         IN THE SUPREME COURT OF
                CALIFORNIA

                        THE PEOPLE,
                   Plaintiff and Respondent,
                               v.
                  JOE EDWARD JOHNSON,
                   Defendant and Appellant.

                            S029551

              Sacramento County Superior Court
                           58961



                      November 25, 2019



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

Justice Liu filed a dissenting opinion.

Justice Cuéllar filed a dissenting opinion in which Justice Liu
concurred.
                    PEOPLE v. JOHNSON
                            S029551


         Opinion of the Court by Cantil-Sakauye, C. J.


       A jury convicted defendant Joe Edward Johnson of the
first degree murder of Aldo Cavallo, and found true the special
circumstance allegation that defendant committed the murder
while engaged in a home invasion robbery. (Pen. Code,1 §§ 187,
subd. (a) [murder], 190.2, subd. (a)(17)(i) [robbery murder].) The
jury also convicted defendant of the forcible rape (§ 261, subd.
(a)(2)) and assault with intent to commit murder (former § 217)
of Mary S. The jury returned a verdict of death, and the trial
court sentenced defendant accordingly.
      An automatic appeal followed. (§ 1239, subd. (b).) This
court initially held that the trial court had committed reversible
error under People v. Shirley (1982) 31 Cal.3d 18, by admitting
into evidence the hypnotically induced identification of
defendant by Mary S., and we reversed all convictions and the
death sentence on that basis. However, we subsequently
granted the People’s petition for rehearing, vacated our earlier
decision, and issued an opinion reversing the rape and assault
convictions but affirming the murder conviction and special
circumstance finding. (People v. Johnson (1988) 47 Cal.3d 576.)
We also reversed the judgment of death due to the trial court’s
erroneous jury instruction on the possibility of future



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


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commutation under People v. Ramos (1984) 37 Cal.3d
136. (People v. Johnson, at p. 603.)
      The prosecution retried the penalty phase based on the
murder conviction and special circumstance finding. It elected
not to retry defendant on the rape and related charges. The first
penalty phase retrial ended in a mistrial in 1991. The jury in
the second penalty phase retrial returned a death verdict in
1992, and the trial court sentenced defendant to death. This
appeal is automatic. We affirm the judgment in its entirety.
                     I. SUMMARY OF FACTS
     A. Prosecution Evidence
     The People presented the following evidence during the
second penalty phase retrial.
         1. Robbery and murder of Aldo Cavallo
      One evening in late July 1979, defendant removed the
screen from an open kitchen window to enter Cavallo’s
apartment via the back door. Defendant retrieved a dumbbell
from the apartment’s second bedroom, walked to the master
bedroom, and then struck a sleeping Cavallo once or twice in the
temple. The chain lock on the front door was still in place,
suggesting defendant exited the way he had entered.
      Police responding to a neighbor’s welfare check found
Cavallo’s apartment in shambles: drawers were open with
contents dumped on the floor and a television sat on the floor in
the hallway. Two guns — one a shotgun and another a shotgun
or a rifle — and ammunition were lying on the floor. Cavallo’s
body was found on his bed under the covers. His head was
covered with blood. On the foot of the bed lay a dumbbell or
barbell with traces of blood and hair on it. The cause of death
was determined to be a single major blow to the right temporal

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area, consistent with having been caused by the dumbbell found
at the scene.
      Investigators found a window screen, apparently taken
from the open window, leaning against a patio chair. A latent
fingerprint was obtained from the removed kitchen screen, and
a fingerprint expert identified the print as belonging to
defendant.
      Inside the apartment, officers found a receipt for a Bohsei
portable television but did not locate the accompanying
television. They contacted the manufacturer and received a
copy of the warranty paperwork, including the television’s serial
number. The officers subsequently conducted a parole search of
defendant’s apartment and located the missing television set.
Cavallo’s close friend confirmed she had seen the found
television in Cavallo’s kitchen.
      The prosecution read the testimony of three witnesses
from prior trials concerning Cavallo’s ownership of a .22-caliber
handgun, including friend Richard Canniff. Cavallo had told
Canniff on multiple occasions that he kept a handgun in his
nightstand for protection. Officers did not locate a handgun in
Cavallo’s apartment, but they found an open box of .22-caliber
cartridges on the dining table and a second box in the bedroom
closet. Cavallo’s ex-wife, who was available for the second
penalty phase retrial, testified that he owned a .22-caliber
handgun.
         2. Evidence in aggravation
      At the second penalty phase retrial, the prosecution
presented evidence of defendant’s rape and assault of Mary S.
as evidence in aggravation under section 190.3, factor (b)
(presence or absence of criminal activity involving the use,


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attempted use, or threats to use force or violence). The
prosecution also presented evidence that defendant had four
prior felony convictions as evidence in aggravation under section
190.3, factor (c) (presence or absence of any prior felony
conviction), and that defendant had committed one additional
previously uncharged aggravating act of criminal violence under
section 190.3, factor (b).
            a. Rape and assault on Mary S.
       Four days after Cavallo was robbed and murdered, Mary
S. attended mass at her church. She stayed behind in her pew
after mass ended. Defendant entered the church, approached
Mary S., and asked her where the priest’s house was. Defendant
started to walk away after Mary S. provided him directions, but
turned around and walked back toward her holding a gun. He
said, “Keep quiet and you won’t get hurt, and come with me.”
      Defendant directed Mary S. into a bathroom at the back of
the church. He fired his gun into the toilet seat and said he
would not hurt her if she remained quiet. He ordered Mary S.
to take off her pants and “[g]et on the toilet,” and then raped
her. After instructing Mary S. to put her pants back on,
defendant asked if she had any money. She said she had only
change. Defendant took her purse and looked inside. He shoved
the purse into Mary S.’s hands and told her to pull her sweater
over her head. Defendant struck Mary S. on the head with his
gun, which broke into pieces.
      After putting her sweater over her head, the next thing
Mary S. remembered was “groping” her way out of the back room
and into the church. She approached a woman in the pews and
asked for help. Mary S. was rushed into surgery to treat a
depressed skull fracture. The neurosurgeon opened her scalp,


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             Opinion of the Court by Cantil-Sakauye, C. J.


removed fragments of bone, and sutured a cut on the dura. The
surgeon counted 10 individual wounds on Mary S.’s skull caused
by both blunt force and sharp force. The wounds were consistent
with having been caused by a semiautomatic pistol. Mary S.
suffered loss of smell, postoperative vertigo, and amnesia
regarding some aspects of the attack.
     When Mary S. awoke from surgery, a police detective
showed her more than 50 photographs of possible suspects,
which included a photograph of defendant. Mary S. also
reviewed photographs at her home after she was released from
the hospital. She did not recognize her assailant among the
photographs.
      Doctors collected sexual assault evidence at the request of
the police. A criminalist compared the blood types of Mary S.
and defendant and determined they both had type O blood. The
vaginal swab contained a mixture of vaginal fluid and semen,
both of which were contributed by a donor or donors with type
O blood. The criminologist was unable to conclude whether
defendant was the source of the semen.
      The handgun’s broken pieces, some of which had traces of
human blood, were found at the scene. Officers found and lifted
at least one latent fingerprint on the gun’s magazine. A
fingerprint expert concluded that defendant’s prints matched
those found on the magazine.
      The criminologist compared the cartridges found in the
magazine to the live ammunition recovered from Cavallo’s
apartment.    He found that all the cartridges had been
manufactured by the Federal Cartridge Company with no
discernable difference in type, caliber, or overall physical



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characteristics. The letter “F” logo on all of the bullets appeared
to have been marked by the same tool.
             b. Stabbing of Verna O.
      In 1978, Verna O. met defendant when she was working
as a janitor at a Sonoma hospital. Sometime after that, he
moved in with her and they developed a relationship. About two
weeks later, Verna O. asked defendant to leave because of his
controlling and threatening behavior. He had previously told
her that he would decapitate her children and grandchildren if
she “did anything against him.”
      In early December 1978, defendant, Verna O., and her
friend, Lisa, were at home. Verna O. and Lisa prepared to leave
the house because defendant had previously asked Verna O. not
to be home that evening, when his friends were coming over.
Defendant screamed at Verna O., ordered her not to leave the
house, and slapped her. He then retrieved a knife from the
bedroom and stabbed Verna O. in the neck and chest. Defendant
told Verna O. that she “would be dead in two minutes.” Verna
O. asked defendant to leave her alone and let her die in peace.
He went back into the bedroom, and Verna O. staggered outside.
Lisa took Verna O. to the hospital, where Verna O. remained for
several days.
     Defendant was convicted of assaulting Verna O. with a
deadly weapon (former § 245, subd. (a)(1)).
             c. Assault on Thomas Scott
       The prosecution read prior testimony from Thomas Scott,
who was deceased at the time of the second penalty phase
retrial. Scott was housed with defendant in a state medical
facility in 1973. One evening, Scott was in bed when defendant
started yelling and called Scott a vulture, accusing him of owing


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defendant a jar of coffee and cigarettes. Defendant hit Scott
with a chair, knocking him unconscious. Scott received stitches
on his chin and suffered permanent nerve damage to his left eye.
      Defendant was convicted of assault with a deadly weapon
while confined in state prison (§ 4501).
             d. Attack on Officer Laughlin and prison escape
      After the assault on Scott, defendant was incarcerated at
a correctional facility in Chino. In April 1974, Correctional
Officer Steven Laughlin supervised defendant and two other
inmates while they worked on landscaping in an area between
the prison building and the fencing surrounding the institution.
One of the inmates struck Laughlin from behind, hitting him in
the head and causing him to fall. As Laughlin tried to stand up,
defendant hit him in the face multiple times and knocked him
back to the ground. The first inmate walked away and remained
seated nearby until the end of the incident, but the second
inmate and defendant dragged Laughlin to the side of the
building, tied him up, gagged him, and continued to hit him.
Laughlin saw defendant and the second inmate run toward the
fence and climb over. Laughlin was taken to a local hospital,
where he received 19 stitches on his face and head.
      Defendant was apprehended within 24 hours. He pleaded
guilty to committing an escape with force (§ 4530, subd. (a)), and
was sent to a state hospital for treatment.
             e. Attempted murder and witness threat on
                Florence M.
     In September 1971, defendant moved in with his half-
brother, Priestley M., and Priestley’s wife, Florence M. At the
time, Florence M. was several months pregnant and on
maternity leave.


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             Opinion of the Court by Cantil-Sakauye, C. J.


      Some months later, Florence M. was at home talking on
the phone when defendant asked her to hang up because he
needed to make a phone call. She responded that he could use
the phone, but she wanted to finish her conversation
first. Defendant approached Florence M. holding a large
kitchen knife and stabbed her numerous times. He also struck
her in the face and head with his fists. Florence M. curled up on
the floor and tried to shield her stomach. Using the knife,
defendant wounded her multiple times on her face and twice on
her legs. Florence M. tried to stop him by grabbing the blade
with her right hand, causing a deep cut that left a significant
scar. She managed to get away and crawl from the bedroom to
the living room before collapsing. Defendant initially ignored
Florence M. but then returned and repeatedly stabbed her in the
back. The knife broke into pieces while defendant was stabbing
her. Defendant left the room to get a new knife. Priestly arrived
home as defendant was returning with a steak knife. Defendant
fled the house when he saw his brother.
      Florence M. had surgery to repair the wounds on her back,
hand, forehead, and eyebrow. She spent eight days recovering
in the hospital.
      Several days after the attack, a California Highway Patrol
(CHP) officer stopped defendant for a traffic violation and
arrested him for possession of a stolen vehicle. Defendant told
the officer that he thought he killed his pregnant sister-in-law
by stabbing her from the neck down to the stomach. He claimed
that the assault occurred during an argument about her “coming
on to him.”
      Defendant was arrested and ultimately pleaded no contest
to attempted murder in exchange for dismissal of the remaining


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charges.    At the second penalty retrial, the prosecution
presented evidence that defendant called Florence M. after his
arrest and threatened to harm her if she testified against him.
      Florence M. and Priestly visited defendant while he was
receiving mental health treatment to regain competence to
stand trial in an unrelated offense. Defendant did not apologize
to Florence M. or ask about her baby, who had survived the
attack and was a toddler at the time.
     B. Defense Evidence
      The defense focused on five themes: lingering doubt
regarding defendant’s participation in the homicide; the effects
of defendant’s childhood and background on his behavior; the
failure of the juvenile court system to help defendant during his
youth; defendant’s mental illness and abnormal brain activity;
and defendant’s positive adjustment to prison.
         1. Lingering doubt
      Defendant presented evidence to show that James Curry,
one of defendant’s coworkers at Sonoma State Hospital, was
implicated in the Cavallo murder based on his connection to the
Bohsei television that was allegedly taken from Cavallo’s house.
Defendant also presented evidence to suggest that Cavallo did
not own a handgun at the time he was murdered.
      Robert Ferroggiaro worked at Sonoma State Hospital in
1979 and knew both defendant and Curry. Ferroggiaro testified
that defendant called him from jail to say that he had purchased
a television from Curry and needed it delivered to his
wife. Curry brought the television to Ferroggiaro at work, and
Ferroggiaro delivered it to defendant’s apartment a few hours
before the parole search. Defendant’s wife called Ferroggiaro
after the search to tell him the television had been seized. She


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told Ferroggiaro that she did not reveal his connection to the
television because she did not want him to get in
trouble. Ferroggiaro contacted law enforcement to explain his
involvement in case his fingerprints were on the television. He
acknowledged on cross-examination that he remained friends
with defendant, and that he had told police officers defendant
was “as sane as anyone.”
      Gerald Gourley, a former Federal Cartridge Company
employee and consultant on ammunition and guns, testified
about the process of marking cartridges with a tool called a
bunter. He explained that bunters were made by a tool called a
hob. Gourley further explained that after cartridges are
stamped with the bunter, they are commingled and packed into
boxes. He believed that it was possible to determine whether
two cartridges were struck by a bunter created by the same hob,
and opined that several cartridges depicted in the prosecution’s
exhibits appeared to be struck by a bunter created by the same
hob.
      Cavallo’s ex-wife testified that Cavallo had purchased a
.22-caliber revolver, not a semiautomatic handgun, to practice
target shooting with her in the late 1950s. She did not know
whether he kept the revolver after they divorced, or if he had
purchased additional firearms.
         2. Family history
      Psychologist Addison Somerville testified as an expert
witness concerning the structure, makeup, and migration
histories of African-American families, and regarding the
influence of family on individuals. He interviewed defendant
and three of his 10 siblings to assess certain variables that are
crucial for normal development.


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             Opinion of the Court by Cantil-Sakauye, C. J.


