Filed 5/21/18



      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S065233
           v.                        )
                                     )
FLOYD DANIEL SMITH,                  )                     San Bernardino County
                                     )                    Super. Ct. No. FWV08607
           Defendant and Appellant.  )
____________________________________)


        A jury convicted defendant Floyd Daniel Smith of one count of first degree
murder (Pen. Code, § 187), and found true an alleged special circumstance that he
committed the murder while lying in wait (id., § 190.2, subd. (a)(15)). The jury
also convicted defendant of two counts of attempted voluntary manslaughter (id.,
§§ 664, 192, subd. (a)), two counts of first degree burglary (id., § 459), and one
count each of assault with a firearm (id., § 245, subd. (a)(2)), false imprisonment
(id., § 236), and possession of a firearm by a convicted felon (id., former § 12021,
subd. (a)(1)). As to all but the last charge, the jury found firearm use enhancement
allegations to be true (id., § 12022.5). At the special circumstance phase, the jury
found true a second special circumstance—that defendant had a prior murder
conviction (id., § 190.2, subd. (a)(2)).
        At the penalty phase, the jury returned a verdict of death. This appeal is
automatic. (Pen. Code, § 1239, subd. (b).) We affirm the judgment in its entirety.




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                                      I. FACTS
       A. Guilt Phase Evidence
       Defendant was convicted of the murder of Joshua Rexford. The
prosecution argued that defendant committed the murder in retaliation for the
murder of defendant’s close friend, Manuel Farias.
           1. Prosecution’s case
       On November 23, 1994, Linda Farias attended the funeral of her brother
Manuel. After the funeral, she overheard defendant conversing with three other
men. Although Linda could not remember who said what, defendant did most of
the talking. In the conversation, the men said that “Brian” killed Farias, that
“Josh” was Brian’s cousin, and that “they were going to get through him to find
Brian.” Within a day or two of the funeral, defendant had a conversation with
Troy Holloway. Defendant questioned Holloway about Joshua Rexford, who, like
Holloway, played on the football team at A.B. Miller High School in Fontana.
Defendant asked how Rexford was, what he was like, where he lived, and where
he hung out, explaining that he wanted to talk to Rexford.
       On the morning of November 27, four days after the funeral, Michael
Honess saw defendant and a Hispanic man sitting on a wall in the back of
Honess’s apartment complex in Rancho Cucamonga. Later that morning, Honess
again saw defendant, now alone, sitting on the stairs adjacent to Honess’s third
floor apartment. Defendant asked if he could use the telephone in Honess’s
apartment to call his mother. Honess allowed him to do so, but instead of calling
his mother, defendant called a directory service and requested the number of the
Church of God in Christ. He called the number he received from the directory
service but did not appear to speak to anyone. He then left Honess’s apartment.
       Ten minutes later, defendant knocked on Honess’s door. Honess opened
the door and walked back into his apartment, assuming that defendant wanted to

                                          2
make another call. As Honess walked away, defendant, holding a dark gray or
black automatic pistol, grabbed him and pushed him onto his hands and knees.
Two other men then entered the apartment: the Hispanic man Honess had
previously seen with defendant and a White man whom defendant called “Jay,”
who was carrying a sawed-off shotgun. Defendant told Jay to look through the
blinds out the window and to search for telephones in the apartment. He wiped off
Honess’s telephone with a paper towel and cut the telephone wire. The Hispanic
man took some of Honess’s money, but defendant told him to put it back.
       After 15 to 20 minutes, the three men left Honess’s apartment; defendant
told Jay to wait in the car. Before leaving, defendant told Honess that “ ‘someone
has done something bad’ ” and that when Honess spoke to the police he should
“tell the truth.”
       Defendant then went downstairs to the apartment of Maikolo (“Walter”)
Pupua, who was seated in the living room with Ndibu (“Freddie”) Badibanga and
Joshua Rexford. He knocked on the door and Badibanga told him to enter. He
opened the door and immediately opened fire with what appeared to be a nine-
millimeter pistol. Pupua dove behind a speaker in the corner of the room, while
Badibanga crawled to the bedroom and jumped out a window. Badibanga saw a
second man accompanying defendant; Pupua saw only defendant, but inferred that
there was a second gunman from the large number of shots (“at least about 15 or
16”) that were fired.
       Rexford, who was struck five times, died as a result of gunshot wounds in
his chest and abdomen. “[L]arge caliber bullets . . . approximately nine
millimeters in diameter” were recovered from his body. Seven cartridge cases
were recovered from the scene of the shooting, six of which had been fired and
belonged to nine-millimeter cartridges. One cartridge, a “.25 caliber auto,” was
unfired.

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          That evening, defendant and two men came to the home of Troy Holloway.
Defendant gave Holloway a nine-millimeter pistol, which was unchambered but
loaded with four bullets. He did not charge Holloway for the gun, but told him
that “a real man never shows anybody what he got.” About three or four days
later defendant called Patrick Wiley and asked him to retrieve the gun from
Holloway. Wiley did so, returning the gun to defendant.
              2. Defense case
          The defense conceded that defendant was present at the scene of the
murder, but claimed he was not there of his own free will. Testifying on his own
behalf, defendant claimed that the night before the murder, three men kidnapped
him and held him in his apartment overnight. The next day, they took him to an
apartment complex, where they “loaf[ed] around . . . for a long time.” Defendant
spoke to Honess and used his telephone to call his church. As Honess was starting
to leave the apartment, defendant saw two of his kidnappers, a Hispanic male and
a White male, approaching Honess’s doorway. Fearing that the White male was
going to start shooting because defendant was not sitting on the stairs, as his
kidnappers had instructed him, defendant grabbed Honess’s arm and pulled him to
safety.
          According to defendant, he and his kidnappers then waited in Honess’s
apartment. Defendant eventually left with the Hispanic kidnapper, while the
White kidnapper went down a different flight of stairs. The Hispanic kidnapper
took defendant to Pupua’s apartment. When they entered the apartment, the
Hispanic kidnapper began shooting. Defendant claimed he tried to run away but
got stuck between the door and a wall. Eventually he exited the apartment and ran
to the apartment’s parking lot, with the Hispanic kidnapper behind him.
Defendant and the three kidnappers then got into defendant’s car and drove some



                                           4
distance before they parked. A white truck approached. The kidnappers exited
defendant’s car and told defendant he could leave. They departed in the truck.
       Defendant denied giving a gun to Troy Holloway. He also denied making
the statements attributed to him by Linda Farias at the funeral of her brother
Manuel.
           3. Jury verdict
       The jury convicted defendant of murdering Rexford and found a
lying-in-wait special circumstance to be true. With respect to the attempted
murder charge, the jury convicted defendant of the lesser included offense of
attempted voluntary manslaughter. The jury also convicted defendant of
burglarizing Honess’s apartment and falsely imprisoning him, of burglarizing
Pupua’s apartment, and of possession of a firearm by a convicted felon, and it
found firearm use enhancements to be true as to all but the last offense. The jury
acquitted defendant of a charge that he dissuaded a witness.
       B. Special Circumstance Phase Evidence
       The prosecution presented a fingerprint card, a Riverside County Superior
Court minute order, and California Youth Authority records showing that on July
13, 1984, defendant pleaded guilty to first degree murder, for which he was
incarcerated in the Youth Authority. Defendant was 16 years old when he
committed the murder.
       C. Penalty Phase Evidence
       The prosecution presented evidence that on January 27, 1984, when
defendant was 16 years old, he accosted Felton M. at gunpoint, forcing him to take
defendant to his house and to engage in sexual acts. Defendant then took Felton to
a field, forced him to remove his clothes, and left with his wallet, warning that
defendant would kill him if he said anything.



                                          5
       The next day, defendant shot and killed Virgil Fowler. In a statement to the
police after the shooting, defendant said he was with Orlando Hunt and Calvin
Wade when Hunt told him to rob Fowler, who was walking towards them.
Defendant drew his gun, told Fowler to lie on the ground, and told Hunt to look
through Fowler’s pockets. When Fowler got up and began to run, defendant
fatally shot him.
       Joshua Rexford’s mother testified that after the jury left the courtroom at
the end of the guilt phase, defendant simulated a pistol with his fingers and
pointed the “finger-pistol” in her direction. She told him, “ ‘you’re so
disrespectful’ ”; defendant replied that she was a “ ‘fucking bitch.’ ”
       The defense presented evidence that defendant’s mother was a sex worker
who used drugs and alcohol and smoked cigarettes while pregnant with defendant.
During that time she was prescribed antipsychotic and antidepressant medication
and suffered a severe dystonic reaction during the sixth or seventh month of
pregnancy, causing her to fall and suffer physical trauma to her uterus. Forensic
psychiatrist David Glaser testified that these chemical and physical traumas could
have adversely affected the development of defendant’s brain.
       According to defense witnesses, defendant had no relationship with his
father and his mother was neglectful and physically abusive. Defendant was
severely abused, physically and sexually, by his older brother George, who forced
defendant to orally copulate him on repeated occasions over a period of years and
who burned defendant’s genitals with a hot iron when he was a young child.
       When defendant was 13 years old, he was made a ward of the state. He
thereafter had only brief negative interactions with his mother and was placed in
six or seven foster homes between the ages of 13 and 17. Dr. Glaser testified that
defendant’s history of neglect, abandonment, and abuse changed him from a
passive, chronic victim into “a chronic, active perpetrator.” Dr. Glaser opined that

                                          6
the abuse and abandonment caused defendant to suffer from displaced rage and
extreme narcissism.
       The defense presented evidence that defendant worked on behalf of New
Life Ministries for “a few months” to help establish a community-based, youth-
oriented church by engaging in recruitment and acting as a driver. Defendant’s
four-year-old son testified that he enjoyed visits with his father.
                                   II. DISCUSSION
       A. Pretrial Issues

           1. Trial court’s denial of defendant’s Batson/Wheeler motions
       Defendant, who is Black, argues that he was deprived of his constitutional
rights to equal protection and a representative jury because the prosecutor
exercised peremptory challenges to exclude Black prospective jurors. (See Batson
v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258
(Wheeler).) During jury selection, after the prosecutor used three of his first five
peremptory challenges to excuse Prospective Jurors Sandra D., Reginia S.,1 and
Huey D., all of whom are Black, defendant made a Batson/Wheeler motion. The
trial court found that the defense had made a prima facie showing that the
challenges were based on group bias, but it denied the motion after the prosecutor
gave his reasons for the challenges. The prosecutor thereafter struck five non-
Black jurors and on three occasions accepted the panel. But when the defense
passed the challenge for the first time, the prosecutor asked to approach the bench
and announced that he intended to strike the sole remaining Black juror, Elizabeth
K., whereupon the defense made a second Batson/Wheeler motion. The court


1      The record contains references to both “Reginia S.” and “Regina S.” For
the sake of consistency, we use the first spelling.



                                           7
again found that the defense had made a prima facie showing, and again denied
the motion after the prosecutor explained the challenge.
       Apart from the four jurors challenged by the prosecution, there were at least
three and possibly five Black prospective jurors remaining in the venire when the
parties began to exercise their peremptory challenges. One of these was later
excused because of a hearing problem, and the others were never called. As a
result, the panel that tried defendant’s case included no Black jurors. Defendant
now contends that the trial court erred when it denied his Batson/Wheeler motions.
       “[A] party may exercise a peremptory challenge for any permissible reason
or no reason at all” (People v. Huggins (2006) 38 Cal.4th 175, 227) but
“exercising peremptory challenges solely on the basis of race offends the
Fourteenth Amendment’s guaranty of the equal protection of the laws” (id. at
p. 226; see generally Batson, supra, 476 U.S. 79). Such conduct also “violates the
right to trial by a jury drawn from a representative cross-section of the community
under article I, section 16, of the California Constitution.” (Wheeler, supra, 22
Cal.3d at pp. 276–277.)
       “A three-step procedure applies at trial when a defendant alleges
discriminatory use of peremptory challenges. First, the defendant must make a
prima facie showing that the prosecution exercised a challenge based on
impermissible criteria. Second, if the trial court finds a prima facie case, then the
prosecution must offer nondiscriminatory reasons for the challenge. Third, the
trial court must determine whether the prosecution’s offered justification is
credible and whether, in light of all relevant circumstances, the defendant has
shown purposeful race discrimination. [Citation.] ‘The ultimate burden of
persuasion regarding [discriminatory] motivation rests with, and never shifts from,
the [defendant].’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 75.)



