, as
outlined in the People’s motion papers arguing for their
admissibility, were as follows: In 1985, defendant telephoned
Sharon and said he wanted to discuss a piece of real estate with
her. He came to her Marysville apartment and she let him in.
After they talked for a while in her living room, he moved to sit
beside her, pulled out a six- or seven-inch knife and put it to her

                                 22
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


neck, pulling back her head by her hair. Defendant told Sharon
he was wanted for armed robbery and needed to stay with her
for 24 hours, then demanded money, taking $50 in cash and her
ATM card.
      Defendant handcuffed Sharon, ordered her into the
bedroom, took off her clothes, and forced her to orally copulate
him until he ejaculated. Then, after loosening one of the
handcuffs, he told her to get dressed, saying they were going for
a ride to Riverfront Park. He wiped down surfaces in the
apartment, remarking that “people who make mistakes get
caught.” Taking her car keys, he told Sharon he had a gun and
would kill her if she tried to run. During the ride down to the
river, he compared the two of them to Bonnie and Clyde, but
noted that Bonnie “isn’t going to make it.” Sharon, believing
defendant would kill her if they got to the river, jumped from
the moving car. After evading defendant’s attempt to recapture
her, she ran to a nearby building for help.
      In 1993, defendant molested Crystal T., the
granddaughter of his wife, Lynnette. Crystal and her mother
(Lynnette’s daughter) lived in the same trailer park as
defendant and Lynnette. After Crystal’s mother left her with a
babysitter in the trailer park, defendant telephoned the sitter
and told her to send Crystal to his trailer. When the mother
came home, Crystal was still in defendant’s trailer. That
evening, Crystal said that “Grandpa made me put his pee in my
mouth and it was yucky.” The same evening, she repeated the
report to a police detective, adding that defendant “rubbed his
pee on my pee and butt.”
      The trial court properly admitted defendant’s sexual
offenses against Sharon and Crystal under Evidence Code

                                 23
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


section 1108, subdivision (a). That provision states: “In a
criminal action in which the defendant is accused of a sexual
offense, evidence of the defendant’s commission of another
sexual offense or offenses is not made inadmissible by Section
1101, if the evidence is not inadmissible pursuant to Section
352.” (Id., § 1108, subd. (a).) The first of the two referenced
provisions, Evidence Code section 1101, sets out a general rule
against using propensity evidence to prove a person’s conduct on
a particular occasion. (Id., § 1101, subd. (a).) The second,
Evidence Code section 352, sets out the general rule that “[t]he
court in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.” As we have explained, Evidence Code
section 1108 by its terms establishes an exception to the general
rule against admitting propensity evidence, “ ‘provid[ing] the
trier of fact in a sex offense case the opportunity to learn of the
defendant’s possible disposition to commit sex crimes.’ ” (People
v. Jones (2012) 54 Cal.4th 1, 49 (Jones), quoting People v.
Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta).) But the statute
also calls for exclusion under Evidence Code section 352 if the
trial court, in its discretion, concludes evidence of prior sex
crimes is unduly prejudicial. (People v. Cordova (2015) 62
Cal.4th 104, 132 [trial court has discretion to exclude prior sex
offense evidence if “its prejudicial effect substantially outweighs
its probative value in showing the defendant’s disposition to
commit the charged sex offense or other relevant matters”].)
     Defendant argues that the trial court abused its discretion
in admitting the Sharon T. and Crystal T. incidents because
they were unduly prejudicial. We find no abuse of discretion.
                                 24
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


The prior sex offenses were similar enough to those charged in
this case that the jury could reasonably draw an inference of
propensity to commit crimes of this nature. (See Falsetta, supra,
21 Cal.4th at pp. 912, 915, 917 [evidence of any prior sexual
offense is considered relevant under Evid. Code, § 1108, but its
probative value is increased by relative similarity of the crimes,
among other factors].) Defendant’s molestation of Crystal, like
Michael Lyons a small child, involved the same acts charged in
this case: oral copulation and sodomy or attempted sodomy.4
And defendant forced Sharon to orally copulate him by holding
a long knife to her neck, threatening force similar to that by
which Michael was later killed and, inferentially, threatened.
Both offenses were proven by evidence independent from that
implicating defendant in the assault on Michael, and neither
was very remote in time. The prior offenses’ value in proving a
propensity for crimes of the kind charged was thus substantial.
(See, e.g., People v. Daveggio and Michaud (2018) 4 Cal.5th 790,
825–826 (Daveggio); People v. Williams (2016) 1 Cal.5th 1166,
1196–1197 (Williams); Jones, supra, 54 Cal.4th at pp. 50–51;
People v. Loy (2011) 52 Cal.4th 46, 62–63 (Loy).)
      On the prejudice side of the scale, although defendant’s
prior sexual crimes were certainly capable in themselves of
causing emotional reactions in jurors, neither was especially
inflammatory in comparison with the charged offenses. Because
defendant had already been convicted in both incidents, there

4
      Although the jury ultimately was unable to reach a verdict
on the charge of oral copulation of Michael, the court could not
anticipate that outcome when ruling on admissibility of the
prior crimes. The People presented evidence suggesting oral
copulation, though the jury ultimately did not unanimously find
that evidence convincing beyond a reasonable doubt.
                                 25
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


was no danger of extensive “minitrials” on the prior incidents
and the jury here would not have been tempted to use this
proceeding to punish him for his past acts. Nor was this a case
in which defendant’s guilt for prior incidents was used to shore
up a weak case on the current charges; the evidence that
defendant sexually assaulted and killed Michael was strong, if
circumstantial. (See Daveggio, supra, 4 Cal.5th at pp. 825–826;
Williams, supra, 1 Cal.5th at p. 1197; Jones, supra, 54 Cal.4th
at p. 51; Loy, supra, 52 Cal.4th at pp. 61–62; Falsetta, supra, 21
Cal.4th at p. 917.) On balance, we cannot say the trial court
abused its discretion under Evidence Code section 352 in
admitting evidence of defendant’s prior sexual offenses against
Sharon and Crystal under Evidence Code section 1108.
       Defendant points out that his kidnapping of Sharon was
not itself a sexual offense as defined in Evidence Code section
1108, subdivision (d)(1), even though the kidnapping occurred
immediately following the sexual assault. But evidence of the
kidnapping was, in any event, properly admitted under
Evidence Code section 1101, subdivision (b). That provision
clarifies that the usual prohibition on propensity evidence does
not preclude the admission of evidence relevant “to prove some
fact . . . other than [the person’s] disposition to commit such an
act,” such as the person’s “motive, opportunity, intent,
preparation, plan, knowledge, [or] identity.” (Ibid.) Here, the
evidence was relevant to prove defendant’s premeditated intent
to kill Michael when he abducted him and to show the existence
of a common design or plan involving kidnapping sexual assault
targets and taking them to the Feather River bottoms area to




                                 26
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


assault and kill them with a knife.5 (See People v. Ewoldt (1994)
7 Cal.4th 380, 402–403 (Ewoldt) [outlining the degrees of
similarity required for relevance on intent and common design
or plan under Evid. Code, § 1101, subd. (b)].)
      Again, the facts showed that defendant gained control
over Sharon by telling her that he wanted to talk to her about a
real estate project. He then sexually assaulted her and
kidnapped her by threatening her with a long knife to her
throat; en route to the river, he indicated he intended to kill her
there. This evidence tends to prove that defendant harbored the
same lethal intent when he abducted Michael, whom he later
killed by cutting his throat with a long knife. (See Daveggio,
supra, 4 Cal.5th at p. 827; People v. McCurdy (2014) 59 Cal.4th
1063, 1098; People v. Soper (2009) 45 Cal.4th 759, 779, fn. 15.)
In addition, the similarities between Sharon’s kidnapping and
threatened murder and Michael’s kidnapping and murder in
choice of weapon (long knife) and location (driving victim to river
bottoms area) are sufficient to make the prior incident relevant
to show a common design or plan, which was in turn relevant to
show Michael was in fact kidnapped. (See Ewoldt, supra, 7
Cal.4th at p. 403 [“To establish the existence of a common design
or plan, the common features must indicate the existence of a
plan rather than a series of similar spontaneous acts, but the
plan thus revealed need not be distinctive or unusual.”]; see also
ibid. [prior molestation of victim’s older sister relevant on
common plan where molestations occurred at similar time and
place and the defendant offered a similar excuse for his actions

5
      As with oral copulation (see ante, fn. 4), the fact that the
jury later failed to reach a verdict on the kidnapping charge
does not affect the correctness of the court’s ruling on
admissibility of evidence to prove that charge.
                                 27
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


in both cases]; People v. Jackson (2016) 1 Cal.5th 269, 304
[evidence tended to show the defendant “had a common plan of
attacking elderly women late at night while they were alone in
their homes in his neighborhood, with the purpose of sexually
assaulting them”]; People v. Davis (2009) 46 Cal.4th 539, 603
(Davis) [in each case, “defendant abducted a stranger, a female;
used a weapon; assured the victim that he would not harm her;
took her to a remote location; and carried bindings with him,
indicating that the behavior was planned”].) The kidnapping
evidence was thus admissible under Evidence Code section
1101, subdivision (b), and, for the reasons already given, the
trial court did not abuse its discretion in declining to exclude the
evidence under Evidence Code section 352.6
      Defendant next contends the admission of his prior crimes
under Evidence Code section 1108 violated his rights of due
process and a fair trial under the United States Constitution.
We have previously upheld section 1108’s exception from the bar
on propensity evidence against similar challenges. (Loy, supra,
52 Cal.4th at pp. 60–61; Falsetta, supra, 21 Cal.4th at pp. 912–
922.)    Defendant makes no compelling argument for
reconsidering our prior holdings. He relies for support on
McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384–1386,
which found that the use of propensity evidence in that case

6
      The jury was instructed, with a modified version of
CALJIC No. 2.50, that any evidence of a prior kidnapping could
not be considered as proving bad character or criminal
disposition, but only on intent, motive, or common plan or
scheme. Defendant contends this cautionary instruction was
ineffective, but he provides no grounds to believe the jury could
not or did not follow the instruction. (See People v. Mooc (2001)
26 Cal.4th 1216, 1234 [jury is assumed to follow court’s
instructions].)
                                 28
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


deprived the criminal defendant of a fair trial. But the Ninth
Circuit later explained in U.S. v. LeMay (9th Cir. 2001) 260 F.3d
1018, 1026, that a constitutional violation of the kind found in
McKinney occurs only when the “prejudicial effect [of the
propensity evidence] far outweighs its probative value.”
Rejecting a facial challenge to the then-recently promulgated
rule 414 of the Federal Rules of Evidence (28 U.S.C.), which
allows evidence of prior child molestations when a defendant is
accused of that crime, the LeMay court relied on rule 403, which
calls for the exclusion of unduly prejudicial evidence. (LeMay,
at pp. 1026–1027.) In Falsetta, we similarly relied on Evidence
Code section 352 to reject a facial challenge to Evidence Code
section 1108, and similarly distinguished McKinney as involving
the admission of inflammatory character evidence with little or
no probative value, even as to the defendant’s propensity to
commit sexual offenses. (Falsetta, at pp. 916–918, 921–922.)
Here, we have already held that admission of defendant’s prior
crimes was not unduly prejudicial under Evidence Code section
352. The admission of the evidence thus did not violate
defendant’s constitutional rights.
     V.     Exclusion of Evidence of Witness’s Prior
            Conviction
      Defendant’s next claim of error concerns the trial court’s
exclusion of evidence that defense witness Bobbie Lemmons had
suffered a prior conviction. Lemmons, a river bottoms resident
who testified to finding the victim’s shoes and pants, had been
convicted in 1992 of annoying or molesting a child, a
misdemeanor. (Pen. Code, § 647.6.) The only information in the
record about the nature of the conviction comes from the
prosecution’s motion in limine to exclude the conviction, which


                                 29
                      PEOPLE v. RHOADES
                 Opinion of the Court by Kruger, J.


notes that the conviction stems from an incident in which
Lemmons admitted “to putting his hand down his daughter’s
pants, and when she protested he stopped.”
      In an Evidence Code section 402 hearing on admissibility
held before Lemmons testified, defense counsel asked Lemmons
whether he had suffered a conviction for misdemeanor child
molestation. The prosecutor objected that the prior conviction
was inadmissible either as impeachment or under section 1101
or 1108 of the Evidence Code. Defense counsel argued he could
impeach Lemmons, his own witness, because Lemmons’s
expected testimony would be adverse to defendant and because
the defense theory of the case implicated Lemmons in Michael’s
death. The court denied admission of the conviction as
impeachment, finding that counsel had not yet demonstrated
Lemmons’s testimony would be adverse to defendant.7
      Court and counsel revisited the issue after Lemmons’s
testimony. Defense counsel now argued the conviction was
admissible not as impeachment but on a theory “likened to 1108
or 1101 conduct, which is relevant to show the possibility of
another person committing the crime . . . .” The trial court
adhered to its exclusion ruling, explaining that Evidence Code
section 1108 applied only to a criminal defendant and that the
lack of demonstrated similarity between Lemmons’s past crime
and the assault and murder of Michael precluded admission

7
      On appeal, defendant makes no argument for an
impeachment theory of admissibility, though he describes the
conviction as “impeachment evidence” in his section heading for
this issue. And while he argues the conviction’s exclusion
violated his constitutional right to confront the witnesses
against him, he does not grapple with the fact that Lemmons
was called as a witness by the defense, not the prosecution.
                                30
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


under Evidence Code section 1101, subdivision (b), to prove
some fact in issue other than criminal disposition.
       The trial court’s ruling of inadmissibility was correct
under the Evidence Code. By its terms, Evidence Code section
1108 applies only to a criminal defendant’s prior sexual offenses.
(Id., § 1108, subd. (a) [“In a criminal action in which the
defendant is accused of a sexual offense, evidence of the
defendant’s commission of another sexual offense or offenses is
not made inadmissible by Section 1101 . . . .”].) As Lemmons
was not on trial, his conviction could not be admitted to show a
propensity to commit sexual offenses. Evidence Code section
1101, subdivision (b), does not contain the same textual
limitation—it permits the admission of “evidence that a person
committed a crime” for certain purposes, including to show the
person’s intent or the identity of a person responsible for a crime
(italics added)—but Lemmons’s prior conviction was not
admissible for these statutorily enumerated purposes. Even if
Lemmons’s past act with his daughter might be thought
sufficiently similar to the attack on Michael that it would have
been relevant to intent (see Ewoldt, supra, 7 Cal.4th at p. 402),
it was not admissible on that theory because Lemmons was not
charged with the crimes against Michael Lyons and his intent
was not at issue in the trial. The material issue to which defense
counsel argued the conviction was relevant was not Lemmons’s
intent but the identity of the perpetrator: counsel argued the
conviction would tend to show that Lemmons, rather than
defendant, sexually assaulted and killed Michael. But “[f]or
identity to be established, the uncharged misconduct and the
charged offense must share common features that are
sufficiently distinctive so as to support the inference that the
same person committed both acts.” (Id. at p. 403.) Here there
                                 31
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


was virtually no resemblance between the crimes, much less the
high degree of shared features needed for prior crimes to be
admissible on identity.
      Defendant contends exclusion of the conviction showed
judicial bias amounting to a due process violation. He argues it
was unconstitutional to admit his own convictions while
excluding that of a third party on whom he wished to cast
suspicion for the crimes: “If propensity evidence was admissible
against appellant, it violated due process to exclude the same
with respect to Mr. Lemmons.”
      Defendant failed to establish the foundation for his claim
of constitutionally unequal treatment. At trial, defendant did
not argue for admission of Lemmons’s conviction on the
constitutional ground he now asserts.8 The record therefore
contains neither the full factual basis for a balancing of
prejudice and probativeness under Evidence Code section 352,
nor any indication that the trial court conducted such a
weighing. Nor is it clear from the limited facts available that
the consumption of time and danger of confusing the issues
involved in litigating the details of Lemmons’s prior offense
would have been sufficiently counterbalanced by its probative
value in showing his propensity to commit offenses like that

8
      We assume for the purpose of discussion that defendant’s
constitutional claim is not forfeited. A constitutional objection
not made at trial may be considered on appeal to the extent it
merely posits an additional legal consequence from the asserted
error. (People v. Partida (2005) 37 Cal.4th 428, 435–439.)
Whether defendant’s constitutional claim falls within this rule
or instead rests on “a reason not included in the actual trial
objection” (id. at p. 438) is a somewhat difficult question, one we
leave unresolved in favor of a decision on the merits.

                                 32
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


committed against Michael. But as discussed earlier (ante,
pt. IV.), Evidence Code section 1108 allows a defendant’s prior
sexual offenses to be introduced as propensity evidence only if
the evidence is not unduly prejudicial in comparison to its
probative value. Defendant has thus failed to establish that
Lemmons’s conviction would be admissible under Evidence Code
section 1108 even if that statute were extended to
nondefendants. His claim of unconstitutional unfairness in
exclusion of the conviction therefore fails. (See People v. Prince
(2007) 40 Cal.4th 1179, 1242–1243 [exclusion of third-party
culpability evidence lacking significant probative value in
comparison to its danger of distraction and consumption of time
is not a constitutional violation]; People v. Hall (1986) 41 Cal.3d
826, 834 [even where relevant to establish reasonable doubt,
third-party culpability evidence is subject to exclusion under
Evid. Code, § 352].)
      VI. Guilt Phase Prosecutorial Misconduct
      Defendant contends the prosecutor committed egregious
misconduct in examining witnesses and in closing argument,
depriving defendant of a fair trial in violation of his due process
rights.
     Prosecutorial     misbehavior     “violates   the   federal
Constitution when it comprises a pattern of conduct ‘so
egregious that it infects the trial with such unfairness as to
make the conviction a denial of due process.’ [Citations.] But
conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state
law only if it involves ‘ “the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.” ’ ”
(People v. Espinoza (1992) 3 Cal.4th 806, 820; accord, People v.