      Dr. Somerville testified that defendant was born in
Canton, Mississippi, but moved at age two with his family to
Detroit, Michigan to live with McClenton, the oldest of his
siblings. Defendant showed physical signs of malnutrition
between the ages of three and four, but his family did not
recognize the problem. Their stepmother was often gone for long
periods of time, and left defendant and his siblings with minimal
food. McClenton physically punished defendant by stripping
him, beating him with a belt, slapping him, and bouncing his
head on the floor.
      Defendant did not know his father. Dr. Somerville opined
that the lack of parental bonding created emotional deprivation,
anxiety, and feelings of rejection. By age six, defendant was
stealing food and hiding it in the basement. He used a collection
container for a disabilities charity to collect money, which he
kept to buy food for his family. At ages eight and nine,
defendant often missed school because he was working odd jobs
to help take care of his sisters. Defendant and his siblings
frequently had only biscuits to eat and were told to drink a lot
of water. Dr. Somerville opined that lack of food and consistent
interactions at school had a tremendous impact on defendant’s
social development. Defendant had his first sexual encounter at
age eight and had engaged in casual relations since then. He
started smoking marijuana at age 10 and started using alcohol
around the same time. Defendant’s sister, Mary Lee, took in
defendant and his siblings but struggled to support them
financially. One of the sisters resorted to prostitution to secure
money for food.
       Dr. Somerville concluded that defendant’s “early life
centered around survival, and he seems to have developed a
total lifestyle which is characterized by self-concern.” He opined

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that defendant was required to learn a variety of defenses which
enabled him to experience minimal guilt or remorse, and that
he lacked the confidence to attempt to change his behavior or
attitudes. Defendant acted in an impulsive and unpredictable
manner, denied his behavior when confronted, and was unable
to form close relationships or trust people. Dr. Somerville
explained that social, cultural, psychological, and economic
factors all contributed to defendant’s criminal behavior and
believed that defendant needed to be confined to protect society.
      Dwayne Martin testified about defendant’s time at
Ypsilanti State Hospital (YSH), a psychiatric facility, in the
early 1960s. Defendant entered YSH in 1961 when he was 12
years old. Martin was defendant’s teacher at the hospital.
Martin explained that the children who came to YSH tended to
be either juvenile delinquents, autistic, or suffering from a
psychotic disorder.    Martin opined that defendant fell
somewhere between borderline psychotic and juvenile
delinquent. He did not know whether YSH’s psychiatrist
medicated defendant. Defendant was treated for syphilis upon
arrival at YSH, though Martin did not know how he acquired
the disease.
      Martin testified that defendant did well at YSH.
Defendant joined the Boy Scouts, took on a leadership role, and
volunteered to help whenever he could. He was respected by his
peers, treated the staff warmly, and became less aggressive
during his stay. The prosecution read prior testimony from
another YSH teacher, Margaret Yates, who observed that
defendant was motivated and worked hard. He seemed
interested in learning new things and his academic performance
improved. His social interaction also improved, and he took an
interest in caring for the classroom hamsters and goldfish.

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             Opinion of the Court by Cantil-Sakauye, C. J.


       Sometime after he left YSH, defendant was committed to
the Wayne County Youth Home, a juvenile detention facility in
Detroit. Kenneth Peterson, the chief social worker at the home,
testified that defendant had been committed to the state
hospital the previous summer, but faced lengthy delays in
getting transferred. Peterson read from a letter he had sent to
the chief social worker at the hospital, in which he described
defendant as having “constant agitating and irritating
behavior[s]” and being hyperactive, expressing paranoid
thinking, and being involved in delinquent behaviors. Peterson
acknowledged that he had never personally worked with
defendant; rather, he relied on reports from other people when
writing the letter. A psychiatrist who worked with the youth
home also testified that the waiting list for children to receive
mental health treatment was very long and that Caucasian
children were admitted at a higher frequency than African-
American children.
      When defendant was 16 years old, he was committed to
the Indiana State Reformatory (the Reformatory) for car theft.
He was initially housed in a minimum security dormitory
outside the institution. He escaped just over two weeks later
and was captured within a day. Defendant was subsequently
transferred to Indiana State Prison after multiple additional
disciplinary reports, including for having a knife in his cell,
assaulting an officer, shouting and yelling on the range, refusing
a direct order, creating a disturbance, and using threatening
and provoking language toward an official. He was released
from the prison in 1971.
      A correctional counselor at the Reformatory testified,
describing the institution as a “walled, maximum security
prison.” It housed individuals ranging from 16 to 60 years old

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             Opinion of the Court by Cantil-Sakauye, C. J.


who were incarcerated for a variety of felony offenses, including
murder. Discipline for a minor offense sometimes involved
standing barefoot on a painted line for hours. Discipline for
more serious offenses could mean receiving a beating from staff
and then being taken directly to the hospital because they
“needed medical attention by the time they got there.”
         3. Evidence of mental disease or defect
     Six psychiatrists and neurologists, each of whom had
evaluated defendant at various times in his life, testified at the
second penalty phase retrial.
      In June 1974, Patton State Hospital (PSH) psychiatrist
James Ramsaran prepared a report concerning defendant’s
competence to stand trial for forcible assault upon
Laughlin. After briefly interviewing defendant, Dr. Ramsaran
concluded that defendant suffered from paranoid schizophrenia
based on self-reported auditory hallucinations. Dr. Ramsaran
opined that defendant did not fully understand the charges
against him and could not assist in his defense. Defendant was
not particularly cooperative or forthcoming during the
interview, and Dr. Ramsaran did not have access to any
previous records.
     James Kerns, another psychiatrist at PSH, evaluated
defendant for admission in July 1974. He diagnosed defendant
with paranoid schizophrenia. Dr. Kerns did not know whether
defendant received antipsychotic medication prior to his
admission, but noted that he received medication for about two
months after his admission.
      Psychiatrist and neurologist Richard Finner evaluated
defendant at PSH a few days after Dr. Kerns. Dr. Finner agreed
that defendant suffered from schizophrenia, but opined that it


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presented as undifferentiated rather than paranoid, meaning it
presented as several forms of the disorder. Dr. Finner
acknowledged while testifying that his diagnosis could have
been different if he had had more information at the time of his
evaluation.
      Psychologist Grant Hutchinson testified that he had
evaluated defendant in 1980 for evidence of brain injury and to
assess personality and emotional function. Dr. Hutchinson
found defendant to be of average intelligence with normal
memory function. He also found no evidence of brain injury,
despite several incidents of head trauma that defendant
described. He did, however, find an atypical personality profile.
The results of the Minnesota Multiphasic Personality Inventory
revealed that defendant scored high on the scales of
schizophrenia, mania, and paranoia. Dr. Hutchinson opined
that defendant might suffer from paranoid schizophrenia in a
chronic, residual phase, meaning it was inactive at the time of
the evaluation. He explained that stress or going off medication
can cause a person’s schizophrenia to become active.
      Neurologist Sidney Kurn evaluated defendant before the
second penalty phase retrial.        Dr. Kurn’s neurological
evaluation revealed mild abnormalities: defendant did not feel
sensation, such as a pin prick, on the right side of his body as
well as he did on the left side, and reflexes were mildly
depressed in his legs.      Dr. Kurn performed a standard
electroencephalogram (EEG), the results of which appeared
normal. A magnetic resonance imaging (MRI) test revealed
abnormalities in defendant’s basal ganglia, an area of the brain
connected with movement and planning motor activity. A
second abnormality appeared in the pons area of the brain,
which is also connected to motor function. Dr. Kurn performed

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a computerized EEG, which analyzes brain activity in a more
advanced manner than a standard EEG. The computerized
EEG showed unusually high alpha brain-wave activity in
defendant’s frontal lobes, which control decision making,
motivation, and judgment. Dr. Kurn explained that this pattern
of brain-wave activity is typically found in the back of the brain.
The computerized EEG also revealed an unusually slow
response to auditory stimulation. The delayed response could
be the result of epilepsy, damage to the brain, or dysfunction in
the neurotransmitters in the brain. Dr. Kurn explained that the
abnormalities he found suggest that defendant’s nervous system
does not work properly, and therefore functions such as
judgment, foresight, and self-control are probably impaired. On
cross-examination, Dr. Kurn acknowledged that another
neurologist performed a similar evaluation — but not an MRI or
computerized EEG — on defendant in 1980 and found no
evidence of neurological impairment or disorder.
      Neuropsychologist Robert Bittle testified as an expert on
brain disease and dysfunction. Dr. Bittle did not meet
defendant personally but reviewed several of his psychological
and neurological reports. Dr. Bittle agreed that the MRI
revealed structural abnormalities in defendant’s basal ganglia
and pons regions, likely due to trauma. He opined that people
with abnormal brain activity in the frontal lobes tend to be
hyperactive, emotionally overresponsive, and have low stress
tolerance. He concluded that defendant suffered from antisocial
personality disorder and paranoid schizophrenia.
         4. Behavior in custody
      Jerry Enomoto, a previous director of the former
California Department of Corrections (CDC), testified as an



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expert concerning corrections and inmate management.
Enomoto reviewed defendant’s CDC file from 1979 through the
time of trial and found only two disciplinary reports. He
believed that defendant had learned to conform to what was
expected of him in prison.
     C. Rebuttal Evidence
         1. Lingering doubt
       Because Curry was unavailable as a witness, the
prosecution read his prior trial testimony to the jury. Curry had
testified that he and defendant worked together at Sonoma
State Hospital in 1978 and 1979. At the end of July 1979,
defendant asked Curry to hold a television for him. Curry
agreed and took the television to his girlfriend’s house. Curry
identified People’s Exhibit 48, a small Bohsei television set, as
being “similar” to the one he held for defendant. Defendant later
asked Curry to return the television, and had Ferroggiaro
retrieve the television from Curry. Defendant’s wife also called
Curry and asked him to return the television. Curry denied
selling the television to defendant.
         2. Evidence of mental disease or defect
      Psychiatrist Ronald Byledbal evaluated defendant in July
1979 to determine his competency to stand trial on pending
charges for assaulting Verna O. Defendant explained that he
remembered using cocaine and drinking before he argued with
Verna O., but did not recall stabbing her. Defendant told Dr.
Byledbal that if he had stabbed Verna O., he would have “done
a better job” by getting rid of the weapon and leaving town.
      Dr. Byledbal reviewed defendant’s juvenile records,
several psychological and neurological reports, and transcripts
of prior testimony in preparation for his testimony in the trial.


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He concluded that defendant was not a paranoid schizophrenic
but did suffer from antisocial personality disorder. Dr. Byledbal
testified that it was his view that the two PSH doctors who
diagnosed defendant with paranoid schizophrenia were
incorrect because they had no knowledge of defendant’s prior
history. Dr. Byledbal opined that a doctor cannot make an
accurate diagnosis of some patients without knowing any
background information from a source other than the person,
and explained that it is easy to “play paranoid schizophrenic
very well” and fool an evaluator.
      Dr. Byledbal testified that defendant’s history was typical
of antisocial personality disorder, the common characteristics of
which are hyperactivity, attempting to manipulate and control
people, lying, and refusing to accept responsibility while
blaming others. He stated that a person with antisocial
personality disorder may have aggressive tendencies, but not all
antisocial people are aggressive. He explained that people with
antisocial personality disorder can become psychotic under the
influence of drugs or alcohol, but he did not believe that was the
case with defendant.
      Psychiatrist Donald Apostle also evaluated defendant in
July 1979 to determine his competency to stand trial on pending
charges for assaulting Verna O. Before interviewing defendant,
Dr. Apostle reviewed the sheriff’s report of the incident, Verna
O.’s hospital records, and CDC records. Defendant told Dr.
Apostle that he had no memory of the incident and that “there
is no way that he could have stabbed this particular woman.”
Defendant described two prior incidents in which he had
“blacked out,” including one at PSH and one at home with his
wife.



                                  18
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


      Defendant recounted to Dr. Apostle a similar account of
the history described earlier: He moved to Detroit at age two,
was raised by a stepmother and believed his own parents to be
dead, and that he had an older stepbrother and younger
stepsister. He had problems in school and stole things to help
support his stepmother. He was sent to a state hospital in
Michigan at age 10 for armed theft, where he stayed until age
13. He was in and out of juvenile hall until he stole a car and
drove from Michigan to Indiana, where he was arrested and
incarcerated until 1971. Upon release, he was paroled to the
custody of his brother in California, after which he attacked
Florence M. During the interview, defendant told Dr. Apostle,
“I will be honest with you, Donald, I learned how to get around
in prison. I learned how to be a sociopath.” Defendant also said
that he would “never admit this present offense,” because, he
asserted to Dr. Apostle, it was the first time he had “ever fought
a case because he just didn’t remember doing it.”
      After reviewing defendant’s neurological and psychiatric
reports, as well as his juvenile court records, Dr. Apostle opined
that defendant did not suffer from paranoid schizophrenia or
any other mental illness. He agreed that defendant suffered
from antisocial personality disorder based on defendant’s long
history of criminal behavior, childhood acting out, lack of taking
responsibility for his actions, belittling of Verna O., and the
claim that he learned how to be a sociopath in prison.
                  II. PENALTY PHASE ISSUES
     A. Denial of Faretta Motion
      Defendant contends the trial court committed reversible
error when it denied his request for self-representation under
Faretta v. California (1975) 422 U.S. 806 (Faretta), made two


                                  19
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


weeks prior to the scheduled trial date. We conclude the trial
court properly denied defendant’s motion as untimely.
         1. Procedural history
       Defendant’s first penalty phase retrial ended in a mistrial
on February 11, 1991. Four days later, defendant’s attorney,
Sonoma County Deputy Public Defender Elliot Daum, declared
a conflict. Daum expressed uncertainty whether the entire
office had a conflict and asked that the matter be continued. The
trial court found a conflict as to Daum, but not concerning the
entire public defender’s office.
      In May 1991, the matter was transferred back to
Sacramento County Superior Court for trial, which was initially
set for September but was later rescheduled for November. At
a hearing in August 1991, the court was informed that Deputy
Public Defender Charles Ogulnik had been assigned as
defendant’s counsel, and that Donald Masuda, a local attorney
who had done some work on the first penalty phase retrial, was
appointed as Keenan counsel. (Keenan v. Superior Court (1982)
31 Cal.3d 424, 428.) In mid-November, defense counsel sought
and obtained a continuance of the trial date to June 22, 1992.
      On June 8, 1992, two weeks before trial was scheduled to
commence, defendant filed2 several written motions in propria
persona: to proceed in propia persona under Faretta, to
substitute counsel pursuant to People v. Marsden (1970) 2
Cal.3d 118, for a continuance, and for discovery of documents in


2
      Defendant had one week earlier sent these motions to
Masuda, asking him to file the pleadings for him because
Masuda was “close to the court and [i]t would take [defendant]
at least two weeks to get them certified and then mailed to the
court.”