                                          8
       Here, the trial court found that defendant had satisfied the first of these
steps by making a prima facie showing of group bias, and it evaluated the
prosecutor’s reasons for the challenges. When this occurs, the adequacy of the
prima facie showing becomes moot (Hernandez v. New York (1991) 500 U.S. 352,
359; People v. Elliott (2012) 53 Cal.4th 535, 560–561), and the reviewing court
skips to the third stage to determine whether the trial court properly credited the
prosecutor’s reasons for challenging the prospective jurors in question (Elliott,
supra, at p. 561; People v. Riccardi (2012) 54 Cal.4th 758, 786–787).
       While still relevant, the statistical showing that motivated the finding of a
prima facie case is not dispositive at this third stage. Rather, “[a]t the third stage
of Batson, the ‘critical question . . . is the persuasiveness of the prosecutor’s
justification for his peremptory strike.’ (Miller-El v. Cockrell (2003) 537 U.S.
322, 338–339.) Usually, ‘the issue comes down to whether the trial court finds the
prosecutor’s race-neutral explanations to be credible. Credibility can be measured
by, among other factors, the prosecutor’s demeanor; by how reasonable, or how
improbable, the explanations are; and by whether the proffered rationale has some
basis in accepted trial strategy.’ (Id. at p. 339.) ‘ “As with the state of mind of a
juror, evaluation of the prosecutor’s state of mind based on demeanor and
credibility lies ‘peculiarly within a trial judge’s province.’ ” ’ (Ibid.) Thus, in
reviewing a trial court’s reasoned determination that a prosecutor’s reasons for
striking a juror are sincere, we typically defer to the trial court and consider only
‘whether substantial evidence supports the trial court’s conclusions.’ (People v.
Lenix (2008) 44 Cal.4th 602, 627 (Lenix).)” (People v. Banks (2014) 59 Cal.4th
1113, 1146.)
       “[O]ne form of circumstantial evidence that is relevant, but not necessarily
dispositive, on the issue of intentional discrimination” is a comparison of the
treatment of an excused juror with other similarly situated jurors. (Lenix, supra,

                                           9
44 Cal.4th at p. 622.) “[E]vidence of comparative juror analysis must be
considered . . . even for the first time on appeal if relied upon by the defendant [if]
the record is adequate to permit the urged comparisons.” (Ibid.) But when, as
here, a defendant “wait[s] until appeal to argue comparative juror analysis,” our
“review is necessarily circumscribed,” and we “need not consider responses by
stricken panelists or seated jurors other than those identified by the defendant.”
(Id. at p. 624.) We review the trial court’s ruling on the question of purposeful
racial discrimination under a deferential substantial evidence standard, so long as
“ ‘the trial court has made a sincere and reasoned attempt’ ” to evaluate each
nondiscriminatory justification offered. (People v. McDermott (2002) 28 Cal.4th
946, 971; see People v. Hamilton (2009) 45 Cal.4th 863, 900–901 (Hamilton);
People v. Avila (2006) 38 Cal.4th 491, 541.)
                a. Prospective Juror Sandra D.
       When initially questioned about his reasons for challenging Sandra D., the
prosecutor first referred to her opinions about the then-recent not guilty verdict in
the high-profile murder prosecution of O.J. Simpson, as well as her views on the
death penalty: “[M]y main concern was her feelings about the O[.]J[.] Simpson
case, which I felt was undefined. I thought [she] was sympathetic to Mr. Simpson
and I felt that her opinions concerning the death penalty were extremely scrambled
in terms of either pro or anti-death. So my main concern on her was her weak
opinions concerning the death penalty or undefined opinions concerning the death
penalty.” After the court gave him a chance to look at his notes, the prosecutor
added: “[S]he’s the person who said that she would have a very hard time judging
the person in the death penalty case. Does not want the responsibility of making
that decision. She’s divorced. She’s not married. She lives in the Bloomington
area, and she’s only lived there for five months. She’s also lived in another street
in Bloomington, Riverside, and Rialto, [as a result of] which I . . . have some

                                          10
difficulty concerning her stability in the community. [¶] And her educational
concerns . . . consisted of sometime at RCC, less than a year, evidently, and
perhaps as much as a year . . . at Valley College.”
       The trial court then recessed until after lunch to give the prosecutor a
chance to refresh his recollection of the questionnaires, each 42 pages long, filled
out by each of the challenged prospective jurors. When the court reconvened
(outside the jury’s presence), the prosecutor reiterated his concerns about Sandra
D.’s ability to impose the death penalty. He also noted that he “did not see the
type of community leadership that [he] would hope for in a leader of group
dynamics of the thing.”
       The trial court found the prosecutor’s explanation credible, stating that
“there was no problem with the non-racial basis for exercising the peremptory.” It
contrasted Sandra D. with Reginia S. and Huey D., the other two Black jurors
who, at the time of its ruling, had been challenged by the prosecutor, explaining
that there was a “much closer question” as to the latter two.
       Sandra D.’s answers on her juror questionnaire support the prosecutor’s
concern that she would be reluctant to vote for death. When asked whether her
feelings on the death penalty were such that she would “never be able to vote for
the penalty of death of a defendant,” she did not check either “yes” or “no,” but
instead wrote: “I wouldn’t want to vote for anyone to die. But if they killed
someone then I think they deserve to die.” When asked whether her feelings were
such that she would “always be able to vote for the penalty of death,” she again
did not check “yes” or “no,” but wrote: “I think it would depend on how it happen
[sic]. I wouldn’t want to have to vote for the penalty of death. I just don’t want to
be the reason why someone died.” In response to a question asking whether she
could see herself, “in the appropriate case, rejecting life imprisonment without the
possibility of parole and choosing the death penalty,” she checked “no,” and

                                         11
wrote: “I don’t want to have to make that decision on anyone.” And when asked
whether she could consider imposing the death penalty “as a realistic and practical
possibility,” she checked “no,” and explained: “I would feel like I killed them. It
would bother me. But if he did it he deserves the Death Penalty.” Sandra D. also
checked a box indicating that she was not upset by the O.J. Simpson verdict,
explaining: “I really don’t know if he did it or not.”
       Sandra D. reiterated her reluctance to impose the death penalty during the
Hovey voir dire.2 She testified: “I just feel like I don’t want to be the one to say
someone gets the death penalty. It’s like I’m killing someone.” When asked
whether, if she determined after hearing the evidence and the law that death was
the appropriate penalty, she would be able to come back with that decision, she
replied: “Probably.” She explained: “if . . . I really felt that [the murder] was
done, I think I would vote—I mean if it came down to it, I wouldn’t want to—but
I would do it.” Sandra’s answers might arguably have justified a challenge for
cause, though the prosecutor did not make such a challenge.
       Defendant points out that Jurors Nos. 46, 119, and 370, all of whom were
members of the jury panel, expressed some hesitance about the death penalty, but
the prosecutor did not challenge them. He also notes that Alternate Jurors Nos.
389 and 91 indicated some hesitance to vote in favor of death. But each of these
jurors also indicated in other questionnaire responses that they would be able to
vote in favor of the death penalty if circumstances warranted. None answered, as
did Sandra D., that they simply did not “want to have to make that decision on
anyone.”




2      Hovey v. Superior Court (1980) 28 Cal.3d 1.



                                          12
       As defendant notes, some of Sandra D.’s questionnaire answers were
favorable to the prosecution. For example, she repeatedly said she supported the
death penalty, explaining “I feel if you kill someone you don’t have the right to
live.” She agreed with the saying “ ‘[a]n eye for an eye,’ ” and she had two sisters
who were correctional officers. Defendant also disputes the validity of the
concerns expressed by the prosecutor about Sandra D.’s stability in the
community, pointing out that she had been employed at Kaiser Permanente for
more than seven years; she had lived in the same home for five years, then lived in
two others for a total of five years; she was a Girl Scout leader; and she planned to
open a home day care center. And while the prosecutor mentioned in passing that
Sandra was divorced, defendant points out that he did not strike Juror No. 392,
who also was divorced. Nor is it clear exactly how divorce would affect the
desirability of a prospective juror from the prosecution point of view in this case.
       Nevertheless, the record amply supports what the prosecutor described as
his primary concern—that despite Sandra D.’s belief in the death penalty in the
abstract, she would have great difficulty in actually voting to impose it. She
expressed this concern repeatedly, both in her written answers to the jury
questionnaire and in her testimony during the Hovey voir dire, and she was never
able to say with certainty that she would be able to vote for death, initially stating
that she would be unable to do so and later stating only that she could “probably”
do so. Substantial evidence supports the trial court’s ruling that the prosecutor did
not challenge Sandra D. because of her race.
                b. Prospective Juror Reginia S.
       When asked to state his reasons for challenging Reginia S., the prosecutor
initially mentioned that her brother was a juvenile delinquent, that she came to
court casually dressed (in a T-shirt, sandals, and sweatpants), that she had no
children or family in the area, that she had limited college education, and that she

                                          13
did not appear to be “a stable person in the community, based upon her housing
history, and job history.” After reviewing his notes, he added that she had
indicated a belief that race plays a part in the criminal justice system, and that she
had four different addresses as an adult. He acknowledged making a mistake with
respect to her college education—he had noticed that she had attended community
college, but he had not realized that she thereafter graduated from Pepperdine
University.
       After reviewing Reginia S.’s jury questionnaire, the prosecutor began by
reiterating his concern about her manner of dress, noting that it was “completely
different from the attire of all the other jurors that we presently have in the box.”
He then pointed to her belief that the system is not always fair and that race
sometimes plays a role, expressed concern about her views on the O.J. Simpson
case, and noted that while she believed in the death penalty, she said the
prosecution “must absolutely prove guilt” and that she would only impose the
death penalty if it is proven “without a doubt that the crime was committed.”
Finally, he again noted that her brother had been in “the juvenile system.”
       Defense counsel questioned the prosecutor’s reliance on the fact that
Reginia S.’s brother was a juvenile delinquent, pointing out that the prosecutor did
not know what crimes the brother had committed. With respect to Reginia S.’s
attire, counsel argued: “I don’t know how it would relate . . . to her ability to
understanding issues, to sit . . . as a fair and impartial juror, or to consider and
follow the Court’s instructions on evidence.” Counsel challenged the prosecutor’s
assertion that Reginia was unstable, pointing out that she had been married for 11
years and had good jobs. And counsel pointed out that Reginia wrote on her
questionnaire that she was for the death penalty, would vote to keep it, and could
vote for it in an appropriate case.



                                           14
       The trial court discussed the prosecutor’s challenges to Reginia S. and to
Huey D. together, ruling that they were not based on group bias. The court said it
would “accept the truth of [the prosecutor’s] statement that he was concerned
about [the] statements [of Reginia S. and Huey D.] about their sense of the degree
of proof required that exceeds proof beyond a reasonable doubt” and found “that is
a truthful comment and that that is his . . . motivation.” With regard to other
reasons mentioned by the prosecutor for challenging Reginia S., the court noted
that it “would not have shared” all the prosecutor’s concerns about Reginia S. and
Huey D., but acknowledged, “I’m not the lawyer trying this lawsuit.” The court
later added: “That’s not to say that I would have exercised the peremptories the
same as you, but it’s your case not mine. And I think the ultimate question
whether there’s purposeful discrimination, I don’t at this point find that there has
been. I don’t believe that your motivation has been a racial motivation.”
       The trial court’s ruling emphasized the prosecutor’s stated concern that
Reginia S. would not vote to impose a death sentence unless defendant’s guilt was
proved to a standard greater than proof beyond a reasonable doubt. The concern is
both plausible and supported by the record. When asked to describe her general
feelings about the death penalty, Reginia wrote: “I’m for it, but we must
absolutely prove guilt.” And when asked whether she had “negative or positive
feelings about the death penalty,” she wrote: “Neither. I just think if we impose
death we need to be sure they did the crime.” Although these answers would not
justify a challenge for cause, the prosecutor could reasonably conclude that
Reginia S. would be sympathetic to an argument that lingering doubt about
defendant’s guilt ought to guide the jury’s determination of the appropriate
penalty—an argument that would be entirely legitimate, but unfavorable to the
prosecution.