                                 33
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


Hill (1998) 17 Cal.4th 800, 819.) We conclude there was no
prejudicial misconduct under either federal or state law.
       First, defendant asserts the prosecutor improperly
insinuated to the jury that defendant acted immorally and
created a threat to the Yuba City community by habitually and
illegally driving his truck over the river levees, potentially
causing them damage. The relevant exchange occurred during
defendant’s testimony.       After defendant agreed with the
prosecutor’s supposition that going over the levees is illegal
“because it tears up the levees and might cause the levees to
break,” the prosecutor continued: “Is there some reason you
persist in doing this when it’s dangerous to the whole
community?” A defense objection (“speculation”) was sustained
as to the form of the question, and the prosecutor rephrased: “Is
there some reason you[,] when you know this is dangerous[,]
that you continue to do it?” Defendant answered that it is “not
necessarily dangerous” and that “everybody does it.” When the
prosecutor continued with a question about a levee break and
flood that occurred in 1996, defense counsel objected on grounds
of relevance, and the prosecutor withdrew the question, but
went on to say: “[W]ell, I guess what I’m getting at is you just
don’t care about other people.” The court sustained a defense
objection to the form of the question and the prosecutor moved
on to another topic.
       In this series of questions, the prosecutor explored a
legitimate area for cross-examination: the nature of defendant’s
activities in the river bottoms. On direct, defendant had
testified to his affinity for the river bottoms and for driving his
four-wheel drive truck in the area, describing activities that
were either innocent or, at least, had no direct victims: driving


                                 34
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


around on the challenging terrain, fishing, “goofing off” with
friends or by himself, and doing drugs. The prosecutor’s
questions about the antisocial nature of four-wheel driving over
the levees constituted impeachment on this point, though its
value as impeachment was very slight. The inference created
by the question was also weak and attenuated, but not entirely
illogical, and the evidence produced was by no means
inflammatory.      The cross-examination thus was not, as
defendant asserts, irrelevant questioning intended to inflame
the jury’s passions, and it created no fundamental unfairness.
To the extent the prosecutor’s questioning about the levees could
be deemed a deceptive or reprehensible method of cross-
examination (People v. Hill, supra, 17 Cal.4th at p. 819),
prejudice was not reasonably likely. (People v. Watson, supra,
46 Cal.2d at p. 836.)
      Second, defendant maintains the prosecutor committed
misconduct by eliciting an answer from Sheriff’s Sergeant
Harris, who was on the patrol boat when defendant was
arrested, to the effect that given defendant’s situation—stuck as
he was in the mud with a rising river—Harris thought
defendant should have been happy to see the patrol boat. In an
earlier hearing out of the jury’s presence, the court had ruled
that Harris could describe defendant’s reaction to the boat’s
arrival and could relate his own observations about the rising
water, but could not say defendant’s reaction went against his
expectations. After establishing that defendant seemed to
Harris unenthusiastic about the boat’s arrival, the prosecutor
asked, “Did it appear to you that he was in any kind of
predicament at that point?” Harris answered: “Yes. Under the
circumstances, his lack of enthusiasm caught my attention due
to the fact he was in quite some peril there and his pickup being
                                 35
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


in the location it was and the river rising and weather and the
fact that he was stuck would have actually—I thought he—to
the contrary, that he would be very glad to see us.”
      There was no prosecutorial misconduct.             Although
Harris’s answer may have gone beyond the limit set by the court,
the prosecutor’s question did not call for Harris to give such an
answer and there is no indication the prosecutor instructed or
expected Harris to give it. (Cf. People v. Warren (1988) 45 Cal.3d
471, 482 [prosecutor who expects witness may give an
inadmissible answer must warn witness].)
      Third, defendant contends the prosecutor exceeded the
scope of proper rebuttal in his final argument to the jury by
expressing skepticism that defendant could have walked around
10 miles in wet conditions, wearing old, “cruddy” shoes, without
getting blisters on his feet. We disagree. Though defense
counsel spent most of his closing argument pointing to
purported weaknesses in the prosecution case and suggesting
that someone else (for example, Bobbie Lemmons) might have
been the killer, he also maintained that defendant’s testimony
was consistent and believable. And since defendant had no alibi
for the period of Michael’s killing, the defense claim of innocence
depended critically on the believability of defendant’s account of
his actions during that time. It was fair rebuttal for the
prosecutor to point out implausible aspects of that account.9




9
      Defendant also suggests the prosecutor’s argument
introduced facts not in evidence. But attorneys may urge
inferences from the evidence, as the prosecutor did in suggesting
that walking 10 miles in those conditions would have resulted
in injury to defendant’s feet.
                                 36
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


      Finally, defendant complains of the prosecutor’s argument
that the large, dilute bloodstain on defendant’s shirt must have
come from Michael because defendant’s scratches would not
have produced such a significant amount of blood. Defendant
maintains this argument contradicted the testimony of the
prosecution DNA expert. (See People v. Hill, supra, 17 Cal.4th
at p. 823 [“Although prosecutors have wide latitude to draw
inferences     from    the   evidence    presented     at   trial,
mischaracterizing the evidence is misconduct.”].) The record
does not support defendant’s claim. The expert testified that
DNA obtained from the shirt matched defendant rather than the
victim, but also made clear that the DNA did not necessarily
come from the bloodstain, which was very faint and appeared
diluted; it could instead have come from skin cells deposited by
the person wearing the shirt. The prosecutor thus urged fair
inferences from the evidence in arguing that although the DNA
was defendant’s because he was wearing the shirt, the blood
(which defendant had tried to wash out of the shirt) came from
the victim’s many terrible wounds.
     VII. Instruction on Circumstantial Evidence
     Defendant contends a reference to “innocence” in a
standard instruction on evaluating circumstantial evidence
(CALJIC No. 2.01) improperly suggested to the jury that it was
his burden to prove his innocence rather than the People’s
burden to prove guilt beyond a reasonable doubt.10 We have


10
      In his opening brief, defendant also complained of the use
of the term “innocent” in CALJIC No. 1.00. In his reply brief,
however, defendant acknowledges that, as the Attorney General
points out, the version of that instruction given here did not use
the term.
                                 37
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


previously rejected substantially identical challenges to this
instruction, and defendant supplies no argument for
reconsideration. “CALJIC No. 2.01 (concerning the sufficiency
of circumstantial evidence) did not compel the jury to find
defendant guilty and the special circumstance true using a
standard lower than proof beyond a reasonable doubt. ([People
v.] Jones [(2013)] 57 Cal.4th [899,] 972.) Nor did it create an
impermissible mandatory presumption by requiring the jury to
draw an incriminatory inference whenever such an inference
appeared ‘reasonable’ unless the defense rebutted it by
producing a reasonable exculpatory interpretation.” (People v.
Casares (2016) 62 Cal.4th 808, 831; accord, People v.
Delgado (2017) 2 Cal.5th 544, 572–573.)
      Penalty Phase Issues
      VIII.   Mistrial Motion after Outburst by Victim’s
              Stepfather
      During defendant’s testimony at the penalty phase of trial,
Billy Friend, the victim’s stepfather, suddenly shouted out,
“You’re going to die you slimy son of a bitch.” The court
immediately recessed, giving the jury its ordinary admonition
not to form an opinion or discuss the case. Defendant moved for
a mistrial, describing Friend’s outburst as, in effect, testimony
that the defense had no opportunity to impeach with Friend’s
prior convictions and evidence of “rancor” in the family before
Michael’s death. The court found Friend in contempt, ordered
him to refrain from any more untoward conduct, and denied the
mistrial. When the jurors and alternates reentered, the court
addressed them as follows:
      “All right. The Court will note for the record that all of the
jurors have now entered the courtroom. And first of all, the

                                 38
                        PEOPLE v. RHOADES
                   Opinion of the Court by Kruger, J.


Court wants to tell you all that you heard, I’m sure, an outburst
that occurred in this court just before we took the recess.
      “If you’ll recall both before, during, et cetera, any time I’ve
had contact with you, I’ve indicated time and time again that
your judgment in the case is to be based on only evidence that
comes from that witness stand and such documentary or
physical evidence that the Court admits into evidence.
Obviously I did not say that includes any outburst from
somebody in the larger area of the courtroom.
      “I run a public courtroom as long as I have, and so long as
I can do it within my power this is going to be a public courtroom
and anybody can come in. And they’re supposed to act like
ladies and gentlemen. When they don’t, we have the kind of
thing that occurred here today.
      “The assurance I want from all 16 people in front of me is
that you’re not going to let that matter influence your decision
in any way. And in that regard I’m instructing you you’re not to
allow it to influence you in any way.
      “Now any one of the 16 of you who feel you could not follow
that direction fully, I want you to please raise your right hand.
      “Court sees no hands.
      “Now also, this outburst can affect people in different
ways. And any of you feel that either the outburst or anything
up to right now has so badly affected you that you can’t continue
to be jurors and treat all parties to this litigation fairly? If you
feel anything’s happened in that regard, again please raise your
hand.
     “I see no hands. When I ask these questions I sometimes
have a feeling that maybe jurors think well, I’m not supposed to

                                  39
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


raise my hand, I’m going to cause a big stink if I do. That—big
stinks are what courtrooms are all about. That’s what brings
matters into Court. And I’m not afraid to face any of them. So
if you’d have answered—if you’d have raised your hand to either
of those questions, please do so, because I seek honest opinions
when I ask you questions.
     “All right. I see no hands, and I thank you very much. And
at this juncture I believe we should continue with the
examination of Mr. Rhoades.”
      Defendant does not maintain that the People were
responsible for Friend’s outburst. In this circumstance—a
spectator outburst not attributable to either party—a mistrial is
called for only if the misconduct is so inherently prejudicial as
to threaten defendant’s right to a fair trial despite admonitions
from the court. Prejudice is not presumed. (People v. Chatman
(2006) 38 Cal.4th 344, 368–370; People v. Cornwell (2005) 37
Cal.4th 50, 87–88.) The situation here did not call for a mistrial.
The hostile outburst by a family member of the victim exposed
the jury to no information except the very fact of Friend’s
hostility, which would not have been surprising in itself, and
Friend’s inability to maintain the decorum of the courtroom.
The court’s careful admonition and inquiry elicited no
suggestion any jurors would be unable to set aside the event in
their deliberations. Under these circumstances, the court did
not abuse its discretion in denying a mistrial.
      IX.   Racially Discriminatory Use of Peremptory
            Challenges
      Defendant contends the prosecution intentionally used its
peremptory challenges to remove all African-Americans from
the penalty retrial jury in violation of Batson v. Kentucky (1986)

                                 40
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258. The
trial court concluded defendant failed to make out a prima facie
case of discrimination and thus did not require the prosecutors
to explain their reasons for the challenged strikes. Defendant
contends this was error. And because the trial was conducted in
1999, he contends it is now too late to ask the prosecutors to
explain why they struck the challenged prospective jurors.
Defendant contends he is therefore entitled to reversal of the
penalty judgment. We conclude the contention lacks merit.
      “Both the state and federal Constitutions prohibit the use
of peremptory challenges to remove prospective jurors based on
group bias, such as race or ethnicity. (See Batson v. Kentucky[,
supra,] 476 U.S. [at p.] 97 [(Batson)]; People v. Wheeler[,
supra,] 22 Cal.3d [at pp.] 276–277 (Wheeler).) When the defense
raises such a challenge, these procedures apply: ‘First, the
defendant must make out a prima facie case “by showing that
the totality of the relevant facts gives rise to an inference of
discriminatory purpose.” [Citation.] Second, once the defendant
has made out a prima facie case, the “burden shifts to the State
to explain adequately the racial exclusion” by offering
permissible race-neutral justifications for the strikes.
[Citations.] Third, “[i]f a race-neutral explanation is tendered,
the trial court must then decide . . . whether the opponent of the
strike has proved purposeful racial discrimination.” [Citation.]’
(Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted; see
also People v. Lewis [(2008)] 43 Cal.4th [415,] 469.)” (Davis,
supra, 46 Cal.4th at p. 582.)
      The trial court here denied defendant’s Batson-Wheeler
motion at the first stage, finding he had not established a prima
facie case. “Though proof of a prima facie case may be made


                                 41
                        PEOPLE v. RHOADES
                   Opinion of the Court by Kruger, J.


from any information in the record available to the trial court,
we have mentioned ‘certain types of evidence that will be
relevant for this purpose. Thus the party may show that his
opponent has struck most or all of the members of the identified
group from the venire, or has used a disproportionate number of
his peremptories against the group. He may also demonstrate
that the jurors in question share only this one characteristic—
their membership in the group—and that in all other respects
they are as heterogeneous as the community as a whole. Next,
the showing may be supplemented when appropriate by such
circumstances as the failure of his opponent to engage these
same jurors in more than desultory voir dire, or indeed to ask
them any questions at all. Lastly, . . . the defendant need not be
a member of the excluded group in order to complain of a
violation of the representative cross-section rule; yet if he is, and
especially if in addition his alleged victim is a member of the
group to which the majority of the remaining jurors belong,
these facts may also be called to the court’s attention.’ (Wheeler,
supra, 22 Cal.3d at pp. 280–281, fn. omitted; see also Batson,
supra, 476 U.S. at pp. 96–97 [in assessing a prima facie case, the
trial court should consider ‘all relevant circumstances,’
including ‘a “pattern” of strikes against black jurors’ and ‘the
prosecutor’s questions and statements during voir dire
examination’] [citations].)” (People v. Bell (2007) 40 Cal.4th 582,
597 (Bell); accord, People v. Scott (2015) 61 Cal.4th 363, 384
(Scott).)
              A. Background
      Each prospective juror for the penalty retrial completed a
162-question, 44-page questionnaire. On January 11, 1999,
after hardship excusals, voir dire by the parties, and challenges


                                  42
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


for cause, the parties exercised peremptory challenges on
prospective jurors seated in the jury box, alternating their
challenges until both sides accepted the jury, which was then
sworn in. Attorney Michael B. Bigelow represented defendant
in this process, while Prosecutors Frederick A. Schroeder and
Susan E. Nolan, both from the Sutter County District Attorney’s
Office, represented the People.11
       Defendant made his first Batson-Wheeler motion after the
prosecutor struck three African-American women: Shirley R.,
Adrienne A., and Alice S. Noting that the prosecution had also
used peremptory challenges against two White prospective
jurors and that “there are a number of other jurors in the venire
in the courtroom,” the court denied the motion without prejudice
to its renewal. The prosecution then excused two more White
prospective jurors and a fourth African-American woman, Alicia
R. The strike prompted a renewed defense motion.
      Addressing the second Batson-Wheeler motion, the trial
court noted that the prosecution had exercised four of its eight
peremptory challenges against African-Americans. The court
asked defense counsel what other circumstances supported his
motion.     Counsel responded that based on the juror
questionnaires and voir dire, there were “no other discernable
differences” between the struck jurors and those still in the box.
Prosecutor Nolan replied, “Oh, I think there are significant
differences,” but when the court asked her to elaborate, she
declined on the ground that the defense had not yet made a


11
      Schroeder, the lead prosecutor, exercised the prosecution’s
peremptory challenges, but Nolan, who had also conducted some
of the voir dire, participated in arguing the Batson-Wheeler
motions.
                                 43
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


prima facie case and the burden therefore had not shifted to the
prosecution. Asked for specific similarities, defense counsel
noted the following: “Relatives in prison”; “Formerly victims of
assault”; “Strong religious views”; and “Volunteers somehow
related to WEAVE” (an organization assisting survivors of
domestic and sexual violence). The prosecutor responded that
the defense needed to point to specific questions that the struck
prospective jurors had answered the same way as those jurors
the prosecutors had kept, but had not done so. With regard to
the standard for finding a prima facie case, defense counsel
maintained that he needed only to show that circumstances
“raise an inference” of discrimination, while the prosecutor,
citing People v. Howard (1992) 1 Cal.4th 1132, 1154 (Howard)
(italics omitted), repeatedly argued a showing of a “ ‘strong
likelihood’ ” was needed.12
      The court denied defendant’s second Batson-Wheeler
motion under “the authority of this Howard case,” but cautioned
the prosecutors “that any further matters of this kind will weigh
heavily on this Court.” The court continued: “I’m very close, I’m
going with Howard for the time being, but if I see very much
more of this, I’m going to indicate to you, you may well have a

12
       In Howard, supra, 1 Cal.4th at pages 1153 to 1157, we
upheld the trial court’s ruling that no prima facie case had been
established where the prosecutor had used two of his 11
challenges to strike the only two African-American prospective
jurors tentatively seated in the jury box. We concluded the
record of voir dire supported the trial court’s finding that the
defendant had not established a “ ‘strong likelihood’ ” of
discrimination. (Id. at p. 1156.) As discussed below, we no
longer apply a “strong likelihood” standard in evaluating
whether the opponent of the strikes has established a prima
facie case of discrimination.
                                 44
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


serious problem on your hands.” After defendant’s second
Batson-Wheeler motion was denied, the prosecution used three
more peremptory challenges before both sides accepted the
panel, with no further motions by the defense and no further
comment on the record as to the jury’s racial or ethnic
composition.
      Although the trial court did not explicitly say so, it appears
from the lack of any contrary statement that at the time of
defendant’s second motion no other African-Americans were
seated in the jury box; the Attorney General agrees on this point.
Beyond that, the record does not make clear how many other
African-Americans remained in the jury pool (the
questionnaires do not record race or ethnicity), though the trial
court’s warning to the prosecutors against engaging in “any
further matters of this kind” or “very much more of this,” and its
earlier remark that “there are a number of other jurors in the
venire in the courtroom,” suggest that the court believed some
of the remaining prospective jurors were African-American or
belonged to another racial or ethnic minority.
     We briefly sketch the relevant questionnaire and voir dire
answers given by the disputed prospective jurors:
       In her juror questionnaire, Shirley R., a 60-year-old
administrative assistant, declined to answer several questions
about the death penalty, but indicated she had strong opinions
about it; she thought the Biblical verse “an eye for an eye” has
been “grossly misinterpreted and misused”; and she considered
life in prison without the possibility of parole to be “more of a
punishment than the death penalty.” She responded “yes” to a
question asking whether, given the choice between life in prison
without parole or death for a person convicted of first degree

                                 45
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


murder with special circumstances, she would always vote for
life.
      Under questioning by defense counsel, Shirley R. said that
while she had strong opinions about the death penalty, “I would
truthfully be able to consider both penalties after hearing the
evidence.” Asked by Prosecutor Schroeder whether she agreed
that the death penalty was the appropriate punishment in some
cases, she answered, “No, I can’t truthfully say that,” and
explained, “I try to lead a Christian life, and my Bible says thou
shalt not kill. It doesn’t say give me any exceptions . . . .” On
further questioning by the prosecutor, however, she backed off
from an absolute position and agreed that the death penalty
might be appropriate sometimes and she could impose it in what
the prosecutor described as “just really a horrible case.” Neither
side challenged Shirley R. for cause.
      Adrienne      A.,  a     26-year-old   customer      service
representative, stated she did not believe the death penalty
served any purpose; that in “some or most” cases it is
unnecessary; that she had not supported its reinstatement
because “I can’t support actions to kill a human as a sentence
even if that individual has killed someone”; and that if she were
making the laws, there would not be a death penalty. She
nonetheless thought the death penalty was appropriate for
premeditated murders and would not always vote for life
without parole (or death) for a person convicted of first degree
murder with special circumstances.
      In answer to defense counsel’s questions, Adrienne A.
explained that while she had not seen the purpose of the death
penalty in cases she had heard about, if she actually heard all
the evidence and found it “the just verdict,” she would vote for

                                 46
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


it. Questioned by the prosecutor, she affirmed her ability to
impose death in an appropriate case, and both sides passed her
for cause.
      Alice S., a 36-year-old budget analyst, was the mother of a
six-month-old infant. She raised doubts as to whether caring for
her baby would interfere with her ability to serve, noting that
her husband travels “so I get very stressed at times.” She also
thought serving in this case would touch on “a very sensitive
area” for her because her brother had been convicted of a sexual
offense; Alice S. believed her brother was innocent but due to his
alcoholism “had no accountability the day of the alleged crime.”
On questioning by Prosecutor Nolan, Alice S. clarified that she
believed her brother had not committed the crime with which he
was charged. His alcohol use had resulted in his being “pretty
much homeless,” and as a result he “basically had no
accountability.” If a person actually committed the crime,
though, “they should be held responsible if there was alcohol or
drugs and they’re convicted.” Asked whether she could vote for
a death sentence if she believed, after hearing all the evidence
and the instructions on the law, that it was the appropriate
sentence, she first said, “I can’t really answer that.” But when
the prosecutor clarified that she was not being asked whether
she would vote for death in this case but only whether she could
in a case where she thought it was the appropriate verdict, she
answered, “Yes.” There was no challenge for cause.
      Alicia R., the final African-American prospective juror
struck by the prosecution, was 36 years old and worked in
customer service. In answers to the juror questionnaire, Alicia
R. indicated that she had no strong opinions about the death
penalty. But asked about the Old Testament verse, “an eye for


                                 47
                        PEOPLE v. RHOADES
                   Opinion of the Court by Kruger, J.


an eye,” she wrote she did not adhere to that view because
“Christ died on the cross for everyone’s sin.” When asked
whether her views on the death penalty had changed over time
and why, she wrote: “Clara Fay Tucker has changed my position
because she proved that some people can change.”13 Asked for
her views on the statement “[a] defendant who is convicted of
sexual assault and murder of a child should receive the death
penalty regardless of the facts and circumstances of his
background or mental state,” Alicia R. indicated that it
“[d]epends” on the facts of the case. But asked for her views on
the statement “[a] defendant who is convicted of sexual assault
and murder of a child should receive life in prison without
possibility of parole regardless of the facts and circumstances of