                                  20
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


a California State Bar disciplinary proceeding relating to
Ogulnik. The motion for a continuance stated that “[d]efendant
has removed counsel of record and needs considerable time to
rev[ie]w documents, investigate possible defense strateg[ie]s,
interv[ie]w attorneys for advisory counsel pos[i]tion, as well as
others that will [be] part of the defense team[,]” and “[t]o deal
with any and all matters p[er]taining to putting forth a
creditable [sic] defense.” The motion also stated that “defendant
will require a substan[ti]al amount of time to rev[ie]w
documents to determine what creditable [sic] defense could be
fastened from it.”
     The prosecution opposed defendant’s Faretta motion,
arguing it was untimely. The prosecution also opposed the
motion to continue.
       At a pretrial hearing on June 12, trial counsel indicated
that they were ready to proceed with trial as scheduled. On
June 22, a trial judge was assigned to the case, and the parties
agreed to wait to argue defendant’s motions until they were
before the assigned judge. On July 6, the assigned trial judge
heard defendant’s Marsden motion in camera, which also
included discussion relevant to the Faretta motion. Defendant
explained that Ogulnik had promised not to contact family
members without his permission, but did so anyway and then
lied to him about it. He also felt there were better defense
strategies than the “sympathy” defense Ogulnik had planned,
and instead preferred to attack the guilt phase evidence.
Defendant agreed that Ogulnik had recently put a great deal of
effort into investigating the guilt phase evidence. He said that
he and Ogulnik had a personality conflict at the time he filed
the     motion,    but     the   conflict   had    since    been



                                  21
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


resolved. Nonetheless, he asserted, he still wanted to represent
himself.
       The court resumed the Marsden hearing the following
day. The court asked defendant to explain his statements that
he had not been permitted to assist in his defense, and had not
been provided with copies of materials that the defense had
obtained or gathered. Defendant replied that he believed the
defense evidence to date was “not as solid” as the prosecution’s,
and that “certain investigations or certain research” was either
not being done or was being done late in the process. Defendant
acknowledged his defense team’s investigative efforts had
increased substantially since the motion had been filed and a
little before then, too, but he believed the investigation “should
have been done several months earlier.” He also acknowledged
that his attorneys were keeping him better informed than they
had previously been.
      Ogulnik explained that there might have been an
“innocent misunderstanding on [his] part” as to whether he had
defendant’s permission to contact family members. Ogulnik
knew that defendant had expressed to his previous counsel
similar concerns regarding contacting family, but Ogulnik
believed that he and defendant had resolved that with a meeting
“early on” in the representation. Ogulnik’s investigator, Gary
Dixon, shared Ogulnik’s understanding of the situation. When
the court asked Ogulnik about defendant’s claim that the team
got a late start with the investigation, he explained that given
the age of the case and the prior reversals, the team decided to
reinvestigate and “take nothing for granted.” Ogulnik explained
that locating witnesses took a long time, and he understood why,
to defendant, it appeared that they did not investigate matters
such as lingering doubt, bias, or prejudice. He also explained

                                  22
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


that he was obligated under the law to investigate the possibility
of a “psych defense,” but defendant found it to be unnecessary
and strongly objected.
       Defendant told the court, “I know that right now what I
know is to be the best defense for me, and what is not going to
work is my major concern. I discussed it with Mr. Ogulnik. He
wants to go this way. I want to go this way. He wants to
investigate this. I don’t think it’s worth anything. . . . It’s my
life, see. . . . It’s my decision as to how my life should be
presented to this Court or to a jury, see. Because all good
intentions, I know he probably feel bad if I die, but badness ain’t
going to save me.” He acknowledged that tactical disagreements
as to how the case should be tried served as the basis for his
motion. The court denied defendant’s Marsden motion.
      The court addressed defendant’s Faretta motion in open
court on July 9, one month after defendant had filed it. The
court noted defendant’s simultaneous request for a continuance
and asked how much time he would need to prepare for trial.
Defendant responded that it would be premature for him to give
a specific time period. Masuda suggested that defendant would
need about a year to prepare, and the court agreed that “many
months at the minimum would be required” for defendant to
prepare to represent himself. The court expressed concern
about the timeliness of the motion and requested the district
attorney leave the room so it could continue the hearing in
camera.
      The court asked defendant if he had considered filing a
Marsden or Faretta motion prior to doing so in early June.
Defendant explained that he had considered such filings the
previous September, but decided not to do so because he and his


                                  23
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


attorneys had resolved their differences and “worked out a
foundation from which we would confer and how we would from
that point investigate and search out new avenues of approach
to the case.” He further explained that his previous appellate
attorney knew he was having problems with Ogulnik and Dixon
but encouraged him to “sit back and be a lot more patient, and
see how things develop” with the investigation and
communications.
       Defendant explained that he again considered filing a
Faretta motion in January or February 1992, but Masuda and
Sonoma County Public Defender Marteen Miller had
encouraged him to be patient and wait a few months to see if
matters improved. Defendant stated that “nothing [has]
changed to the point I felt that I would be comfortable, and I still
felt best that I could represent myself, so I filed it. That was the
reason for the delay both times. It was good advice from good
attorneys, and I waited.” He continued, “The only reason I
delayed . . . was as a result of people asking me because they felt
that I was being somewhat over judgmental as to Mr. Ogulnik
and everybody else involved in [the] case.”
      The court stated that it needed more time to review
relevant law and continued the hearing until mid-July. The
court held another in camera hearing to ask defendant more
questions regarding both his Marsden and Faretta motions. In
his Faretta motion, defendant had alleged that counsel refused
his request to investigate “issues of grave importance” and
“wasted over five months of valuable time before starting any
investigation into any matter of concern to him.” The court
asked defendant to elaborate on his allegations. Defendant
explained that another person had a gun similar to the one
found at the church a few days after the incident, and he

                                   24
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


believed that person’s gun could have been the weapon used to
assault Mary S. His previous attorneys did not undertake such
an investigation. He asked Ogulnik and Dixon to review the
matter; they completed the investigation three weeks prior,
although “to a degree unsatisfactory” to defendant. He also
requested DNA analysis be done on the blood found on the gun
located at the church, but was told “it was too little to do a
special analysis.” He additionally believed that counsel could
have worked harder to locate witnesses.             Defendant
acknowledged that he and his attorneys had different
viewpoints concerning what was important to investigate, but
he believed that Ogulnik had agreed to also focus on what was
important to defendant. The court reaffirmed its denial of the
Marsden motion but did not decide the Faretta motion.
      On July 21, 1992, the court denied defendant’s Faretta
motion as untimely. The court acknowledged that most case law
involving untimely Faretta motions involved motions made the
night before or the day of trial, but cited People v. Ruiz (1983)
142 Cal.App.3d 780 as involving an untimely motion made six
days before trial. The court explained that when assessing
timeliness, it needed to consider the periods of time preceding
the trial during which defendant had the opportunity or ability
to evaluate his dissatisfaction with counsel. The court noted
that Ogulnik had represented defendant since July 1991 and
found “no persuasive reason why” defendant had not moved
“substantially earlier in the proceedings” to represent himself.
The court further noted that defendant’s complaints against
Ogulnik were “in many rather striking ways similar to the
objections he had against the earlier attorney, Mr. Daum.”
Given that defendant could have filed the motions sooner, the
court stated that “the strong suspicion arises that the whole


                                  25
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


process, at least, has an element in it of interrupting the orderly
processes and bringing about delays.” It also reiterated “that a
substantially significant time period would be required” for
defendant to prepare for trial, resulting in a disruption of trial
for an extended period. The trial court found, therefore, that the
Faretta motion was untimely.
      The court went on to decide whether to exercise its
discretion to grant defendant’s untimely motion using the
factors set forth in People v. Windham (1977) 19 Cal.3d 121, 127
(Windham) (trial court has discretion to grant or deny untimely
Faretta motion based on quality of counsel’s representation,
defendant’s prior proclivity to attempt to substitute counsel,
reasons for defendant’s request, anticipated length and stage of
proceedings, and disruption and delay that might reasonably be
expected to follow granting Faretta motion). The court observed
that Ogulnik and Masuda were qualified and experienced
attorneys, and that their representation of defendant was
“satisfactory and of good quality.” It noted that defendant had
a prior history of substituting counsel; he had filed Marsden
motions against Daum in January and April 1991. The court
reiterated that it found defendant’s reasons for his prior
Marsden motions to be unpersuasive and his criticisms of
counsel unjustified. Based on these factors, the court declined
to grant the untimely motion.
      Regarding the length and stage of proceedings, the court
stated that preparation for the case, involving reviewing
transcripts of two trials and voluminous police reports, would
take a long time. It stated: “So, it’s a lengthy proceeding, and
here we are on the eve of trial with a motion to first replace
counsel and then to represent himself, with no persuasive
explanation given for this delayed filing. As I mention, many of

                                  26
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


the matters complained of have pre-existed.” The court noted
that the issues between defendant and counsel had existed over
a period of months and were “not new events that might explain
why someone has felt the need to make this motion as to what
amounts to about the eleventh hour.” Finally, the court noted
that the disruption and delay that might reasonably be expected
to follow would be “considerable” and “certainly would interrupt
any kind of orderly litigation of this case.” It acknowledged that
defendant was not responsible for the ten-year hiatus while the
case was on appeal, but stated that nonetheless “this case is
vulnerable in the sense that years are passing affecting the
availability of witnesses and the recall of witnesses and if this
case has to go off and start over again for the defendant to
prepare himself, the delay and the loss of witnesses could well
continue. So, the People run the risks of being significantly
prejudiced if this case is continued for a significant period of
time.”
      After additional comments from defendant, the court
asked Masuda to address on the record defendant’s allegations
that he delayed filing a Faretta waiver because Masuda had
asked him to wait. During an in camera hearing, Masuda
explained that defendant wrote him a series of letters
expressing concern about Ogulnik’s representation. Masuda
encouraged defendant to wait because every attorney prepares
for trial differently “and so he shouldn’t be judgmental. He
should wait and see to see what kind of results would come up
and see what efforts were being done.” Masuda said he made
“sincere efforts” to calm defendant down and assure him that
“everything was being done that should have been done.” He
agreed that defendant’s relationship with Ogulnik had had its



                                  27
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


ups and downs, but believed it was better than defendant’s
relationship with his previous attorney, Daum.
      Defendant explained that in April he and Ogulnik had “hit
a snag that wasn’t going to be moved because he had his way of
wanting to do it. I had my way of feeling how I think it should
be done, and we couldn’t get along.” Defendant had written a
letter to Public Defender Miller expressing his dissatisfaction,
and Miller encouraged defendant to wait so that Miller could try
to “work it out.” Masuda and defendant agreed that they never
had a conflict between themselves.
      Voir dire commenced on July 28. Shortly after jury
selection began, the court acknowledged that it had received
additional documentation related to defendant’s Faretta motion,
including correspondence regarding a State Bar disciplinary
proceeding involving Ogulnik. The court stated, “I do notice,
though, that this is an issue you did not really raise when you
made your [p]ro [p]er motion, that his problems with the State
Bar affected his competence to represent you in this case. Is
that — am I correct in that observation or am — I want to give
you an opportunity to comment on what struck me.” Defendant
replied, “I have no further comment about it. It was simply to
assert to the [c]ourt. There is no comment needed.” The court
stated that the documents did not cause it to reconsider its
denial of defendant’s untimely Faretta motion.
         2. Analysis
      In Faretta, the United States Supreme Court made clear
that a criminal defendant has a federal constitutional right to
represent himself if he voluntarily and intelligently so chooses.
(Faretta, supra, 422 U.S. at pp. 835-836.) A trial court must
grant a defendant’s request for self-representation if the request


                                  28
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


is timely and unequivocal, and the defendant makes his request
voluntarily, knowingly, and intelligently. (Windham, supra, 19
Cal.3d at pp. 127-128.) If a self-representation motion is
untimely, however, it is “within the sound discretion of the trial
court to determine whether such a defendant may dismiss
counsel and proceed pro se.” (Id. at p. 124.)
       We have long held that a Faretta motion is timely if it is
made “within a reasonable time prior to the commencement of
trial.” (Windham, supra, 19 Cal.3d at p. 128.) In Windham, we
explained that the “reasonable time” requirement “must not be
used as a means of limiting a defendant’s constitutional right of
self-representation,” but rather to prevent the defendant from
“misus[ing] the Faretta mandate as a means to unjustifiably
delay a scheduled trial or to obstruct the orderly administration
of justice.” (Id. at p. 128, fn. 5.) The high court has
acknowledged that most lower courts require a defendant to
make a self-representation motion “in a timely manner,” which
reflects that “the government’s interest in ensuring the integrity
and efficiency of the trial at times outweighs the defendant’s
interest in acting as his own lawyer.” (Martinez v. Court of
Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 162.)
      “[W]e have held on numerous occasions that Faretta
motions made on the eve of trial are untimely.” (People v. Lynch
(2010) 50 Cal.4th 693, 722 (Lynch), abrogated on other grounds
by People v. McKinnon (2011) 52 Cal.4th 610; id. at pp. 722-723,
citing People v. Frierson (1991) 53 Cal.3d 730, 742 [Faretta
motion made two days before trial was made “on the eve of trial”
and was untimely], People v. Valdez (2004) 32 Cal.4th 73, 102
[Faretta motion made “moments before jury selection was set to
begin” deemed untimely], People v. Horton (1995) 11 Cal.4th
1068, 1110 [Faretta motion made on the date scheduled for trial

                                  29
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


deemed untimely], and People v. Clark (1992) 3 Cal.4th 41, 99-
100 [Faretta motion made several days after case had been
continued day to day “in the expectation that the motions would
be concluded and jury selection set to begin at any time,” deemed
“in effect the eve of trial” and untimely].) We have also held that
Faretta motions made long before trial are timely. (Lynch, at p.
723, citing People v. Halvorsen (2007) 42 Cal.4th 379, 434
[Faretta motion made seven months before penalty retrial jury
selection commenced was timely]; People v. Stanley (2006) 39
Cal.4th 913, 932 [Faretta motion made one year before the
preliminary hearing and nearly two years before trial was
timely].) “[O]ur refusal to identify a single point in time at
which a self-representation motion filed before trial is untimely
indicates that outside these two extreme time periods, pertinent
considerations may extend beyond a mere counting of the days
between the motion and the scheduled trial date.” (Lynch, at
p. 723.)
       In Lynch, we pointed out that “in the related context of the
Sixth Amendment right to select counsel of one’s choice, which
is also subject to automatic reversal if erroneously denied, the
high court has ‘recognized a trial court’s wide latitude in
balancing the right to counsel of choice against the needs of
fairness [citation], and against the demands of its calendar.’ ”
(Lynch, supra, 50 Cal.4th at p. 725, citing United States v.
Gonzalez-Lopez (2006) 548 U.S. 140, 152.) We observed that “a
trial court may ‘make scheduling and other decisions that
effectively exclude a defendant’s first choice of counsel’ ” (Lynch,
at p. 725, citing Gonzalez-Lopez, at p. 152), and “perceive[d] no
principled basis on which to deny a trial court the opportunity
to similarly consider the needs of fairness and the demands of
its calendar in ruling on a request for self-representation, or to


                                   30
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


accord the defendant seeking self-representation any greater
liberty to do so than the defendant seeking to select retained
counsel.” (Lynch, at p. 725.)
      Relying on the federal high court’s cases as well as our
own, we concluded that a trial court may consider the totality of
the circumstances in determining whether a defendant’s
pretrial Faretta motion is timely. (Lynch, supra, 50 Cal.4th at
p. 726.) We held that a trial court may properly consider “not
only the time between the motion and the scheduled trial date,
but also such factors as whether trial counsel is ready to proceed
to trial, the number of witnesses and the reluctance or
availability of crucial trial witnesses, the complexity of the case,
any ongoing pretrial proceedings, and whether the defendant
had earlier opportunities to assert his right of self-
representation.” (Ibid.)
      In Lynch, the trial court denied as untimely defendant’s
two Faretta motions, the first filed approximately five weeks
before trial was scheduled to begin,3 the second motion three
weeks later. (Lynch, supra, 50 Cal.4th at p. 714.) Based upon
the totality of the circumstances, we concluded that the trial
court’s denial of the defendant’s Faretta motions was proper.
(Id. at p. 726.) We observed that this was a complicated case
involving three counts of murder and two counts of attempted
murder, each involving a separate incident and carrying with it
a possible death sentence. (Ibid.) We also noted that discovery
was voluminous, and trial preparation complex. (Ibid.) The
prosecution anticipated calling at least 65 witnesses at the guilt

3
      Pretrial motions ultimately commenced eleven days after
the scheduled trial date in Lynch. (Lynch, supra, 50 Cal.4th at
p. 721.)