                                         15
       Defendant argues the prosecutor’s failure to voir dire Reginia S. on her view
of the standard of proof she would require before returning a death verdict indicates
the prosecutor’s stated reason was pretextual. Defendant is correct that an
attorney’s failure to meaningfully examine a prospective juror about a subject about
which the attorney claims to be concerned can constitute evidence of pretext.
(Miller-El v. Dretke (2005) 545 U.S. 231, 246.) But here, unlike in Miller-El, for
example, the prosecutor’s stated concerns arose from a pair of questionnaire
responses that spoke for themselves; no additional clarification was needed to
ascertain Reginia S.’s meaning. (Cf. id. at p. 244 [in light of prospective juror’s
“outspoken support for the death penalty,” prosecutor “would have cleared up” a
misunderstanding concerning the juror’s attitude toward rehabilitation as a factor in
penalty decision had the prosecutor truly been concerned with the matter]; id. at
p. 246 [noting that, after the prospective juror indicated that he did not know much
about his brother’s prior conviction, “the prosecution asked nothing further about
the influence his brother’s history might have had on [the juror], as it probably
would have done if the family history had actually mattered”].) Whatever
inference may arise from the prosecutor’s lack of questioning is not so strong as to
undermine the trial court’s determination that Reginia S.’s views on the standard of
proof did, in fact, matter to the prosecutor.
       Defendant further points out that the prosecutor did not challenge Juror
No. 46, who wrote that the death penalty should not be considered unless the
sentencer is “absolutely sure of guilt.” But Juror No. 46 also wrote that she could
set aside her feelings about when to impose the death penalty, explaining: “Would
choose appropriate penalty based on evidence presented—not my opinion about
punishment.” In response to that same question, by contrast, Reginia S. wrote that
she could see herself voting for death “if it can be proven without a doubt . . .
[that] the crime was committed.” Defendant also points out that the prosecutor did

                                          16
not challenge Juror No. 119 and Alternate Jurors Nos. 389 and 91, each of whom
expressed some reluctance to impose the death penalty. But unlike Reginia S.,
these jurors did not say that they would not impose death unless guilt was proved
to an absolute certainty.
       As noted above, the prosecutor gave several other reasons for challenging
Reginia S. Some of these additional reasons find support in the record. Regarding
the prosecutor’s assertion Reginia S. was more casually dressed than the other
prospective jurors, defense counsel agreed she was wearing a T-shirt and
sweatpants but questioned the import of this observation. Casual dress is a facially
race-neutral reason for exercising a strike, and courts have noted that prosecutors
may regard a juror’s dress as some indication of how seriously he or she takes the
responsibility of serving as a juror. (See, e.g., People v. Elliott, supra, 53 Cal.4th
at pp. 569–570; U.S. v. Thompson (9th Cir. 1987) 827 F.2d 1254, 1260.) The
record also lends some support to the prosecutor’s stated concern about Reginia
S.’s views regarding the evidence presented in the O.J. Simpson case; asked on the
questionnaire for her feelings about the case, she responded that “[i]f they couldn’t
prove he murdered Nicole, then the verdict was fair.” Similarly, the prosecutor’s
concern about Reginia S.’s belief that, as she wrote, “the system is not always fair,
[and] sometimes race seems to play a part” also finds support in the record. We
have previously upheld challenges based on similar reasons. (See, e.g., People
v. Mills (2010) 48 Cal.4th 158, 184 [upholding as race-neutral the prosecutor’s
stated concern about a prospective juror’s belief that the prosecution in the O.J.
Simpson murder trial had not proved Simpson’s guilt]; People v. Winbush (2017)
2 Cal.5th 402, 439 [“Skepticism about the fairness of the criminal justice system




                                          17
to indigents and racial minorities has also been recognized as a valid race-neutral
ground for excusing a juror.”].)3
       But other reasons given for challenging Reginia S. either lack record
support or do not withstand comparison to the prosecutor’s treatment of other
jurors. The prosecutor asserted that he challenged Reginia S. in part because her
brother had been found guilty of several minor theft offenses when he was
younger. But as defendant points out, Reginia S. wrote in her questionnaire that
she felt her brother had been treated fairly, and the prosecutor later declined to
challenge two alternate jurors who had close relatives who were convicted of
various crimes. The record suggests that the prosecutor’s concern with
prospective jurors’ stability was a general one, not limited to members of any
racial group. But the prosecutor’s stated concern about Reginia S.’s stability is
questionable in light of her questionnaire responses showing that, at age 38, she
had been married for 11 years and had had only two employers (for one of whom
she had worked 11 years). Finally, despite acknowledging at one point he had
failed to notice Reginia had a bachelor’s degree from Pepperdine University, the
prosecutor later referred to her education as “limited”—an inapt characterization,

3      Defendant points out that the prosecutor did not challenge Jurors Nos. 317
and 353, who expressed somewhat similar views. But these jurors’ questionnaire
responses differed from Reginia S.’s in ways the prosecutor could well have
regarded as significant. Like Reginia S., Jurors Nos. 317 and 353 checked “No” in
response to the question whether Blacks were treated as fairly by the judicial
system as other persons. But of the three, only Reginia S. responded to an open-
ended question about problems with the criminal justice system by spontaneously
raising questions about the system’s fairness and the role race plays in it. In
response to the question asking whether they were upset by the O.J. Simpson
verdict, both Jurors Nos. 317 and 353 checked “Yes” and explained the jury had
not deliberated long enough. Reginia S., by contrast, checked “No” and
explained, as discussed earlier, that the verdict was fair if Simpson’s guilt was not
proven.



                                          18
particularly considering that, as the trial court remarked, only 12 percent of San
Bernardino County residents had college degrees.
       The prosecutor’s reasons for striking the next challenged juror, Huey D.,
raise much the same difficulty: While some of the reasons were supported in the
record, others were not. We will review the record concerning the challenge of
Huey D. before addressing the trial court’s rulings as to both prospective jurors.
               c. Prospective Juror Huey D.
       In explaining his decision to strike Huey D., the prosecutor first mentioned
that Huey D. was 70 years old, that his opinions were “extremely confused,” and
that his opinions were “extremely weak” with respect to “the death penalty and . . .
the status of crime in the community,” and “he put great emphasis on the fact that
he felt the standard of proof on the death penalty should be no doubt.” After
looking at his notes, the prosecutor added that Huey D. had given answers to
questions about the O.J. Simpson case that were “pro O[.]J[.] and anti
prosecution.” He also expressed concern about Huey’s views on individual
responsibility and why people commit crimes, and reiterated his concern over
Huey D.’s views on the death penalty. After a recess, the prosecutor observed that
Huey D. made “various statements ending with, I also feel that care should be used
in sentencing someone to death. There should be no doubt.” The prosecutor also
noted that Huey D. did not answer a question asking whether his feelings about
death were such that he would never be able to vote for death, instead explaining
that he had problems about how the question was asked. He also expressed
concern that Huey D. had written that he had no opinion about recent crimes
covered in the news (which included the Simpson case) and that he could not think
of ways to improve the criminal justice system. In the prosecutor’s view, these
views were surprising for a person who, like Huey D., was an educator with a
master’s degree. Regarding the Simpson case in particular, the prosecutor stated,

                                         19
Huey had answered that the verdict did not upset him because he felt there was
doubt.
         During the ensuing discussion, the prosecutor explained he was attempting
to pick a “well working, cohesive group” of jurors and was concerned with
whether prospective jurors “have any experiences working with leaders and as
followers or working as a group.” When the trial court noted that Huey D. had
been a high school principal, the prosecutor replied: “I went through his particular
questions. It is not difficult to see why he is no longer in this group. He is not a
person involved in the community. He is not involved in any community activity.
He is completely devoid of opinions concerning some of the hot issues in the
community today. He is a person who showed confusion by defense counsel’s
own admittance, that he was not too aware of what was going on. I don’t know if
that was as a result of his age, which is 70 years old, and I don’t know. Again,
why take that risk when there are other people whom I’ve evaluated who are a
better fit within the total group?” In response, defense counsel asserted that
Huey D. was currently “a member of several organizations that are community-
based. The South Area Bay Club [sic Boys Club], the Parent Teachers
Association, and the Omega Psi Phi Fraternity.” The prosecutor asked whether
Huey was currently a member of these organizations, an apparent reference to
Huey’s questionnaire, which states that, except for the fraternity, he had not been a
member of these organizations for several years.
         As previously noted, the trial court concluded that the prosecutor
challenged Huey D. because he feared that, like Reginia S., Huey D. would not
vote to impose the death penalty unless the evidence of guilt was more compelling
than proof beyond a reasonable doubt. Huey D.’s questionnaire answers and
testimony provide substantial evidence supporting this conclusion. When asked to
describe his general feelings about the death penalty, Huey wrote: “I feel that the

                                          20
death penalty does have a place in the system. It may or may not deter crime but I
feel that without it, crime could be worse. I also feel that care should be used in
sentencing someone to death. Their [sic] should be no doubt.” When asked
whether he had positive or negative feelings about the death penalty, Huey
reiterated the point: “I feel that the death penalty should be used in extreme cases
where their [sic] is no doubt.” When asked whether he would be reluctant to
personally vote for a sentence of death, he answered yes.
       On voir dire, Huey D. stated his view that the death penalty “has its place”
and he would support it “if the proof is conclusive that this is what is necessary.”
And he thereafter agreed with the prosecutor that on the “part of this case that may
deal with the death penalty” he “would want absolute proof.” When the
prosecutor informed him that the prosecution need only present proof beyond a
reasonable doubt, not absolute proof, and asked whether he could accept this
standard, Huey D. said he could. Nevertheless, it is not surprising that the
prosecutor believed that Huey D.’s views on the degree of proof required to
impose a death sentence made him a less than ideal juror for the prosecution. As
with Sandra D. and Reginia S., defendant argues that the prosecutor declined to
challenge several jurors and alternates whose views on the death penalty were
similar to those of Huey D. But as previously noted, none of the jurors or
alternates repeatedly expressed the view that they would require “absolute proof”
of the defendant’s guilt. The trial court did not err in crediting the explanation.
       Some of the other reasons the prosecutor gave for challenging Huey D. also
find support in the record. As the prosecutor noted, Huey had indicated in his
questionnaire that he was not troubled by the decision in the O.J. Simpson case,
writing: “I felt that their [sic] was doubt.” Huey also declined to answer a number
of questions seeking information about his attitudes toward the death penalty. For
example, when asked whether his feelings about the death penalty were such that

                                          21
he would never be able to vote for the death penalty, he did not answer, instead
writing: “I really have problems as to how this question is asked.” He answered
other sentencing-related questions “I really do not know,” “Have no opinion now,”
or “No clear opinion.”
       Reasonable minds might not share the prosecutor’s view that Huey D.’s
lack of an opinion about whether the death penalty was used frequently enough
and his inability to think of ways to improve the criminal justice system were
causes for concern. But the record provides no adequate basis for us to conclude
that the prosecutor’s reasons were a pretext for discrimination. Defendant points
to other jurors who were not challenged on similar grounds. Although some of
these jurors declined to give substantive responses to one or two questions, only
one—Juror No. 87—declined to answer multiple questions probing attitudes
toward the death penalty. Juror No. 87’s views were, however, nevertheless clear:
Among other things, Juror No. 87 indicated that she believed that “violent crime
murder” should “[a]lways receive the death penalty”; that the State should impose
the death penalty on anyone who kills another human being for any reason; and
that she “[s]trongly favor[ed] the death penalty” and had actively supported the
1978 Briggs Initiative reinstating capital punishment in California. As previously
noted, Huey D.’s questionnaire and voir dire responses did not paint a comparably
clear picture about his views on the death penalty.4


4       Defendant argues the prosecutor’s focus on Huey D.’s age (70) suggests
pretext because Huey had no health problems that would interfere with his service
as a juror. But the prosecutor mentioned the prospective juror’s age as possibly
explaining his omitted and vague answers on the questionnaire, not in reference to
potential physical limitations. As explained above, the record provides sufficient
support for the prosecutor’s concern regarding Huey’s questionnaire responses.




                                         22
       On the other hand, the prosecutor’s claim that Huey D. would not be a good
member of a cohesive jury because he “is not a person involved in the
community” rings false in light of the facts that Huey, a 70-year-old retired
teacher, principal and school administrator, was still involved in a fraternity
promoting scholarship and leadership, had been in a parent-teacher association for
almost 40 years (ending seven years before trial), had supervised a Sunday school
and at earlier periods of his life was active in other youth-support organizations—
all experiences that likely involved both leadership and working in groups. Again,
the record suggests that the prosecutor’s interest in community involvement was
not limited to members of any racial group, but it is unclear why Huey D.’s
questionnaire responses would have raised particular concerns. The prosecutor’s
complaint that Huey wrote he had a problem with the way one of the death-penalty
questions was asked is undermined by the fact that jurors and alternates, whom the
prosecutor did not peremptorily challenge, also questioned or criticized aspects of
the lengthy, somewhat repetitive juror questionnaire.5 And the prosecutor’s
assertion that Huey’s answers regarding the reasons for crime and how it should
be handled showed a bias against law enforcement are not borne out by the record:
Huey’s responses on these questions—that crime had increased due to “lack of
jobs and proper supervision for youth” and that, to alleviate crime, communities
should receive more resources for resolving these problems—appear to reflect his


5      In colloquy with one prospective juror who found the questionnaire’s
death-penalty section hard to follow because of its repetitiveness, the prosecutor
remarked that it was “purposely” written “[t]o see if we can confuse people.” He
was no doubt joking, but the remark nonetheless undercuts his claimed concern
with Huey D.’s statement that he had a problem with the wording of one question.
(This prospective juror was excused for cause, without defense opposition,
because of his categorical inability to impose the death penalty.)



                                         23
commitment to educating and supporting young people rather than any negative
attitude toward police or prosecutors.
     As to each of the three prospective jurors who were subjects of the first
Batson/Wheeler challenge, the prosecutor, when asked for his reasons, identified a
relatively long list of questionnaire responses and other factors to justify the
challenge. In each case, the trial court identified what it regarded as a central
nonracial reason for the challenge—Sandra D.’s deep reluctance to impose the
death penalty and Huey D. and Reginia S.’s insistence on a heightened standard of
proof before imposing the penalty—and found the prosecutor sincere in offering
that reason for the challenge.6 This “laundry list” approach (Foster v. Chatman
(2016) 578 U.S. ___, ___ [136 S.Ct. 1737, 1748]) carries a significant danger:
that the trial court will take a short-cut in its determination of the prosecutor’s
credibility, picking one plausible item from the list and summarily accepting it
without considering whether the prosecutor’s explanation as a whole, including
offered reasons that are implausible or unsupported by the prospective juror’s
questionnaire and voir dire, indicates a pretextual justification. A prosecutor’s
positing of multiple reasons, some of which, upon examination, prove implausible
or unsupported by the facts, can in some circumstances fatally impair the
prosecutor’s credibility. (See U.S. v. Chinchilla (9th Cir. 1989) 874 F.2d 695, 699
[where two bases for the challenges were acceptable and two were not, appellate
court holds motion under Batson should have been granted: “the fact that two of
the four proffered reasons do not hold up under judicial scrutiny militates against

6      The prosecutor’s approach here may have resulted from a degree of
miscommunication between court and counsel. During discussion on defendant’s
motion, the court asked the prosecutor to “[c]over everything that you think is
important,” an invitation the prosecutor took as calling for “every single detail”
about the disputed challenges.