13
       Karla Faye Tucker, who through media coverage of her
impending execution “came to be known . . . as a soft-spoken,
gentle-looking, born-again Christian pleading for mercy,” was
executed in Texas on February 4, 1998. (Verhovek, Execution in
Texas: The Overview; Divisive Case of a Killer of Two Ends as
Texas Executes Tucker, N.Y. Times (Feb. 4, 1998) p. A-1
<https://www.nytimes.com/1998/02/04/us/execution-texas-
overview-divisive-case-killer-two-ends-texas-executes-
tucker.html?rref=collection%2Ftimestopic%”2FTucker%2C%20
Karla%20Faye&action=click&contentCollection=timestopics&r
egion=stream&module=stream_unit&version=latest&contentP
lacement=1&pgtype=collection> [as of Nov. 25, 2019].) Tucker
had reportedly used drugs since childhood (id., p. A-20) and was
“[s]trung out . . . on a variety of drugs” at the time of the killings.
(Verhovek, As Woman’s Execution Nears, Texas Squirms, N.Y.
Times             (Jan.           1,           1998)           p. A-12
<https://www.nytimes.com/1998/01/01/us/as-woman-s-
execution-nears-texas-squirms.html> [as of Nov. 25, 2019].) (All
Internet citations in this opinion are archived by year, docket
number,              and             case           name             at
<https://www.courts.ca.gov/38324.htm>.)
                                  48
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


his background or mental state,” Alicia R. responded that she
“[a]gree[d] somewhat.”
      In voir dire Prosecutor Schroeder asked whether, if
Alicia R. “made that kind of mental decision that . . . the death
penalty objectively appears to you to be the correct decision,” she
“would” vote for it. She replied, “I suppose.” Neither side
challenged Alicia R. for cause.
             B. Analysis
       The trial court in this case applied the “strong likelihood”
standard from Howard to determine that defendant had not
established a prima facie case of discrimination. At the time the
trial occurred in 1999, there was some confusion in the case law
as to how, if at all, this standard differed from the “reasonable
inference” standard articulated in other California cases. A few
years after defendant’s trial, this court granted review to resolve
the issue in People v. Johnson (2003) 30 Cal.4th 1302, 1306,
1313–1318. In that case we ruled that both terms “refer to the
same test, and this test is consistent with Batson.” We went on
to elaborate: “Under both Wheeler and Batson, to state a prima
facie case, the objector must show that it is more likely than not
the other party’s peremptory challenges, if unexplained, were
based on impermissible group bias.” (Id. at p. 1306.)
      The United States Supreme Court, in turn, granted review
to consider the issue and disapproved People v. Johnson’s
“ ‘more likely than not’ ” standard. (Johnson v. California,
supra, 545 U.S. at p. 168.) The high court explained that under
Batson, the trial judge should “have the benefit of all relevant
circumstances, including the prosecutor’s explanation, before
deciding whether it was more likely than not that the challenge
was improperly motivated.” (Johnson v. California, at p. 170.)

                                 49
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


To serve its function in the three-step process, the requirement
for a prima facie case must not be “so onerous that a defendant
would have to persuade the judge—on the basis of all the facts,
some of which are impossible for the defendant to know with
certainty—that the challenge was more likely than not the
product of purposeful discrimination. Instead, a defendant
satisfies the requirements of Batson’s first step by producing
evidence sufficient to permit the trial judge to draw an inference
that discrimination has occurred.” (Johnson v. California, at
p. 170, italics added.)
       Because the trial in this case predated this court’s decision
in People v. Johnson, it is unclear whether the trial court
understood the “strong likelihood” standard to mean “more
likely than not.” Nonetheless, the trial court presumably
understood the standard to be somewhat more demanding than
the “reasonable inference” standard, for which defendant had
argued. In the category of cases involving jury selection before
the high court clarified the prima facie case standard in Johnson
v. California, this court has adopted a mode of analysis under
which, rather than accord the usual deference to the trial court’s
no-prima-facie case determination, we “review the record
independently to determine whether the record supports an
inference that the prosecutor excused a juror on a prohibited
discriminatory basis.” (People v. Kelly (2007) 42 Cal.4th 763,
779; accord, People v. Reed (2018) 4 Cal.5th 989, 999 (Reed);
Davis, supra, 46 Cal.4th at pp. 582–583; Bell, supra, 40 Cal.4th
at p. 597.)
      Here we consider whether the record supports an
inference the prosecution excused one or more of the African-



                                 50
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


American prospective jurors because of their race.14 We consider
“all relevant circumstances” in making that determination.
(Batson, supra, 476 U.S. at pp. 96–97.) We have identified
certain types of evidence as “especially relevant,” including:
“whether a party has struck most or all of the members of the
venire from an identified group, whether a party has used a
disproportionate number of strikes against members of that
group, whether the party has engaged those prospective jurors
in only desultory voir dire, whether the defendant is a member
of that group, and whether the victim is a member of the group
to which a majority of remaining jurors belong. [Citation.] We
may also consider nondiscriminatory reasons for the peremptory
strike that ‘necessarily dispel any inference of bias,’ so long as
those reasons are apparent from and clearly established in the
record.” (Reed, supra, 4 Cal.5th at pp. 999–1000.)
     We consider the showing defendant made at his second or
renewed motion, as that presents the fuller record of facts and
argument.   Looking to the pattern of the prosecution’s

14
      Defendant’s briefing repeatedly notes that all the African-
Americans called into the jury box and excused by the
prosecution were women, but does not argue their sex should
alter the Batson-Wheeler inquiry.
      In supplemental briefing and at oral argument, defendant
suggested the prospective jurors’ sex is relevant because
African-American women are subject to discrimination on the
basis of stereotypes relating to both race and sex; defendant
asserted that the prosecutors here must have engaged in such
dual stereotyping. But discrimination in this context cannot be
assumed; it must be demonstrated. Because defendants’ efforts
to demonstrate discrimination have, in substance, focused on
the jurors’ race rather than their sex, we likewise focus on the
jurors’ race in determining whether defendant established a
prima facie case.
                                 51
                      PEOPLE v. RHOADES
                 Opinion of the Court by Kruger, J.


challenges, the record shows that at the time of defendant’s
renewed Batson-Wheeler motion the prosecutors had used four
of their eight peremptory challenges to eliminate every African-
American seated in the jury box.            Because the juror
questionnaires did not record racial or ethnic heritage, we
cannot know how many African-Americans were in the entire
venire or in the pool of prospective jurors remaining after
hardship and cause excusals. We will assume with defendant,
however, that the prosecutors’ use of half their strikes against
the four African-American prospective jurors was substantially
disproportionate to the representation of African-Americans in
the jury pool. Given the demographic makeup of the community
from which the jurors were drawn, unless African-Americans
were greatly overrepresented in the venire or received hardship
and cause excusals at much lower rates than others, it is likely
that they comprised substantially less than 50 percent of the
pool.15 (See Scott, supra, 61 Cal.4th at p. 384; Bell, supra, 40
Cal.4th at p. 597.)
     Exercising our independent review on appeal, we are
nonetheless persuaded that the totality of the circumstances
surrounding the prosecution’s use of peremptory challenges

15
      According to census data, African-Americans made up just
under 10 percent of Sacramento County’s population in 2000.
U.S. Census Bureau, Population of Sacramento County,
California:      Census 2010 and 2000 Interactive Map,
Demographics,        Statistics,     Graphs,      Quick    Facts
<http://censusviewer.com/county/CA/Sacramento> [as of Nov.
25, 2019]. We take notice of the census data here in recognition
of the possibility that the lack of on-the-record comment simply
reflects that the pool’s composition was apparent to court and
counsel at the time. But we note that it was defendant’s burden
to make the record necessary to support his motion.
                                52
                        PEOPLE v. RHOADES
                   Opinion of the Court by Kruger, J.


does not give rise to an inference of discrimination. As an initial
matter, we note that this case “did not involve a situation in
which ‘[r]acial identity between the defendant and the excused
person,’ or between the victim and the majority of remaining
jurors, raises heightened concerns about whether the
prosecutor’s challenge was racially motivated.” (People v.
O’Malley (2016) 62 Cal.4th 944, 980.) Neither defendant nor the
victim were African-American—both were White—and the
record reveals no other case-specific reason why a prosecutor
would be motivated to exclude a particular class of jurors. We
caution that stereotypes and biases can influence jury selection
in any case. But in the absence of such reasons, or of any
indication these particular prosecutors habitually employed
group bias in their selection of juries, we are less inclined to find
a prima facie case based solely on the prosecutors’
disproportionate use of peremptories against one group. (Scott,
supra, 61 Cal.4th at p. 384; Bell, supra, 40 Cal.4th at pp. 597,
599.)
      Furthermore, the record does not reveal any apparent
disparities in the nature or extent of the prosecutors’
questioning of the African-American prospective jurors versus
prospective jurors of other racial and ethnic backgrounds. And,
finally, the record discloses readily apparent, race-neutral
grounds for a prosecutor to use peremptory challenges against
each of the four prospective jurors at issue. (See, e.g., Reed,
supra, 4 Cal.5th at pp. 999–1000.)
     By referring to “readily apparent” grounds for the strikes,
we do not mean merely that we can imagine race-neutral
reasons the prosecutors might have given if required to do so at
the second step of the Batson inquiry. As defendant and


                                  53
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


Justice Liu’s dissenting opinion quite rightly point out, the very
purpose of Batson’s first step is to elicit the prosecution’s actual
reasons for exercising its strikes when other circumstances give
rise to an inference of discrimination: “The Batson framework
is designed to produce actual answers to suspicions and
inferences that discrimination may have infected the jury
selection process. [Citation.] The inherent uncertainty present
in inquiries of discriminatory purpose counsels against
engaging in needless and imperfect speculation when a direct
answer can be obtained by asking a simple question.” (Johnson
v. California, supra, 545 U.S. at p. 172.) It follows that
speculation about reasons the prosecutors might have had for
striking the jurors would go beyond our proper role in assessing
the prima facie case.
      But our cases have also recognized that where the record
reveals “obvious race-neutral grounds for the prosecutor’s
challenges to the prospective jurors in question,” those reasons
can definitively undermine any inference of discrimination that
an appellate court might otherwise draw from viewing the
statistical pattern of strikes in isolation. (Davis, supra, 46
Cal.4th at p. 584, italics added; accord, People v. Taylor (2010)
48 Cal.4th 574, 616.) Put differently, when the record of a
prospective juror’s voir dire or questionnaire on its face reveals
a race-neutral characteristic that any reasonable prosecutor
trying the case would logically avoid in a juror, the inference
that the prosecutor was motivated by racial discrimination loses
force. Therefore, as we have said, an appellate court may take
into account “nondiscriminatory reasons for a peremptory
challenge that are apparent from and ‘clearly established’ in the



                                 54
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                  Opinion of the Court by Kruger, J.


record [citations] and that necessarily dispel any inference of
bias.” (Scott, supra, 61 Cal.4th at p. 384.)16
      Here, the record reveals readily apparent reasons for the
strikes that dispel the inference of bias. In particular, Shirley
R. and Adrienne A. each expressed strong views against the
death penalty on their questionnaires and in voir dire. On her
questionnaire, Shirley R. wrote that she considered life in prison


16
      Our dissenting colleague appears to agree that an
appellate court may consider such readily apparent reasons for
a strike, though he may differ as to precisely how obvious an
hypothesized reason must be to dispel any inference of biased
selection. (Dis. opn. of Liu, J., post, at p. 19; see also People v.
Harris (2013) 57 Cal.4th 804, 872–873 (conc. opn. of Liu, J.).)
      We stress that in considering these grounds on appeal we
do not suggest that a trial court evaluating a Batson-Wheeler
prima facie case should search the record for reasons for the
peremptory challenges instead of asking the attorney who
exercised them for his or her reasons as part of a second-step
inquiry. In the trial court, “a direct answer can be obtained by
asking a simple question.” (Johnson v. California, supra, 545
U.S. at p. 172.) But in this court, which may conduct its review
of a no-prima-facie-case ruling many years or even decades after
it was made, asking the attorneys would be anything but
simple—indeed, both defendant and the dissent argue that it
would be impossible here. (Dis. opn. of Liu, J., post, at p. 24
[only possible remedy for trial court’s failure to ask question is
to reverse penalty judgment]; see People v. Johnson (2006) 38
Cal.4th 1096, 1100–1104.) On the other hand, as an appellate
court, we have the benefit of being able to examine the record in
more detail, and at a great deal more leisure, than a trial court
in the midst of jury selection. What is the soundest and most
practical approach for trial courts is not necessarily the
soundest and most practical approach for appellate courts, and
vice versa.

                                 55
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


without the possibility of parole to be “more of a punishment
than the death penalty” and checked an answer indicating that
given a choice of penalties, she would always vote for life; on
questioning by the prosecutor, she averred that the Bible makes
no exceptions to its commandment against killing and she could
not “truthfully say that” she considered death the appropriate
punishment in some cases. Adrienne A. wrote that the death
penalty was often or usually unnecessary, that she did not
believe it served any purpose, that she could not “support
actions to kill a human as a sentence even if that individual has
killed someone,” and that if she were making the laws there
would be no death penalty. Both women also gave some more
nuanced answers in voir dire, declaring themselves able to
impose a death sentence if warranted, such that they were not
subject to a challenge for cause. But given their strongly stated
views opposing the death penalty, the fact they were not subject
to for-cause challenges did not render them desirable jurors for
the prosecution in a penalty retrial.
     Comparisons to the seated jurors the prosecution accepted
do not negate the force of these readily apparent reasons for
peremptory challenge.17 It is true that both Juror No. 4 and

17
      Although we have sometimes declined to consider such
comparisons in a first-stage Batson-Wheeler analysis—
particularly when neither the trial court nor this court, in
evaluating the prima facie case, has posited possible
prosecutorial reasons for the challenged strikes (Bell, supra, 40
Cal.4th at pp. 600–601; see also People v. Bonilla (2007) 41
Cal.4th 313, 350 [comparative analysis not mandated in first-
stage cases])—more recent decisions have considered such
comparisons. (See, e.g., Reed, supra, 4 Cal.5th at pp. 1002–
1003; People v. Harris, supra, 57 Cal.4th at pp. 836–838.) These

                                 56
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


Juror No. 9 expressed reservations about the death penalty that
overlapped in certain respects with Shirley R.’s and Adrienne
A.’s.18 But neither of these seated jurors expressed the sort of
unqualified opposition to the death penalty that both Shirley R.
and Adrienne A. did at times. Two non-African-American
prospective jurors who did express such unqualified anti-death-
penalty views on their questionnaires were struck by the



cases recognize that comparative juror analysis has a role to
play as an aid in determining whether the reasons we are able
to identify on the record are ones that help to dispel any
inference that the prosecution exercised its strikes in a biased
manner. Whether or not this evolution in jurisprudence
demands we explicitly “repudiate[]” our earlier decisions (dis.
opn. of Liu, J., post, at p. 20), we clarify here that juror
comparisons can play a role at the first stage of the Batson-
Wheeler analysis.
      This case illustrates the utility of juror comparisons in
conducting our independent appellate review of the first stage
determination. By comparing the excused jurors to those the
prosecutor retained on the identified characteristics, we test the
hypothesis that these characteristics were distinct enough to
account for the challenge and dispel any inference of bias.
18
      Juror No. 4 thought the purpose of the death penalty was
to act as a deterrent to crime, but doubted “if it really works,”
checked “No” on a question asking specifically whether
enforcing the death penalty deters crimes such as murder, and
did not support it politically because “it takes too much money.”
Juror No. 9 was doubtful as to the penalty’s deterrent value and
thought life in prison without the possibility of parole “could be
worse than death for some people.” Both these jurors were in
the group initially seated in the box at the outset of peremptory
challenges, meaning they were also seated when defendant’s
Batson-Wheeler motions were denied. Neither of these jurors
was African-American.
                                 57
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


prosecution before defendant made his second Batson-Wheeler
motion.
       As to Prospective Juror Alice S., there were, as the
Attorney General posits, two main “causes for concern” for a
prosecutor: her uncertainty whether she would be able to serve
as a juror while caring for her six-month-old infant (often on her
own while her husband was away), and her belief that her
brother had been wrongly convicted of a sexual offense. Both
are readily apparent bases for objection from a prosecutorial
view that tend strongly to dispel any inference of bias. While
the jury being chosen would decide only penalty, the issue of
lingering doubt remained one the jury would face; the jury was
ultimately instructed it could consider lingering doubt and the
defense argued for the lesser penalty partly on that basis. The
penalty trial accordingly lasted about two months, during which
the prosecutors asked the jurors to absorb and follow the
evidence of guilt, most of it physical and circumstantial, in
sufficient detail that they would not have lingering doubts as to
defendant’s responsibility. Having spontaneously expressed
doubts about whether her need to care for her six-month-old
infant would allow her to complete her jury service if selected,
Alice S. was clearly not a good choice for this task.
      With regard to her brother, Alice S. expressed the belief
he was innocent of the crime and had been convicted only
because, due to his alcoholism and resulting lack of housing, he
could not account for his activities at the time of the crime.
Given the evidence of defendant’s substance abuse during the
relevant timeframe and the nature of his lingering doubt
defense, this response would have raised concerns for any
reasonable prosecutor trying the penalty phase of this case.