                                   31
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


phase, many of whom were elderly. (Id. at pp. 726-727.) We
also pointed out that at the time of the Faretta hearing, held
approximately two weeks from the expected start date of
pretrial motions, defense counsel had indicated that they were
ready for trial. (Ibid.) We remarked that the case, which had
endured significant delay, was finally nearing resolution, and
that the defendant admitted that he would need additional time
to investigate and prepare his case and could not estimate how
much additional time he would require until he reviewed the
discovery and other materials. (Id. at pp. 727-728.)
      We did not articulate in Lynch what standard a reviewing
court should apply in determining whether a defendant’s
request for self-representation is timely. Defendant urges us to
apply de novo review in deciding whether his Faretta motion
was timely filed. We need not decide whether de novo review or
a more deferential standard is appropriate, however, because
defendant’s claim fails under either standard.
      Based on our independent review of the record and after
taking into consideration the totality of the circumstances under
Lynch, we conclude the trial court properly denied defendant’s
Faretta motion as untimely. As noted above, defendant filed his
Faretta motion two weeks before the scheduled trial date.
Defendant indicated in his accompanying motion for a
continuance that he would “need[] considerable time” to review
documents, investigate possible defense strategies, and prepare
for trial. Defense counsel estimated defendant would need a
year to be trial ready and the court agreed that “many months
at a minimum” would be necessary based on the record.
Meanwhile, trial counsel advised the court on June 12 that they
were ready to proceed with trial as scheduled.



                                  32
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


       Moreover, defendant had numerous opportunities to
assert his right of self-representation earlier.4 Ogulnik had
been appointed approximately eleven months prior to defendant
filing his Faretta motion. The trial court reasonably concluded
it had a “strong suspicion,” given the amount of time defendant
and Ogulnik had worked together and the similarities in
defendant’s complaint against Ogulnik and his prior attorney,
that defendant brought the Faretta motion with the purpose of
interrupting the process and creating delay. (People v. Marshall
(1997) 15 Cal.4th 1, 26 [Faretta motion may be denied based on
evidence that defendant’s purpose was to delay proceedings].)
       In addition, because the case had been on appeal and the
first penalty retrial had ended in a mistrial, more than 13 years
had elapsed between the crimes against Cavallo and the second
penalty phrase retrial. The second penalty retrial, which
carried a possible death sentence, was inherently complex,
involving evidence of the circumstances of the charged offenses
as well as two uncharged acts of violence and four separate prior
felony convictions. The prosecution anticipated calling 20
witnesses and observed that several were no longer available.
As the trial court noted, the availability of witnesses, as well as
witness recall, had declined and would continue to do so should
there be additional delay. Although the lengthy delay in this
case cannot be attributed to defendant, “he did not thereby


4
       Although defendant seems to imply that his decision to
represent himself was based, in part, on his discovery of the
State Bar disciplinary proceeding against Ogulnik, defendant
did not include this information in his Faretta motion or raise it
during the hearings on the motion, and, as observed earlier, he
declined the court’s invitation to elaborate on why he failed to
do so.


                                  33
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


escape any responsibility for timely invoking his right to self-
representation.” (Lynch, supra, 50 Cal.4th at p. 727.)
       Defendant asserts that most federal courts have concluded
that a Faretta motion is timely as a matter of law if it is made
before trial, unless the motion is made for the purpose of delay.
(See, e.g., Fritz v. Spalding (9th Cir. 1982) 682 F.2d 782, 784;
U.S. v. Lawrence (4th Cir. 1979) 605 F.2d 1321, 1325; Chapman
v. U.S. (5th Cir. 1977) 553 F.2d 886, 894.) Although we
recognize that some federal appellate decisions have adopted a
different approach, we see no compelling reason to reconsider
the standard set forth in Lynch at this time. Indeed, in Lynch
we considered and rejected the idea of a bright-line rule,
explaining that “nothing in Faretta or its progeny either
expressly or implicitly precludes consideration of factors other
than the number of weeks between the self-representation
motion and the trial in determining timeliness . . . .” (Lynch,
supra, 50 Cal.4th at p. 725.) We further note that sister states
have also adopted a timeliness test consistent with Lynch. (See,
e.g., Lyons v. State (Nev. 1990) 796 P.2d 210, 214 [if Faretta
request can be granted without need for a continuance, request
should be granted; otherwise, request may be denied as
untimely if there is no reasonable cause to justify the late
request]; Guerrina v. State (Nev. 2018) 419 P.3d 705, 709,
quoting Lynch, supra, 50 Cal.4th at p. 724 [Faretta “ ‘nowhere
announced a rigid formula for determining timeliness without
regard to the circumstances of the particular case’ ”].)
     We therefore conclude the trial court did not err when it
determined that defendant’s Faretta motion was untimely and
denied it on that basis.




                                  34
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


     B. Batson/Wheeler Motion
       Defendant contends the trial court erred when it found he
had not established a prima facie case of discrimination after
the prosecutor used three of his first 15 peremptory challenges
to strike three of the five African-American jurors who had been
seated. (See Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson);
People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler).) We
conclude there was no error.
         1. Procedural background
      Before conducting individual voir dire, the trial court
instructed all prospective jurors to complete an eleven-page
written questionnaire and, if applicable, a hardship form.
Following hardship excusals, prospective jurors returned for
individual questioning over the course of several days.
      Prior to preliminary voir dire of prospective juror Kenneth
M., who was African-American, the prosecutor revealed that he
had run a computer criminal history check “on some of the
jurors” and discovered that Kenneth M. had two misdemeanor
convictions. The prosecutor observed that Kenneth M. had
checked “no” on his jury questionnaire in response to the
question asking if he had ever been accused of or arrested for a
crime. The prosecutor requested the court to examine the juror
for misconduct and dismiss him for lying. Defense counsel
relayed that he had previously asked the prosecutor if he had
checked all the jurors, and the prosecutor had said no. Defense
counsel wondered whether the prosecutor had run a criminal
record check on only African-American prospective jurors. The
prosecutor responded, “I don’t think I am obliged to answer that
inquiry.” Defense counsel said, “I am just kind of curious why
he would run a check on Kenneth [M.] when his questionnaire,


                                  35
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


itself, doesn’t indicate that he would be lying or lead one to
suspect that maybe he’s misinforming the Court or us with
respect to his background. I just find it very curious.”
      The court agreed that it could not compel the prosecutor
to explain his reasoning, but stated that the prosecutor’s state
of mind would be relevant if a Batson/Wheeler challenge arose
later. When defense counsel explained that the defense did not
have access to the computer data that the prosecutor had, the
prosecutor replied that he would be happy to check on anybody
the defense might request. Defense counsel replied, “[Y]our
Honor, our request would be that we just have the information
as to all the jurors that [the prosecutor] ran . . . and the
information that he obtained.” The prosecutor explained that
he did not have time to check on every juror, but rather, was
“going to check certain jurors when they spark [his] interest.”
He reiterated that if a juror sparked the defense’s interest, he
would run a check on the requested juror.
      Defense counsel stated that “a Wheeler motion is always
something that could occur in any case of this nature, and I
think we should always be aware of what’s going on and what’s
happening with respect to any potential Wheeler motion that
may be made, and I don’t see why [the prosecutor] would object
to informing us as to which jurors he ran a check on so that we
have the same information with respect to those jurors.” The
prosecutor responded that “a Wheeler motion requires that there
be made some kind of prima facie case. That’s why, frankly, for
the record, I am objecting to disclosing why I checked certain
jurors and which ones I checked because they have to make a
prima facie case. The fact that I checked one and found a record
doesn’t make a prima facie case.” The trial court agreed with



                                  36
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


the prosecutor, stating, “That’s what I perceive also, and that’s
why I haven’t agreed to order such disclosure.” It ultimately
directed the prosecutor to disclose “any juror that he ran and in
running gained some information that has not been clearly
disclosed by that juror in the questionnaire or here in court.” It
also permitted defense counsel to submit particular names in a
sealed envelope for background checks. After both sides
questioned Kenneth M., the prosecutor withdrew his request to
dismiss him from the jury for misconduct and both sides passed
for cause.
      Jury selection began the following afternoon. The jury
pool consisted of 56 people, seven of whom identified themselves
on the jury questionnaire as African-American or Black, the
same race as defendant.
       After the prosecutor exercised his initial peremptory
strike, the first African-American juror, Danella D., was seated.
The prosecutor exercised three peremptory challenges and then
passed.     The defense exercised two challenges, and the
prosecutor struck another juror. After the defense used another
peremptory challenge, the second African-American juror,
Hazel D., was seated. The prosecution again accepted the panel
as constituted. After each side exercised additional challenges,
the third African-American juror, Lois G., was seated. Lois G.
was absent from proceedings that day “by understanding and
agreement,” and still available for jury duty. The defense
passed, and the prosecutor used his tenth peremptory challenge
to strike Lois G. Defense counsel then raised a Batson/Wheeler
motion. The court denied the motion, noting that the prosecutor
had exercised one of its 10 peremptory challenges against an
African-American juror, and two African-American jurors were
still seated in the box.

                                  37
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


      Voir dire continued, and the prosecutor exercised two
more peremptory challenges. The fourth African-American
prospective juror, Sharon H., was seated. After the defense
passed, the prosecutor exercised his thirteenth challenge to
excuse Sharon H. The defense exercised another challenge and
the prosecution passed.      Both sides exercised additional
challenges before Shanna H., the fifth African-American
prospective juror was seated. The prosecutor used his fifteenth
challenge to excuse Shanna H.
      The defense made a second Batson/Wheeler motion,
arguing that the prosecutor had excused three African-
American jurors, each of whom had indicated on her
questionnaires an ability to vote for the death penalty. The
prosecutor acknowledged that he had excused three African-
American jurors but argued that he “left two. I don’t think that
quite reaches a prima facie case yet.” The court ultimately
agreed, concluding, “I am not persuaded that three out of five
with two remaining in the jury box being passed, that is a
statistically anything event showing a pattern of intent to
exclude or minimize” the presence of African-American jurors.
      When voir dire resumed, each side exercised one more
peremptory challenge and then passed. Before the court could
swear in the panel, a prospective juror informed the court that
she was “quite uncomfortable” with the responsibility of having
to decide whether a person should live or die. After the court
questioned the juror, the parties agreed to reopen jury selection
and allow the prosecutor to exercise a peremptory challenge to
strike the juror.     The defense exercised four remaining
peremptory challenges before Wayde B., the sixth African-
American prospective juror on the panel, was seated. Both sides
accepted the jury as constituted. At the close of regular jury

                                  38
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


selection, 48 prospective jurors had appeared in the box. The
prosecution had exercised 3 of 17 strikes on African-American
jurors. Three of the 12 seated jurors were African-American.
      The court then called three alternate jurors to be seated,
including Kenneth M. The prosecutor used his second of three
additional peremptory challenges to remove Kenneth M. The
defense raised its third Batson/Wheeler motion, arguing that
Kenneth M. was excluded on the basis of race and “based on the
fact that the District Attorney used information available only
to him to check the background on [Kenneth M.]” The trial court
denied the motion. It stated that the prosecutor had “disclosed
the information discovered prior to voir dire, so that adequate
and thorough voir dire could be afforded to all sides,” and found
no fault in the prosecution “conducting his limited investigation
of jurors and disclosing the outcome of it.” The court also
determined that the statistics did not support a prima facie case
of discrimination.
       At the close of alternate jury selection, 54 of the 56
prospective jurors had appeared in the box. The prosecution had
exercised a total of 4 of 19 strikes on African-American jurors.
The seated jury consisted of three African-American jurors,
seven Caucasian jurors, one Hispanic juror, and one mixed-race
juror.
         2. Analysis
      “Both the United States and California Constitutions
prohibit discriminatory use of peremptory strikes.” (People v.
Reed (2018) 4 Cal.5th 989, 999 (Reed).) To assess whether such
prohibited discrimination has occurred, our Batson/Wheeler
inquiry follows three distinct steps. (Ibid.) “First, the defendant
must make out a prima facie case ‘by showing that the totality


                                  39
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


of the relevant facts gives rise to an inference of discriminatory
purpose.’ [Citations.] Second, once the defendant has made out
a prima facie case, the ‘burden shifts to the State to explain
adequately the racial exclusion’ by offering permissible race-
neutral justifications for the strikes. [Citations.] Third, ‘[i]f a
race-neutral explanation is tendered, the trial court must then
decide . . . whether the opponent of the strike has proved
purposeful racial discrimination.’ ” (Johnson v. California
(2005) 545 U.S. 162, 168, fn. omitted (Johnson).)
      The trial court denied each of defendant’s Batson/Wheeler
motions at the first stage of the inquiry after ruling defendant
failed to establish a prima facie case of discriminatory intent.
Prior to Johnson, the California standard at this step “was to
show that it was ‘more likely than not’ that purposeful
discrimination had occurred.” (People v. Carasi (2008) 44
Cal.4th 1263, 1293.) However, in Johnson¸ the United States
Supreme Court rejected that analysis as too stringent under the
federal Constitution and held that “a prima facie burden is
simply to ‘produc[e] evidence sufficient to permit the trial judge
to draw an inference’ of discrimination.” (Ibid.)
      We review the trial court’s ruling “independently where,
as here, the trial predated Johnson and it is not clear from the
record     whether     the    trial   court     analyzed     the
Batson/Wheeler motion with this low threshold in mind.”
(People v. Scott (2015) 61 Cal.4th 363, 384.) We examine the
entire record when conducting our review. (Reed, supra, 4
Cal.5th at p. 999.) Certain facts, however, are considered
especially relevant. “These include whether a party has struck
most or all of the members of the venire from an
identified group, whether a party has used a disproportionate
number of strikes against members of that group, whether the

                                  40
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


party has engaged those prospective jurors in only desultory voir
dire, whether the defendant is a member of that group, and
whether the victim is a member of the group to which a majority
of remaining jurors belong. [Citation.] We may also consider
nondiscriminatory reasons for the peremptory strike that
‘necessarily dispel any inference of bias,’ so long as those reasons
are apparent from and clearly established in the record.” (Id. at
pp. 999-1000.)
       Defendant challenges the court’s denial of his second
Batson/Wheeler motion. He asserts ample evidence supports a
prima facie case. Defendant argues that at the time he made
the second motion, the prosecutor had struck three of five
African-American jurors and had established a pattern of
striking an African-American juror whenever there were more
than two on the panel. Defendant also asserts that the
prosecutor appeared to conduct a criminal background check on
only one potential juror: Kenneth M., an African-American.
Defendant further notes that he is African-American and at
least two of the victims (Cavallo and Mary S.) were Caucasian,
and the struck African-American jurors all possessed traits the
prosecution could have viewed favorably. We conclude, based on
the entire record, that defendant has not shown that the totality
of relevant facts creates an inference of discriminatory intent.
      Defendant first contends the prosecutor’s “strike rate”
establishes a prima facie case of discrimination because he
exercised a disproportionate number of peremptory challenges
against African-American jurors. Defendant points out that at
the time of the second Batson/Wheeler motion, the prosecutor
had used 20 percent of his strikes on African-American jurors —
3 of 15 — despite the proportion of African-American jurors on
the panel being 12 percent — 5 of 41. He further notes that the