                                          24
[the supported reasons’] sufficiency”].) In assessing credibility at the third stage
of a Batson/Wheeler decision, trial courts should attempt to evaluate the attorney’s
statement of reasons as a whole rather than focus exclusively on one or two of the
reasons offered.
     In this case, however, the record contains no indication that the trial court
took any short cut in evaluating the prosecutor’s credibility. Rather, the trial judge
expressed substantial concerns about the prosecutor’s challenges, which had
eliminated all the Black jurors in a case involving a Black defendant and defense
counsel. The court engaged actively in the third-stage analysis, questioning
counsel closely on certain points. True, after hearing the prosecutor’s presentation
and defense counsel’s rebuttal, the trial court focused on Reginia S. and Huey D.’s
statements about a heightened standard of proof, accepting that as the prosecutor’s
motivation for those challenges. At the same time, however, the court expressly
allowed further discussion on the propriety of the strikes, and further discussion
indeed ensued. The court expressed skepticism as to the prosecutor’s assertion
that Reginia S. and Huey D. possessed insufficient education, community
involvement, or leadership ability to function as part of a “well working, cohesive
group,” noting that Reginia S. was better educated than many residents of the
county and Huey D. had been a high school principal. After further argument
from both parties, the court in conclusion stated that while it might not have
exercised peremptory challenges in the same manner, it continued to find the
prosecutor had not exercised them with a racially discriminatory motivation.
Despite its skepticism as to certain of the offered reasons, the court’s overall
assessment of the prosecutor’s credibility remained unchanged.
       That the trial court did not address in detail each of the numerous reasons
the prosecutor gave for excusing Reginia S. and Huey D. does not mean it failed to
make a sincere and reasoned evaluation of the prosecutor’s reasons overall. A

                                          25
sincere and reasoned evaluation of the prosecutor’s stated reasons does not, in
every circumstance, require the court to make detailed comments on every such
reason. (Hamilton, supra, 45 Cal.4th at p. 901.) But the court should determine
whether the challenge was based on group bias by considering the reasons as a
whole, without focusing on a single stated reason to the exclusion of others. The
record indicates the trial court here properly considered the prosecutor’s statement
of reasons as a whole, and we therefore give the lower court’s credibility finding
the deference due a sincere and reasoned evaluation.
               d. Prospective Juror Elizabeth K.
       The prosecutor gave a lengthy explanation for his challenge to Elizabeth K.,
occupying fully 10 pages of transcript. The prosecutor said that because Elizabeth
K. had “considerable experience as a leader” and “a tremendous amount of group
ability,” she was likely to be the jury foreperson (the defense having assertedly
“knock[ed] out [his] leaders”), but her questionnaire answers indicated that she
was likely to vote for life imprisonment without possibility of parole and to
persuade other jurors to do the same. He explained that he had a system by which
he rated the prospective jurors, that he had rated Elizabeth K. a “C minus” because
of her views on the death penalty, and she was the only C minus juror remaining
on the panel. He said he had asked a supervising deputy district attorney who had
tried death penalty cases, and who used a similar grading system, to read her
answers pertaining to the death penalty, and he gave her the same grade.
       The prosecutor explained that certain of Elizabeth K.’s answers seemed
disingenuous. He noted that when asked what the criminal justice system’s
biggest problems were and how they could be improved, Elizabeth K. said she had
not thought about it and had not had much interaction with the criminal justice
system. He had difficulty crediting this answer because Elizabeth had been on the
board of directors of a spousal abuse home. Elizabeth also wrote that she had not

                                         26
followed the O.J. Simpson case, which the prosecutor found difficult to believe
both because of her involvement in spousal abuse issues and because Elizabeth’s
husband had been a professional football player who knew Simpson. When asked
whether her feelings about the death penalty had changed in the last 10 years,
Elizabeth said she had “ ‘never taken a position on it one way or the other.’ ” The
prosecutor found it unlikely that a person with her experiences and education
would have no opinion on the issue.
       The prosecutor was troubled that, when asked to describe her feelings about
the death penalty, Elizabeth K. wrote: “ ‘In general, I do not believe people
should decide who gets to live and who has to die. However, I do believe there
are times that this difficult choice has to be made. It should not be taken lightly.’ ”
And when the questionnaire asked whether she believed in “an eye for an eye,”
Elizabeth said she did not, commenting that “[t]wo wrongs don’t make a right.”
The prosecutor interpreted that comment as expressing the view “that anything
that had the possible taint of revenge or the use of the death penalty because some
crime deserved it was not appropriate.” When asked whether she had a positive or
negative feelings about the death penalty, Elizabeth said she viewed it “as a part of
our society’s system that we unfortunately have to deal with periodically.” The
prosecutor acknowledged that this answer was not “completely negative,” but he
found it “very weak, and certainly the weakest on the present panel.” The
prosecutor was also disturbed that, when asked for her general thoughts about the
benefit of imposing a death sentence on a person convicted of special
circumstances murder, she wrote: “ ‘I don’t see a benefit in sentencing anyone to
death. I just don’t think of it in those terms.’ ” In the prosecutor’s view, this
answer was “the ultimate capper in placing her in the negative side of the death
penalty issue.” Finally, when Elizabeth K. was asked whether she could show
mercy to a person guilty of intentional murder, she wrote: “ ‘If by “mercy,” . . .

                                          27
you mean grant a less harsh sentence, I could, if there were circumstances to
warrant it.’ ” The prosecutor viewed this answer as “pure game playing,”
explaining “I think she is equivocating, trying to conceal her true feelings.”
       The prosecutor concluded: “My interpretation of her true feelings were that
she is likely to vote for life imprisonment without the possibility of parole, except
in very extreme cases, and only if there are other jurors who could interact with
her to lead her to that approach. . . . [W]ith the present group on the panel . . . I
simply do not feel that that’s possible. I think that she would, in fact, lead at least
four of the other jurors, to her present position.”
       The trial court found that the prosecutor excused Elizabeth K. because of
“her stand on death penalty issues.” The court agreed with the prosecutor that
Elizabeth K. was likely to be the jury foreperson, describing her as “extremely
qualified.” And after reviewing Elizabeth’s answers, the court found that the
prosecutor “could reasonably believe that she was extremely reluctant . . . to
[impose] the death penalty.” In the court’s view, the prosecutor reasonably
believed that Elizabeth was intelligent and open-minded, and could be talked out
of her opinions by other persuasive jurors, but “if you put her on a jury in the
absence of other leadership, . . . I think I’m hearing him say that . . . her reluctance
to impose the death penalty wouldn’t be disputed by anybody, and I think he could
rationally conclude that she’s reluctant to impose the death penalty . . . .” The
court reasoned that the prosecutor’s decision to pass the challenge several times
with Elizabeth on the panel was consistent with this view. Summing up, the court
explained: “[T]he question is, as I sit here, do I believe what [the prosecutor] says
or do I think that he is doing things for racial purposes? And I think if he was
doing it just for racial purposes he would have done it much sooner. . . . [I]t really
does suggest to me . . . [t]hat he saw her as being resistant to the death penalty,



                                           28
probably would go along with it . . . . [¶] But now she is going to be the leader
. . . and he feels that that’s a risk he can’t take. I believe [the prosecutor] on that.”
       Defendant argues that the prosecutor deliberately waited to challenge
Elizabeth K. until the defense had passed the challenge, which signaled to the
prosecutor that this was his last chance to strike her and thereby to ensure that the
jury contained no Black jurors. But as the trial court noted in rejecting the same
argument, this scenario is improbable: From the prosecutor’s point of view, it was
entirely possible that the defense could have passed after any of the three times
that the prosecutor passed the challenge. If that had happened, Elizabeth K. would
have remained on the jury. The timing of the challenge supports the trial court’s
conclusion that the strike was not motivated by Elizabeth K.’s race, but instead by
the prosecutor’s evaluation of the dynamics of the jury following a series of
defense strikes.
       Defendant also argues that the prosecutor’s stated concerns about juror
dynamics were pretextual. He points out that the prosecutor did not challenge
Jurors Nos. 46, 119, and 370 and Alternate Jurors Nos. 389 and 91, each of whom,
as previously discussed in connection with the other Black jurors challenged by
the prosecutor, expressed some reluctance to vote for death. But the trial court
found that the prosecutor’s concern was not only that Elizabeth K. had somewhat
mixed feelings about the death penalty, but that she was likely to assume a
leadership role in the absence of other leaders. The trial court agreed with the
prosecutor that Elizabeth K., a regional personnel director for a major corporation
who had a bachelor’s degree in management and whose children were in college,
would have been “the probable foreperson.” Although the other jurors to whom
defendant points all revealed some degree of hesitation about imposing the death
penalty, none had the kind of background or leadership experience that Elizabeth



                                           29
K. had, and the prosecutor may have believed that they would have less influence
on the jury’s deliberations.
       It is by no means clear that Elizabeth K. would have persuaded other jurors
not to return a death verdict. None of her answers reflected an explicit opposition
to the death penalty or a strong reluctance to impose it; some of the answers cited
by the prosecutor appear innocuous from the prosecution perspective. Although
the prosecutor viewed some of her answers as disingenuous and found other
answers suggestive of an anti-death bias, others might infer from those same
answers that she was open-minded and would review the evidence fairly and even-
handedly. But the trial judge, who was present in the courtroom, credited the
prosecutor’s explanation. The judge noted that, when he was trying death penalty
cases some decades before, answers like Elizabeth K.’s would have been
considered “clear over on the right end of the political spectrum,” but “now I think
it’s not unreasonable for the prosecution to assume that somebody with answers
like this is certainly left of center” on the death penalty. Our task is not to
determine whether we would have shared the prosecutor’s concerns; the only
question before us is whether substantial evidence supports the court’s ruling that
the prosecutor described legitimate reasons for the challenge and that he
challenged Elizabeth K. for those reasons, not because of her race. Here,
substantial evidence supports the trial court’s conclusion that the prosecutor
challenged Elizabeth K. for reasons other than her race.
           2. People v. Gutierrez
       Defendant maintains that as in People v. Gutierrez (2017) 2 Cal.5th 1150
(Gutierrez), the trial court here failed to sufficiently scrutinize the prosecutor’s
proffered reasons. In Gutierrez, we held the deference due a trial court that has
made a “ ‘sincere and reasoned’ ” evaluation of the prosecutor’s reasons at the
third stage of a Batson motion (Gutierrez, at p. 1159) was not applicable when the

                                          30
grounds for the strike offered by the prosecutor and accepted by the court were not
self-evident and were not explained at the hearing. We explained: “Some neutral
reasons for a challenge are sufficiently self-evident, if honestly held, such that they
require little additional explication. . . . Yet when it is not self-evident why an
advocate would harbor a concern, the question of whether a neutral explanation is
genuine and made in good faith becomes more pressing.” (Id. at p. 1171.) The
trial court in Gutierrez had accepted “the ‘Wasco issue’ ”—the prospective juror
lived in Wasco but claimed to be unaware of gang activity there—as the
prosecutor’s reason, but “never clarified why it accepted the Wasco reason as an
honest one.” (Ibid.) “The court may have made a sincere attempt to assess the
Wasco rationale, but it never explained why it decided this justification was not a
pretext for a discriminatory purpose. Because the prosecutor’s reason for this
strike was not self-evident and the record is void of any explication from the court,
we cannot find under these circumstances that the court made a reasoned attempt
to determine whether the justification was a credible one.” (Id. at p. 1172.)
     Gutierrez’s reasoning is inapplicable here; the reasons accepted by the court
for striking each prospective juror were either self-explanatory or were explained
at the hearing. For reasons already explained, we conclude that the trial court’s
evaluation of the prosecutor’s justifications was sincere and reasoned, and we thus
accord deference to its credibility ruling.7

7      Defendant maintains that “the prosecutor arguably scattered a couple of
ostensibly valid race-neutral grounds for excusing the Black prospective jurors
amongst his litany of pretextual race-neutral grounds.” He argues that the trial
court therefore should have applied a mixed motives analysis borrowed from other
legal contexts. (See, e.g., Hunter v. Underwood (1985) 471 U.S. 222, 228;
Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252, 270 & fn.
21; Howard v. Senkowski (2d Cir. 1993) 986 F.2d 24, 30.) But the trial court did
not find that the prosecutor’s strikes were motivated by a combination of race-
                                                            (footnote continued on next page)


                                          31
        B. Guilt Phase Issues

             1. Trial court’s failure to instruct on lesser included offenses of second
                 degree murder and voluntary manslaughter
        Defendant argues that the trial court erred by not instructing the jury sua
sponte on second degree murder and voluntary manslaughter, which are lesser
offenses necessarily included within the charged crime of first degree murder. He
asserts that its failure to do so violated his rights to a fair trial, to due process of
law, and to reliable guilt and special circumstance verdicts as guaranteed by the
federal and state Constitutions.
        As a general rule, “a trial court errs if it fails to instruct, sua sponte, on all
theories of a lesser included offense which find substantial support in the
evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) But a court must
instruct on such theories only when the record contains “ ‘ “substantial evidence”
from which a rational jury could conclude that the defendant committed the lesser
offense, and that he is not guilty of the greater offense.’ ” (People v. Whalen
(2013) 56 Cal.4th 1, 68 (Whalen).)
        Here, defendant’s claim that the trial court should have instructed on
second degree murder fails at the outset because defendant himself asked the court
not to give the instruction at trial. “[A] defendant may not invoke a trial court’s
failure to instruct on a lesser included offense as a basis on which to reverse a


(footnote continued from previous page)

based and race-neutral considerations; it instead found that the strikes were based
on considerations other than race. Because we uphold that finding, we have no
occasion to consider what result would obtain if the prosecutor’s challenges were
based in part on race-neutral reasons and based in part on group bias. We
therefore need not decide here whether mixed motives analysis applies in a
Batson/Wheeler case. (See generally Hamilton, supra, 45 Cal.4th at p. 909, fn. 14;
People v. Schmeck (2005) 37 Cal.4th 240, 275–277.)