                                 58
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


Defendant points to no juror accepted by the prosecution who
expressed similar doubts about his or her ability to serve or
similar attitudes about the prosecution of a family member.19
      Finally, Prospective Juror Alicia R. indicated on her
questionnaire that her views on the death penalty were
influenced by the highly publicized case of Karla Faye Tucker, a
late Texas death row inmate who was well-known for having
committed a capital crime while battling an addiction to drugs,
and who had become a Christian while in prison; in Alicia R.’s
view, Tucker “proved that some people can change.” Answering
a question seeking general information about prospective jurors’
views on the death penalty, Alicia R. indicated that “an eye for
an eye” is wrong because “Christ died on the cross for everyone’s
sin.” She tended to agree with the statement “[a] defendant who
is convicted of sexual assault and murder of a child should
receive life in prison without possibility of parole regardless of
the facts and circumstances of his background or mental state,”
while remaining noncommittal regarding her view of imposing
the death penalty in such a case. Asked whether she would have
a death penalty if she were making the laws, Alicia R.
responded, “can’t say.” Alicia R.’s responses revealed a view of

19    As the dissent observes, Alice S. clarified that she did not
regard substance abuse as an excuse for crime. (Dis. opn. of
Liu, J., post, at p. 13.) The readily apparent concern about
Alice S., however, was not her attitude toward substance abuse
generally, but that she believed her brother’s alcoholism led to
his wrongful conviction by rendering him incapable of supplying
an alibi. From any reasonable prosecutor’s perspective, this
belief created a clear risk that Alice S. might be especially
receptive to the alibi defense put forward by defendant, who
claimed to be taking drugs during the period when the victim
was abducted and killed.
                                 59
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


the proper role of the death penalty, and a strong belief in the
possibility of redemption for persons who commit even the most
serious crimes, that would naturally have raised serious
concerns for any prosecutors selecting the penalty retrial jury in
this case.
      Defendant points to no other juror whom the prosecution
accepted who appeared to hold similar attitudes toward the
death penalty, particularly for a crime like defendant’s. Seated
Juror No. 4 did write that the death penalty might be
inappropriate for some people convicted of sexually assaulting
and murdering a child because “some persons may benefit from
rehabilitation.” But in contrast to Alicia R., Juror No. 4 also
indicated that she disagreed with the statement “[a] defendant
who is convicted of sexual assault and murder of a child should
receive life in prison without possibility of parole regardless of
the facts and circumstances of his background or mental state.”
Furthermore, Juror No. 4—unlike Alicia R.—had specifically
identified the “[k]illing of a child” as a crime for which she
believed the death penalty might be the appropriate sentence.
      Only one other seated juror, Juror No. 7, expressed even
qualified agreement with the statement that a defendant
convicted of sexual assault and murder of a child should be
sentenced to life without parole regardless of the circumstances.
But unlike Alicia R., Juror No. 7 also said that such a defendant
should be sentenced to death regardless of the circumstances.
Juror No. 7’s attitudes toward the appropriate penalty for this
type of crime were further revealed by her responses to other
questions: Unlike Alicia R. (but like Juror No. 4), Juror No. 7
specifically identified “[k]illing of a child” as a crime for which
the death penalty may be appropriate. Finally, unlike Alicia R.,


                                 60
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


who “[couldn’t] say” whether she would have the death penalty
if she were making the laws, Juror No. 7 affirmatively indicated
that she would have a death penalty “to keep repeat offenders
from society.” For the prosecution, conducting the penalty
retrial of a repeat offender convicted of sexually assaulting and
murdering a child, the difference between the two prospective
jurors’ responses would have been highly significant.
       The dissent stresses that the prosecution here did not
challenge Shirley R., Adrienne A. or Alicia R. for cause,
questioning how we can then find their anti-death-penalty views
to be obvious grounds for their excusal by peremptory challenge.
(Dis. opn. of Liu, J., post, at p. 15.) The two questions, though,
are entirely distinct. “Unlike a for-cause challenge . . . , the
issue here is not whether a juror held views that would impair
his or her ability to follow the law. Unimpaired jurors may still
be the subject of valid peremptory strikes.”            (People v.
Armstrong (2019) 6 Cal.5th 735, 773.) A prospective juror’s
attitude toward the death penalty is a common basis for both
cause and peremptory challenges, and an advocate who finds a
juror undesirable on that basis but is unable to have him or her
excused for cause is expected to use a peremptory challenge to
remove the juror. (See People v. Coleman (1988) 46 Cal.3d 749,
767–770.) It is entirely plausible that the prosecutors believed
they were unlikely to succeed with for-cause challenges here,
but felt nonetheless that the three women’s views on the death
penalty made them undesirable jurors in a penalty trial.
      Notwithstanding the various circumstances tending to
dispel any inference of discrimination in this case, defendant
contends the high court’s decision in Johnson v. California
compels a prima facie case finding here. Defendant relies


                                 61
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


largely on a brief paragraph in which the high court noted that
the inferences of discrimination that had led the trial court in
that case to tell the parties “ ‘ “we are very close” ’ ”—and that
had also led this court to describe the prosecution’s pattern of
strikes as “ ‘suspicious’ ”—were “sufficient to establish a prima
facie case under Batson.” (Johnson v. California, supra, 545
U.S. at p. 173.) Defendant argues the same result should obtain
here, since this case involves a similar pattern of strikes against
African-American prospective jurors and a similar statement by
the trial judge about being “close.”
       To the extent defendant argues that Johnson v. California
requires us to find a prima facie case based on the pattern of
strikes alone, we are unpersuaded. It was not the pattern of
strikes alone that gave rise to the inference of discrimination in
Johnson v. California; context mattered as well. Johnson v.
California, unlike this case, “involved the ‘highly relevant’
circumstance that a black defendant was ‘charged with killing
“his White girlfriend’s child.” ’ ” (Johnson v. California, supra,
545 U.S. at p. 167, quoting People v. Johnson, supra, 30 Cal.4th
at p. 1326.) Although defendant suggests otherwise, nothing in
the high court’s opinion indicates any disagreement with the
proposition that the racially charged nature of a case may
properly inform an appellate court’s consideration of whether a
pattern of strikes establishes a prima facie case of
discrimination.20 Nor does the high court’s opinion suggest that

20
      Indeed, no party in Johnson v. California asked the court
to make any such ruling. On the contrary, the defendant in that
case strongly urged the court to consider the racially charged
nature of the case. (Johnson v. California (U.S. Supreme Ct.,
Feb. 2, 2005, No. 04-6964) Petitioner’s Brief on the Merits,
p. 48.)
                                 62
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


other factors—such as discrepancies in the extent or quality of
questioning, or readily apparent race-neutral reasons for
exercising the strikes—are irrelevant to the inquiry.
      Defendant and our dissenting colleague argue that the
high court in Johnson v. California did at least imply that such
reasons are irrelevant by failing to address any of them. (Dis.
opn. of Liu, J., at pp. 11, 15–16.) Although the trial court in that
case had hypothesized certain race-neutral reasons for the
peremptory challenges—“that the black venire members had
offered equivocal or confused answers in their written
questionnaires” (Johnson v. California, supra, 545 U.S. at
p. 165)—the high court did not mention those reasons in
addressing whether a prima facie case was established. But the
omission is not significant, because the reasons themselves were
not significant. Of the three disputed prospective jurors in
Johnson v. California, one gave what the trial court described
as a “ ‘rambling’ ” response that suggested difficulty in
understanding, the second answered a question according to her
“ ‘emotions and feelings,’ ” and no reason was posited for the
third. (People v. Johnson, supra, 30 Cal.4th at pp. 1307–1308.)
It is neither surprising nor meaningful that the trial court’s
assessment that a prospective juror was “rambling” or acting on
her “feelings” played no role in the high court’s brief prima facie
case discussion. Unlike jurors’ uncertainty or equivocation
about their ability to apply the death penalty, this type of
unsatisfactory response was not the sort of readily apparent
reasons for a prosecutorial juror strike that would have




                                 63
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


dispelled any inference of discrimination arising from the
pattern of excusals.21
       Nor, contrary to the argument made by defendant and the
dissent, does the trial court’s comment here (“I’m very close, I’m
going to go with Howard for the time being, but if I see very
much more of this, I’m going to indicate to you, you may well
have a serious problem on your hands.”) amount to a finding
that the circumstances gave rise to an inference of bias.
Although defense counsel had argued that only an inference of
bias was needed for a prima facie case, the trial court never
addressed that standard. And although Wheeler had used both
phrases—“strong likelihood” and “reasonable inference”
(Wheeler, supra, 22 Cal.3d at pp. 280–281)—our decision there
did not identify them as different levels of proof. Nor did
Howard, the decision by which the trial court was mainly
guided. (See Howard, supra, 1 Cal.4th at pp. 1153–1157
[quoting Wheeler’s strong-likelihood language without
mentioning reasonable inference as an alternative].) The trial
court’s statement appears to have been intended as a warning
to the prosecutors to be careful with their future peremptories,
because additional strikes might lead to a finding of a prima
facie case of discrimination. It is not clear the trial court meant

21     For this reason, we disagree with the dissent’s suggestion
that the answers given by the prospective jurors in this case
were equivocal or confused in the same way as those in
Johnson v. California. (Dis. opn. of Liu, J., post, at pp. 15–16.)
       The dissent (p. 11) also notes that our opinion in People
v. Johnson, supra, 30 Cal.4th at pages 1325 to 1326, suggested
some reasons that could have supported a peremptory
challenge to the third disputed prospective juror. These, too,
fall short of the kind of readily apparent reasons that would
lead any reasonable prosecutor to challenge a juror.
                                 64
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


it as a commentary on how suspicious (or not) the prior strikes
had been, given the totality of the circumstances, nor is it
apparent that the court implied the existence of a prima facie
case under a “reasonable inference” standard. In any event, our
review of the court’s ruling in this case is independent; it is not
necessary for us to determine precisely why the trial court
denied the motion or what changes in the law or facts would
have led it to grant the motion.
       In sum, considering all the relevant circumstances, we
conclude the record does not “support[] an inference that the
prosecutor excused a juror on a discriminatory basis.” (Reed,
supra, 4 Cal.5th at p. 999.) Although the prosecutors used half
their peremptory challenges to excuse all the African-American
prospective jurors seated in the box, this was not a case that
raised heightened concerns about racial bias in jury selection.
There were no apparent differences in the extent or manner of
the prosecutors’ questioning of prospective jurors of different
racial backgrounds. And, most importantly, the record discloses
readily apparent grounds for excusing each prospective juror,
dispelling any inference of bias that might arise from the
pattern of strikes alone.22 Our independent review of the record
leads to the conclusion that defendant failed to establish a prima
facie case of unconstitutional discrimination.




22
      No different conclusion would follow from examination of
the record at the time of defendant’s first Batson-Wheeler
motion. The pattern of strikes was similar (three out of five
challenges used against African-Americans) and grounds for
prosecutorial challenge were readily apparent as to all three
struck prospective jurors (Shirley R., Adrienne A., and Alice S.).
                                 65
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


     X. Denial of Defense Challenge for Cause
      Defendant contends the trial court erred in denying his
challenge for cause to a juror who, he asserts, bore an
impermissible bias in favor of the death penalty. Defendant
contends the error deprived him of his right to an unbiased jury
drawn from a cross-section of the community in violation of the
federal Constitution. We hold defendant did not preserve the
issue for appeal and that it lacks merit in any event.
      On her questionnaire, Juror No. 10 wrote that a juror
should “listen carefully” and not “make up your mind before all
evidence is in,” and that she was willing to determine as best
she could which sentence was appropriate, and to return that
sentence. Asked generally for her opinions about the death
penalty, she wrote: “I am in favor of it when it involves
children.” If she were making the laws, she would have a death
penalty. She agreed with the statement that a defendant
convicted of sexual assault and murder of a child should receive
the death penalty “regardless of the facts and circumstances of
his background or mental state.”
      On questioning by defense counsel, the juror reiterated
her view that the death penalty was appropriate in cases
involving children, but also indicated a willingness to consider
evidence in mitigation even in such a case. When counsel asked
whether she would “not consider” life without the possibility of
parole in such a case, this colloquy ensued:
      “A: It would be difficult for me to say, no, that they—life
in prison. I couldn’t go along with that always.
     “Q: Why not?



                                 66
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


     “A: Because of it being a child involved. That’s where I
have my problem with this—
     “Q: Okay
     “A: —case
      “Q: So then, honestly, as you sit there, because a child was
involved, life without possibility of parole is not something that
you could honestly, that you could honestly, honestly—
     “A: Uh-hum.
     “Q: —deep down, that you could honestly consider?
     “A: Well, it would be difficult for me to do that.
     “Q: You—so you couldn’t consider it honestly?
     “A: Well, honestly, I guess until I heard all the evidence
myself, it would be difficult.
     “Q: Do you think—go ahead?
      “A: No. I’m just, I would just—because it was a child
involved, I’d have to do a lot of thinking on that. But it depends
on what the evidence is in their background.”
      On further questioning by defense counsel, Juror No. 10
appeared to say that because a child was involved, the defense
would have to prove to her that life without parole was the
appropriate sentence, even if the court instructed the jury that
the defense did not have to prove anything. The court, however,
had counsel’s question reread and asked the juror whether,
having it in mind, she would follow the court’s instructions. She
replied, “Yes, I would.”
      On renewed questioning by defense counsel, Juror No. 10
explained that while she was “leaning towards the death
penalty” she “would have to listen to everything first before I

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could definitively say for sure.” After questioning by the
prosecutor, in which the juror affirmed she would listen to the
evidence and sentence defendant to life if she felt that was the
appropriate penalty, the court pressed her on whether she would
“really listen” to the factors in mitigation as well as those in
aggravation, and on whether she could consider them in a fair
fashion, without a predisposition to selecting the death penalty.
She replied, “I honestly feel that I could [do] that,” and, when
the court asked if there was any question in her mind, she
answered, “No.”
      The trial court denied defendant’s challenge for cause.
The court concluded that while the juror tentatively favored the
death penalty based on the case synopsis she had read in the
questionnaire, her answers on voir dire showed she would
consider all the evidence in reaching her ultimate verdict.
Defendant did not exercise a peremptory challenge against
Juror No. 10 and did not exhaust his peremptories, using only
16 of the 20 allotted.
      The Attorney General maintains that defendant has failed
to preserve the issue of his for-cause challenge because he did
not exhaust his peremptory challenges or express dissatisfaction
with the jury that was seated. We agree. “ ‘To preserve a claim
of error in the denial of a challenge for cause, the defense must
exhaust its peremptory challenges and object to the jury as
finally constituted.’ (People v. Millwee (1998) 18 Cal.4th 96,
146.) Defendant did neither.” (People v. Hillhouse (2002) 27
Cal.4th 469, 487 (Hillhouse).)        Defendant here had four
peremptory challenges remaining when he accepted the jury,
one of which he could have used to excuse Juror No. 10. At the



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time he accepted the jury, defense counsel said simply, “Pass the
panel, Your Honor,” giving no indication of dissatisfaction.
      For the proposition that the issue of his challenge to Juror
No. 10 must be deemed preserved, defendant relies on a single
phrase in a United States Supreme Court decision on a different
issue, United States v. Martinez-Salazar (2000) 528 U.S. 304.
There the high court held that a defendant who does use a
peremptory challenge to remove a prospective juror who should
have been excused for cause has not been deprived of any right
under federal court rules or the Constitution. (Id. at p. 307.)
Rejecting the lower court’s conclusion the defendant had been
“compelled” to use a peremptory challenge against the
prospective juror, the court stated that the defendant “had the
option of letting [the prospective juror] sit on the petit jury and,
upon conviction, pursuing a Sixth Amendment challenge on
appeal.” (Id. at p. 315.)
       As we have previously explained, this passage does not
establish that a California defendant can preserve a for-cause
challenge issue without exhausting his or her peremptories and
objecting to the panel. In Martinez-Salazar, “the high court
interpreted federal law, specifically rule 24 of the Federal Rules
of Criminal Procedure (18 U.S.C.), as not requiring a defendant
to excuse a prospective juror in order to preserve the issue of the
trial court’s denial of a challenge for cause. (United States v.
Martinez-Salazar, supra, 528 U.S. at pp. 314–315.) However,
the court recognized that state law may be different. (Id. at
pp. 313–314 [citing Ross v. Oklahoma (1988) 487 U.S. 81].) In
Ross v. Oklahoma, at page 89, the court noted that under
Oklahoma law, ‘a defendant who disagrees with the trial court’s
ruling on a for-cause challenge must, in order to preserve the


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claim that the ruling deprived him of a fair trial, exercise a
peremptory challenge to remove the juror. Even then, the error
is grounds for reversal only if the defendant exhausts all
peremptory challenges and an incompetent juror is forced upon
him.’ The court found ‘nothing arbitrary or irrational about such
a requirement, which subordinates the absolute freedom to use
a peremptory challenge as one wishes to the goal of empanelling
an impartial jury.’ (Id. at p. 90.) . . . [T]he California rule is
similar to Oklahoma’s.” (Hillhouse, supra, 27 Cal.4th at p. 487;
accord, People v. Winbush (2017) 2 Cal.5th 402, 426.) Martinez-
Salazar casts no doubt on the continued validity of our rule
requiring defendant to have taken additional steps to preserve
the claim that his for-cause challenge was improperly denied.
      We also reject defendant’s claim on the merits. A
challenge for cause under Wainwright v. Witt (1985) 469 U.S.
412, 424, requires the trial court to determine whether the
prospective juror’s views on the death penalty “would ‘ “prevent
or substantially impair” ’ the performance of the juror’s duties
as defined by the court’s instructions and the juror’s oath.”
(People v. Cunningham (2001) 25 Cal.4th 926, 975.) “ ‘On
appeal, we will uphold the trial court’s ruling if it is fairly
supported by the record, accepting . . . the trial court’s
determination as to the prospective juror’s true state of mind
when the prospective juror has made statements that are
conflicting or ambiguous.’ (People v. Mayfield (1997) 14 Cal.4th
668, 727.” (People v. Barnett (1998) 17 Cal.4th 1044, 1114;
accord, People v. Jenkins (2000) 22 Cal.4th 900, 987; People v.
Winbush, supra, 2 Cal.5th at pp. 424–425.)
      Juror No. 10’s statements were at times ambiguous and
conflicting. On the one hand, she generally thought the death


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penalty appropriate for sexual assault and murder of a child,
and knowing from the synopsis on her questionnaire that
defendant had been convicted of the “murder, torture, sodomy
and sexual assault” of an eight-year-old boy, she leaned toward
the death penalty in this case. On the other hand, she believed
jurors should keep an open mind and listen to all the evidence
and, under close questioning by attorneys for both parties and
by the court, she affirmed that she would consider the mitigation
evidence presented and could return a life sentence if she
believed it appropriate. Although at one point she appeared to
say that because the victim was a child she would put a burden
of proof on the defense even if instructed otherwise, when
questioned carefully by the court she clarified that she would
follow the court’s instructions on how to decide the penalty. The
trial court was fully engaged in assessing the juror’s state of
mind on these points and was able to observe her tone of voice
and demeanor. In these circumstances, we have no grounds to
overturn the court’s determination that Juror No. 10 was not
disqualified by bias. Finding no error in this determination, we
also reject defendant’s claims to denial of his constitutional
rights in this regard.
     XI. Permissibility of Penalty Phase Retrial
       Defendant contends the retrial of penalty before a new
jury after the original jury was unable to reach a verdict on this
issue, as provided for in Penal Code section 190.4, subdivision
(b), conflicts with evolving standards of decency in the United
States and therefore violates the bans on cruel and/or unusual
punishments under the United States and California




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Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I,
§ 17.)23
      As in People v. Taylor, supra, 48 Cal.4th at page 633,
defendant here cites statutory law from other United States
jurisdictions to show that California is in the minority of death
penalty jurisdictions allowing a penalty retrial and argues a
retrial unfairly imposes double-jeopardy-type burdens on
capital defendants. We rejected both arguments in Taylor:
“Although we have never addressed the precise Eighth
Amendment challenge defendant raises, we have determined
that ‘California’s asserted status as being in the minority of
jurisdictions worldwide that impose capital punishment’ does
not establish that our death penalty scheme per se violates the
Eighth Amendment. [Citations.] Likewise here, that California
is among the ‘handful’ of states that allows a penalty retrial
following jury deadlock on penalty does not, in and of itself,
establish a violation of the Eighth Amendment or ‘evolving
standards of decency that mark the progress of a maturing
society.’ (Trop v. Dulles (1958) 356 U.S. 86, 101.) [¶] Arguing
points more typically raised in a claim of double jeopardy,
defendant further contends that compelling a capital defendant
to endure the ‘ “embarrassment, expense and ordeal” ’ (United
States v. Scott (1978) 437 U.S. 82, 95) of a second trial on the
question of whether he should live or die is inconsistent with
Eighth Amendment principles. But, as defendant concedes, in
Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 108–110, the
high court held that the double jeopardy clause did not bar a
penalty retrial after appellate reversal of the capital defendant’s