                                   41
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


prosecutor’s excusal rate for African-American jurors was
60 percent — 3 of 5 — whereas his exclusion rate for the rest of
the panel was 34 percent — 12 of 35.
      Considered in the context of the entire jury selection
process, the prosecutor’s strikes do not support an inference of
discrimination. (Reed, supra, 4 Cal.5th at p. 1000 [strikes made
after the Batson/Wheeler challenge are considered in assessing
discriminatory intent].) The prosecutor exercised 17 strikes
during the selection of regular jurors, and two more while
selecting alternates. Three of the prosecutor’s 17 strikes during
regular jury selection (18 percent) — and 4 of 19 overall
(21 percent) — targeted African-American jurors. These figures
“barely” exceed the 13 percent ratio (7 of 54) of African-
American jurors in the venire, and do not by themselves suggest
an inference of discrimination. (Ibid. [finding 46 percent strike
rate of African-Americans compared to 34 percent of African-
American jurors in the venire to be insignificant].)
      Nor does the exclusion rate of African-American jurors
support an inference of discriminatory purpose. At the close of
regular jury selection, the prosecutor had struck 3 of 6 African-
American jurors — an excusal rate of 50 percent — and had
struck 14 of 42 non-African-American jurors — an excusal rate
of 33 percent. At the close of alternate jury selection, the
prosecutor had struck 4 of 7 African-American jurors — an
excusal rate of 57 percent — and had struck 15 of 47 non-
African-American jurors — an excusal rate of 32 percent.
Although the prosecutor excused a higher percentage of African-
American jurors, the numbers are subject to a variety of
interpretations. (See, e.g., People v. Jones (2011) 51 Cal.4th 346,
362 [peremptory challenges of 60 percent of African-American
jurors “not particularly troubling” when strike rate of African-

                                  42
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


Americans was only slightly higher than their percentage on the
jury].) We note, for example, that the numbers could also
indicate that African-American jurors were overrepresented in
the box compared to their representation in the candidate pool:
constituting 25 percent of the seated panel (3 of 12) as compared
to 13 percent of the available pool (7 of 54). (See People v.
Hartsch (2010) 49 Cal.4th 472, 487-488 (Hartsch).) In other
words, African-American representation on the seated jury was
almost twice that reflected in the eligible jury pool. In any
event, in light of the small sample size, we assign no great
weight to the prosecutor’s excusal rate. (People v. Harris (2013)
57 Cal.4th 804, 835.)
      Moreover, the prosecutor repeatedly accepted the jury
when two African-American jurors were on the panel, and
ultimately accepted a panel with three African-American jurors.
“While acceptance of one or more black jurors by the prosecution
does not necessarily settle all questions about how the
prosecution used its peremptory challenges, these facts
nonetheless help lessen the strength of any inference of
discrimination that the pattern of the prosecutor’s strikes might
otherwise imply.” (Reed, supra, 4 Cal.5th at p. 1000; see also
People v. Clark (2011) 52 Cal.4th 856, 906.) We have previously
held that the prosecutor’s acceptance of a jury panel including
multiple African-American prospective jurors, “while not
conclusive, was ‘an indication of the prosecutor’s good faith in
exercising his peremptories, and . . . an appropriate factor for
the trial judge to consider in ruling on a Wheeler objection . . . .’ ”
(Hartsch, supra, 49 Cal.4th at p. 487.) Viewed in its overall
context, the pattern of strikes does not suggest an inference of
discrimination.



                                   43
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


       Defendant also asserts the prosecutor’s unjustified
investigation into prospective juror Kenneth M. raises a
suspicion that he was attempting to limit the participation of
African-American jurors, arguing that the prosecutor appeared
to conduct a criminal background check on only Kenneth M. The
prosecutor’s responses to the court, however, suggest that he did
conduct a criminal history check on additional jurors. Although
the prosecutor did not disclose which prospective jurors he
investigated further, he told the court that he “was checking
some of the jurors through the computer system” (italics added)
and that he was “going to check certain jurors when they spark
[his] interest” (italics added), indicating that Kenneth M. was
not the only juror he investigated. Rather, the record suggests
that Kenneth M. may have been the only juror checked who
provided inaccurate information on his questionnaire. Although
the prosecutor’s background check on some jurors, including
Kenneth M., may be probative concerning the issue of
discriminatory intent, we conclude that this fact, without
additional indicia of discriminatory purpose,5 falls short of
establishing a prima facie case. We also note that the record
does not reveal any significant disparities in the nature or
extent of the prosecutor’s questioning of the African-American
prospective jurors, and defendant does not argue otherwise.
     In his dissent, Justice Cuéllar asserts that the prosecutor’s
“unwillingness” to answer defense counsel’s question whether
he checked only African-American jurors in itself constitutes an


5
      If there were evidence that the prosecutor in fact targeted
only African-Americans for background checks, we would agree
that such conduct would plainly constitute a prima facie case of
discrimination. But there is no such evidence here.


                                  44
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


“implicit[] admission of discriminatory conduct.” (Dis. opn. of
Cuéllar, J., post, at p. 6.) We do not draw the same conclusion
from the record. First, it is not incumbent on a prosecutor to
respond to questions from defense counsel; questions to
opposing counsel are properly funneled through the court. A
prosecutor may have numerous innocuous reasons for not
engaging with defense counsel, including not wanting to
encourage further probing into a topic relating to jury selection
or trial strategy. Indeed, in this case, defense counsel’s query
quickly morphed into repeated requests for the disclosure of “all
the jurors” on which the prosecutor ran checks. Neither
defendant nor Justice Cuéllar argue that the prosecutor was
obligated to disclose this information, or that the failure to do so
is evidence of discriminatory intent.
       Second, even assuming that a response was required, the
transcript of proceedings shows that the prosecutor did, in fact,
give a nondiscriminatory reason concerning why he had not
initially answered defense counsel’s query. Specifically, the
prosecutor told the court that he was objecting to defense
counsel’s questions relating to the investigation of prospective
jurors because defense counsel had not yet “ma[d]e a prima facie
case” under Batson/Wheeler. The trial court agreed with the
prosecutor’s assessment and declined to order disclosure on that
basis. Thus, the record indicates that the prosecutor preferred
not to reveal anything related to his jury selection and trial
strategy unless ordered to do so, and he believed that defense
counsel had not demonstrated that a response was required.
Indeed, the prosecutor undertook the same approach following
defendant’s second Batson/Wheeler challenge, explaining that
“if [the court] believe[s] [defendant] made a prima facie case
based on what is before [the court], then I am required to


                                   45
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


respond.” That the prosecutor, citing Wheeler, declined defense
counsel’s request that he disclose information regarding the
jurors he checked, does not constitute in itself “compelling
evidence” of unlawful scrutiny. (Dis. opn. of Cuéllar, J., post, at
p. 1.)
      In short, the prosecutor was under no obligation to
respond to defense counsel’s question, and his stated reason for
not answering it is innocuous and credible. We decline to adopt
Justice Cuéllar’s incongruous reasoning that, despite the trial
court’s finding that no prima facie showing of discrimination
had been made, the prosecutor’s refusal to answer defense
counsel’s query nonetheless gives rise to a prima facie inference
of discriminatory purpose. We conclude that the prosecutor’s
refusal to answer defense counsel’s question does not establish,
alone or together with other circumstances, a prima facie case
of discrimination.
       Finally, defendant emphasizes that Cavallo and Mary S.
are both Caucasian while he is African-American. Although the
prosecution presented evidence that defendant committed
violent acts against four additional victims, the races of these
individuals are unknown. We acknowledge that when the race
of the defendant is different from that of the victim, and the
victim is a member of the group to which the majority of
remaining jurors belong, this circumstance is one of many that
is relevant to whether a prima facie case existed. (See Johnson,
supra, 545 U.S. at p. 167; Wheeler, supra, 22 Cal.3d at
p. 281.) However, as indicated above, because we have
concluded that none of the other “especially relevant factors” —
“whether a party has struck most or all of the members of the
venire from an identified group, whether a party has used a
disproportionate number of strikes against members of that

                                  46
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


group, [and] whether the party has engaged those prospective
jurors in only desultory voir dire” (Reed, supra, 4 Cal.5th at
pp. 999-1000) — are present, we do not infer discriminatory
intent based solely on the fact that the known race of two of the
victims is the same as that of a bare majority — 7 of 12 — of the
seated jurors.6
       Based on the entire record, we conclude the trial court did
not err when it ruled that defendant had failed to show a prima
facie case of discriminatory intent.7


6
      We also disagree with Justice Cuéllar’s characterization of
the trial court’s deeming the races of the victims and defendant
as a “side issue that we need not get into”; rather, the record
shows that the trial court made this comment in the context of
explaining that a defendant need not be the same race as the
excused jurors in order to make a Batson/Wheeler motion.
7
      Because we have concluded that defendant failed to raise
an inference of discrimination, we need not resort to examining
the record for obvious race-neutral reasons for the prosecutor’s
peremptory strikes that would “ ‘necessarily dispel any
inference of bias[.]’ ” (Reed, supra, 4 Cal.5th at p. 1000.)
However, because the dissenting justices rely heavily on the
characteristics of the excused African-American jurors, we feel
it appropriate to note that, at least with respect to three of the
four jurors, there do appear to be “clearly established” and
“apparent” nondiscriminatory reasons for their excusal. (Ibid.)
Kenneth M. lied on his jury questionnaire about two criminal
convictions. Shanna H. wrote that her son had been arrested
twice, including once for rape, and she testified that she felt the
court process was unfair and that her son may have been coerced
into accepting a plea bargain for a crime he did not commit.
Sharon H. had worked extensively with abused and troubled
adolescents, including youths from juvenile courts, and she
stated that she had a “heart” for “what we call throw-away kids.”
Defendant’s mitigation case focused on childhood abuse and



                                  47
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


      C. Removal of Juror for Cause
      Defendant contends the trial court erred when it excused
prospective juror Laura C. for cause based on her opinions and
beliefs regarding the death penalty. Defendant asserts the court
asked misleading questions and provided inaccurate
information to the juror regarding the nature of a jury’s
sentencing discretion.
      In her jury questionnaire, Laura C. stated that she was a
legal secretary and identified herself as a practicing Catholic.
When addressing whether she would automatically refuse to
vote in favor of the death penalty, she wrote, “No. As a fair-
minded person and legal secretary familiar with legalities I
would make a judgment based on all factors before making any
decision.” When asked about her general feelings regarding the
death penalty, she explained, “I would prefer a society where
people lived happily together and no crimes ever happened —
but that is not the real world — so I understand that for those
people who commit crimes or who think about it, the death
penalty must be there as a reminder of what the consequence
might be because of their actions. This penalty thus protects the



neglect; to the extent the prosecutor anticipated that defense,
Sharon H. would clearly be an undesirable juror from the
prosecution point of view. These revelations provide a readily
apparent, race-neutral basis to excuse each of these prospective
jurors. Although the fourth juror, Lois G., presented no such
obvious grounds for excusal, the existence of readily apparent
grounds for three of the four disputed prospective jurors would
undercut, to some degree, whatever possible inference of
discrimination that might otherwise arise from the pattern of
excusals considered in isolation. But once again, here we
conclude that the statistics alone did not give rise to an inference
of discrimination.


                                   48
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


peaceful people.” Concerning whether she had any religious
objections to the death penalty, she wrote, “Yes/No. I believe
people should live their lives for as long as God lets them,
despite what kind of life that may be — a person should
experience his whole life — however, I believe that the death
penalty needs to be a reminder to all who would endanger
others.”
      During voir dire, the court asked Laura C. if the answers
she provided on the questionnaire accurately reflected her
feelings regarding the death penalty, and she confirmed that
they did. She confirmed that she would be able to follow the law
and guidance given to the jurors. The court explained, “You
understand the law does not — well, in a sense it mandates a
result in some situations. If you find that the mitigating
circumstances are substantial, that they outweigh the
aggravating or that they’re equal to the aggravating, they are
balanced. Then, in that situation, the law says you cannot
return a death penalty, but you can only return life without
parole.” Laura C. replied, “Yes. I am happy for that.” The court
continued, “If, on the other hand, the aggravating circumstances
substantially outweigh the mitigating, at that point, the law
does not mandate the death penalty, but it says [the jurors] still
have the option of choosing not to impose the death penalty, if
they feel that that is not the most appropriate punishment. . . .
Now, is there anything in that structure that would cause you
any problems?” Laura C. said, “No.”
       Defense counsel stated that he was “a little bit confused”
about the juror’s attitudes concerning the death penalty based
on her answer that a person should experience his whole life.
Counsel asked, “Are you of the belief that only God can take a
life?” Laura C. replied, “That would be my number one belief.”

                                  49
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


She acknowledged the law in California, and said, “I have tried
to integrate my Christian beliefs with the real live world that
we live in. . . . I believe that when there is a law, and I need to
decide on that law, I do use my Christian values, too, my
Christian values here in this situation. You have not only a civic
responsibility, you have a Christian responsibility to be true to
your decision, to be fair to, not only my Christian values, but
also to society. It’s a very hard thing to integrate, but somehow
I feel that I am able to do that.”
      Defense counsel said, “The judge, a little bit earlier, told
you that even if you found the evidence that the district attorney
put on was — was substantially greater, the aggravating
evidence was substantially greater than the mitigating
evidence, you could still return a life without the possibility of
parole verdict, and that would still be following the law. Do you
feel comfortable with that concept?” Laura C. replied that she
did. Defense counsel continued, “And if eleven other jurors were
to tell you quite candidly, and with no reservation, that the
district attorney had proven — has met his burden, and they all
feel the death penalty is appropriate, and that’s the way they
desire you to vote or give your individual opinion. If you still felt
that this was a life without possibility of parole, could you stand
by your individual conviction?” Laura C. replied, “I am glad you
brought that up because I would, of course, very candidly take
the lesser, life imprisonment without parole. I would like — I
would prefer that judgment over the death penalty in this
particular situation if aggravating circumstances were more, so,
and I have that choice. I have the freedom of choice, and that’s
not against the law. I have that choice, and it’s legal, and I
would go for the life imprisonment.”