                                             32
conviction when, for tactical reasons, the defendant persuades a trial court not to
instruct on a lesser included offense supported by the evidence.” (People v.
Barton (1995) 12 Cal.4th 186, 198.) Defense counsel in this case asked the court
not to instruct on second degree murder; he said he had discussed the matter with
defendant, and defendant personally joined in the request on the record.
Defendant thereby invited the alleged error of which he now complains.
       By contrast, defense counsel never asked the court not to instruct the jury
on voluntary manslaughter, although counsel did agree with the court’s
observation that the evidence did not warrant it. Defense counsel was correct on
this point. As explained below, regardless of whether defendant adequately
preserved the issue for appeal, the court was right not to instruct on either second
degree murder or voluntary manslaughter, because the evidence at trial would not
have supported a jury finding that he was guilty of one of those crimes but not first
degree murder.
       Defendant argues that the jury could have found that he killed Rexford with
express malice (i.e., with the intent to kill), but that he lacked premeditation and
deliberation, and that the killing therefore was second degree murder. “In the
context of first degree murder, ‘ “premeditated” means “considered beforehand,”
and “deliberate” means “formed or arrived at or determined upon as a result of
careful thought and weighing of considerations for and against the proposed
course of action” ’ ” (People v. Lee (2011) 51 Cal.4th 620, 636.) “The process of
premeditation and deliberation does not require any extended period of time. ‘The
true test is not the duration of time as much as it is the extent of the reflection.’ ”
(People v. Mayfield (1997) 14 Cal.4th 668, 767 (Mayfield).)
       Defendant points out that there was evidence that he wanted to talk to a
person named “Josh,” who, he asserts, might not have been Josh Rexford. He
notes that Linda Farias testified that, several days before the murder, she

                                           33
overheard defendant conversing with three other men, during which they said that
“Brian” killed Farias, that “Josh” was Brian’s cousin, and that “they were going to
get through [Josh] to find” Brian, but she heard no last names mentioned. A
reasonable juror, he argues, “could easily have concluded that [defendant] sought
out a ‘Josh’ to get information from him, not to kill him,” and thus that the killing
was unpremeditated. But the jury could have believed that defendant was looking
for a “Josh” with an unknown last name only if it rejected Troy Holloway’s
testimony that defendant questioned him about Josh Rexford within a day or two
of the conversation overheard by Farias.
       And more significantly, the evidence of the manner of killing cannot be
reconciled with defendant’s theory that the jury could reasonably have concluded
that he was merely seeking information. According to prosecution witnesses,
defendant staked out the apartment complex and, just before the shooting, secreted
himself in an apartment above Pupua’s. He then went downstairs, entered Pupua’s
apartment, and began shooting immediately, without saying a word. The defense,
in turn, relied on defendant’s testimony that his kidnappers brought him against
his will to Pupua’s apartment and staked out the apartment prior to the shooting,
and that defendant then entered the apartment with his Hispanic male kidnapper,
who immediately started shooting. These are, of course, two very different
versions of events, but neither version would have supported a jury finding that
defendant committed the murder with express malice but without premeditation.
There is nothing in the record that could have led a reasonable juror to believe that
defendant planned to converse with the victims or that he actually conversed with
them before or after the shooting. In short, “the entire course of conduct clearly
revealed by the evidence, taken as a whole, is inconsistent with any suggestion
that,” if defendant committed the shooting with express malice, “the killing[]



                                           34
[was] not willful, premeditated, and deliberate.” (People v. Carter (2005) 36
Cal.4th 1114, 1184–1185.)
       Defendant argues that the jury could have convicted him of second degree
murder by finding that he killed Rexford without premeditation or express malice,
but with implied malice. “Malice is implied when the killing is proximately
caused by ‘ “an act, the natural consequences of which are dangerous to life,
which act was deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious disregard for life.” ’ ”
(People v. Knoller (2007) 41 Cal.4th 139, 152.) Here, defendant maintains, the
jury could have found that he “knew that his act[ions] endangered the lives of the
apartment occupants” but merely “intended to frighten the apartment occupants.”
He again relies on the testimony that, several days before the shooting, he was
overheard saying he “would get through [Josh] to find Brian,” as well as the fact
that the surviving victims of the shooting did not testify that the gun was pointed
at Rexford in particular, as opposed to all three victims. But defendant fired
between seven and 16 bullets over the course of 30 to 45 seconds. No fewer than
five of those bullets struck Rexford. Based on this evidence, the jury could not
reasonably conclude that defendant was simply trying to frighten Rexford.
       Defendant places significant weight on Badibanga’s testimony that
defendant’s gun was pointing “upwards,” arguing that this was substantial
evidence that he fired recklessly or with gross negligence, not with a premeditated
intent to kill. But defendant takes the word “upwards” out of context. Badibanga
testified that when defendant first stepped into the apartment, he was “bringing
[his] gun up,” “[s]o it wasn’t to his hip or side[,]” and that “it was kind of going
upwards . . . but almost pointed forward.” Badibanga turned away before
defendant began shooting. This is not substantial evidence that defendant was
firing randomly or blindly in an upward direction.

                                          35
       Defendant argues that the trial court should have instructed the jury that it
could convict him of second degree murder under the second degree felony-
murder rule, based on the theory that he killed Rexford in the commission of
discharging a firearm in a grossly negligent manner, a felony. (Pen. Code,
§ 246.3.) But after defendant filed his opening brief, we held that a second degree
felony-murder conviction may not be based on a violation of section 246.3.
(People v. Chun (2009) 45 Cal.4th 1172, 1200.)
       Nor was defendant entitled to an instruction on second degree murder based
on the theory that he aided and abetted an assault with a firearm, and that second
degree murder was a natural and probable consequence of that offense. (See
People v. Prettyman (1996) 14 Cal.4th 248.) On the prosecution’s version of
events, defendant was the shooter; on defendant’s version, he was brought to the
apartment against his will by kidnappers. Neither version of events would have
supported a conclusion that defendant was liable for second degree murder on an
aiding and abetting theory.
       As for defendant’s contention that the trial court should have instructed the
jury on the lesser included offense of voluntary manslaughter, we see no evidence
that would have supported such an instruction. Defendant points out that a
neighbor of Pupua who did not see the shooting testified that after it he overheard
someone say, “ ‘I couldn’t get to my gun.’ ” The neighbor did not know who
made the statement because “a group of people in front of the apartment . . . were
milling around” when he heard the comment. Defendant argues that this
testimony, coupled with evidence that, within two days of Rexford’s death, Pupua
and Rexford were involved in a fight at a football game and Pupua was
peripherally involved in a fight at his own apartment, required the court to instruct
on voluntary manslaughter, based either on the theory that defendant was



                                         36
provoked and shot Rexford in the heat of passion or on the theory that he shot
Rexford in imperfect self-defense.
       But none of the evidence cited by defendant in any way suggests that the
victims engaged in provocative conduct before the shooting began, or that
defendant was subjectively roused to “the actual influence of a strong passion”
(People v. Wickersham (1982) 32 Cal.3d 307, 327)—i.e., a “ ‘ “[v]iolent, intense,
high-wrought or enthusiastic emotion” ’ ” (ibid.)—at the time of the shooting.
The evidence therefore did not support an instruction on voluntary manslaughter
arising from the heat of passion. Nor does the evidence in any way suggest that
before the shooting began, the victims did anything that could have caused
defendant to believe that he had to shoot Rexford (or anyone else) to “ ‘defend
against imminent peril to life or great bodily injury’ ” (People v. Elmore (2014) 59
Cal.4th 121, 134), and there was no evidence that defendant had the requisite
“ ‘actual belief’ ” (ibid.) that he needed to shoot Rexford for this reason. Thus,
there was no evidentiary basis for an instruction on voluntary manslaughter arising
from imperfect self-defense.
       Defendant argues that, by failing to instruct on any lesser included
noncapital offenses, the trial court gave the jury an all-or-nothing choice between
the capital charge and acquittal, in violation of the Eighth and Fourteenth
Amendments to the federal Constitution. (See Beck v. Alabama (1980) 447 U.S.
625.) But “Beck’s principles [are] satisfied if the jury was provided some
noncapital third option between the capital charge and acquittal. Here the jury was
provided with the noncapital option of first degree murder without special
circumstances.” (People v. Sakarias (2000) 22 Cal.4th 596, 621, fn. 3; People v.
Horning (2004) 34 Cal.4th 871, 906.) And in any event, as defendant
acknowledges, “the constitutional requirement that capital juries be instructed on
lesser included offenses extends only to those lesser included offenses supported

                                         37
by substantial evidence.” (People v. Duff (2014) 58 Cal.4th 527, 562 (Duff), citing
Schad v. Arizona (1991) 501 U.S. 624, 648; Beck, supra, at p. 627.) Here there
was no substantial evidence that defendant did not commit first degree murder but
did commit one of the lesser included offenses on which, he asserts, the jury
should have been instructed.

           2. Admissibility of Troy Holloway’s out-of-court statements and trial
               testimony
       In March 1995, more than four months after the murder, Detective Frank
Gonzales interviewed Troy Holloway about events following the murder.
Holloway told Gonzales that the night after he found out that his friend Rexford
had been killed, he bought a nine-millimeter pistol from Steve Blackshire for $70.
He said he did not ask who had originally owned the gun, but he threw it into a
wash three or four days later because he decided he did not need it, and he threw
the bullets that had been in the gun into a field “by the tracks.”
       Two years thereafter, after defendant’s first trial had begun,8 Detective
Scott Franks located Holloway, who was stationed on a naval vessel in Virginia.
He asked naval officers to allow him to speak with Holloway, explaining that
Holloway was a possible witness to a crime. Two Navy petty officers brought
Holloway to a room, told him to call Franks, and remained present during the
ensuing telephone conversation.
       In the conversation, Detective Franks told Holloway he was “in no trouble
now,” but he needed to “be totally honest.” Franks said the judge “is really P.O.’d
about what’s been going on,” and “he’s ordered me to . . . report back to him and

8      At the first trial, the prosecution attempted to introduce evidence that it had
discovered after the trial had begun, as well as evidence described in an earlier
police report that had not been provided to the defense. The trial court granted the
defense’s motion for a mistrial.