23
     Defendant cites other constitutional guarantees as well
but makes no distinct argument for their violation.
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conviction, notwithstanding that in accordance with
Pennsylvania law, the defendant had been sentenced to life
without parole following juror deadlock at the penalty phase.
Given that the double jeopardy clause permits retrial following
juror deadlock under such circumstances, we fail to see how
subjecting defendant to retrial of the penalty phase in this case
could offend the constitutional proscription against cruel and
unusual punishment.” (Taylor, at p. 634; accord, People v.
Jackson, supra, 1 Cal.5th at p. 356; People v. Peoples (2016) 62
Cal.4th 718, 751; People v. Gonzales and Soliz (2011) 52 Cal.4th
254, 311.)
      In his reply brief, defendant acknowledges Taylor but
urges us to reconsider that decision, arguing that by allowing
“repeated attempts to convince a jury to return a death verdict,”
our retrial procedure impermissibly “enhances the possibility
that even though the defendant’s crime warrants a life sentence,
he may be sentenced to death.” As a matter of double jeopardy
law, this argument fails because the government is entitled, in
capital sentencing as in a trial of guilt, to one complete attempt
to obtain the verdict sought, an opportunity not provided where
a jury deadlock has resulted in a mistrial. (Sattazahn v.
Pennsylvania, supra, 537 U.S. at p. 109; id. at pp. 120–121, 124
(dis. opn. of Ginsburg, J.).) Nor does defendant’s cruel and
unusual punishment claim persuade us to reconsider our
decision in Taylor. As we explained in one of Taylor’s recent
progeny, it is true that the prosecution benefits from retrial, but
the same “may be said about any case that is retried after the
jury deadlocks . . . . [T]he high court has recognized that ‘ “a
defendant’s valued right to have his trial completed by a
particular tribunal must in some instances be subordinated to
the public’s interest in fair trials designed to end in just
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judgments.” ’ ” (People v. Jackson, supra, 1 Cal.5th at p. 356.)
That a rule barring retrial of penalty on jury deadlock would
benefit the defense does not demonstrate that the opposite rule,
allowing retrial in order to provide the People a full opportunity
to prove their case for the death penalty, deprives defendants of
any right to which they are constitutionally entitled.
      XII.   Denial of Funding for Mitochondrial DNA
             Testing
      Defendant contends he was deprived of due process and
the constitutional right to present a defense when, before the
penalty retrial, the court denied investigative funds to conduct
mitochondrial DNA testing on the pubic hairs recovered from
the victim’s clothing. He also argues the trial court erred in later
precluding comment on the lack of such testing. We find no
deprivation of constitutional rights in the denial of funding and
no error in the court’s later ruling.
      In September 1998, after the first penalty trial ended in a
hung jury, defense counsel (recently appointed to replace
counsel at the first trial) requested that the judge presiding over
investigative funding requests (Hon. Timothy J. Evans) under
Penal Code section 987.9 authorize $3,500 to $4,500 for a
laboratory in Virginia to conduct mitochondrial DNA (mtDNA)
testing of the pubic hairs.24 No DNA testing had yet been done
on these hairs, which the prosecution evidence showed were

24
      At places in his briefing, defendant also appears to
complain that mtDNA testing was denied for the blood stain on
his shirt and for scrapings from under the victim’s fingernails.
His funding request as to those items, however, was for DNA-
DQ ALPHA and PCR-DNA testing, respectively, rather than
mtDNA testing. As the appellate briefing focuses exclusively on
mtDNA, we discuss only the request for testing the pubic hairs.
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physically similar to defendant’s pubic hairs. Defendant
asserted that the proposed mtDNA testing, which would take 12
to 14 weeks to complete and destroy half of the evidentiary
material, was “critical” for the defense to oppose the prosecution
identification of the hairs as defendant’s.
       At an October 1998 hearing before the trial judge
(Hon. Loyd H. Mulkey, Jr.), defense counsel noted that Judge
Evans had denied his funding requests for additional DNA
testing, including for mtDNA testing on the pubic hairs. On
February 1, 1999, after the new penalty jury was selected and
sworn but before opening statements were made, counsel asked
Judge Mulkey to take notice his funding requests for DNA
analysis had been denied and renewed the request, together
with a request for a continuance to conduct the testing; in the
alternative, counsel sought permission to present evidence and
argue to the jury that the funding requests had been denied.
The prosecutor objected to any evidence that the People had not
ordered mtDNA testing, asserting he had never even heard of
that technique “before last Monday” and could find no authority
for its use in California criminal proceedings.
      On February 8, 1999, Judge Mulkey rejected the renewed
funding request on the ground that, as the trial judge, he had no
authority to entertain confidential requests under Penal Code
section 987.9. The court then heard testimony from a defense
DNA expert, Lisa Calandro. Neither she nor her laboratory
performed mtDNA testing, but she testified generally as to how
it worked, that it had been done elsewhere since before 1994,
and that in her reading on the subject she had encountered no
scientific controversy over its validity. Defendant also sought to
call the director of the Virginia laboratory that would have


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                  Opinion of the Court by Kruger, J.


performed the mtDNA analysis to testify telephonically, but the
court sustained the prosecutor’s objection to that procedure
under Evidence Code section 711. The court denied defendant’s
motion to allow evidence and argument on the fact there had
been no mtDNA testing, but did so without prejudice to its
renewal during trial.
      During the penalty retrial, the court made a final ruling
that it would not allow either party to present evidence or
comment in argument on the other’s failure to conduct mtDNA
testing. “I don’t know what a DNA test would produce because
I don’t have one. [¶] So I’m going to proscribe both sides from
commenting in argument on [that or another unrelated matter].
That’s going to have to be the ruling. If I’m wrong, I’m wrong.
[¶] But I just, when I open it up, I just have to keep opening it
up by stages.” If the People were to comment on the fact that
the defense did not conduct such testing when, before trial, they
had custody of the samples, the defense would respond that they
later sought funding for testing but were denied it. “Then why
were they denied? What does Judge Evans tell me is the reason?
[¶] The reason is not in the minute order. So perhaps I have to
bring him down here and testify.” The ruling applied to both
evidence and argument.
       Considering first the denial of funding for mtDNA testing
of the pubic hairs, we conclude the trial court did not err. The
September 1998 funding request failed to establish that mtDNA
testing would likely produce admissible evidence. While
California courts have since endorsed the admissibility of
mtDNA evidence (e.g., People v. Stevey (2012) 209 Cal.App.4th
1400, 1414–1415), no published decision had done so at the time
of trial. Although the record indicates that the trial court gave


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defendant multiple opportunities to show that mtDNA testing
was generally accepted in the scientific community, defendant
did not make such a showing.25 The request, moreover, failed to
explain why the defense did not seek funding for mtDNA testing
on the pubic hairs, which would take the laboratory some
months to perform, before trial rather than between the mistrial
and the penalty retrial when it bore the potential for delaying
the retrial. For this reason as well, we cannot find an abuse of
discretion in Judge Mulkey’s declining to overrule Judge
Evans’s earlier ruling.
      Nor has defendant established that the trial court’s ruling
on funding resulted in deprivation of his constitutional right to
present a defense. Defendant cites several federal decisions for
the proposition that denial of expert assistance may deprive a
criminal defendant of due process and the right to present a
defense. But in those cases, which arose on habeas corpus, the
courts could consider information outside the appellate record
and, if necessary, remand for an evidentiary hearing on factual
questions about the nature and impact of potential extra-record
evidence. (See Wallace v. Stewart (9th Cir. 1999) 184 F.3d 1112,
1116, 1118 [remanding for an evidentiary hearing on claim of
ineffective assistance of counsel in failing to fully inform
psychiatrists of the defendant’s background]; Dunn v. Roberts
(10th Cir. 1992) 963 F.2d 308, 313 [denial of expert on battered
woman syndrome deprived the defendant of opportunity to

25
      Before this court defendant has cited cases from other
jurisdictions that, starting in 1999, consistently allowed mtDNA
evidence, but he did not cite any such cases before the trial court.
The only evidence presented to the trial court was Calandro’s
testimony, which the court reasonably determined was
insufficient to establish general acceptance.
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present a defense where expert “would have aided Petitioner in
her defense by supporting her assertion that she did not have
the required specific intent”]; Cowley v. Stricklin (11th Cir.
1991) 929 F.2d 640, 643 [defendant “showed that psychiatric
expertise would aid his defense significantly”]; cf. Terry v. Rees
(6th Cir. 1993) 985 F.2d 283, 285 [denial of independent
pathologist was harmless error where independent expert
appointed in habeas corpus proceedings “agreed with the state
pathologist that . . . the victim was subjected to repetitive child
abuse with head injuries being the cause of death”].) Based on
the record available on appeal, we cannot say the trial court
deprived defendant of “a fair opportunity to present his defense”
(Ake v. Oklahoma (1985) 470 U.S. 68, 76) or “the basic tools of
an adequate defense” (Britt v. North Carolina (1971) 404 U.S.
226, 227) when it refused an untimely request for funding to
conduct mtDNA testing, testing the defense failed to show would
likely produce even admissible evidence.26
      Nor did the court err in precluding evidence or argument
on the failure of either party to conduct mtDNA testing. Each
party posited a reason for its failure to do so: the prosecution
that it had been unaware of the mtDNA technique and was
unsure of its admissibility; the defense that the Penal Code
section 987.9 judge had denied its funding request for such
testing. The trial court saw no way of allowing evidence on the
subject without also allowing exploration of these side issues.

26
      Defendant asserts he would be entitled to testing under
the standards set in Penal Code section 1405, which sets
prerequisites and procedures for postconviction forensic DNA
testing. We express no view on that question, which will arise
if and when defendant makes a motion for postconviction
testing.
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Since there was no evidence as to what mtDNA testing would
have found, the court concluded the fairest and most practicable
approach was to omit any discussion of the topic. (See Evid.
Code, § 352 [evidence may be excluded if its tendency to undue
consumption of time and confusion of the issues outweighs it
probative value].) In the absence of evidence as to why the
parties did not perform mtDNA testing, jury arguments
suggesting one or another inference from that omission would
likely have been misleading and confusing.           While jury
arguments pointing to the absence of particular evidence
generally qualify as “fair comment on the state of the evidence”
(People v. Medina (1995) 11 Cal.4th 694, 756), the trial court
retains the discretion to “ensure that argument does not stray
unduly from the mark, or otherwise impede the fair and orderly
conduct of the trial.” (Herring v. New York (1975) 422 U.S. 853,
862.) We find no abuse of discretion in the trial court’s ruling.
      XIII.   Prosecutorial Misconduct in Argument on
              Penalty
     Defendant contends the prosecutor made several improper
remarks in argument to the jury that, taken together, deprived
defendant of his due process right to a fair trial.
      In People v. Edelbacher (1989) 47 Cal.3d 983, 1033, we
held the prosecutor acted improperly in arguing that the capital
defendant’s family background, introduced as mitigation under
Penal Code section 190.3, factor (k), gave him no reason to kill
and therefore “ ‘is an aggravating factor.’ ” (See also Edelbacher,
at p. 1041 (conc. opn. of Mosk, J.).) In his first assignment of
misconduct, defendant maintains the prosecutors here27

27
     Prosecutor Nolan gave the first penalty argument,
Prosecutor Schroeder the rebuttal.
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committed Edelbacher error in arguing defendant had a “normal
childhood” and had shown “no reason for him to turn into a
rotten egg.” We disagree. The prosecutors’ argument was that
the family background the defense had presented should be
given no weight as mitigation: it was a “zero” on the scales.
Prosecutors may properly point out the absence of mitigating
evidence. (People v. Wader (1993) 5 Cal.4th 610, 659, fn. 9.) The
defendant’s argument, moreover, was forfeited by his failure to
lodge an objection and seek a jury admonition. (Id. at p. 659.)
      Second, defendant contends that in his rebuttal argument,
Prosecutor Schroeder falsely told the jurors they could not
consider lingering doubt because they had not heard the entirety
of the prosecution’s guilt-phase case. On two occasions the
prosecutor did indeed make such an argument, but in both cases
the court sustained defendant’s objection and admonished the
jury to disregard the argument.28 At other points the prosecutor
referred to witnesses who had testified at the guilt phase as

28
       On the first occasion, the prosecutor, complaining about
“huge gaps” in the defense presentation of the facts, said: “Now
for you to have a lingering doubt, you have to hear the entire
case I put on last year.” After the court sustained a defense
objection and told the jury to “disregard that statement,” the
prosecutor immediately argued that defense counsel, in his
opening statement, admitted “that he has to put on the entire
case I put on—.” Another objection was sustained but the court
declined to admonish the jury again, saying, “I just did, counsel.”
Later in his argument, the prosecutor urged the jury to note the
potential witnesses who had been mentioned but had not
testified and asked rhetorically, “If you [didn’t] hear my whole
case, how can you have a lingering doubt?” Again an objection
was sustained and the jury was admonished to “disregard the
last sentence of the argument.”

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buttressing the case for guilt, prompting a defense objection and
an admonishment by the court to “disregard that portion—that
matter insofar as it references the guilt phase of the trial.”
      Despite the court’s admonitions, defendant insists that the
prosecutor’s repeated suggestions that the penalty retrial jury
was not in a position to consider lingering doubt because they
had not heard the entire case for guilt, coupled with what he
characterizes as a “terse” instruction on lingering doubt,29
“failed to permit the jury to give full effect to the lingering doubt
mitigation in this case.”
      We agree the prosecutor’s repeated argument that the
penalty retrial jury could not consider lingering doubt without
having heard the entire prosecution case for guilt was a
deceptive or reprehensible means of persuasion and hence
constituted misconduct under California law.          (People v.
Gonzales (2011) 51 Cal.4th 894, 920; People v. Hill, supra, 17
Cal.4th at p. 819.) Even for a penalty retrial jury, lingering
doubt is a proper consideration in mitigation. (People v.
Hamilton (2009) 45 Cal.4th 863, 948–949; People v. Gay (2008)
42 Cal.4th 1195, 1218–1223.) Moreover, the jury instructions,
including that on lingering doubt, were settled before argument
to the jury. The prosecutor knew the court would instruct the
jury it could consider that factor in mitigation, and should not
have attempted to persuade the jury to the contrary. But in

29
       The jury was instructed: “Lingering doubt may be
considered as a factor in mitigation if you have a lingering doubt
as to the guilt of the defendant.” The court refused the defense’s
more elaborate proposed instruction, which stated that “[t]he
adjudication of guilt is not infallible” and permitted the jury to
consider “the possibility that at some time in the future” new
evidence might come to light.
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light of the court’s sustaining defense objections and promptly
giving admonitions, a jury instruction that clearly (if concisely)
allowed consideration of lingering doubt, and defense counsel’s
argument focusing on weaknesses in the evidence of guilt and
expressly on lingering doubt as grounds for a verdict of life, we
find no reasonable possibility the jury was confused on the
subject and hence no such possibility it would have reached a
different penalty verdict absent the misconduct. (See Gonzales,
at p. 953.) Our conclusion necessarily implies the prosecutor’s
argument did not so infect the trial with unfairness as to deny
defendant his federal due process rights. (Id. at p. 953, fn. 33.)
      Third, defendant complains of a portion of the prosecutor’s
rebuttal argument addressing the time at which someone in a
pickup truck had apparently abducted a boy—on the
prosecution’s theory, Michael Lyons—near the corner of Boyd
and C Streets. The prosecutor argued that while the defense
relied on Ray Clark’s testimony that he saw the abduction at
around 3:00 p.m. (too early for Michael to have reached that spot
after leaving school or defendant after leaving the card room),
the defense had failed to call Clark’s cousin Charles Wilbur, who
also witnessed the event and placed it later, at 3:30 or 4:00 p.m.
Because the kidnapping charge had been dismissed after the
guilt jury failed to reach a verdict on that count, defendant
argues, it was unfair to hold against him that he “did not again
raise a reasonable doubt about his guilt” of kidnapping.
     The argument was proper. It responded directly to fairly
extensive defense argument on the same points: the timing of
the apparent abduction and the observations of Clark and
Wilbur. The fact that the guilt jury did not unanimously find
kidnapping proved beyond a reasonable doubt did not preclude


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the prosecution from arguing, as a circumstance of the capital
crime (Pen. Code, § 190.3, factor (a)), that defendant had in fact
abducted the victim in town and taken him to the river bottoms.
(See People v. Jones (2011) 51 Cal.4th 346, 378, fn. 6; People v.
Rodrigues (1994) 8 Cal.4th 1060, 1157.) And as defendant
acknowledges, “it is neither unusual nor improper to comment
on the failure to call logical witnesses.” (People v. Gonzales
(2012) 54 Cal.4th 1234, 1275; see People v. Zambrano (2007) 41
Cal.4th 1082, 1174 [penalty phase].)
     Fourth, defendant contends the prosecutor engaged in
deceptive argument regarding the defense’s ability to conduct
DNA testing on the victim’s fingernail scrapings. In context, the
prosecutor’s argument was not prejudicial misconduct.
      Before instruction and argument, the jury was read a
stipulation about the fingernail scrapings:      “ ‘It’s hereby
stipulated to and agreed to by the parties that the fingernail
scrapings taken from the body of Michael Lyons were
appropriately transported to Forensic Analytical, DNA
laboratory for the defense. [¶] The defense had the possession
of the scrapings from January 19, 1998 until April 1998, after
which time they were returned to the People. [¶] The defense
did not test the fingernail scrapings.’ ”
      In his argument to the jury, defense counsel stated that,
as stipulated, defendant’s “first lawyers” had the fingernail
scrapings but had not tested them, that neither had the
prosecution’s experts, and that “I frankly don’t know why no one
examined it.” He went on to suggest the jury should hesitate to
return a death sentence because in the future, improved DNA
analysis techniques might be applied to the scrapings or to the



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semen found on the victim’s anal swab and might exonerate
defendant.
      In response, the prosecutor noted that defense counsel
“makes a big deal about the fingernail scrapings, and he’s the
one who brought this whole idea up.” Defense counsel, the
prosecutor continued, had not asked the prosecution expert why
she did not test the scrapings. Moreover, “Defense’s own expert
had it for almost three months. They didn’t examine it either.
Why didn’t he present their expert to tell you why that wasn’t
done?” Defense counsel objected and, still before the jury,
stated, “Your Honor, we went through this. I asked for money
to get it done and it wasn’t, and he is walking right into it.”
Outside the jury’s presence, the court ruled it would allow the
prosecutor to comment on the fact that—as stipulated—no
defense expert had tested the scrapings, but not to ask
rhetorically why defense counsel did or did not do anything. The
same would apply to argument by defense counsel. In the jury’s
presence, the court admonished the jury to disregard both
attorneys’ remarks made before the recess and explained that
the argument would be confined to the stipulation read them
previously: “It’s not to go beyond that.”
      Renewing his argument, the prosecutor stated that
defense counsel is “the one who wants to prove lingering doubt”
and that “[i]f there are unanswered questions with regard to the
fingernail scrapings, that’s where you look for the answer. He
didn’t provide it to you.” The court sustained a defense objection
to this remark and told the jury to disregard it. The prosecutor
then stated, simply, “His expert had it for almost three months,”
and moved on to another topic.



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                  Opinion of the Court by Kruger, J.