                                   50
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


      Defense counsel clarified, “So, no matter what evidence
the district attorney put on, you would only feel life without
possibility of parole would be suitable?” Laura C. replied, “If
that is my legal choice, if I have a choice legally to do that, that’s
the way I would vote.” Defense counsel reminded Laura C. that
she previously said she would feel comfortable following the law
and asked if there were circumstances in which she could apply
the death penalty. Laura C. explained, “If it lent more over to
the aggravating side, and that’s a very good question, possibly
not. I would prefer the life imprisonment without parole.”
      The prosecution challenged Laura C. for cause. The court
asked the juror: “[C]orrect me if I am wrong, but I get the
impression from the discussion we’ve had here, this morning,
that you could return a death penalty if the law basically
compelled it?” Laura C. nodded her head. The court continued,
“Because you’re willing to and feel the obligation to follow the
law?” Laura C. replied, “That’s right.” The court said, “Okay.
But in this case, in fact, in any death penalty case, the law does
not ever compel a death verdict. Even when the aggravating
factors clearly and substantially outweigh the mitigating
factors, the law allows the juror — the law says the jurors may
impose the death penalty, but the law does not compel it. It
allows a juror to or a jury to decide, in spite of the heavy
aggravating factors that for whatever reason might be mercy,
they choose to give life without the possibility of parole, so, there
is always an option. The law never compels the death penalty.”
Laura C. acknowledged the court’s comments with “okay.” The
court continued, “And what it strikes me is since you prefer, you
made it clear you prefer, significantly prefer, life without the
possibility of parole to the death penalty, and if the law is never
going to force you, or direct you, or compel you to return a death


                                   51
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


penalty, is it true that, in effect, you would be returning a life
without possibility of parole? That would be your vote in
virtually every case?” Laura C. replied, “I would have to say,
yes. . . . I didn’t realize that, you know. It went over my head
that there isn’t a law that said that compels you. There are no
guidelines. There are no factors. . . . My answer is just, yes.”
The court granted the prosecution’s challenge for cause.
      “It is well established that opposition to the death penalty
does not by itself disqualify a juror from sitting on a capital
case.” (People v. Penunuri (2018) 5 Cal.5th 126, 141; see
Witherspoon v. Illinois (1968) 391 U.S. 510, 522.) A prospective
juror may be excluded for cause only when “the juror’s views
would ‘prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his
oath.’ ” (Wainwright v. Witt (1985) 469 U.S. 412, 424.) “ ‘[I]n
applying this standard, reviewing courts are to accord deference
to the trial court. . . . [W]hen there is ambiguity in the
prospective juror’s statements, “the trial court, aided as it
undoubtedly [is] by its assessment of [the venireman’s]
demeanor, [is] entitled to resolve it in favor of the State.” ’ ”
(Penunuri, at p. 141.)
      Laura C.’s answers during voir dire indicated that
although she understood the law and was not opposed to the
death penalty generally, she would be unwilling to return a
verdict of death no matter what evidence the prosecution
presented. Indeed, after the trial court informed her that the
law never compels a death verdict, she confirmed that unless
she was forced or compelled to do otherwise, she would return a
verdict of life without the possibility of parole in virtually every




                                   52
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


case. Although her answers on the jury questionnaire indicated
that she could follow the law as instructed, she admitted to the
court that upon realizing she would not be compelled to return
any specific verdict, she would not be open to returning a verdict
of death. We conclude that Laura C.’s responses sufficiently
indicated that her views would prevent or substantially impair
the performance of her duties as a juror, and therefore the trial
court did not abuse its discretion in granting the prosecution’s
request to remove her for cause.
     D. Consideration of Aggravating Evidence
      Defendant contends the trial court erred in permitting the
jury to consider the crimes against Mary S. as aggravating
evidence under section 190.3, factor (b) because there was
insufficient evidence that he was the assailant.
      As noted above, in his first trial, defendant was found
guilty of raping and assaulting Mary S. On appeal, we
ultimately reversed these convictions after concluding that
Mary S.’s posthypnotic identification of defendant was
inadmissible under Shirley, supra, 31 Cal.3d 18. (People v.
Johnson, supra, 47 Cal.3d 576.)
      At the second penalty phase retrial, the prosecution
introduced evidence of the rape and assault as aggravating
evidence under section 190.3, factor (b), rather than retrying the
offenses. The defense unsuccessfully moved in limine to have
the evidence excluded or tried by a separate jury.
      The prosecution introduced evidence suggesting that
defendant used the pistol and bullets stolen from Cavallo’s
residence to attack Mary S. After the prosecution concluded its
case, the defense argued that insufficient evidence supported a
finding that defendant committed the crimes against Mary S.,


                                  53
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


and likened its argument to a motion for acquittal. The defense
noted that Mary S. had not identified defendant as her
assailant, and the only evidence against him was a fingerprint
on the gun clip, “a moveable object.” During a hearing on the
defense’s motion outside the presence of the jury, the prosecutor
acknowledged that the gun’s magazine was a moveable object
but argued that “a magazine is an object that normally is not
one that is touched by someone in a casual fashion. The
magazine or a clip belongs inside the weapon and is normally
carried there.” He continued, “[T]he magazine is not in a
position where it’s casually touched, as though someone were
handing around a weapon at a weenie roast somewhere, and you
just happen to touch it. All right. It’s inside the handle of the
weapon, and the fingerprint is on a place where it would
normally be to load the weapon.” The prosecutor went on to
summarize relevant testimony about the fingerprint found on
the magazine and testimony that Cavallo owned a similar
weapon. The court denied defendant’s motion, concluding that
sufficient evidence linked him to the assault and “that there is
sufficient evidence upon which a reasonable jury could find that
the defendant did, in fact, commit the rape.”
      Section 190.3, factor (b) permits the jury to consider the
“presence or absence of criminal activity by the defendant which
involved the use or attempted use of force or violence or the
express or implied threat to use force or violence.” Before the
evidence is presented to the jury, the trial court must determine
that the evidence offered would allow a rational trier of fact to
decide beyond a reasonable doubt that the defendant committed
the criminal activity alleged under factor (b). (People v. Clair
(1992) 2 Cal.4th 629, 676.) Once presented, whether the
evidence of other acts is significant enough to be given weight in


                                  54
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


the penalty determination is for the jury to decide. (People v.
Smith (2005) 35 Cal.4th 334, 369.)
       We review a trial court’s decision to admit evidence of
other crimes for abuse of discretion, “ ‘and no abuse of discretion
will be found where, in fact, the evidence in question was legally
sufficient.’ ” (People v. Whisenhunt (2008) 44 Cal.4th 174, 225.)
“On appeal, the test of legal sufficiency is whether there is
substantial evidence, i.e., evidence from which a reasonable
trier of fact could conclude that the prosecution sustained its
burden of proof beyond a reasonable doubt. [Citations.]
Evidence meeting this standard satisfies constitutional due
process and reliability concerns.” (People v. Boyer (2006) 38
Cal.4th 412, 479-480.)
       Defendant asserts the evidence was insufficient because
the gun clip was a movable object. He relies on Mikes v. Borg
(9th Cir. 1991) 947 F.2d 353 (Mikes), a case in which the
prosecution’s only evidence against the defendant consisted of
fingerprints found on a disassembled turnstile the victim had
recently purchased at a going-out-of-business sale. (Id. at
p. 355.) The federal appellate court stated that “in fingerprint-
only cases in which the prosecution’s theory is based on the
premise that the defendant handled certain objects while
committing the crime in question, the record must contain
sufficient evidence from which the trier of fact could reasonably
infer that the fingerprints were in fact impressed at that time
and not at some earlier date.” (Id. at pp. 356-357.) The court
held that the defendant’s conviction could be upheld only if the
record showed that the object in question was inaccessible to
him at the “ ‘relevant time,’ ” defined as “the time prior to the
commission of the crime during which the defendant reasonably
could have placed his fingerprints on the object in

                                  55
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


question and during which such prints might have remained on
that object.” (Id. at p. 357.) Because the turnstile presumably
had been in operation before being sold, the evidence was
insufficient to preclude the reasonable possibility that the
defendant placed his fingerprints on the item prior to the
victim’s acquisition of it. (Id. at pp. 358-359.)
      Defendant also relies on People v. Trevino (1985) 39 Cal.3d
667. In Trevino, the defendant and codefendant were charged
with the murder and robbery of their friend. (Id. at p. 676.) The
only evidence linking the codefendant to the scene of the crime
was a fingerprint found on a dresser drawer. (Id. at p. 678.) The
fingerprint expert could not determine the date of the print,
acknowledging that it could have been made months earlier.
(Ibid.) We held that the fingerprint evidence could not be
considered substantially incriminating. (Id. at p. 696.) Because
the expert could not determine the age of the print, there was
no reason to presume it had been made on the day of the crime
rather than a previous occasion. (Id. at pp. 696-697.) We noted
that the “ ‘evidence as to how or when the print came to be
placed on the dresser is fraught with uncertainty, leaving the
triers of fact to speculate as to how and when the print was
made. This kind of guesswork as to the facts does not elevate
speculation to the level of reasonable inference.’ ” (Id. at p. 697.)
      Mikes and Trevino are easily distinguished from this case.
In Mikes, the turnstile containing the defendant’s fingerprint
was “fully accessible to the general public” before the victim
acquired it, and the defendant could have placed his fingerprint
on the object during that period. (Mikes, supra, 947 F.2d at pp.
358-359.) Here, by contrast, there was no evidence the
magazine was accessible to the general public before the crime
against Mary S., making Mikes distinguishable on that basis.

                                   56
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


Moreover, there was no indication that defendant knew Cavallo
or had ever been inside Cavallo’s home before he was killed, and
yet defendant’s fingerprint was found on an object taken from
inside Cavallo’s home and found at the site where Mary S. was
assaulted. Additionally, it is clear the gun was loaded when
Mary S. was attacked because a shot was fired in the bathroom
during the commission of that crime. It is therefore reasonable
to conclude that defendant loaded the weapon or checked the
clip immediately before using it to assault Mary S.
      In Trevino, the codefendant was the victim’s friend and
presumably had been at the victim’s house on occasions prior to
the day of the homicide. Because the date of the fingerprint
could not be determined in that case, no solid evidence linked
the codefendant to the scene on the day of the murder. Here, as
noted above, defendant’s fingerprint was found on the magazine
within a gun that belonged to Cavallo, who did not know
defendant. Moreover, unlike in Trevino, the prosecution’s
fingerprint expert testified that the fingerprint powder “leaped
out” at him, which indicated that the print was fresh when Mary
S. was assaulted. Therefore, the evidence of defendant’s
fingerprint on the magazine of the gun used to attack Mary S.
was sufficient to establish identity.
       For the reasons stated above, the evidence was sufficient
for a rational trier of fact to determine beyond a reasonable
doubt that defendant committed the attack on Mary S. The trial
court, therefore, did not abuse its discretion in admitting
evidence of the rape and assault against Mary S. Because the
trial court did not err, defendant’s rights to due process, a fair
trial, and a reliable penalty verdict under the United States
Constitution were not violated.



                                  57
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


      E. Admission of Hearsay Statements
       Defendant contends the trial court erroneously admitted
hearsay statements from Cavallo’s friend, Richard Canniff, who
testified that Cavallo kept a gun at home. Defendant asserts
the statements were inadmissible as evidence of habit.8
      Canniff died before the second penalty phase retrial.
Defendant filed a written motion in limine to exclude Canniff’s
prior testimony as inadmissible hearsay. Defendant did not
challenge Canniff’s unavailability. Rather, defendant was
specifically concerned with Canniff’s testimony that Cavallo
kept a small gun near him in his house; Canniff admitted he
never personally saw a gun at Cavallo’s residence. The
prosecution argued the evidence was admissible as evidence of
habit because Cavallo customarily kept a gun near his bed for
protection. He also argued that Canniff’s statements tended to
show Cavallo was asleep when he was killed, because Cavallo
did not have time to reach for the gun.
       The court admitted Canniff’s testimony over defendant’s
objection. The prosecution read Canniff’s testimony from the
guilt phase, during which Canniff said that Cavallo kept a small
gun for protection. Canniff explained, “ ‘It had to be close to his
bed. . . . He was never — he said repeatedly to me and others
that he was never going to be caught off guard by anyone.’ ” He


8
      The Attorney General argues that defendant forfeited his
challenge to the admission of Canniff’s hearsay statements by
not objecting directly before the testimony was read. However,
defendant filed a motion to exclude Canniff’s testimony before
trial. The Attorney General also alleges the evidence was
admissible as nonhearsay under Evidence Code section 1250 to
show that Cavallo was asleep when he was killed, but cites no
authority to support this claim.


                                  58
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


said that Cavallo “ ‘frequently’ ” mentioned keeping a gun for
protection.
      Evidence Code section 1105 provides: “Any otherwise
admissible evidence of habit or custom is admissible to prove
conduct on a specified occasion in conformity with the habit or
custom.” “ ‘ “Habit” means a person’s regular or consistent
response to a repeated situation. “Custom” means the routine
practice or behavior on the part of a group or organization that
is equivalent to the habit of an individual.’ ” (People v. Memro
(1985) 38 Cal.3d 658, 681, fn. 22.) Because evidence of habit or
custom must be “otherwise admissible,” any hearsay evidence of
habit must fall within an exception to be admissible. (See Evid.
Code, § 1200 [hearsay evidence is inadmissible except as
provided by law].) The determination whether habit evidence is
admissible rests in the sound discretion of the trial court.
(People v. Hughes (2002) 27 Cal.4th 287, 337.) The erroneous
admission of hearsay is reviewed under the reasonable
possibility standard. (People v. Brown (1988) 46 Cal.3d 432,
447-448 (Brown); see People v. Page (2008) 44 Cal.4th 1, 54.)
      Defendant asserts the evidence was inadmissible hearsay
and the trial court erred in admitting Canniff’s testimony as
evidence of habit. He also asserts that the testimony was
insufficient to show habit because it failed to establish a regular
or consistent response to a repeated situation. Even assuming
the trial court erred in admitting the statements, however, there
is no reasonable possibility that a result more favorable to
defendant would have been reached in the absence of the
asserted error. (Brown, supra, 46 Cal.3d at p. 448.) The court
admitted the testimony of two other witnesses from prior trials
concerning Cavallo’s ownership of a .22-caliber handgun, and
Cavallo’s ex-wife testified that he owned such a handgun.

                                  59
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


Additionally, testimony from the officer who found Cavallo’s
body supported an inference that Cavallo had been asleep
during the attack. Thus, any error in admitting Canniff’s
testimony was harmless.
     F. Evidence of Failure to Apologize to Prior Victim
      Defendant contends the trial court abused its discretion
when it admitted evidence that defendant did not apologize to
Florence M. or ask her about the fate of her child after his
conviction for stabbing her. He asserts her statement regarding
his lack of apology was irrelevant to proving a factor in
aggravation.
       Florence M. testified about the 1971 stabbing
incident. She explained that after her testimony in the first
trial, she and her husband, defendant’s half-brother, visited
defendant at a state psychiatric hospital. Over defendant’s
objection, the prosecutor asked Florence M., “Did he apologize
to you in any way for what he done [sic] to you?” She replied,
“No, no way at all.” The prosecutor asked, “Did he ask you
anything about the baby?” Florence M. answered, “No, he didn’t
say anything about that.”
      A lack of remorse is not enumerated as an aggravating
factor under section 190.3. A prosecutor, therefore, should not
argue that the absence of remorse is a factor in aggravation.
(People v. Keenan (1988) 46 Cal.3d 478, 510; see also People v.
Rivera (2019) 7 Cal.5th 306, 343 (Rivera) [postcrime evidence of
remorselessness does not fit within any statutory sentencing
factor and should not be urged as aggravating].)
     Assuming without deciding that the court erred in
admitting Florence M.’s statement that defendant did not
apologize or ask about her baby, however, we see no reasonable


                                  60
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


possibility that the error affected the jury’s death verdict.
(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman);
Rivera, supra, 7 Cal.5th at pp. 343-344; People v. Nelson (2011)
51 Cal.4th 198, 218, fn. 15.) The prosecution presented other
aggravating evidence in support of a death verdict, including the
circumstances of the crimes against Cavallo, defendant’s prior
felony convictions, and his prior instances of violent criminal
conduct, including the rape and assault of Mary S. Nothing
suggests that Florence M.’s testimony regarding defendant’s
lack of remorse “tipped the scales in favor of death.” (Rivera, at
p. 344.) We therefore conclude any error in admitting the
testimony was harmless beyond a reasonable doubt.
      G. Admission of Aggravating Evidence Without
         Notice
     Defendant contends the trial court abused its discretion
when it admitted evidence in aggravation with assertedly
inadequate notice.
      Nine days after the attack on Florence M., CHP Officer
Lance Erickson stopped defendant for committing a traffic
violation. As noted earlier, Erickson arrested defendant for
grand theft of an automobile. When detained, defendant told
Erickson that he thought he had killed his pregnant sister-in-
law by stabbing her “from the neck down to her stomach.”
       Before the first penalty phase retrial, the prosecution filed
a list of possible witnesses, which included Erickson. Because
Erickson’s original police report had been destroyed a few years
after the grand theft case closed, the parties used a report about
that case prepared for the Los Angeles Police Department
(LAPD) by another officer.