                                          38
he’s gonna make a determination whether or not I have to call” Holloway’s
commanding officer and have Holloway taken into custody, in which case
Holloway would be brought before the judge to “tell . . . the truth or . . . [be held]
. . . in contempt of court.” Several times during the conversation, Detective
Franks repeated that Holloway risked being held in contempt if he did not tell the
truth, although the trial court had never indicated to Franks that he was “really
P.O.’d” or that Holloway might be held in contempt. At one point in the
conversation Holloway indicated that he was not alone—i.e., that he was speaking
in the presence of naval officers—and that he was worried about being killed.
Franks responded, “you can be a cooperative witness or you can be in handcuffs.”
       Holloway eventually said he would tell Detective Franks the truth. He then
admitted that defendant, not Blackshire, had given him the gun and that he had
returned it to defendant about two days thereafter. He also said that before the
murder, defendant had asked him where Josh Rexford lived and where he hung
out.
       Defendant moved to bar Holloway from testifying and to exclude his
statement to Detective Franks, arguing that Franks improperly used coercive
techniques to elicit Holloway’s telephone statements. The trial court denied the
motion, and Holloway testified for the prosecution. Defendant now argues that,
by allowing Holloway to testify and admitting his out-of-court statements to
Detective Franks, the court violated defendant’s rights to due process, to a fair
trial, and to a reliable determination of guilt, as guaranteed by the United States
and California Constitutions.
       Although the transcript of Holloway’s second interview was used by the
prosecutor to refresh Holloway’s memory on one point and by defense counsel to
impeach his testimony on another, defendant does not assert that the interrogation
tape was played for the jury or the transcript shown to them, and we have found no

                                          39
record of either event. For this reason, we focus on defendant’s claim that the
court erred in admitting Holloway’s trial testimony in light of the asserted police
coercion during the March 21, 1997, interview.
       “A defendant may assert a violation of his or her own right to due process
of the law and a fair trial based upon third party witness coercion . . . if the
defendant can establish that trial evidence was coerced or rendered unreliable by
prior coercion and that the admission of this evidence would deprive the defendant
of a fair trial.” (People v. Williams (2010) 49 Cal.4th 405, 452–453, italics
omitted.) The defendant must show that improper coercion “directly impaired the
free and voluntary nature” of the evidence offered at trial. (People v. Boyer (2006)
38 Cal.4th 412, 444; see also United States v. Juan (9th Cir. 2013) 704 F.3d 1137,
1142 [“the government’s substantial interference with the testimony of its own
witnesses can violate the Due Process Clause”].)
       While urging Holloway to be honest and tell the truth, Franks also made
plain the police believed, on the basis of others’ statements, that defendant had
given Holloway a nine-millimeter pistol on the night of Rexford’s killing.
Threats of punishment for failure to conform a statement to the police theory, such
as Franks made here, may constitute coercion and, under some circumstances,
produce an unreliable statement. Whether they did so here is uncertain. The
transcript of Holloway’s interview with Franks also includes several exchanges in
which Holloway discussed his fear of retribution if he pointed the finger at
defendant and Franks sought to reassure him, gain his trust and motivate him to do
the right thing by testifying against defendant.9 It is not at all clear whether

9       Franks told Holloway he believed Holloway was afraid of being killed;
later Holloway admitted his fear and asked how Franks knew. Holloway went on
to say that defendant “is a man that would come kill your ass. Why do you think I
                                                             (footnote continued on next page)


                                           40
Holloway changed his story during the March 21 interview because he feared
being held in contempt by the judge or because, having wanted all along to tell the
truth about the murder of his friend, he only then overcame his fear of defendant.
        Defendant points out that Holloway was supervised by military personnel
during the telephone interview, and argues that members of the armed forces may
face pressure to comply under circumstances where an ordinary citizen would not
feel coerced. The United States Court of Military Appeals has recognized that a
servicemember “may be especially amenable to saying what he thinks his military
superior wants him to say—whether it is true or not.” (United States v. Armstrong
(U.S.C.M.A. 1980) 9 M.J. 374, 378.) But here there is no reason to believe that
Holloway was trying to please his superiors when he made his statement to
Detective Franks. Nor is there any reason to believe that Holloway’s commanding
officer had an opinion about what Holloway should say. The petty officers who
were present during Holloway’s telephone interview had not been given any
specific information about Holloway’s prior statement to Detective Gonzales.
They were simply told that the police “were looking at [Holloway] . . . as a
witness to a crime.” Beyond their mere presence, there is no indication that they
expressly or impliedly pressured Holloway at any time during the interview.
        Defendant argues that Detective Franks’s statements constituted an
improper and coercive offer of leniency to Holloway. But Franks never gave any



(footnote continued from previous page)

been holding off so long?” Franks appealed to Holloway to stand up for the
victim, his friend. Eventually, Holloway said that though he was “[p]etrified that
this man was going to kill me,” he “could not sleep with this shit on my conscious
any more.” Near the interview’s end, Holloway asked for “protective custody”
and Franks promised to “take care of you.”



                                          41
indication that Holloway was in danger of being charged with a crime, and the
only promise of leniency he extended was the implicit promise that Holloway
would not be held in contempt if he cooperated and testified truthfully. Even if we
assume for the sake of argument that this promise was improper, “the case law
fails to support defendant’s premise that a third party witness’s statements are
rendered inadmissible against a defendant if induced by improper offers of
leniency.” (People v. Ervin (2000) 22 Cal.4th 48, 83.) “We have never held . . .
that an offer of leniency in return for cooperation with the police renders a third
party statement involuntary or eventual trial testimony coerced.” (People v.
Badgett (1995) 10 Cal.4th 330, 354.)
       We need not decide whether Holloway’s March 21, 1997, statement was
the product of coercion, as the record contains no evidence that any such coercion
extended to and influenced Holloway’s actual testimony. More than two months
passed between Holloway’s telephone interview with Franks and his testimony at
defendant’s trial. There is no evidence that in the interim Holloway sought to
disavow his statement or that Franks (or anyone else) threatened him with
punishment if he did. At trial, defense counsel cross-examined Holloway about
Franks’s assertedly coercive conduct in March, suggesting it motivated
Holloway’s change of story. Holloway responded that he told Franks about
defendant’s actions because “I decided it was time to tell the truth.” Franks’s
threat “played a part in it, yes, but I still had come to that conclusion.” Holloway
could have retracted his statement at trial and claimed he was forced to give it; he
instead defended it as the truth.
       In support of his contention that Franks’s coercion “was ongoing at trial,”
defendant notes that Holloway testified that he was then on “terminal leave” from
the Navy, which meant he was “in the process of being discharged.” But while
Holloway still may have been subject to military authority at the time of his

                                         42
testimony, defendant points to nothing to suggest a threat of military discipline if
Holloway did not implicate defendant in his testimony. Defendant also notes that
at the close of proceedings the day before Holloway’s testimony the prosecutor
(outside the presence of the jury) stated he had “sent . . . Officer Franks and
Mr. Holloway back to his hotel room.” Defendant infers Holloway was being kept
“under the supervision of county law enforcement.” Given Holloway’s March 21
request for Franks’s protection, however, no inference of coercive custody arises.
       For these reasons, we conclude the court did not err in allowing Holloway
to testify. As mentioned earlier, the record fails to show Holloway’s March 21
statement was itself introduced in evidence. To the extent it was, however, any
error in doing so would be harmless beyond a reasonable doubt in light of
Holloway’s properly admitted testimony and the testimony of Patrick Wiley and
Linda Farias, which corroborated Holloway’s in key respects.

           3. Failure to instruct the jury to consider defendant’s admissions with
               caution
       Defendant argues that the trial court committed prejudicial error when it
failed to give, sua sponte, CALJIC No. 2.71.7, which states: “Evidence has been
received from which you may find that an oral statement of [intent] [plan]
[motive] [design] was made by the defendant before the offense with which [he]
[she] is charged was committed. [¶] It is for you to decide whether the statement
was made by [a] [the] defendant.” As he points out, the prosecution, through the
testimony of Linda Farias and Troy Holloway, presented evidence of out-of-court,
preoffense statements by defendant that tended to show his intent, motive, and
planning for the Rexford murder.
       The Attorney General concedes in his briefing that the trial court should
have instructed the jury to view evidence of defendant’s statements with caution.
But after the brief was filed, we ruled that a trial court need not, absent a request


                                          43
by the defense, instruct the jury to view a defendant’s out-of-court statements with
caution. (People v. Diaz (2015) 60 Cal.4th 1176, 1181 (Diaz).) We declined to
decide whether this newly announced rule applies retroactively, however,
concluding that any error in that case was harmless. (Id. at p. 1195.) We reach the
same conclusion here.
       We have held that a trial court’s failure to give the cautionary instruction is
harmless when there is no conflict in the evidence regarding the testimony in
question, but “simply a denial by the defendant that he made the statements
attributed to him.” (People v. Dickey (2005) 35 Cal.4th 884, 906.) In Dickey, the
court did not give the cautionary instruction but did instruct on “the significance of
prior consistent or inconsistent statements of witnesses, discrepancies in a
witness’s testimony or between his or her testimony and that of others, witnesses
who were willfully false in one material part of their testimony being distrusted in
other parts, weighing conflicting testimony, [and] evidence of the character of a
witness for honesty and truthfulness to be considered in determining the witness’s
believability.” (Ibid.) It also gave “a general instruction on witness credibility
that listed other factors to consider.” (Ibid.) We found that the defendant was not
prejudiced by the court’s failure to instruct the jury to view out-of-court statements
with caution, noting that the defense “extensive[ly] impeach[ed]” the two
prosecution witnesses who testified that the defendant had made out-of-court
statements, and that the defense had raised credibility issues pertinent to the
omitted cautionary instruction. (Ibid.) In light of these facts, we concluded, “the
jury was unquestionably aware [the witnesses’] testimony should be viewed with
caution.” (Id. at p. 907.)
       Here, the trial court gave the same instructions that were given in Dickey,
covering prior consistent or inconsistent statements, discrepancies in testimony, a
willfully false witness, the weighing of conflicting testimony and the credibility of

                                          44
witnesses generally. As in Dickey, defendant simply denied making the
statements attributed to him, and defense counsel pointed out the inconsistencies
and weaknesses in the testimony of Holloway and Farias.
       Defendant argues that here, unlike Dickey, there was a conflict in the
evidence regarding the statements in question, claiming that prosecution witnesses
Farias and Holloway each gave inconsistent testimony describing what they heard
defendant say. Whether or not this is true, the details of the statements were not of
great import; the real question was whether he made the statements at all. If
defendant made the statements, they were circumstantial evidence tending to show
that he carefully planned the murder of Rexford; if he did not make the statements,
they were not evidence to be considered by the jury. Under these circumstances,
as in Dickey, any error in failing to give the cautionary instruction was harmless.
           4. Challenges to miscellaneous guilt phase
       Defendant argues that certain guilt phase instructions given by the trial
court (CALJIC Nos. 2.02, 2.21.2, 2.22, 2.27, 2.51, 2.62, and 8.20) violated his
constitutional rights to due process and trial by jury, as well as the requirement of
reliability in capital cases, by allowing the jury to convict him based on proof
insufficient to satisfy the beyond-a-reasonable-doubt standard.
       We have repeatedly held that these instructions do not unconstitutionally
lessen the prosecution’s burden of proof. (See, e.g., People v. Pearson (2012) 53
Cal.4th 306, 326 [addressing all of the instructions except CALJIC No. 2.62].)
We decline to revisit our decisions in those cases.
       Defendant includes CALJIC No. 2.62 in his list of instructions that he
claims undermined the reasonable doubt standard. But he offers no argument or
authority stating how or why that instruction affected the prosecutor’s burden of
proof. Indeed, he cites CALJIC No. 2.62 as an instruction that, unlike another
instruction he challenges, correctly states the law. In the absence of supporting

                                          45
argument or authority, we need not consider his challenge to CALJIC No. 2.62.
(Whalen, supra, 56 Cal.4th at p. 72, fn. 28, disapproved on other grounds in
People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.) In any event, the
instruction was properly given. (People v. Saddler (1979) 24 Cal.3d 671, 679–
680.)
        C. Special Circumstance Issues
            1. Sufficiency of evidence of prior murder special circumstance
        At the special circumstance phase of trial, the prosecution presented two
exhibits—exhibits 24 and 63—for the purpose of proving defendant’s alleged
prior murder conviction. The defense presented no evidence. After deliberating
for a short time, the jury found the alleged prior murder special circumstance to be
true. Defendant argues the evidence was insufficient to support the finding. We
begin by describing the two exhibits.
        Exhibit 24 contains five pages. Page 1 is a letter to the San Bernardino
Sheriff’s Department, the subject of which is “SMITH, Floyd Daniel Jr., YA#:
44591, Sup. Ct. No.: CR-22000.” The letter states, as relevant: “Attached are
documents showing the commitment under which we held the above named
subject . . . . Also attached are Order of Discharge, fingerprints, and rap sheet. No
photo available. [¶] This is to certify that I, the undersigned, am the official
custodian of all records of all wards committed to the Youth Authority, and that
the attached documents are true and correct copies of the records in my custody.”
The typed name at the bottom of the page is “Patricia A. Hagen, Supervisor,
Master Files” but the letter is signed “Kimberley L. Dornback for” Hagen. The
initials “PAH:kld” appear at the bottom of the page, indicating that Dornback is
Hagen’s secretary. Page 2 of the exhibit is a minute order from Riverside County
Superior Court stating that in case No. CR-22000, People v. Floyd Daniel Smith,
the defendant in that case appeared for “pronouncement of judgment” on a

                                          46
“conviction” on December 4, 1984. Five counts are listed. As relevant here, the
minute order describes the charge in count II as “187PC (12022.5 PC) (1st deg).”
The order states that the defendant in case No. CR-22000 is “committed to the
California Youth Authority . . . for a period of time prescribed by law. (25 years
to life plus two years enhancement as to count I [sic].)” A box checked on the
page indicates that “Plaintiff[]” moved to dismiss counts I, III, IV, and V, but it
does not say whether the motion was granted.
        Page 3 of the exhibit is an order certifying that defendant was honorably
discharged from the California Youth Authority in July 1992. Page 4 is a card
from the Federal Bureau of Investigation purporting to show the fingerprints of
Floyd Daniel Smith, which states that Smith’s “charge” was “PC 187/12022.5
murder, first degree; use of firearm,” and the “final disposition” of the charge was
“CYA commitment—Riverside County Superior Court.” Page 5 is a rap sheet for
Floyd Daniel Smith stating that Smith was placed in CYA custody from Riverside
County on January 10, 1985, for “187 PC—Murder: first degree—used firearm,”
that he was paroled on January 22, 1991, and that he was discharged on July 24,
1992.
        Exhibit 63 is 17 pages long. Page 1 appears to be a copy of the cover of a
folder that contains the Riverside county clerk’s record in the case of People v.
Floyd Daniel Smith. On this page is a red stamp (described in greater detail, infra)
stating that the attached pages are true copies of the record in the clerk’s office.
On the next three pages are a five count information, dated April 9, 1984, charging
defendant in case No. CR-22000 with five crimes, count II of which is murder.
Following this are four mostly illegible pages showing a complaint and an
amended complaint that were previously filed in Mt. San Jacinto Municipal Court
in the same case. The next eight pages are minute orders describing appearances