      We do not agree with defendant that the prosecutor spoke
deceptively in asking rhetorically, “Why didn’t he present their
expert to tell you why that wasn’t done?” That remark referred
to the pretrial period in early 1998, described in the stipulation
and in defense counsel’s own prior jury argument, when
defendant’s “first lawyers” had the physical evidence and could
have had their DNA expert examine the fingernail scrapings.
Nothing we have found in the record indicates that at that time
the defense failure to test was due to lack of funding; it was only
later, in the period before the penalty retrial, that defendant’s
new attorneys sought and were denied funding for PCR-DNA
testing on the fingernail scrapings. (See fn. 24, ante.)
      The prosecutor did, though, violate the trial court’s ruling
by arguing, after the recess, that “[i]f there are unanswered
questions with regard to the fingernail scrapings, that’s [the
defense] where you look for the answer. [Defense counsel] didn’t
provide it to you.” The court had, immediately before this,
ordered the attorneys to confine their arguments to the
stipulated facts, meaning they could note the absence of testing
but not assert that one or the other party was responsible for it.
The prosecutor’s improper argument, however, was not a very
strong one, since the jury also knew that the prosecution had not
tested the fingernail scrapings for DNA. In light of the
sustained objection and prompt admonition, there is no
reasonable possibility of prejudice. (People v. Gonzales, supra,
51 Cal.4th at p. 953.)
     Fifth and finally, defendant claims the prosecutor
endorsed improper experimentation by the jurors in urging
them to look at a photograph of the victim’s skin with a
magnifying glass to see a pattern of knife marks. Use of a


                                 85
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                 Opinion of the Court by Kruger, J.


magnifying glass to more closely examine an exhibit that has
been admitted into evidence does not constitute improper
experimentation, as it introduces no extra evidence material to
the jury’s deliberations. (People v. Turner (1971) 22 Cal.App.3d
174, 182.) The prosecutor’s argument was therefore also not
improper.
      Although we have found two instances of improper
prosecutorial argument (the argument that lingering doubt
could not be considered and blaming the defense for the lack of
DNA evidence regarding the fingernail scrapings), we have
found neither bore a reasonable possibility of affecting the
penalty verdict. We reach the same conclusion as to their
cumulative effect: the two errors went to different topics of
argument and the court gave the jury clear admonitions to
disregard both remarks.
     XIV. Denial of Motion to Continue Sentencing
       On September 10, 1999, the date set for sentencing,
defendant moved for a continuance in order to prepare a motion
for new guilt trial based on newly discovered evidence, namely
a letter purporting to be from someone defense counsel referred
to as “Raymond Walton” stating that defendant had been set up
by a person named Timothy Clarke, who was confined in a Yolo
County jail. In response, the prosecutor noted that the letter
was actually signed simply “Raymond,” purportedly of “Walton
Ave.” in Yuba City. The prosecution had called the telephone
number given in the letter but found it disconnected. The
woman who lived at the last address associated with that
number had lived there for a year; she said no Raymond lived at
the address. The letter was apparently sent to Al Rhoades, a
relative of defendant, but Al had no idea who Raymond was.

                                86
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


Two men named Timothy Clark, spelled differently from the
letter, had been confined in Yolo County jail, one in 1991 and
one in 1997. The letter contained no information as to how
Clark or Clarke had supposedly set defendant up for the crime.
The prosecutor also noted that the guilt verdicts had been
returned 15 months earlier and the intended new-trial motion
would be defendant’s third. The trial court, further noting the
length of time that elapsed since the penalty verdicts had been
returned in March 1999, found no cause for a continuance and
denied the motion.
       Continuances in criminal cases are to be granted only for
good cause, and the trial court’s denial of a continuance is
reviewed for abuse of discretion only. (Pen. Code, § 1050, subd.
(c); People v. Jenkins, supra, 22 Cal.4th at p. 1037.) Given the
length of time elapsed since the guilt and penalty verdicts and
the vague and speculative nature of the letter’s claim, there was
no abuse of discretion here.
     XV. Conviction on Multiple Offenses Arising from
         the Same Act
      On counts four through seven—torture, forcible sodomy on
a child, lewd act on a child, and forcible lewd act on a child—the
sentencing court imposed prison sentences but ordered them
stayed under Penal Code section 654 pending execution of the
sentence for murder. Defendant contends the stay of sentence
was insufficient to protect him, arguing it is “unfair and
unconstitutional under the Fifth and Eighth Amendments to
permit a jury in a death penalty case to use the same identical
facts to convict appellant of separate crimes, which they then
are permitted to consider in deciding whether he should live or
die.” We rejected similar arguments in People v. Melton (1988)

                                 87
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


44 Cal.3d 713, 766–768 (holding consideration of overlapping
special circumstances proper but providing that jury should be
told, on defense request, not to double count each special
circumstance), and People v. Richardson (2008) 43 Cal.4th 959,
1029 (explaining that “lewd conduct is a separate offense from
either rape or sodomy and therefore the jury could consider all
three special circumstances under section 190.3, factor (a)”).
The jury here was instructed not to double count the special
circumstance findings even though they were also
circumstances of the capital crime: “[Y]ou may not weigh the
special circumstances more tha[n] once in your sentencing
determination.” Defendant cites nothing in the record to
suggest, and we have seen no indication, that the jury
nonetheless gave any improper weight to the circumstance that
defendant had, during his fatal attack on Michael Lyons,
committed multiple sexual offenses as well as torture.
     XVI.       Refusal of Defense Instructions               on
                Determination of Penalty
       Defendant complains of the court’s refusal to give several
of his proposed special instructions. We find no error.
      First, defendant offered an instruction stating that the
mitigating circumstances listed “are given merely as examples”
and the jury should not limit consideration to these specific
factors but may consider “mercy, sympathy and/or sentiment in
deciding what weight to give each mitigating factor.” The trial
court refused the instruction on the ground it was adequately
covered by CALJIC No. 8.88, which as given here defined a
mitigating circumstance as “any fact, condition or event which
does not constitute a justification or excuse for the crime in
question, but may be considered as an extenuating

                                 88
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


circumstance” in determining the penalty. The jury was also
instructed in CALJIC No. 8.85 that under Penal Code section
190.3, factor (k), they could consider in mitigation “any
sympathetic or other aspect of the defendant’s character or
record . . . whether or not related to the offense for which he is
on trial.”
      We have held that these standard instructions “leave
adequate room for the consideration of mercy” without an
instruction using that term (People v. Thomas (2012) 53 Cal.4th
771, 827) and that an express reference to “mercy” risks
encouraging arbitrary decisionmaking (People v. Lewis (2001)
26 Cal.4th 334, 393)—a risk aggravated here by defendant’s
proposed instruction’s use of the term “sentiment.” Defendant
provides no compelling argument to reexamine these
conclusions.
      Second, defendant’s proposed instruction stating that “the
evidence which has been presented regarding the defendant’s
background may only be considered by you as mitigating
evidence” was also refused as cumulative of standard
instructions. Defendant contends it was error to refuse this
instruction, and the prosecutor exploited the error by arguing
defendant’s background as an aggravating circumstance. (But
see pt. XIII., ante [rejecting this characterization of the
prosecutor’s argument].) We have held that “[t]he court need
not instruct that the jury can consider certain statutory factors
only in mitigation” (People v. Valencia (2008) 43 Cal.4th 268,
311) and that “[i]t follows the trial court need not instruct that
background evidence may be considered only in mitigation”
(People v. Rogers (2006) 39 Cal.4th 826, 897; see also Tuilaepa
v. California (1994) 512 U.S. 967, 979 [“A capital sentencer need


                                 89
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


not be instructed how to weigh any particular fact in the capital
sentencing decision.”]). We adhere to these holdings.
      Third, defendant asked that the jury be instructed: “If you
sentence the defendant to death, you must assume that the
sentence will be carried out.” The trial court declined to give
that instruction “in the abstract, so to speak” but agreed that an
instruction on the topic would be appropriate “if there is a
reason to believe the jury has concerns or misunderstanding”
regarding the effect of a death verdict. This course accorded
with our precedent (People v. Wallace (2008) 44 Cal.4th 1032,
1091; People v. Kipp (1998) 18 Cal.4th 349, 378–379) and was
not error. The jury did not indicate on the record any confusion
or doubt as to the meaning or effect of either of the possible
penalty verdicts.
      Finally, the trial court refused defendant’s request that
the jury be instructed: “A jury may decide, even in the absence
of mitigating evidence, that the aggravating evidence is not
comparatively substantial enough to warrant death.” But
where, as here, the jury is instructed that “[t]o return a
judgment of death each of you must be persuaded that the
aggravating evidence is so substantial in comparison with the
mitigating circumstances that it warrants death instead of life
without parole,” an instruction like the one defendant proposed
is unnecessary to guide the jury. (People v. Rodrigues, supra, 8
Cal.4th at p. 1191, italics omitted.)
     XVII. Cumulative Prejudice from Errors
      The only errors we have found in the penalty phase are
two instances of prosecutorial misconduct in argument to the
jury. As discussed above (see pt. XIII., ante), they were not
prejudicial either individually or cumulatively.

                                 90
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


     XVIII. Delay in Appellate Review
      Defendant contends that executing him after significant
passage of time during the appellate process would constitute
cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution. We have
rejected this claim in numerous decisions beginning with People
v. Anderson (2001) 25 Cal.4th 543, 606: “As we have explained,
the automatic appeal process following judgments of death is a
constitutional safeguard, not a constitutional defect [citations],
because it assures careful review of the defendant’s conviction
and sentence [citation]. Moreover, an argument that one under
judgment of death suffers cruel and unusual punishment by the
inherent delays in resolving his appeal is untenable. If the
appeal results in reversal of the death judgment, he has suffered
no conceivable prejudice, while if the judgment is affirmed, the
delay has prolonged his life.”            (See also People v.
Seumanu (2015) 61 Cal.4th 1293, 1368–1369 [following
Anderson and reciting intervening precedent in accord].)
      More recently, we considered at length and rejected the
related claim that systematic delays in implementation of
California’s death penalty render the penalty impermissibly
arbitrary in violation of the Eighth Amendment. (People v.
Seumanu, supra, 61 Cal.4th at pp. 1371–1375; accord, People v.
Clark (2016) 63 Cal.4th 522, 645; see also Jones v. Davis (9th
Cir. 2015) 806 F.3d 538, 546–553 [theory of arbitrariness by
delay proposes new rule of constitutional law that cannot be
applied to state procedures in federal habeas corpus case].)
      Defendant’s briefing provides no grounds for reexamining
either of these conclusions.



                                 91
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


      XIX. Incomplete Appellate Record
      Defendant contends his conviction must be reversed
because the parties were unable to reconstruct via a settled
statement four unreported bench conferences and several “off-
the-record ” discussions concerning record correction, and
because certain confidential attorney fee requests could not be
obtained either from the Sutter County Superior Court or from
trial counsel.     He argues generally that without these
transcripts he cannot make an argument about “any reversible
error that may have occurred” and that the attorney fee
requests, in particular, “could bolster a claim of ineffective
assistance of counsel.” “ ‘[D]efendant bears the burden of
demonstrating that the appellate record is not adequate to
permit meaningful appellate review. [Citations.] He has not
done so.’ ” (People v. Richardson (2008) 43 Cal.4th 959, 1037.)
      XX.    Relief from Defaults and Incorporation of
             Claims
      In a set of generalized arguments that do not refer to any
of his brief’s specific claims for relief, defendant maintains that
all violations of state law rights also constitute federal
constitutional violations, that trial counsel’s failure to request
or object to instructions should be excused, that we should
review all errors in capital cases on the merits rather than
invoking procedural bars, and that when the court reviews
defendant’s to-be-filed petition for writ of habeas corpus we
consider any claim that should have been raised on appeal to be
incorporated into his appellate briefing.
      We have addressed questions of forfeiture as necessary in
discussion of defendant’s specific arguments for reversal and
have addressed the merits of defendant’s constitutional claims

                                 92
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


whenever appropriate. With regard to claims made on habeas
corpus, defendant has not yet filed a petition challenging his
convictions and death sentence, but in any event we would
decline to incorporate habeas corpus claims into the appellate
brief in the manner requested. (See People v. Richardson, supra,
43 Cal.4th at p. 1038.)
     XXI. Constitutionality of California’s Death Penalty
      Defendant raises a number of federal constitutional
challenges to California’s death penalty law, each of which we
have previously rejected.
      “[T]he California death penalty statute is not
impermissibly broad, whether considered on its face or as
interpreted by this court.” (People v. Dykes (2009) 46 Cal.4th
731, 813.) Penal Code section 190.3, factor (a), which permits a
jury to consider the circumstances of the offense in sentencing,
does not result in arbitrary or capricious imposition of the death
penalty in violation of the Fifth, Sixth, Eighth, or Fourteenth
Amendments to the United States Constitution. (People v.
Simon (2016) 1 Cal.5th 98, 149; see Tuilaepa v. California,
supra, 512 U.S. at pp. 975−976, 978.)
      “The death penalty statute does not lack safeguards to
avoid arbitrary and capricious sentencing, deprive defendant of
the right to a jury trial, or constitute cruel and unusual
punishment on the ground that it does not require either
unanimity as to the truth of aggravating circumstances or
findings beyond a reasonable doubt that an aggravating
circumstance (other than Pen. Code, § 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.” (People v. Rangel, supra, 62 Cal.4th at

                                 93
                       PEOPLE v. RHOADES
                  Opinion of the Court by Kruger, J.


p. 1235.) The Supreme Court’s recent Sixth Amendment
decisions (e.g., Hurst v. Florida (2016) 577 U.S. ___ [136 S.Ct.
616], Ring v. Arizona (2002) 536 U.S. 584, and Apprendi v. New
Jersey (2000) 530 U.S. 466) do not affect our conclusions in this
regard. (Rangel, at p. 1235.)
      “The jury may properly consider evidence of unadjudicated
criminal activity under section 190.3, factor (b) [citation], jury
unanimity regarding such conduct is not required [citation], and
factor (b) is not unconstitutionally vague.         (Tuilaepa v.
California, supra, 512 U.S. at p. 976.)” (People v. Lee (2011) 51
Cal.4th 620, 653.) Nor does our statute’s lack of a requirement
for written jury findings on aggravating circumstances violate
due process or the Eighth Amendment or deny a capital
defendant the opportunity for meaningful appellate review.
(People v. Winbush, supra, 2 Cal.5th at p. 490; People v.
Whalen (2013) 56 Cal.4th 1, 91.) And, as discussed earlier (see
pt. XVI, ante), an instruction that certain factors may only be
considered in mitigation is not constitutionally required.
(Tuilaepa, at p. 979; People v. Valencia, supra, 43 Cal.4th at
p. 311.)
      “Intercase proportionality review, comparing defendant’s
case to other murder cases to assess relative culpability, is not
required by the due process, equal protection, fair trial, or cruel
and unusual punishment clauses of the federal Constitution.”
(People v. Winbush, supra, 2 Cal.5th at p. 490.) Procedural
differences between capital and noncapital trials do not
constitute violations of equal protection, and California’s use of
the death penalty does not violate international law either by
punishing certain first degree murders with death or by
employing the procedures defendant complains of above.


                                 94
                      PEOPLE v. RHOADES
                 Opinion of the Court by Kruger, J.


(People v. Sánchez (2016) 63 Cal.4th 411, 488; People v. Solomon
(2010) 49 Cal.4th 792, 844.)
                         DISPOSITION
     The judgment of the superior court is affirmed.

                                                      KRUGER, J.

We Concur:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
GROBAN, J.




                                95
                     PEOPLE v. RHOADES
                             S082101


               Dissenting Opinion by Justice Liu


      During jury selection for the penalty retrial in this capital
case, defendant Robert Boyd Rhoades raised a challenge under
Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler
(1978) 22 Cal.3d 258 after prosecutors used four of eight
peremptory strikes against four black women jurors, thereby
“eliminat[ing] every African-American seated in the jury box.”
(Maj. opn., ante, at p. 52.) The proceeding occurred in 1998,
seven years before Johnson v. California (2005) 545 U.S. 162,
and the trial court believed it was bound by this court’s
precedent, People v. Howard (1992) 1 Cal.4th 1132, 1154
(Howard), which required a defendant to show not merely an
inference but a “ ‘strong likelihood’ ” of discrimination at
Batson’s first step. Applying that standard, the trial court
denied the Batson motion but said, “I’m very close.”
       These facts bear an uncanny resemblance to those in
Johnson v. California, where the trial court also denied a Batson
motion under the “strong likelihood” standard but said, “[W]e
are very close.” (Johnson v. California, supra, 545 U.S. at
p. 165, italics omitted; see id. at p. 164 [prosecutor used three of
12 strikes to remove all three black jurors].) In that case, the
high court disapproved the “strong likelihood” standard, calling
it “an inappropriate yardstick by which to measure the
sufficiency of a prima facie case.” (Id. at p. 168.) “Instead,” the
high court held, “a defendant satisfies the requirements of
Batson’s first step by producing evidence sufficient to permit the

                                 1
                       PEOPLE v. RHOADES
                          Liu, J., dissenting


trial judge to draw an inference that discrimination has
occurred.” (Id. at p. 170.) Then, in concluding that the
defendant had met this burden, the high court explained: “In
this case the inference of discrimination was sufficient to invoke
a comment by the trial judge ‘that “we are very close,” ’ and on
review, the California Supreme Court acknowledged that ‘it
certainly looks suspicious that all three African-American
prospective jurors were removed from the jury.’ [Citation.]
Those inferences that discrimination may have occurred were
sufficient to establish a prima facie case under Batson.” (Id. at
p. 173, italics added.)
      If the evidence of discrimination is “very close” to meeting
the “strong likelihood” standard, then logically it is sufficient to
meet the less onerous “inference” standard. Yet today’s opinion,
sidestepping Johnson v. California’s logic, finds no inference of
discrimination at Batson’s first step. How is this possible?
“[M]ost importantly,” the court says, “the record discloses
readily apparent grounds for excusing each prospective juror,
dispelling any inference of bias that might arise from the
pattern of strikes alone.” (Maj. opn., ante, at p. 65.)
      As I discuss below, this mode of analysis — hypothesizing
reasons for the removal of minority jurors as a basis for
obviating inquiry into the prosecutor’s actual reasons — has
become a staple of our Batson jurisprudence, and it raises
serious concerns. “The Batson framework is designed to produce
actual answers” — not hypothesized answers — “to suspicions
and inferences that discrimination may have infected the jury
selection process.” (Johnson v. California, supra, 545 U.S. at
p. 172.) If an inference of bias is to be dispelled, it is up to the
prosecutor to dispel it by stating credible, race-neutral reasons


                                  2
                        PEOPLE v. RHOADES
                          Liu, J., dissenting


for the strikes. It is not the proper role of courts to posit reasons
that the prosecutor might or might not have had. This case
illustrates the problem: By combing the record for “readily
apparent” reasons for the strikes (which, on close inspection, are
not readily apparent at all), the court does exactly what Johnson
v. California “counsels against”: It “engag[es] in needless and
imperfect speculation when a direct answer can be obtained by
asking a simple question.” (Ibid.)
      The court’s opinion coincides with a decision, also filed
today, finding no inference of discrimination where the
prosecutor disproportionately excused black jurors in the
penalty trial of a black defendant accused of killing a white man
and raping a white woman. (People v. Johnson (Nov. 25, 2019,
S029551) __ Cal.5th __, __ [p. 41].) The prosecutor there was
asked but declined to answer whether he targeted black
prospective jurors for criminal background checks. (Id. at p. __
[p. 35].) Of course, each case must be evaluated on its own facts.
But if we consider today’s decisions together and alongside
others in our case law, some unsettling observations emerge.
       It has been more than 30 years since this court has found
Batson error involving the peremptory strike of a black juror.
(See People v. Snow (1987) 44 Cal.3d 216.) In the 14 years since
Johnson v. California, this court has reviewed the merits of a
first-stage Batson denial in 42 cases, all death penalty appeals.
(See appen., post, at p. 25.) Not once did this court find a prima
facie case of discrimination — even though all 42 cases were
tried before Johnson v. California disapproved the “strong
likelihood” standard and held that “an inference of
discrimination” is enough.        In light of this remarkable
uniformity of results, I am concerned that “this court has


                                  3
                       PEOPLE v. RHOADES
                         Liu, J., dissenting


improperly elevated the standard for establishing a prima facie
case beyond the showing that the high court has deemed
sufficient to trigger a prosecutor’s obligation to state the actual
reasons for the strike.” (People v. Harris (2013) 57 Cal.4th 804,
864 (conc. opn. of Liu, J.) (Harris).) Today’s decisions are the
latest steps on what has been a one-way road, and I submit it is
past time for a course correction.
                                 I.
       The penalty retrial in this case began in 1998 in
Sacramento County, a community that was 64 percent white
and 10 percent black at the time. (U.S. Census Bureau, 2000
Census of Population and Housing, Summary Population and
Housing Characteristics: California (2002) p. 112.) Rhoades, a
white man, was convicted of killing a white eight-year-old boy.
Defense counsel made his first Batson motion after the
prosecution used three of five peremptory strikes to remove
three black women: Shirley R., Adrienne A., and Alice S. The
trial court denied the motion, and the prosecution declined the
court’s invitation to state reasons for the record.         The
prosecution later excused a fourth black woman, Alicia R.,
leaving no black jurors on the panel. At that point, the
prosecution had used four of eight strikes against black women,
and defense counsel made a second Batson motion. Three
additional jurors were subsequently seated on the main panel.
       After the second Batson motion, the prosecution gave the
trial court a copy of Howard, supra, 1 Cal.4th 1132, which held
that the “strong likelihood” standard applied at Batson’s first
step. Defense counsel argued that he needed to show only “that
the relevant circumstances raise an inference that the
government use [sic] the challenges to exclude a class of jurors

                                 4
                       PEOPLE v. RHOADES
                         Liu, J., dissenting


because of their race.” Defense counsel observed that none of
the struck jurors had been challenged for cause for their death
penalty views and that there were “no discernable differences”
between the struck jurors and those remaining in the jury box,
citing “Relatives in prison,” “Formerly victims of assault,”
“Strong religious views,” and “Volunteers somehow related to
WEAVE” as similarities. One prosecutor said, “Oh, I think there
are significant differences,” but declined to elaborate when
asked to do so because the trial court had not yet found a prima
facie case.
      The prosecutor again insisted that “a strong likelihood”
was required and that defense counsel’s showing did not “rise to
the level to [sic] the standards set out in People v. Howard or
People v. Wheeler.” The trial court compared the prosecution’s
strikes with the pattern of strikes in Howard and said, “The
distinction that’s bothering me in the case that you cite . . . you
have essentially two out of eleven [in Howard] . . . [a]nd in this
case, you had four out of eight? That’s quite a distinction, isn’t
it?” The prosecutor maintained that more was required under
Howard, and defense counsel reiterated that there were “no
discernable differences” between the struck jurors and other
jurors. The trial court again invited the prosecutor to describe
how the jurors were different; the prosecution again declined.
      The trial court denied the Batson motion under “the
authority of this Howard case” but warned that “any further
matters of this kind will weigh heavily on this Court . . . . I’ve
indicated how the Court feels at this juncture. I’m very close,
I’m going to go with Howard for the time being, but if I see very
much more of this, I’m going to indicate to you, you may well
have a serious problem on your hands.”