                                   61
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


      The prosecutor met with Erickson the night before he was
scheduled to testify in the second penalty phase
retrial. Erickson informed the prosecutor about additional facts
not in the LAPD report, including that defendant ran from and
struggled with the officers, made statements to the effect that
he would shoot them if he had a gun, and admitted that he had
stabbed, raped, and killed his pregnant sister-in-law during an
argument because she “was coming on to him.”
      The prosecutor acknowledged to the court that the
additional information was new to him and to the defense. He
then sought to introduce the statements defendant had made
about Florence M. and her making sexual advances toward him,
arguing that they were indicative of a guilty mind and were
clearly “false statements” about the attack. Defendant opposed
admission of the statements, arguing that they lacked adequate
notice and the prejudicial effect of the evidence outweighed the
probative value under Evidence Code section 352.
      Following an evidentiary hearing outside the presence of
the jury to hear Erickson’s testimony, the court admitted
defendant’s statements concerning why he stabbed Florence M.
The court reasoned that the inclusion of Erickson’s name on the
witness list for the first penalty retrial and the admitted LAPD
report provided the defense with adequate notice to contact
Erickson and interview him well before the second penalty
retrial. The court also observed that the LAPD report “indicates
that there was some statement made to the Highway Patrol
about the Florence [M.] incident. Either side could have
explored that and been ready for it. It just turns out that neither
side did look into it in detail.” The court denied defendant’s
motion to exclude the statements and his request for a
substantial delay in proceedings to investigate the matter.

                                  62
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


       The court also concluded that “the information [Erickson]
offers is very relevant to the state of mind of the defendant
concerning this incident and his attitude toward this incident,
how he feels about the violence he visited upon his sister-in-law.
It all goes to character and the quality of the criminal conduct
involved. So, in that sense, I consider it very probative, and, of
course, in a sense it’s prejudicial, but in a penalty trial . . . [the]
issue of the prejudicial nature of the evidence . . . doesn’t have
the same application as it does in a guilt trial.”
       Section 190.3 requires the prosecution to provide the
defendant with notice of the evidence to be introduced within a
reasonable period of time prior to trial. “Nothing in the
language of section 190.3, however, suggests that it was
intended to grant the defendant any greater rights with respect
to penalty phase evidence, or that evidence of which the
prosecution had no knowledge when the original notice is given
must be excluded. Such a construction would be inconsistent
with the purpose of section 190.3 that the jury be made aware of
all of the factors bearing on the penalty decision.” (People v.
Jennings (1988) 46 Cal.3d 963, 987.) If the prosecution
discovers new evidence that it wishes to present after the initial
notice, it must promptly notify the defendant. (Ibid.) If
necessary, the defendant is entitled to a reasonable continuance
to allow time to prepare. (Ibid.)
      We find no error in admitting the evidence. Defendant
knew Erickson was on the witness list for the first penalty phase
retrial and had more than a year to contact him if defendant
wished to inquire about the circumstances surrounding his
arrest. Further, the LAPD report stated that defendant said he
stabbed and killed Florence M. Although the report did not
include the information regarding why defendant stabbed

                                   63
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


Florence M. — that they argued because she allegedly made
sexual advances toward him — the report provided the defense
with sufficient notice that defendant may have said something
about the assault against Florence M. The first penalty retrial
witness list and LAPD report provided to defendant gave him
sufficient time to prepare a defense to the aggravating evidence.
(See People v. Howard (2008) 42 Cal.4th 1000, 1016.) The
prosecutor also promptly notified the defense of the new
information the morning after he spoke with Erickson.
      Moreover, the trial court did not abuse its discretion when
it found the evidence was more probative than prejudicial.
“Prejudicial” means evidence “ ‘that uniquely tends to evoke an
emotional bias against a party as an individual, while having
only slight probative value with regard to the issues.’ ” (People
v. Thomas (2012) 53 Cal.4th 771, 807 (Thomas).) “A trial court’s
exercise of discretion under [Evidence Code] section 352 will be
upheld on appeal unless the court abused its discretion, that is,
unless it exercised its discretion in an arbitrary, capricious, or
patently absurd manner.” (Id. at p. 806; see Evid. Code, § 352.)
Defendant cannot establish that the trial court did so here.
Defendant’s statements had probative value by showing that he
attempted to shift blame to the victim, did not feel empathy for
the victim, and did not take responsibility for his actions.
     H. Evidence of Offense Committed After Capital
        Offense
      Defendant contends the trial court erred when it
instructed the jury that it could consider as an aggravating
factor defendant’s conviction for assault with a deadly weapon
on Verna O., because he was convicted of this crime after the
capital offense. Therefore, he asserts, it was not a prior
conviction within the meaning of section 190.3, factor (c).

                                  64
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


      Defendant attacked Verna O. on December 2, 1978, prior
to the murder of Cavallo. He was convicted of the charge
relating to the offense against Verna O., however, shortly after
he committed the capital offense. The court determined that a
“prior felony conviction” under section 190.3, factor (c), was
admissible if the conviction occurred after the capital offense but
before trial.    Over defendant’s objection, the trial court
instructed the jury that it could consider the attack on Verna O.
as an aggravating factor under section 190.3, factor (c).
      The Attorney General concedes that defendant’s
conviction for the assault on Verna O. was inadmissible as a
prior felony conviction under section 190.3, factor (c). (See
People v. Balderas (1985) 41 Cal.3d 144, 201 (Balderas) [“prior
felony convictions” are limited to those entered before
commission of the capital crime].) However, we conclude the
error is harmless because there is no reasonable possibility that
defendant would have received a more favorable result absent
the error. (See Brown, supra, 46 Cal.3d at p. 448-449; People v.
Lewis (2008) 43 Cal.4th 415, 527 [“ ‘reasonable possibility it
affected the verdict’ ” standard is essentially the same as beyond
a reasonable doubt standard in Chapman, supra, 386 U.S. at p.
24].) The weight of the other aggravating evidence was
substantial.    The prosecution introduced evidence of the
circumstances of defendant’s robbery and murder of Cavallo, his
assault and rape of Mary S., and his threat to dissuade Florence
M. from testifying. The prosecution also introduced evidence
that defendant had been convicted of three other violent
felonies.    The properly introduced aggravating evidence
substantially outweighed the mitigating evidence. Further, the
prosecutor only briefly discussed the Verna O. assault during
his closing argument. It is not reasonably possible that the


                                  65
                        PEOPLE v. JOHNSON
              Opinion of the Court by Cantil-Sakauye, C. J.


exclusion of this conviction would have altered the jury’s
balancing of evidence in this case.
       Moreover, the evidence would have been properly
admissible under factor (b) as the presence of criminal activity
by defendant that involved the use of force or violence. We have
previously acknowledged that factors (b) and (c) serve distinct
purposes — factor (b) admits evidence of violent criminality to
show a defendant’s propensity for violence, while factor (c)
admits evidence of any prior felony conviction to show that the
capital    offense     was    the   culmination      of    habitual
criminality. (Balderas, supra, 41 Cal.3d at p. 202.) We have
also held that when a prior conviction is erroneously admitted
under factor (c) but properly admitted under factor (b), a
defendant cannot establish prejudice because the additional fact
of a conviction “ ‘could have added very little to the total picture
considered by the jury.’ ” (People v. Hayes (1990) 52 Cal.3d 577,
637-638.)
       Defendant asserts this case is different because the jury
was instructed to consider only those factor (b) criminal acts
listed in the corresponding instruction; the Verna O. assault was
not listed. Therefore, he contends, but for the erroneous factor
(c) instruction, the jury would not have considered the Verna O.
assault at all. Although the jury was not instructed to consider
evidence of the Verna O. assault under factor (b), we are not
persuaded that the instructional error undermined the verdict.
The prosecution did not overlap offenses between the factor (b)
and factor (c) instructions; all four of the offenses listed under
factor (c) could have been included in the factor (b) instruction,
but were not. It is reasonable to assume that had the court
denied the prosecution’s request to include the Verna O. attack
under factor (c), the prosecution would have then simply

                                   66
                          PEOPLE v. JOHNSON
                Opinion of the Court by Cantil-Sakauye, C. J.


requested it be enumerated in the factor (b) instruction provided
to the jury. Further, to the extent the factor (b) instruction
omitted an offense that should have been included, defendant
did not object to the modified instruction in the trial court. “It
is incumbent on defense counsel to point out an omitted incident
and request a more complete instruction on the subject.” (People
v. Bacon (2010) 50 Cal.4th 1082, 1122.)
         For the reasons stated, we discern no prejudice under the
facts.
         I. Loss of Defense Exhibit
      Defendant contends the trial court’s loss of an exhibit
deprived him of due process and a fair penalty trial. He further
asserts the court abused its discretion when it denied his motion
for a new trial based on the omission.
      Kenneth Peterson testified for the defense. Peterson was
the chief social worker for a youth home where defendant
resided in the 1960s. Peterson explained that children referred
by juvenile court would be evaluated at the youth home, and
those diagnosed as mentally ill would be transferred to a state
hospital. Because the state hospitals had many long-term
patients, children at the youth home faced a delay in being
transferred. On April 14, 1965, Peterson sent a letter to the
chief social worker at one of the state hospitals, explaining that
the youth home had arranged for defendant to be committed to
the state hospital the previous summer, but he had not yet been
placed there eight months later. Peterson testified that the
youth home did not have facilities for treating mentally ill
children.    During cross-examination, the prosecution had
Peterson read aloud the parts of the letter describing
defendant’s symptoms and struggles at the youth home.


                                     67
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


Peterson acknowledged that he had never personally worked
with defendant; rather, he relied on reports from other people
when writing the letter. The letter was admitted into evidence
as Exhibit N.
       Richard Komisaruk, a psychiatrist who worked with the
youth home, also testified for the defense. He affirmed
Peterson’s testimony that the wait list for children to enter a
state hospital for mental health treatment was very long. He
testified that in the early 1960s Caucasian children were
accepted into state hospitals “at a much higher frequency”
compared with ethnic minorities. Komisaruk explained that
when children were finally admitted into the state hospital, the
hospital would often rediagnose children and claim they needed
to be in reform school, not a hospital. Komisaruk conducted a
study that revealed “there was a greatly disproportionate[]
representation of Black people in this group of rediagnosed
individuals who were sent back from the State hospital and were
relegated to treatment within the criminal justice system.”
      The prosecution showed Komisaruk Exhibit N. The
prosecution also showed Komisaruk a report, dated July 1965,
from the state hospital that eventually admitted defendant.
Komisaruk read from the report: “We arranged with Doctor
Komisaruk to admit this child and discharge him. It was also
agreed upon that should the youngster become involved with the
law once more, that Doctor Komisaruk in the Juvenile Court
would commit him to Boys Training School.”              Although
Komisaruk did not recall ever interacting with defendant prior
to testifying, he explained that in similar situations, a patient
who “look[ed] like a psychopath” or “a sociopath” and who it was
believed would not benefit from treatment would be discharged
from the hospital and sent to the Boys Training School.

                                  68
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


      The defense realized shortly after Komisaruk testified
that he accidentally took two exhibits with him, including
Exhibit N. Komisaruk died soon after returning to his home
state, and the exhibit was never returned. Neither the court nor
the parties realized that Exhibit N had not been retained by the
court and given to the jury until after the verdict was received.
Defendant filed a motion for a new trial arguing, in part, that
the missing exhibit “was a substantial piece of evidence in
mitigation” that would have garnered sympathy for defendant.
The court denied the motion, finding that the fact that the
exhibit was missing was not prejudicial.               The court
acknowledged that the jury did not have the “opportunity to
study, weigh, or deliberate upon the importance of this single
document.” The court concluded, however, that “the substance
and information and significance of that letter and significance
of that information was communicated to the jurors” through
testimony by Peterson and Komisaruk, and a substantial
portion of the letter was read into the record. Additionally, the
court noted, the jury did not request the letter or otherwise note
its absence.
       We will not disturb a trial court’s denial of a motion for a
new trial unless “a ‘manifest and unmistakable abuse of
discretion’ ” clearly appears. (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 127.) We find no abuse of discretion. The
trial court carefully weighed defendant’s argument and whether
the failure to transfer Exhibit N to the jury could have affected
the outcome of the trial. We also note that significant portions
of the letter were read aloud to the jury, and its contents were
discussed by two witnesses. Defendant has not explained how
the document itself would hold any evidentiary value beyond its
content.


                                  69
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


       Further, defense counsel did not rely on the contents of the
letter during closing argument. Rather, he emphasized the
importance of Komisaruk’s testimony, asserting that African-
American children were seen as “sociopaths” who “were
warehoused” in the youth home instead of receiving treatment.
He also reminded the jury that defendant had been committed
to a state hospital several times for being mentally incompetent
and the juvenile court system failed to provide him with the
mental health assistance that he needed. The record supports
a finding that the actual presence of the letter during
deliberations would have yielded no significant difference.
     For these reasons, the absence of Exhibit N did not deprive
defendant of due process and a fair penalty trial. There is no
reasonable possibility that defendant would have received a
more favorable result absent the error. (See Chapman, supra,
386 U.S. at p. 24; Brown, supra, 46 Cal.3d at pp. 448-449.)
      J. Cumulative Error
      Defendant contends reversal is warranted because of the
cumulatively prejudicial effect of penalty phase errors. We have
found four possible errors: admission of Florence M.’s testimony
regarding defendant’s remorselessness, admission of Canniff’s
hearsay testimony, the erroneous instruction on consideration
of the Verna O. conviction, and the failure to transfer Exhibit N
to the jury. None of these errors was prejudicial. We conclude
that no error in the penalty phase, whether considered alone or
together, merits reversal. (See People v. Souza (2012) 54
Cal.4th 90, 139, 141 [a few nonprejudicial instructional errors
do not warrant reversal on cumulative error claim].)