                                          47
by Floyd Daniel Smith in Case No. CR-22000. The last page is the first page of
the preliminary hearing transcript in Case No. CR-22000.
       Defendant makes three arguments in support of his claim that the evidence
of the prior conviction was insufficient, which we address below.
                a. Alleged certification errors
       Defendant argues that neither exhibit 24 nor exhibit 63 was properly
certified. (See Evid. Code, § 1530.) He points out that exhibit 24 was not signed
by the custodian of the records it contains, but by that person’s secretary, and there
is no evidence that the secretary had custody of the records or the authority to sign
the custodian’s name. And he notes that exhibit 63 was not actually signed: An
unknown person placed a red stamp on the exhibit’s first page that states: “This
must be in red to be a ‘CERTIFIED COPY.’ [¶] Each document to which this
certificate is attached is certified to be a full, true and correct copy of the original
on file and of record in my office.” Included in the stamped material is a stamped
signature of Arthur A. Sims, Clerk of the Riverside County Municipal and
Superior Courts, and what appears to be the seal of those courts.
       At trial, defendant did not object to the admissibility of either exhibit, and
he does not now claim that the trial court should not have admitted them. Rather,
he argues that because the documents were not properly certified, they are not
sufficiently reliable to constitute substantial evidence supporting the jury’s finding
that defendant had a prior murder conviction. We therefore reject the Attorney
General’s argument that defendant forfeited this claim, which is based on the
inaccurate understanding that defendant is arguing, in essence, that the court
should not have admitted the exhibits.
       “To determine whether the evidence supports a special circumstance
finding, we must review ‘ “the entire record in the light most favorable to the
judgment to determine whether it discloses evidence that is reasonable, credible,

                                           48
and of solid value such that a reasonable jury could find” ’ the special
circumstance allegation true ‘ “beyond a reasonable doubt.” ’ ” (People v.
Becerrada (2017) 2 Cal.5th 1009, 1028 (Becerrada), quoting People v. Johnson
(2015) 60 Cal.4th 966, 988.) If the exhibits satisfy this standard, they are
substantial evidence regardless of whether they satisfied Evidence Code section
1530’s requirements for proper certification. Thus, to resolve defendant’s claim,
we need not decide whether the documents were properly certified.
       The letter signed by Kimberley Dornback for Patricia Hagen on the first
page of exhibit 24 was embossed with the stamp of CYA,10 and the red stamp
appearing on the first page of exhibit 63 depicts the stamped signature of the court
clerk and the seal of the Riverside Municipal and Superior Courts. All of the
documents attached to these two cover sheets appear to be official documents. We
consider it highly improbable that the attached documents were in fact forgeries,
that the person described in them was not convicted, and that some unknown
person concocted an elaborate and easily disprovable hoax to frame defendant
with a fake conviction. Thus, exhibits 24 and 63 are evidence of reasonable,
credible, and solid value (see Becerrada, supra, 2 Cal.5th at p. 1028), and thus are
substantial evidence tending to show that defendant had a prior murder conviction.
               b. Sufficiency of evidence that defendant was the person convicted
       Defendant asserts that the exhibits do not identify him as the person who
was convicted. But the exhibits describe the conviction of “Floyd Daniel Smith,”
and the jury was aware that this was defendant’s name. More significantly,
exhibit 24 contains a card showing the fingerprints of the convicted person, and at
the guilt phase of trial Lita Holober, who worked for the crime scene

10    The embossment does not appear on the copy of exhibit 24 in the Clerk’s
Transcript, but it is plainly visible on the exhibit itself.



                                         49
investigations unit of the San Bernardino Sheriff’s Department, testified that the
fingerprints on that card were defendant’s prints.
         Defendant argues that the jury was not permitted to consider Holober’s
testimony because she testified at the guilt phase of trial, not the special
circumstance phase. We disagree. Penal Code section 190.4, subdivision (d),
states: “In any case in which the defendant may be subject to the death penalty,
evidence presented at any prior phase of the trial . . . shall be considered an [sic]
any subsequent phase of the trial, if the trier of fact of the prior phase is the same
trier of fact at the subsequent phase.”11 Under this provision’s plain meaning, the
jury was entitled to consider Holober’s testimony. Defendant disagrees, relying
on this sentence in People v. Alvarez (1996) 14 Cal.4th 155, 242–243: “Penal
Code section 190.4, subdivision (d), declares in substance that, if the trier of fact at
the penalty phase is the same as that at the guilt phase, it must consider the guilt
phase evidence.” But the quoted sentence in Alvarez says nothing about whether a
jury may consider guilt phase evidence at the special circumstance phase—it
merely explains that a jury must consider guilt phase evidence at the penalty
phase.
         Defendant notes that when the trial court instructed the jury at the special
circumstances phase, it told the jury to “decide whether, from looking at these
documents, . . . [defendant] was previously convicted of murder or not,” and to
determine “if the records show that he was convicted of that murder.” Seizing
upon the italicized language, defendant argues that the court thereby told the jury
not to consider relevant guilt phase evidence. We do not read the court’s
comments as barring the jury from considering relevant guilt phase evidence that it

11       The word “an” appears to be a drafter’s error, and should be either “at” or
“in.”



                                           50
was statutorily required to consider. And when that evidence is taken into
consideration, the evidence is more than sufficient to show that defendant was the
person who was convicted of the prior offense.12
               c. Sufficiency of evidence that defendant was convicted of murder
       Finally, defendant asserts that the evidence was insufficient to show that the
crime he was convicted of was murder, asserting that “[t]he exhibits do not even
mention a prior murder conviction.” We disagree. The December 4, 1984, minute
order in exhibit 24 states that defendant was appearing for judgment on a
conviction. Five counts were listed, one of which was count II, described as
“187PC (12022.5 PC) (1st deg).” The minute order is ambiguous with respect to
whether the other four counts were dismissed; it showed that a motion had been
made to dismiss those counts, but it does not reveal the outcome of that motion.
But the minute order unambiguously shows that defendant was convicted and
sentenced on count II. And while the minute order’s description of the charge in
count II may have been unintelligible to the jury, the meaning was clarified by the
accompanying fingerprint card, which says that “PC 187/12022.5” is “murder,
first degree” with “use of firearm.” This is confirmed by: (1) the rap sheet in


12      Defendant points out that a bracketed portion of CALCRIM No. 750, which
is to be given at the special circumstances phase of trials in which the prosecution
is alleging a prior murder special circumstance, states: “In deciding whether the
People have proved this special circumstance, consider only the evidence
presented in this proceeding. Do not consider your verdict or any evidence from
the earlier part of the trial.” But CALCRIM did not exist at the time of trial and
CALCRIM No. 750 was not given here; thus, that instruction has no bearing on
the issue before us. The bench notes accompanying CALCRIM No. 750 do not
explain why the Judicial Council Advisory Committee on Criminal Jury
Instructions included this portion of the instruction in CALCRIM No. 750, and we
suggest that the committee reconsider the instruction in light of Penal Code section
190.4, subdivision (d).



                                         51
exhibit 24, which states that defendant was committed to CYA for first degree
murder; (2) the information in exhibit 63, count II of which states that defendant
was charged with murder in violation of Penal Code section 187; and (3) the
minute order in exhibit 63 dated July 13, 1984, which states that defendant pled
guilty to count II and the trial court fixed the degree of the offense as first degree.
       Defendant points out that a clerk erroneously wrote on the minute order that
defendant was committed for “25 years to life plus two years enhancement as to
count I” (italics added), and argues that the jury should therefore have inferred that
the minute order described a conviction for robbery, which was charged in count I,
rather than the murder charged in count II. But the jury was not required to draw
this inference in view of the other evidence, described above, that defendant was
convicted of murder, not robbery. Defendant also argues that the jury should have
inferred from the minute order of the proceedings expunging the conviction, which
states the guilty plea was withdrawn and the matter was “dismissed nunc pro tunc”
on May 18, 1993, that the murder conviction was thereby invalidated. But the jury
was not required to draw this legally unsound inference, and the presence of this
minute order in exhibit 63 in no way undermines our conclusion that the
remaining evidence presented to the jury amply supports its determination that
defendant had a prior murder conviction.

           2. Use of defendant’s juvenile conviction to prove the prior-murder
               special circumstance
       Defendant mounts three constitutional attacks on the prior-murder special
circumstance, which is based on a murder he committed before he was 18 years
old. First, drawing on the reasoning of the United States Supreme Court’s
decision in Roper v. Simmons (2005) 543 U.S. 551 (Roper), defendant argues that
the Eighth Amendment to the federal Constitution bars imposition of the death
penalty based on a prior-murder special circumstance when, as here, the prior


                                          52
murder was committed when defendant was a juvenile. Second, defendant
contends that California laws pertaining to the transfer of minors to adult court to
face homicide charges permit prosecutors and judges “to make arbitrary and
unreliable choices regarding which homicides committed by a person under age 18
can later be used to establish death eligibility.” For this reason, he asserts, the
Eighth and Fourteenth Amendments prohibit imposition of capital punishment
based on a California murder conviction of a juvenile who, like defendant, was
charged and convicted of murder as an adult under these provisions. Finally,
defendant argues that because California’s prior-murder special circumstance
applies to murder convictions sustained by juveniles in adult court, but not to
murder adjudications sustained by juveniles in juvenile court, the special
circumstance violates the Fourteenth Amendment’s equal protection clause.
       Defendant did not raise these claims at trial, and the Attorney General
argues that he has therefore forfeited them, with the exception of the first
argument, which relies on a United States Supreme Court decision that was not
issued until after defendant’s trial. (See Roper, supra, 543 U.S. 551.) We have,
however, consistently considered the merits of attacks on the constitutionality of
special circumstance allegations in capital cases even when they were not raised at
trial (People v. Hernandez (2003) 30 Cal.4th 835, 863), and we do so here.
       The claims, however, lack merit, as this court recently explained in People
v. Salazar (2016) 63 Cal.4th 214. Salazar held that Roper, supra, 543 U.S. 551,
does not bar the use of a prior murder committed when the defendant was a
juvenile as a special circumstance qualifying the defendant for the death penalty.
We explained: “It does not violate the Eighth Amendment for the Legislature to
conclude, as a matter of policy, that an adult who murdered as a juvenile, failed to
learn from that experience, and killed yet again, is a person ‘within the narrowed
class of murderers for whom death would be an appropriate penalty.’ [Citation.]

                                          53
The punishment is not imposed for the juvenile offense, but for the crime
committed as an adult, considered in light of the defendant’s criminal history.”
(Salazar, supra, 63 Cal.4th at p. 226.) Salazar also rejected the claim of the
defendant in that case that “the use of juvenile murder convictions as special
circumstances violates the Eighth Amendment and the constitutional guarantees of
due process and equal protection because California’s juvenile transfer policies
permit prosecutors and juvenile courts to exercise arbitrary discretion over which
homicides result in murder convictions instead of juvenile court adjudications.”
(Id. at p. 227.) We explained that “[t]he prior-murder special circumstance does
not turn on the procedures underlying the prior conviction, but on the gravity of
the conduct that is the necessary predicate of that conviction.” (Ibid.) Finally,
Salazar held that “[e]qual protection principles do not foreclose the Legislature
from concluding that those who commit a capital crime after being convicted of a
juvenile murder in superior court are more culpable than those whose prior murder
was adjudicated in juvenile court.” (Ibid.)
       Defendant offers no persuasive reason to reconsider our resolution of these
questions in Salazar, and we decline to do so.
           3. Constitutionality of the lying-in-wait special circumstance
       Defendant argues that the lying-in-wait special circumstance fails to serve
the narrowing function required by the United States Constitution and therefore
violates his Eighth and Fourteenth Amendment rights. We have repeatedly
rejected this claim (see, e.g., People v. Casares (2016) 62 Cal.4th 808, 848–853;
People v. Cage (2015) 62 Cal.4th 256, 281) and we decline defendant’s invitation
to reconsider the issue.