                                 5
                        PEOPLE v. RHOADES
                           Liu, J., dissenting


      These circumstances readily support an inference of
discrimination. At the time of the second Batson motion, the
prosecutors had accepted no black jurors; instead, they had
removed all the black jurors they could have removed up to that
point. And there is no indication that the prosecutors later
accepted a black juror. Further, as today’s opinion concedes,
“the prosecutors’ use of half their strikes against the four
African-American prospective jurors was substantially
disproportionate to the representation of African-Americans in
the jury pool” given the demographic makeup of the community.
(Maj. opn., ante, at p. 52.) The record makes clear that the
pattern of strikes caught the attention of the trial court as well.
      It is true that this case does not involve “ ‘ “[r]acial identity
between the defendant and the excused person.” ’ ” (Maj. opn.,
ante, at p. 53.) But assuming the jury’s racial composition
approximated the demographics of the community, it is likely
that this case involved “ ‘ “[r]acial identity . . . between the
victim and the majority of remaining jurors.” ’ ” (Ibid.) In
capital cases involving white victims, it is entirely plausible that
prosecutors may be motivated to seat white jurors. And whether
a prosecutor strikes a black juror in order to seat fewer black
jurors or to seat more white jurors, it is discrimination all the
same.
      What the record also makes clear is that the trial court
believed it was bound by Howard’s “strong likelihood” standard
and had that standard clearly in mind when it denied the Batson
motion and said, “I’m very close.” Before the trial court ruled,
the parties had argued over the proper standard, and “the trial
court presumably understood the [Howard] standard to be
somewhat more demanding than the ‘reasonable inference’


                                   6
                       PEOPLE v. RHOADES
                         Liu, J., dissenting


standard, for which defendant had argued.” (Maj. opn., ante, at
p. 50.) The trial court ultimately decided “to go with Howard for
the time being” instead of defense counsel’s position that it was
enough to show “that the relevant circumstances raise an
inference” of discrimination.
      Given this context, the most natural meaning of the
comment “I’m very close” is that the trial court found the
circumstances sufficient to raise “an inference” of discrimination
but not quite a “strong likelihood” of discrimination. Indeed, I
am not sure what else it could mean. Consider an analogy: If a
judge analyzing a set of facts under the clear and convincing
evidence standard were to say, “I’m very close,” wouldn’t we
conclude that the judge has determined that the facts meet the
preponderance of the evidence standard?
       As noted, Johnson v. California involved a virtually
identical comment by a trial court applying the “ ‘strong
likelihood’ ” standard. (Johnson v. California, supra, 545 U.S.
at p. 165, italics omitted.) In analyzing the Batson issue under
the correct standard, the high court said: “In this case the
inference of discrimination was sufficient to invoke a comment
by the trial judge ‘that “we are very close,” ’ and on review, the
California Supreme Court acknowledged that ‘it certainly looks
suspicious that all three African-American prospective jurors
were removed from the jury.’             Those inferences that
discrimination may have occurred were sufficient to establish a
prima facie case under Batson.” (Id. at p. 173, italics added.)
      Today’s opinion attempts to distinguish Johnson v.
California by noting that it involved the racially charged context
of a black defendant accused of killing his white girlfriend’s
child. (Maj. opn., ante, at p. 62.) But in comparing this case to

                                 7
                       PEOPLE v. RHOADES
                          Liu, J., dissenting


Johnson v. California, the court neglects to mention that this
case involves the strikes of four black jurors, not three, and the
percentage of prosecution strikes used against black jurors was
one-half (four out of eight), not one-fourth (three out of 12). (See
Johnson v. California, 545 U.S. at p. 164.) Because there are
countless varieties of circumstances where a trial court could
find that multiple strikes of black jurors come “very close” to a
“strong likelihood” of discrimination, I do not see how the
differences between this case and Johnson v. California
diminish the salience of the trial court’s comment here.
       Today’s opinion goes on to resist the clear meaning of “I’m
very close” by saying, “The trial court’s statement appears to
have been intended as a warning to the prosecutors to be careful
with their future peremptories, because additional strikes might
lead to a finding of a prima facie case of discrimination.” (Maj.
opn., ante, at p. 64.) But the trial court’s warning that
“additional strikes might lead to a finding of a prima facie case”
under the erroneously high standard suggests that in its view
the lower and correct standard had already been satisfied or
surpassed. Today’s opinion then says, “It is not clear the trial
court meant it as a commentary on how suspicious (or not) the
prior strikes had been, given the totality of the circumstances.”
(Id. at pp. 64–65) But what else could the trial court have meant?
Next, today’s opinion says, “nor is it apparent that the court
implied the existence of a prima facie case under a ‘reasonable
inference’ standard.” (Ibid.) But the same thing could have
been said of the trial court in Johnson v. California, and yet the
natural meaning of its “very close” comment was readily
discerned and credited by the high court. (See Johnson v.
California, supra, 545 U.S. at p. 173.)


                                  8
                       PEOPLE v. RHOADES
                         Liu, J., dissenting


      Today’s opinion further says, “In any event, our review of
the court’s ruling in this case is independent,” thereby
attempting to distance our analysis from the trial court’s. (Maj.
opn., ante, at p. 65.) But the reason we apply independent
review is that “the court may have used a standard for the prima
face case that was later found too demanding under Batson.”
(People v. Bell (2007) 40 Cal.4th 582, 598.) Our need to
independently determine whether the correct legal standard has
been satisfied does not negate the relevance of the trial court’s
underlying assessment of how suspicious these four strikes
were. In light of all that this court and the high court have said
about the firsthand perspective of trial courts in the Batson
inquiry (see, e.g., People v. Lenix (2008) 44 Cal.4th 602, 626–627;
Snyder v. Louisiana (2008) 552 U.S. 472, 477), I see no reason
why we would or could ignore the trial court’s comment here.
Having watched the jurors answer questions, and having
observed the prosecutors conduct voir dire, use peremptory
strikes, and argue the Batson issue, the trial court determined
that the circumstances were “very close” to establishing a
“strong likelihood” of discrimination. Even if this determination
is not binding on us, it is entitled to substantial weight in our
analysis — just as the trial court’s identical observation in
Johnson v. California was given substantial weight by the high
court.
                                II.
       The analysis should end there, as it did in Johnson v.
California, with the straightforward conclusion that the trial
court’s “inference[] that discrimination may have occurred [was]
sufficient to establish a prima facie case under Batson.”
(Johnson v. California, supra, 545 U.S. at p. 173.) Yet today’s


                                 9
                        PEOPLE v. RHOADES
                          Liu, J., dissenting


opinion manages to salvage the trial court’s ruling. How? By
resorting to a mode of reasoning that nowhere appears in the
high court’s Batson doctrine: Any inference of discrimination is
dispelled, this court says, because “the record discloses readily
apparent, race-neutral grounds for a prosecutor to use
peremptory challenges against each of the four prospective
jurors at issue.” (Maj. opn., ante, at p. 53.)
      We will examine those “readily apparent” grounds in a
moment, but let us first pause to consider what the court has
done here. Step one of the Batson framework is a threshold
inquiry to determine whether the prosecutor should be required
to state reasons for contested strikes. In many instances, the
prosecutor will voluntarily state reasons before the first-step
determination is made, in order to remove any doubt about the
issue. In this case, the prosecutors chose to stay mum; they
repeatedly declined to explain why they believed the struck
jurors differed from seated jurors. Now, instead of taking their
silence at face value, this court on appellate review claims it is
able to discern the reasons that would have motivated any
reasonable prosecutor to strike the four black jurors. The court
then relies on those hypothesized reasons to conclude that there
was no need for the prosecutors to state their actual reasons.
      This maneuver is hard to square with the high court’s
clear statement that “[t]he Batson framework is designed to
produce actual answers to suspicions and inferences that
discrimination may have infected the jury selection process.”
(Johnson v. California, supra, 545 U.S. at p. 172; see ibid. [“ ‘[I]t
does not matter that the prosecutor might have had good
reasons . . . [;] [w]hat matters is the real reason they were
stricken’ ”].) No wonder the high court has never approved the


                                  10
                       PEOPLE v. RHOADES
                         Liu, J., dissenting


consideration of hypothesized reasons in first-stage Batson
analysis. (Cf. Williams v. Louisiana (2016) 579 U.S. __, __ [136
S.Ct. 2156, 2156] (conc. opn. of Ginsburg, J., joined by Breyer,
Sotomayor & Kagan, JJ.) [state rule permitting the trial court
instead of the prosecutor to supply a race-neutral reason
at Batson’s second step “does not comply with this
Court’s Batson jurisprudence”].)
      Again, the high court’s application of the law to the facts
in Johnson v. California is instructive. There, the trial judge’s
“own examination of the record had convinced her that the
prosecutor’s strikes could be justified by race-neutral reasons.
Specifically, the judge opined that [two of] the black venire
members had offered equivocal or confused answers in their
written questionnaires.” (Johnson v. California, supra, 545
U.S. at p. 165.) On review, this court hypothesized various
reasons to explain the strike of the third black juror. (See People
v. Johnson (2003) 30 Cal.4th 1302, 1325–1326 [“[T]he record
discloses race-neutral grounds for challenging C.T.: “(1) she was
childless (this case involved the death and alleged abuse of a
minor), (2) the police had made no arrest after the robbery of her
home five or six years ago, and (3) she omitted to answer the two
questions in the questionnaire dealing with her opinions of
prosecuting and defending attorneys.”].) But the high court
assigned no weight to any of these hypothesized reasons in
considering whether a prima facie case of discrimination had
been established. (Johnson v. California, at p. 173.)
     Today’s opinion gives a nod to Johnson v. California’s
admonition “ ‘against engaging in needless and imperfect
speculation’ ” (maj. opn., ante, at p. 54) but denies that any
imperfect speculation is happening here. The court says


                                 11
                       PEOPLE v. RHOADES
                         Liu, J., dissenting


hypothesized reasons must be limited to “ ‘obvious’ ” or “readily
apparent” race-neutral characteristics “that any reasonable
prosecutor trying the case would logically avoid in a juror.” (Id.
at pp. 53–54, italics omitted.) As this case illustrates, however,
what is “obvious” or “readily apparent” is an elastic concept,
especially in the hands of appellate judges who “have the benefit
of being able to examine the record in more detail, and at a great
deal more leisure, than a [prosecutor] in the midst of jury
selection.” (Id. at p. 55, fn. 16.)
       Consider Alice S., one of the black jurors struck. In her
questionnaire and during voir dire, she discussed her brother’s
conviction and incarceration in Virginia and her belief that he
had been convicted only because his alcoholism and
homelessness meant that he could not account for his activities
at the time of the crime. Today’s opinion says that “[f]rom any
reasonable prosecutor’s perspective, this belief created a clear
risk that Alice S. might be especially receptive to the alibi
defense put forward by defendant, who claimed to be taking
drugs during the period when the victim was abducted and
killed.” (Maj. opn., ante, at p. 59, fn. 19.) But this explanation
is far from obvious in light of the stark dissimilarities between
Rhoades’s case and the situation of Alice S.’s brother.
     Alice S. testified that the convergence of two factors — her
brother’s alcoholism and his homelessness — prevented him
from mounting an alibi defense: “[H]e didn’t really have
anywhere to live. So he basically was out in the streets. And
because he had no accountability as far as, you know, being
impaired, you know, I felt like he is an alcoholic but he wasn’t a
molester or whatever.” Rhoades, by contrast, lived in a home in
Sutter County at the time of the crime; he was employed and


                                 12
                       PEOPLE v. RHOADES
                          Liu, J., dissenting


owned a truck. In describing his drug use, Rhoades described
himself as a “weekender”: “I work all week long and do my
partying on the weekends.” The prosecution’s evidence revealed
the relatively privileged nature of Rhoades’s life and upbringing,
including his education in private schools and a father who
employed him despite his substance abuse. It is hardly obvious
that Alice S.’s sympathy for her brother’s inability to mount an
alibi defense would have made her “especially receptive” to the
alibi defense put forward by Rhoades, whose personal and social
circumstances differed greatly from her brother’s. Indeed, Alice
S. said, “I think [defendants] should be held responsible if there
was alcohol and drugs and they’re convicted,” and she
unequivocally accepted the fact that Rhoades had been
convicted of first-degree murder with special circumstances.
The prosecution did not press her on this point.
      Moreover, it is not obvious that the prosecution would
have been much concerned about lingering doubt in light of the
strong physical evidence linking Rhoades to the murder,
including blood on Rhoades’s clothing, pubic hairs consistent
with Rhoades’s found on the victim’s clothing, the victim’s
footprints on the inside of the windshield of Rhoades’s truck, and
a DNA test showing the victim’s blood on Rhoades’s knife — all
of which the prosecutors intended to present, and did present,
in detail during the two-month penalty retrial. (Maj. opn., ante,
at pp. 6–7, 58; see id. at p. 19 [finding confrontation clause error
harmless “beyond a reasonable doubt” given the strength of the
evidence].) Although the defense did rely on lingering doubt in
mitigation, the prosecution was aware from the first penalty
trial that the defense would not cite Rhoades’s drug use to
bolster the case for lingering doubt (and indeed, the defense did
not do so).
                                  13
                      PEOPLE v. RHOADES
                        Liu, J., dissenting


       Today’s opinion also posits that the prosecutors struck
Alice S. because she was unsure she would be able to serve as a
juror while caring for her six-month-old infant. But Alice S. did
not request a hardship excusal, even though the trial court
granted hardship excusals for other jurors who had family
obligations. And during voir dire, the prosecution did not ask
Alice S. a single question about whether her childcare duties
would interfere with serving on the jury. Even if it is possible
that this concern motivated the prosecution to remove Alice S.,
is it so obvious that we need not inquire?
      As for Shirley R., Adrienne A., and Alicia R., today’s
opinion hypothesizes that they were struck because of their anti-
death penalty views. Here it is important to keep in mind that
the prosecution, before exercising peremptory strikes, can use a
for-cause challenge to remove a prospective juror whose death
penalty views would “ ‘prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.’ ” (Wainwright v. Witt (1985) 469 U.S.
412, 424, fn. omitted.) “Substantial impairment” does not
require the juror to have expressed firm opposition to the death
penalty. “In many cases, a prospective juror’s responses to
questions on voir dire will be halting, equivocal, or even
conflicting. Given the juror’s probable unfamiliarity with the
complexity of the law, coupled with the stress and anxiety of
being a prospective juror in a capital case, such equivocation
should be expected.” (People v. Fudge (1994) 7 Cal.4th 1075,
1094). We regularly affirm trial court findings of substantial
impairment “ ‘even in the absence of clear statements from the
juror that he or she is impaired because “many veniremen
simply cannot be asked enough questions to reach the point
where their bias has been made ‘unmistakably clear.’ ” ’ ”
                                14
                        PEOPLE v. RHOADES
                          Liu, J., dissenting


(People v. Jones (2012) 54 Cal.4th 1, 41; see, e.g., People v.
Hawthorne (2009) 46 Cal.4th 67, 83 (Hawthorne) [upholding for-
cause excusal where juror gave “equivocal answers” and “was
‘less than consistent in her answers’ ”]; People v.
Merriman (2014) 60 Cal.4th 1, 52 [same]; People v.
Williams (2013) 56 Cal.4th 630, 665–666 [same]; People v.
Solomon (2010) 49 Cal.4th 792, 832 [same].)
       In this case, the prosecution did not challenge Shirley R.,
Adrienne A., or Alicia R. for cause. This fact underscores that it
is “judicial speculation” (Johnson v. California, supra, 545 U.S.
at p. 173) to hypothesize that the prosecution struck these jurors
for their death penalty views. Quoting selectively from the juror
questionnaires and voir dire, the court says no seated juror
expressed “the sort of unqualified opposition to the death
penalty that both Shirley R. and Adrienne A. did at times. Two
non-African-American prospective jurors who did express such
unqualified antideath penalty views on their questionnaires
were struck by the prosecution before defendant made his
second [] motion.” (Maj. opn., ante, at pp. 57–58, italics added.)
Not only were the views of these two nonblack jurors, Evelyn B.
and Thomas S. (both white), markedly more skeptical of the
death penalty, but the prosecution challenged both of them for
cause, though unsuccessfully. How can we conclude that Shirley
R.’s and Adrienne A.’s death penalty views were “readily
apparent” grounds for striking them when the prosecution did
not even attempt to excuse them for cause? Especially when a
juror’s equivocal views may result in excusal for cause? To be
sure, their death penalty views could have been a legitimate
concern to a reasonable prosecutor. But that is a far cry from
saying these black jurors had views that “any reasonable
prosecutor . . . would logically avoid.” (Maj. opn., ante, at p. 54.)
                                  15
                       PEOPLE v. RHOADES
                         Liu, J., dissenting


       I acknowledge there can be instances where a juror’s death
penalty views do not amount to substantial impairment but do
present an obvious concern to the prosecution. (Maj. opn., ante,
at p. 61.) But this is not one. When the death penalty views of
each struck juror are considered not selectively but in their
totality (maj. opn., ante, at pp. 55–61), it is evident that each
juror simply gave the type of “ ‘equivocal or confused answers’ ”
we often see in capital jury selection — the type of answers that
the high court found unilluminating and irrelevant in Johnson
v. California. (Johnson v. California, supra, 545 U.S. at p. 165;
but cf. maj. opn., ante, at pp. 63–64, fn. 21.)
      Indeed, at least six seated jurors also expressed hesitation
or inconsistency in their death penalty views. Juror No. 4 said
she “[didn’t] really have an opinion” about the death penalty and
didn’t support reinstatement because “it takes too much money.”
But if tasked with making the laws, she would institute a death
penalty. Further, she noted that the killing of a child is a
circumstance that could warrant the death penalty, but when
asked whether a defendant convicted of sexual assault and
murder of a child should categorically receive the death penalty,
she said “some persons may benefit from rehabilitation.” Juror
No. 6 thought the death penalty was warranted for intentional
killing, but he also thought life without parole as punishment
for murder is “excellent.” Juror No. 7 “[a]gree[d] somewhat”
with the statement that a defendant convicted of sexual assault
and murder of a child should be sentenced to life without parole
regardless of the circumstances, but also “[a]gree[d] somewhat”
that such a defendant should be sentenced to death regardless
of the circumstances. Juror No. 9 was “neither for nor against”
the death penalty but said if he were making the laws, it would
be “difficult . . . but [he] probably” would institute a death
                                 16
                       PEOPLE v. RHOADES
                         Liu, J., dissenting


penalty law. Juror No. 11 wrote that he “cannot answer this
question” when asked in what circumstances the death penalty
is warranted, but he later said it may be warranted for all types
of killings mentioned on the form. And Juror No. 12 did not
believe in “an eye for eye” — “the New Testament fulfills that
. . . hate the sin, love the sinner” — but she thought all types of
killings could warrant the death penalty.
      Today’s opinion is correct that the struck jurors made
some statements that the seated jurors did not. (Maj. opn., ante,
at pp. 55–61.) But the court also acknowledges that “both Juror
No. 4 and Juror No. 9 expressed reservations about the death
penalty that overlapped in certain respects with Shirley R.’s and
Adrienne A.’s.” (Id. at pp. 56–57.) And Alicia R. wrote that in
“some cases the death penalty is acceptable” but “[couldn’t] say”
if there would be a death penalty if she made the laws. Like
Juror No. 4, Alicia R. believed in the possibility of redemption.
Like Juror No. 12, she believed in the teachings of the New
Testament. And like Juror No. 9, she had no strong feelings
about the death penalty but felt it was warranted in certain
circumstances.
      In sum, although the death penalty views of Shirley R.,
Adrienne A., or Alicia R. differed in some ways from those of the
seated jurors, the fine parsing required to tease out those
differences hardly suggests they were obvious reasons for the
strikes. This hypothesis seems especially speculative in light of
the fact that the death penalty views of these black jurors did
not prompt the prosecution to challenge them for cause.




                                 17
                         PEOPLE v. RHOADES
                            Liu, J., dissenting


                                   III.
      Although every Batson issue must be decided on its own
facts, it is instructive to take a step back and place today’s
decision in the broader context of our Batson jurisprudence.
       As noted, this court has decided the merits of a first-stage
Batson issue in 42 cases (all capital cases) during the 14 years
since Johnson v. California. (See appen., post, at p. 25.) Not
once did we find that the circumstances established a prima
facie case of discrimination. What makes this track record even
more remarkable is the fact that all 42 cases were tried before
Johnson v. California clarified that an inference of
discrimination is all that is required at Batson’s first step. In
other words, the trial courts in these 42 cases made their first-
stage Batson rulings at a time when our unduly stringent
“strong likelihood” standard was the controlling law. Can it
really be that not a single one of those rulings was erroneous
under the lower standard set forth in Johnson v. California? It
is not difficult, in my view, to cite several cases where the
circumstances plainly gave rise to an inference of
discrimination. (See, e.g., People v. Johnson, supra, __ Cal.5th
at p. __ [p. 1] (dis. opn. of Liu, J.); id. at p. __ [p. 2] (dis. opn. of
Cuéllar, J.); People v. Reed (2018) 4 Cal.5th 989, 1019–1028
(Reed) (dis. opn. of Liu, J.); id.at p. 1031 (dis. opn. of Kruger, J.);
Harris, supra, 57 Cal.4th at pp. 870–879 (conc. opn. of Liu, J.);
id. at pp. 880–882 [discussing People v. Clark (2011) 52 Cal.4th
856, 872–873, 904–908 (Clark); People v. Hartsch (2010) 49
Cal.4th 472, 485–489 (Hartsch); People v. Hoyos (2007) 41
Cal.4th 872, 900–903].)
      A key factor behind this uniformity of results is the court’s
habit of relying on hypothesized grounds for contested strikes —

                                    18
                       PEOPLE v. RHOADES
                          Liu, J., dissenting


a line of reasoning that appears in 30 of the 42 cases. (Appen.,
post, at p. 25.) The most commonly hypothesized reason is a
struck juror’s death penalty views. (Ibid.) As discussed above,
this is an area full of complexity and nuance, unlikely to be
replete with sharp distinctions among death-qualified jurors.
The next most commonly hypothesized reason is a struck juror’s
(or family member’s) negative interaction with, or negative
opinion of, the criminal justice system. (Ibid.) But “[i]n light of
the undeniable evidence that some minority groups . . . have
been overpoliced and subjected to harsher sentences than
others, it hardly seems race neutral to categorically allow
potential jurors to be stricken simply because they have had
contact with or hold negative opinions about law enforcement or
the judicial system.       Reflexively allowing these strikes
compounds institutional discrimination . . . .” (People v. Bryant
(2019) 40 Cal.App.5th 525, 546 (conc. opn. of Humes, J.).)
       The court purports to limit hypothesized reasons to
“ ‘obvious’ ” or “ ‘readily apparent’ ” characteristics “that any
reasonable prosecutor . . . would logically avoid in a juror.” (Maj.
opn., ante, at pp. 53–54, italics omitted.) I acknowledge there
have been instances where the reason for a strike was truly
obvious — for example, when the struck juror “was married to a
convicted murderer” and “[n]one of the seated or alternate jurors
had anything remotely similar in their backgrounds.” (People v.
Jones (2013) 57 Cal.4th 889, 983 (Jones) (conc. opn. of Liu, J.).)
But, as today’s opinion demonstrates, the court is willing to
hypothesize reasons well short of something so conspicuous.
      Moreover, the limits stated in today’s opinion come late in
our jurisprudence. Our first-stage Batson cases have regularly
relied on hypothesized reasons so long as they “reasonably” or


                                  19
                      PEOPLE v. RHOADES
                        Liu, J., dissenting


“legitimately” could have caused concern. (E.g., Clark, supra, 52
Cal.4th at p. 907 [“The prosecutor reasonably could believe that,
given J.J.’s profession, she might consciously or unconsciously
exert undue influence during the deliberative process, or that
fellow jurors would ascribe to her a special legal expertise.”];
Hartsch, supra, 49 Cal.4th at p. 489 [“O.B.’s bias against police
officers, G.C.’s failure to complete the questionnaire and his
hesitance over evidentiary questions and the confidentiality of
deliberations, and K.W.’s initial unwillingness to resolve
evidentiary conflicts were all matters that could legitimately
give an advocate pause.”]; People v. Taylor (2010) 48 Cal.4th
574, 644 (Taylor) [“Thus, both were engaged in professions the
prosecutor reasonably could believe would tend to make them
overly sympathetic to the defense.”]; People v. Bonilla (2007) 41
Cal.4th 313, 347 (Bonilla) [“In each of these three cases, the
juror’s responses would give reason enough for a prosecutor to
consider a peremptory, without regard to the juror’s sex.”];
People v. Guerra (2006) 37 Cal.4th 1067, 1102–1103 [“Even
though L.B. gave assurances that she could evaluate the
evidence objectively, based on these responses, the prosecutor
reasonably might have been concerned with L.B.’s negative
views of the police and the judicial system based on the incident
with her cousin and her self-described strong personality, and
challenged her on these bases.”].) A juror characteristic that a
prosecutor reasonably could find problematic is hardly the same
as a characteristic that “any reasonable prosecutor . . . would
logically avoid.” (Maj. opn., ante, at p. 54, italics added.) If
today’s opinion is intended to turn over a new leaf in our Batson
doctrine, one would expect to see these prior cases disapproved.
But the court repudiates none of them, even though they are
plainly at odds with the high court’s admonition against “the

                                20
                       PEOPLE v. RHOADES
                         Liu, J., dissenting


imprecision of relying on judicial speculation.”      (Johnson v.
California, supra, 545 U.S. at p. 173.)
       Similarly, today’s opinion acknowledges “the utility” of
comparative juror analysis in first-stage Batson analysis and
notes that our “more recent decisions have considered such
comparisons.” (Maj. opn., ante, at pp. 56–57, fn. 17.) But this
also comes late in our jurisprudence. For more than a decade,
this court has repeatedly said that comparative juror analysis
“is inappropriate” (People v. Sánchez (2016) 63 Cal.4th 411, 439)
or “has little or no use” (Bonilla, supra, 41 Cal.4th at p. 350) in
first-stage Batson analysis.         Today’s opinion is grossly
inaccurate when it says we have declined to conduct
comparative juror analysis “particularly when neither the trial
court nor this court, in evaluating the prima facie case, has
posited possible prosecutorial reasons for the challenged
strikes.” (Maj. opn., ante, at p. 56, fn. 17, italics added.) We
have regularly declined to conduct comparative juror analysis at
Batson’s first step in cases where we have relied on hypothesized
or even actually stated reasons for contested strikes. (See
Sánchez, at pp. 439–440; People v. Streeter (2012) 54 Cal.4th
205, 225–226, fn. 6; Clark, supra, 52 Cal.4th at pp. 907–908 &
fn. 13; Taylor, supra, 48 Cal.4th at pp. 616–617; Hawthorne,
supra, 46 Cal.4th at p. 80, fn. 3; People v. Howard (2008) 42
Cal.4th 1000, 1019–1020; Bonilla, at pp. 343, 347–350.) Again,
if today’s opinion is intended to turn over a new leaf, one would
expect to see these prior cases disapproved. But the court
repudiates none of them despite repeated calls to do so. (See
Reed, supra, 4 Cal.5th at p. 1026 (dis. opn. of Liu, J.); Sánchez,
at pp. 492–494 (conc. opn. of Liu, J.); Harris, supra, 57 Cal.4th
at pp. 862–863 (conc. opn. of Kennard, J.); id. at pp. 874–876
(conc. opn. of Liu, J.).) The court’s refusal to overrule our prior
                                 21
                       PEOPLE v. RHOADES
                          Liu, J., dissenting


cases, even though they stand alone against “a mountain of
contrary authority” (Sánchez, at pp. 492–494 (conc. opn. of Liu,
J.) [citing cases]), is quite puzzling and irregular. (Cf. People v.
Lopez (Nov. 25, 2019, S238627) __ Cal.5th __, __ [pp. 33–34]
[overruling search-and-seizure precedent that had put
California in “a minority of one” among all jurisdictions].)
       I would like to believe that the limits stated in today’s
opinion will rein in this court’s reliance on hypothesized reasons
in first-stage Batson analysis. (Cf. Harris, supra, 57 Cal.4th at
pp. 872–873 (conc. opn. of Liu, J.).) But in light of our prior case
law (which the court does not disapprove) as well as today’s
decision and another recent decision that relied on
“underwhelming” hypothesized reasons to find no inference of
discrimination arising from the removal of five out of six black
jurors (Reed, supra, 4 Cal.5th at p. 1025 (dis. opn. of Liu, J.)), I
now believe a different approach is needed.
      I see at least two options. First, the high court could make
clear that reliance on hypothesized reasons in first-stage Batson
analysis is generally impermissible. Such reliance “effectively
short-circuits the three-step framework and defeats the
essential inquiry into whether the possible reasons for a strike
were the prosecutor’s actual reasons.” (Harris, supra, 57
Cal.4th at p. 873 (conc. opn. of Liu, J.); see Johnson v.
California, supra, 545 U.S. at p. 172 [“The inherent uncertainty
present in inquiries of discriminatory purpose counsels against
engaging in needless and imperfect speculation when a direct
answer can be obtained by asking a simple question.”].) If there
are to be exceptions for “obvious” reasons, it must be emphasized
that such exceptions should be rare and truly exceptional — for
example, the struck juror “was married to a convicted murderer”


                                  22
                       PEOPLE v. RHOADES
                         Liu, J., dissenting


(Jones, supra, 57 Cal.4th at p. 983 (conc. opn. of Liu, J.)) — and
not a regular practice of the sort that has appeared in more than
two-thirds of our first-stage Batson decisions. Further, the
practice should be especially disfavored on appellate review in
cases where the trial court did not identify any obvious reason
for a contested strike.
      A second option is for this court, the Judicial Council, or
the Legislature to follow the lead of several state high courts
that have essentially eliminated Batson’s first step. (See State
v. Rayfield (S.C. 2006) 631 S.E.2d 244, 247; Melbourne v. State
(Fla. 1996) 679 So.2d 759, 764; State v. Parker (Mo. 1992) 836
S.W.2d 930, 939–940; State v. Holloway (Conn. 1989) 553 A.2d
166, 171–172; Wn. Gen. Rules, rule 37(d).) Under this approach,
whenever a defendant raises a Batson challenge to the
prosecutor’s strike of a prospective juror from a legally
cognizable group, “[t]he trial court will then require the state to
come forward with reasonably specific and clear race-neutral
explanations for the strike.” (State v. Parker, at p. 939,
fn. omitted.)
      This approach would serve the important goals of
promoting transparency, creating a record for appellate review,
and ensuring public confidence in our justice system, while
imposing “the comparatively low cost of requiring a party to
state its actual reasons for striking a minority prospective
juror.” (Harris, supra, 57 Cal.4th at p. 884 (conc. opn. of Liu,
J.).) As the Washington Association of Prosecuting Attorneys
observed in the development of that state’s rule, “[t]he first step
of the Batson inquiry, a prima facie test, has historically cut off
discussion as to meaningful objections to peremptory
challenges. That step ultimately served to mask intentional or


                                 23
                       PEOPLE v. RHOADES
                         Liu, J., dissenting


unconscious bias. Eliminating the prima facie showing will be
a highly significant improvement in the process, insofar as it
will force litigants to root their challenges in concrete reasons
focused directly on a juror’s ability to serve.” (Wn. Supreme Ct.,
Proposed New GR 37—Jury Selection Workgroup Final Report
(2018) appen. 2, Statement on the Workgroup Final Report Wn.
Assn. of Prosecuting Attorneys, p. 1 <www.courts.wa.gov/
content/publicUpload/Supreme%20Court%20Orders/OrderNo
25700-A-1221Workgroup.pdf> [as of Nov. 25, 2019].) Our
Legislature has passed laws expanding protections against
discrimination in jury selection (see, e.g., Code of Civ. Proc.,
§ 231.5), and it can do so again.
      One way or another, it is time for a course correction in
our Batson jurisprudence. The stark uniformity of outcomes in
our case law raises a serious concern that our analytical
approach has evolved into a one-way ratchet. I would hold that
the totality of circumstances in this case gives rise to an
inference of discrimination. And because the passage of time
makes impractical a remand to explore the prosecution’s actual
reasons for the contested strikes, I would reverse the penalty
judgment. I respectfully dissent.


                                               LIU, J.




                                 24
                       PEOPLE v. RHOADES




                          APPENDIX
First-stage Batson Decisions by the California Supreme Court
        Since Johnson v. California (2005) 545 U.S. 162


      An asterisk (*) denotes that this court hypothesized its
own reason or accepted the trial court’s hypothesized reason for
a contested strike. This does not include cases where the
prosecutor stated reasons for the record and this court’s analysis
considered reasons identical to the prosecutor’s stated reasons.
(See, e.g., People v. Sánchez (2016) 63 Cal.4th 411, 435–437;
People v. Howard (2008) 42 Cal.4th 1000, 1017–1020.)
     A dagger (†) denotes that a prospective juror’s death
penalty views were hypothesized as a reason for the strike.
      A double dagger (‡) denotes that a prospective juror’s (or a
family member’s) negative experience or negative view of law
enforcement was hypothesized as a reason for the strike.


1.    People v. Cornwell (2005) 37 Cal.4th 50*‡
2.    People v. Gray (2005) 37 Cal.4th 168*‡
3.    People v. Avila (2006) 38 Cal.4th 491*‡
4.    People v. Williams (2006) 40 Cal.4th 287*‡
5.    People v. Guerra (2006) 37 Cal.4th 1067*‡
6.    People v. Bell (2007) 40 Cal.4th 582
7.    People v. Lancaster (2007) 41 Cal.4th 50*†‡
8.    People v. Bonilla (2007) 41 Cal.4th 313*†
9.    People v. Hoyos (2007) 41 Cal.4th 872*†
10.   People v. Kelly (2007) 42 Cal.4th 763

                                1
                       PEOPLE v. RHOADES



11.   People v. Howard (2008) 42 Cal.4th 1000
12.   People v. Carasi (2008) 44 Cal.4th 1263
13.   People v. Hamilton (2009) 45 Cal.4th 863
14.   People v. Hawthorne (2009) 46 Cal.4th 67
15.   People v. Davis (2009) 46 Cal.4th 539*†‡
16.   People v. Hartsch (2010) 49 Cal.4th 472*†‡
17.   People v. Taylor (2010) 48 Cal.4th 574
18.   People v. Blacksher (2011) 52 Cal.4th 769*†‡
19.   People v. Garcia (2011) 52 Cal.4th 706*†‡
20.   People v. Clark (2011) 52 Cal.4th 856*‡
21.   People v. Dement (2011) 53 Cal. 4th 1
22.   People v. Thomas (2012) 53 Cal.4th 771*†‡
23.   People v. Streeter (2012) 54 Cal.4th 205*†
24.   People v. Elliott (2012) 53 Cal.4th 535*†
25.   People v. Pearson (2013) 56 Cal.4th 393*†
26.   People v. Lopez (2013) 56 Cal.4th 1028*
27.   People v. Edwards (2013) 57 Cal.4th 658
28.   People v. Harris (2013) 57 Cal.4th 804*‡
29.   People v. Jones (2013) 57 Cal.4th 899*‡
30.   People v. Manibusan (2013) 58 Cal.4th 40*†
31.   People v. Montes (2014) 58 Cal.4th 809*†
32.   People v. Sattiewhite (2014) 59 Cal.4th 446
33.   People v. Cunningham (2015) 61 Cal.4th 609*
34.   People v. Scott (2015) 61 Cal. 4th 363*‡
35.   People v. Sanchez (2016) 63 Cal.4th 411

                                2
                      PEOPLE v. RHOADES



36.   People v. Clark (2016) 63 Cal.4th 522
37.   People v. Zaragoza (2016) 1 Cal.5th 21*†‡
38.   People v. Parker (2017) 2 Cal.5th 1184*†
39.   People v. Reed (2018) 4 Cal.5th 989*†‡
40.   People v. Woodruff (2018) 5 Cal.5th 697*†‡
41.   People v. Johnson (Nov. 25, 2019, S029551) __ Cal.5th __*‡
42.   People v. Rhoades (Nov. 25, 2019, S082101) __ Cal.5th
      __*†‡




                               3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Rhoades
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S082101
Date Filed: November 25, 2019
__________________________________________________________________________________

Court: Superior
County: Sacramento
Judge: Loyd H. Mulkey, Jr., Kenneth L. Hake and Maryanne G. Gilliard

__________________________________________________________________________________

Counsel:

Richard Jay Moller, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Michael P. Farrell and Ronald S. Matthias, Assistant Attorneys General, Eric
Christoffersen, Stephanie A. Mitchell, Sean M. McCoy and Jennifer M. Poe, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Richard Jay Moller
So’Hum Law Center
P.O. Box 1669
Redway, CA 95560-1669
(707) 923-9199

Jennifer M. Poe
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5474