                                         54
       D. Penalty Phase Issues
           1. Omission of penalty phase instructions on general principles of law
       Before the jury began its penalty deliberations, the trial court instructed it to
disregard all prior guilt phase instructions. (CALJIC No. 8.84.1.) It then gave
instructions covering, among other things, the jury’s consideration of aggravating
and mitigating circumstances and its consideration of prior convictions and prior
criminal acts offered in aggravation. But it did not reinstruct the jury on the
applicable general principles of law. Defendant contends that its failure to do so
was prejudicial error.
       We agree with defendant that the trial court should have reinstructed the
jury. At the penalty phase, the trial court must “instruct sua sponte on the general
principles of law relevant to the evidence.” (People v. Daniels (1991) 52 Cal.3d
815, 885.) If the court instructs the jury at penalty phase to disregard previously
given instructions, “it must later provide [the jury] with those instructions
applicable to the penalty phase.” (People v. Moon (2005) 37 Cal.4th 1, 37
(Moon).)
       The Attorney General argues that defendant invited the error by agreeing to
the language of CALJIC No. 8.84.1. We disagree. As we explained when we
rejected a somewhat similar contention: “Counsel did not . . . request or invite the
trial court to omit from the penalty instructions those instructions he now claims
were important. . . . [C]ounsel may well have believed that the court would—
consistent with CALJIC No. 8.84.1—later reinstruct the jury with those guilt
phase instructions that retained their applicability in the penalty phase.” (Moon,
supra, 37 Cal.4th at p. 37, fn. omitted.) Defense counsel’s agreement to the use of
CALJIC No. 8.84.1 “did not absolve the trial court of its obligation under the law
to instruct the jury on the ‘general principles of law that [were] closely and openly
connected to the facts and that [were] necessary for the jury’s understanding of the

                                          55
case.’ ” (Ibid., quoting People v. Carter (2003) 30 Cal.4th 1166, 1219 (Carter).)
But, as explained below, the error was harmless.
       The court’s failure to reinstruct on general principles at penalty phase is not
necessarily prejudicial, even if the jury has been told to disregard its earlier
instructions. (Moon, supra, 37 Cal.4th at p. 37.) Beyond general (and inadequate)
speculation about possible harms that could have flowed from the failure to
provide all potentially applicable instructions, defendant mentions only two
instructions whose absence, he claims, affected the jury’s deliberations: The
instruction on factors to consider in assessing witness credibility (CALJIC
No. 2.20), and the instruction on factors to consider in proving identity by
eyewitness testimony (CALJIC No. 2.92).13 The latter claim is easily disposed of,
because the trial court need not give that instruction unless requested to do so by
the defense (People v. Alcala (1992) 4 Cal.4th 742, 802–803), and defendant made
no such request at the penalty phase. But because trial courts must instruct on
factors affecting witness credibility in every case (Diaz, supra, 60 Cal.4th at
p. 1191; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883–884), we consider
his argument pertaining to that instruction in greater depth.
       Defendant points out that prosecution witness Felton M. testified that, 13
years before trial, defendant robbed and sexually assaulted him at gunpoint and
left him naked in a field. Felton also testified that he identified defendant as the
perpetrator from a series of photographs he looked at several days after the

13     Although defendant does not mention the point, the trial court also did not
reinstruct the jury on the definition of reasonable doubt. But a trial court’s failure
to redefine reasonable doubt at the penalty phase after giving CALJIC No. 8.84.1
is harmless when, as here, the jury has no reason to believe that reasonable doubt
might be defined in any way other than the definition it received at the guilt phase.
(People v. Lopez (2013) 56 Cal.4th 1028, 1081–1082; People v. Boyce (2014) 59
Cal.4th 672, 716–717.)



                                          56
incident, and that he again identified defendant in a court proceeding.14 There is,
however, some indication that Felton may have been intellectually disabled, and
because the assault occurred when defendant was 16 years old, his appearance
may have changed significantly during the 13 years between the attack and the
trial. Each of these circumstances could have affected Felton’s ability to identify
defendant. In cross-examination, defense counsel questioned Felton’s ability to
recall the incident, and in his closing statement counsel argued that Felton’s
testimony was inadequate to show beyond a reasonable doubt that defendant was
the perpetrator. Defendant asserts that CALJIC No. 2.20 would have assisted the
jury in evaluating Felton’s testimony.
       We have, however, repeatedly found similar errors to be harmless (People
v. Brooks (2017) 3 Cal.5th 1, 107–109; People v. Boyce, supra, 59 Cal.4th at
pp. 714–717; People v. Lopez, supra, 56 Cal.4th at pp. 1081–1083; People
v. Souza (2012) 54 Cal.4th 90, 134–136; People v. Lewis (2008) 43 Cal.4th 415,
534–536; People v. Rogers (2006) 39 Cal.4th 826, 904; Moon, supra, 37 Cal.4th at
pp. 35–39; Carter, supra, 30 Cal.4th at pp. 1218–1222), and we reach the same
conclusion here. As we explained in Lewis: “Unlike defendant, ‘we see no reason
to assume’ [citation] that the jurors would have felt free to evaluate the penalty
phase evidence in a vacuum, rather than carefully and deliberately, as they
apparently had evaluated the guilt phase evidence. Nothing in the closing
arguments of the parties suggested that the jurors were free to make a standardless
assessment of the evidence. Nor did the jurors ask any questions or request
clarification as to how to assess any of the penalty phase evidence.” (Lewis, at
p. 535.) And, as in Carter and Moon, defendant “fails to suggest how the jury . . .

14      The charges were dismissed following defendant’s conviction and sentence
for the murder of Virgil Fowler.



                                         57
might have misunderstood or misused” the evidence in question. (Carter, at
p. 1221; Moon, at p. 38.) Defense counsel attacked Felton M.’s credibility in his
closing statement, and we see no reason to believe that the jury would not have
given his argument the consideration it deserved. We therefore find no reasonable
possibility (People v. Brown (1988) 46 Cal.3d 432, 446–448 [reasonable-
possibility test applies to state law error at the penalty phase]) that the error altered
the outcome of the penalty trial.15

           2. Trial court’s denial of defendant’s motion to represent himself
               during penalty phase closing argument
       On the morning scheduled for defendant’s penalty phase closing argument,
the defense told the trial court that defendant wanted to “relieve [c]ounsel of their
current duties” and to represent himself at closing argument. The court denied the
request. It noted that defendant’s attorneys had provided “wonderful”
representation, and it expressed concern that “constant objections” would ensue
because defendant would, in effect, use closing argument “as a vehicle for
testimony,” even if it was not his intention to do so. The court opined: “[G]iven
what I know about your personality, I think that it would just be a matter of time
before you’d . . . lose your temper.” As if to illustrate the court’s concern,
defendant responded, “I don’t want these people to represent me any fucking
longer,” and, when defense counsel requested three minutes to gather his things,
defendant unsuccessfully demanded that the jury be brought in immediately,
stating: “I don’t need three minutes. I don’t need three minutes for shit.”

15      We reiterate the admonition we gave in Carter, supra, 30 Cal.4th at page
1222: “[W]e strongly caution trial courts not to dispense with penalty phase
evidentiary instructions in the future. The cost in time of providing such
instructions is minimal, and the potential for prejudice in their absence surely
justifies doing so.”



                                           58
       Defendant argues that the trial court erroneously denied his request to
represent himself at the penalty phase closing argument, in violation of the state
and federal Constitutions. We disagree.
       “[I]n order to invoke the constitutionally mandated unconditional right of
self-representation a defendant in a criminal trial should make an unequivocal
assertion of that right within a reasonable time prior to the commencement of
trial.” (People v. Windham (1977) 19 Cal.3d 121, 127–128 (Windham), fn.
omitted.) “[O]nce a defendant has chosen to proceed to trial represented by
counsel, demands by such defendant that he be permitted to discharge his attorney
and assume the defense himself shall be addressed to the sound discretion of the
court. . . . Among other factors to be considered by the court in assessing such
requests made after the commencement of trial are the quality of counsel’s
representation of the defendant, the defendant’s prior proclivity to substitute
counsel, the reasons for the request, the length and stage of the proceedings, and
the disruption or delay which might reasonably be expected to follow the granting
of such a motion.” (Id. at p. 128.) “A trial court abuses its discretion when its
ruling ‘fall[s] “outside the bounds of reason.” ’ ” (People v. Waidla (2000) 22
Cal.4th 690, 714.)
       Applying that standard, we find no abuse of discretion. As in Windham,
supra, 19 Cal.3d at page 130, “defendant’s request came at an exceedingly late
stage of the trial. Denial of the motion for self-representation resulted in nothing
more than preventing defendant from addressing the jury during closing
argument.” The trial court could reasonably believe that granting the motion
would be disruptive because defendant would have difficulty controlling his
temper and because it would be hard for him not to use closing argument as a
vehicle for offering new testimony “while not under oath or subject to cross-
examination.” (Ibid.) And the court could reasonably conclude that defendant’s

                                          59
attorneys had provided high quality representation before the self-representation
request. Thus, as in Mayfield, supra, 14 Cal.4th at page 810, “[b]ecause two of
[the Windham] factors—the quality of counsel’s representation and the disruption
that granting the motion would cause—weighed strongly against the granting of
the motion, denial of the motion was not an abuse of the trial court’s discretion.”
       Defendant does not appear to disagree that an untimely Faretta motion
(Faretta v. California (1975) 422 U.S. 806) is addressed to the trial court’s
discretion. But he argues that the only factors the trial court may consider are the
request’s equivocal or unequivocal character and its potential for causing delay or
other disruption. He argues Windham was wrong to permit courts to consider
other factors—an error, he contends, that is traceable to a mistaken assumption
that the self-representation right disappears once trial has begun. We disagree. In
exercising its discretion over an untimely request, the court must consider whether
any disruption that would be caused by granting the request is likely to be
aggravated, mitigated or justified by the surrounding circumstances, including the
quality of counsel’s representation to that point, the reasons the defendant gives
for the request, and the defendant’s proclivity for substituting counsel. Defendant
cites no authority, and we are aware of none, to suggest that these considerations
are impermissible under Faretta.
            3. Challenges to California’s death penalty statute
       Defendant raises a series of challenges to California’s death penalty statute
on grounds that we have repeatedly rejected. We decline to revisit our prior
holdings.




                                         60
       “[Penal Code] [s]ection 190.3 sufficiently narrows the class of murderers
eligible for capital punishment.” (People v. Harris (2008) 43 Cal.4th 1269, 1322.)
“ ‘[C]onsideration of the circumstances of the crime under section 190.3, factor (a)
does not result in arbitrary or capricious imposition of the death penalty.’ ”
(People v. Brasure (2008) 42 Cal.4th 1037, 1066.)
       “ ‘Neither the federal nor the state Constitution requires that the penalty
phase jury make unanimous findings concerning the particular aggravating
circumstances, find all aggravating factors beyond a reasonable doubt, or find
beyond a reasonable doubt that the aggravating factors outweigh the mitigating
factors.’ ” (People v. Linton (2013) 56 Cal.4th 1146, 1215.) “Nor are the
instructions unconstitutional for failing to prescribe any burden of proof, require
juror unanimity, or set out a ‘presumption of life.’ ” (People v. Howard (2010) 51
Cal.4th 15, 39.) The United States Supreme Court’s recent decision in Hurst v.
Florida (2016) 577 U.S. ___ [136 S.Ct. 616], does not alter this conclusion.
(People v. Jackson (2016) 1 Cal.5th 269, 374; People v. Rangel (2016) 62 Cal.4th
1192, 1235 & fn. 16.)
       “Consideration by the jury of unadjudicated criminal conduct at the penalty
phase does not violate the state or federal Constitution.” (Duff, supra, 58 Cal.4th
at p. 570.) The jury need not unanimously find the prior criminal activity
occurred. (Ibid.)
       The trial court had no duty to instruct the jury that it could sentence
defendant to life without possibility of parole even if it determined that the
“aggravating circumstances are so substantial in comparison with mitigating
circumstances as to warrant the death penalty.” (People v. Smith (2005) 35
Cal.4th 334, 370.) Nor need the jury be instructed on a “presumption” favoring
life imprisonment. (People v. Wall (2017) 3 Cal.5th 1048, 1072.)



                                          61
       “ ‘The California death penalty statute is not unconstitutional in failing to
require the jury to make written findings concerning the aggravating
circumstances it relied upon, nor does the failure to require written findings
preclude meaningful appellate review.’ ” (People v. Salcido (2008) 44 Cal.4th 93,
166, quoting People v. Prince (2007) 40 Cal.4th 1179, 1297.)
       “CALJIC No. 8.85 does not violate the Sixth, Eighth, or Fourteenth
Amendments by including vague factors, by failing to delete inapplicable factors
or differentiate between aggravating and mitigating factors, by using the adjectives
‘extreme’ and ‘substantial,’ or by omitting a burden of proof as to either mitigation
or aggravation.” (People v. Williams (2013) 56 Cal.4th 165, 201.)
       “Intercase proportionality review is not required.” (People v. Livingston
(2012) 53 Cal.4th 1145, 1180.) “The California death penalty scheme does not
violate equal protection by treating capital and noncapital defendants differently.”
(Ibid.) “California’s death penalty scheme does not violate international law and
norms.” (People v. Mai (2013) 57 Cal.4th 986, 1058.)




                                         62
                                 III. DISPOSITION
       We affirm the judgment.


                                                 KRUGER, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
BENKE, J.*




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



                                         63
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Smith
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S065233
Date Filed: May 21, 2018
__________________________________________________________________________________

Court: Superior
County: San Bernardino
Judge: John W. Kennedy

__________________________________________________________________________________

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointments by the Supreme
Court, Barry P. Helft, Chief Deputy State Public Defender, Joseph E. Chabot, Jamilla Moore and Elias
Batchelder, Deputy State Public Defenders, for Defendant and Appellant.

Edmund G. Brown, Jr., and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler,
Chief Assistant Attorneys General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General,
Annie Featherman Fraser, Gil Gonzalez, Holly D. Wilkens, Kimberley A. Donohue and Allison V. Acosta,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Elias Batchelder
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607
(510) 267-3300

Allison V. Acosta
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9111