                                  70
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


                       III. OTHER ISSUES
      A. Denial of Application to Modify Verdict
      Defendant contends the trial court abused its discretion
when it denied his application to modify the death verdict under
section 190.4, subdivision (e). He first contends the trial court
improperly considered the underlying facts of the assaults on
Florence M. and Verna O. He acknowledges this evidence was
admitted during the penalty phase but claims the trial court
could not rely on this evidence because the jury was not
instructed to consider them as aggravating factors under section
190.3, factor (b). He asserts the court was free to consider his
convictions in connection with the two incidents under section
190.3, factor (c), but could not properly consider the details of
the acts that led to the convictions.
      Defendant also contends the court erroneously relied on
facts unavailable to the jury. The Attorney General concedes
that the court improperly considered two pieces of evidence that
it excluded from the jury’s consideration under Evidence Code
section 352: previously excluded evidence that defendant had
raped Florence M. while attacking her, and a letter defendant
wrote to the trial judge in the Verna O. case, requesting release
on bail and asserting his innocence.
      When ruling on an application to modify the death verdict,
the trial court “shall review the evidence, consider, take into
account, and be guided by the aggravating and mitigating
circumstances referred to in Section 190.3, and shall make a
determination as to whether the jury’s findings and verdicts
that the aggravating circumstances outweigh the mitigating
circumstances are contrary to law or the evidence presented.”
(§ 190.4, subd. (e).) “In ruling on the application to modify, the


                                  71
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


trial court does not make an independent penalty
determination,     but   instead    reweighs    the    evidence
of aggravating and mitigating circumstances and then
determines whether the weight of the evidence supports the jury
verdict.” (People v. Wallace (2008) 44 Cal.4th 1032, 1096.) We
independently review the trial court’s ruling in light of the
record. (Ibid.)
      We conclude that the trial court properly denied
defendant’s motion to modify the death verdict. Concerning
defendant’s first contention, although the trial court erroneously
instructed the jury concerning the Verna O. attack under section
190, factor (c), as noted above, the facts underlying the assault
were nonetheless properly admissible under section 190, factor
(b). Because the underlying facts of the assaults on Florence M.
and Verna O. were properly admitted, the jury would have
considered this evidence in making its penalty determination
and the court properly considered the details of the assaults
when reweighing the evidence under section 190.4, subdivision
(e).
      Regarding defendant’s second contention, as the Attorney
General concedes, the trial court erred when it considered the
rape of Florence M. and the letter defendant wrote requesting
bail. (See People v. Visciotti (1992) 2 Cal.4th 1, 78 [the court is
limited to consideration of the evidence that was before the
penalty jury].) This error, however, does not require reversal.
The court acknowledged the presence of mitigating factors, but
found that “the significance of that mitigation becomes
attenuated or lessens as one has opportunities to grow and to
develop some maturity and to learn from experience.” The court
described the “rather gross and truly disturbing aggravating
factors in [defendant’s] history” and noted that “the continuity

                                  72
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


of that violence over a period of time is so extreme.” Given the
court’s finding that a history of extreme violence “substantially
outweigh[ed]” the presence of mitigating factors, there is no
reasonable possibility that it would have modified the death
verdict absent consideration of the excluded evidence.
     B. Challenges to the Death Penalty Law
      Defendant presents several challenges to California’s
death penalty law that our prior decisions have considered and
rejected. He provides no persuasive reason for us to reexamine
the following conclusions:
     “Allowing the jury to consider the circumstances of the
crime (§ 190.3, factor (a)) does not lead to the imposition of the
death penalty in an arbitrary or capricious manner.” (People v.
Kennedy (2005) 36 Cal.4th 595, 641.)
      The death penalty statute “is not invalid for failing to
require (1) written findings or unanimity as to aggravating
factors, (2) proof of all aggravating factors beyond a reasonable
doubt, (3) findings that aggravation outweighs mitigation
beyond a reasonable doubt, or (4) findings that death is the
appropriate penalty beyond a reasonable doubt.” (People v.
Snow (2003) 30 Cal.4th 43, 126 (Snow).) These conclusions are
not altered by the United States Supreme Court’s decisions
in Apprendi v. New Jersey (2000) 530 U.S. 466, or Ring v.
Arizona (2002) 536 U.S. 584. (People v. Simon (2016) 1 Cal.5th
98, 149.) Likewise, the high court’s decision in Hurst v. Florida
(2016) 577 U.S. ___ [136 S.Ct. 616], which invalidated Florida’s
capital sentencing scheme, does not invalidate California’s law
because our sentencing scheme is “ ‘materially different from
that in Florida.’ ” (People v. Becerrada (2016) 2 Cal.5th 1009,
1038; People v. Rangel (2016) 62 Cal.4th 1192, 1235, fn. 16.)


                                  73
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


      The use of the term “so substantial” in CALJIC No. 8.88
does not render the instruction impermissibly broad. (People v.
Breaux (1991) 1 Cal.4th 281, 316, fn. 14.)
      If the trial court instructs the jury that it can impose the
death penalty only if it finds that aggravation outweighs
mitigation, it need not also instruct the jury on the converse —
that it must return a sentence of life without the possibility of
parole if it finds that mitigation outweighs aggravation. (People
v. Duncan (1991) 53 Cal.3d 955, 978.)
       Instructions on the meaning of a sentence of life
imprisonment without the possibility of parole and on the
“ ‘presumption     of   life’ ”  are    not     constitutionally
required. (People v. Demetrulias (2006) 39 Cal.4th 1, 43.)
     CALJIC No. 8.88 adequately instructs the jury to
determine whether the balance of aggravation and mitigation
makes death the appropriate penalty. (People v. Arias (1996)
13 Cal.4th 92, 171.)
     “Comparative intercase proportionality review by the trial
or appellate courts is not constitutionally required.” (Snow,
supra, 30 Cal.4th at p. 126.)
     California’s death penalty does not violate international
law or international norms of decency. (Thomas, supra,
53 Cal.4th at p. 837.)




                                  74
                       PEOPLE v. JOHNSON
             Opinion of the Court by Cantil-Sakauye, C. J.


                        IV. CONCLUSION
    The judgment is affirmed.
                                       CANTIL-SAKAUYE, C. J.


We Concur:
CHIN, J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.




                                  75
                     PEOPLE v. JOHNSON

                             S029551



               Dissenting Opinion by Justice Liu



      This is yet another case in which a black man was
sentenced to death for killing a white victim after a jury
selection process in which the prosecution disproportionately
excused black prospective jurors. And this is yet another case
in which this court has refused to find any inference of
discrimination in jury selection, despite a well-founded
suspicion that the prosecutor here, in evaluating prospective
jurors, targeted only black jurors for criminal background
checks.
      As the high court said in Batson v. Kentucky (1986) 476
U.S. 79 (Batson), “[s]election procedures that purposefully
exclude black persons from juries undermine public confidence
in the fairness of our system of justice.” (Id. at p. 87.) Yet it has
been more than 30 years since this court has found Batson error
involving the removal of a black juror. “Racial discrimination
against black jurors has not disappeared here or elsewhere
during that time” (People v. Hardy (2018) 5 Cal.5th 56, 124 (dis.
opn. of Liu, J.) (Hardy) [citing cases]), and if the facts in this
case do not give rise to an inference of discrimination, then I am
not sure what does. Because the totality of circumstances here
readily establishes a prima facie case of discrimination, I
respectfully dissent.




                                 1
                       PEOPLE v. JOHNSON
                         Liu, J., dissenting


                                 I.
       The Batson issue here arose during jury selection for
Johnson’s second penalty retrial in 1992 in Sacramento County,
a community that was 75.1% white and 9.3% black at the time.
(Bureau of the Census, U.S. Dept. of Commerce, 1990 Census of
Population, General Population Characteristics: California
(1992) p. 245.) Johnson, a black man, had been convicted of
murdering a white man, Aldo Cavallo, and the prosecutor
planned to introduce, and did introduce, evidence that Johnson
had assaulted and raped a white woman, Mary S., as an
aggravating factor in support of a death sentence. It must be
acknowledged at the outset that “the social, racial and sexual
overtones [of the case] were precisely the kind which could ‘most
effectively prejudice’ defendant.” (People v. Williams (1989) 48
Cal.3d 1112, 1129.)
       The fact that the contested strikes were directed at black
jurors in a case involving a black defendant is also relevant.
Just this year, the high court underscored that one of “the most
critical” aspects of the Batson opinion was its express
prohibition on “ ‘strik[ing] black veniremen on the assumption
that they will be biased in a particular case simply because the
defendant is black.’ ” (Flowers v. Mississippi (2019) 588 U.S. __,
__ [139 S.Ct. 2228, 2241] (Flowers), quoting Batson, supra, 476
U.S. at p. 97; see Powers v. Ohio (1991) 499 U.S. 400, 416
(Powers) [“Racial identity between the defendant and the
excused person might in some cases be the explanation for the
prosecution’s adoption of the forbidden stereotype, and if the
alleged race bias takes this form, it may provide one of the easier
cases to establish both a prima facie case and a conclusive
showing that wrongful discrimination has occurred.”].)



                                 2
                       PEOPLE v. JOHNSON
                         Liu, J., dissenting


      At the time of the Batson ruling now before us, the
prosecutor had used 15 peremptory strikes to remove three of
the five black jurors (60 percent) and 12 of the 35 nonblack
jurors (34 percent) in the jury box. Beyond the fact of this
disproportion, all three black jurors who were struck — Lois G.,
Sharon H., and Shanna H. — were qualified to serve as jurors
in this penalty trial. All three expressed a willingness to impose
the death penalty; all three indicated they would make a penalty
judgment based on the facts and evidence; and none said
anything on the juror questionnaire or during voir dire that
would have raised an obvious concern for the prosecution.
      Lois G. was a 59-year-old homeowner with two grown
children. She served as the vice president of a middle school and
was pursuing a doctorate degree in education. During voir dire,
she explained that she handled almost all the disciplinary issues
at the school, which put her in close contact with the police. On
her questionnaire, she indicated that she was “close friends”
with police officers. Lois G. also noted that she had been the
victim of a burglary and a car theft. As to whether she would
automatically vote either for death or for life without parole, she
wrote, “I have no biases regarding the penalties mentioned —
would listen and try to be fair in my assessment.” She also wrote
that she viewed the death penalty as “the law and the system
we are using” and would decide whether it should be imposed
“based on evidence in [the] case.” When asked if she had
religious objections to the death penalty, she wrote “no.” During
voir dire, she said her views on the death penalty were the same
as what she wrote on the questionnaire, and she again expressed
her willingness to impose the death penalty. Today’s opinion
acknowledges that there was no obvious reason for excusing
Lois G. (Maj. opn., ante, at p. 48, fn. 7.)


                                 3
                      PEOPLE v. JOHNSON
                        Liu, J., dissenting


      Sharon H. was 39 years old, had never been married, and
had no children. She worked in telecommunications at Pacific
Bell and was also the executive director of a nonprofit
organization she had founded. She said she works with abused
children at the nonprofit and has a “heart” for “what we call
throw-away kids.” When read in context, Sharon H.’s statement
did not make her a “clearly . . . undesirable juror from the
prosecution point of view.” (Maj. opn., ante, at p. 48, fn. 7.)
During voir dire, she drew a clear distinction between “kids that
are abused” and “the real difficult kids” who “have a lot of
criminality in their background.” She said her organization
refuses to serve the second category of children, who can be
“detrimental” to the organization’s other clients and “to the
whole neighborhood.” Given Johnson’s extensive juvenile
criminal record, it is not obvious that Sharon H. would have
sympathized with the mitigation evidence about his childhood.
      In addition, Sharon H. indicated on her questionnaire that
her sister had been the victim of a burglary. When asked
whether she had any “extraordinary security precautions at
[her] home,” she wrote that she had burglar alarms. Sharon H.
said she would not automatically vote for death or for life
without parole. She indicated clearly that she was willing to
impose the death penalty and said, “My general feeling is that
some crimes warrant it — some don’t.” When asked if she had
religious objections to the death penalty, she wrote “No.” During
voir dire, Sharon H. said her views on the death penalty were
the same as what she wrote on the questionnaire. She explained
that she does not make any decision automatically, has “been
known to ask a lot of questions,” and always tries to consider
“[e]verything.”



                                4
                       PEOPLE v. JOHNSON
                         Liu, J., dissenting


       Shanna H. was a 40-year-old homeowner with three
children in high school. She had been a state tax auditor for 19
years. On her questionnaire, she noted that she had twice been
the victim of burglary. She had “extraordinary security
precautions at [her] home,” including security bars and lights,
because “[she didn’t] want anyone taking what belongs to [her].”
As to her death penalty views, Shanna H. wrote that “the death
penalty [should be] used in cases where another life was taken
or any crimes committed against children & senior citizens.”
She indicated she would not automatically vote either for death
or for life without parole. When asked if she had religious
objections to the death penalty, she wrote “none.” During voir
dire, she reiterated that she would not automatically vote for or
against the death penalty. She clarified that she believed the
death penalty should be considered as a possibility when a life
is taken, not that it should be imposed any time a life is taken.
She also said that nothing in her religious beliefs dictated how
she should feel about the death penalty.
      When asked whether a member of her family had been
arrested for a crime, Shanna H. wrote that her son had been
arrested twice, including once for rape. But the significance of
those incidents is not as clear as the court suggests. (Maj. opn.,
ante, at p. 47, fn. 7.) During voir dire, Shanna H. explained that
her main concern with her son’s criminal proceedings was the
plea-bargaining process. She said she “thought everybody was
suppose[d] to be tried by the jurors.” Plea bargaining was not at
issue in this case; Johnson was convicted in a jury trial.
Furthermore, Shanna H. emphasized that her son’s experiences
would not affect her impartiality as a juror in this case. She said
that “[t]hose are two separate issues” and that she knew “how
to draw the line.” She explained that as a tax auditor she


                                 5
                      PEOPLE v. JOHNSON
                        Liu, J., dissenting


“learned every case stands on its own merit. You deal with the
facts.”
      It is evident that these three black women had diverse
backgrounds, occupations, and family circumstances. None of
them expressed views clearly suggesting partiality to the
defense; in fact, all of them had characteristics that might be
considered favorable to the prosecution. Lois G. and Shanna H.
had been victims of burglary, and Sharon H.’s sister had been a
victim of burglary; Johnson had been convicted of committing
murder during a burglary. (See People v. Turner (1986) 42
Cal.3d 711, 719.) All three jurors clearly expressed their
willingness to impose the death penalty; none indicated a
religious objection. And all three jurors consistently said they
would not automatically vote for or against the death penalty
and would instead make a decision based on the facts and
evidence — exactly as we would expect a conscientious juror to
do.
      The removal of these three jurors occurred against the
backdrop of the prosecutor’s revelation one day earlier that he
had run a criminal background check on a black juror, Kenneth
M. The background check showed that Kenneth M. had been
convicted twice of driving under the influence and arrested once
for domestic violence, a record at odds with the assertion on his
juror questionnaire that he had never been accused of or
arrested for a crime. The prosecutor asked the trial court to
investigate Kenneth M. for misconduct and suggested that he
should be removed from the venire. (Kenneth M. was not
removed for cause and was eventually struck by the prosecution
during the selection of alternate jurors.)




                                6
                      PEOPLE v. JOHNSON
                        Liu, J., dissenting


      In the trial court, there was no dispute that Kenneth M.
had provided inaccurate information on his questionnaire.
Instead, defense counsel wondered why the prosecutor, before
any individual voir dire of Kenneth M., had chosen Kenneth M.
for a criminal background check. Today’s opinion says defense
counsel’s concern was that “the prosecutor appeared to conduct
a criminal background check on only Kenneth M.” (Maj. opn.,
ante, at p. 44.) But what defense counsel actually said was:
“[Kenneth M.] is a Black or indicates on his form that he is
Black, and I am wondering if Mr. Mullins [the prosecutor] just
checked all the Black prospective jurors with respect to any
criminal record.” (Italics added.)
      At this point, the prosecutor replied, “I don’t think I am
obliged to answer that inquiry,” and went on to explain that he
did not conduct criminal background checks on all prospective
jurors. He said his approach was “to check certain jurors when
they spark my interest” or “if I find something on the
questionnaire that sparks my interest.” Defense counsel asked
to “have the information as to all the jurors that Mr. Mullins
ran.” When the prosecutor refused, defense counsel made clear:
“I think a Wheeler Motion is always something that could occur
in any case of this nature, and I think we should always be
aware of what’s going on and what’s happening with respect to
any potential Wheeler Motion that may be made, and I don’t see
why Mr. Mullins would object to informing us as to which jurors
he ran a check on so that we have the same information with
respect to those jurors.” (See People v. Wheeler (1978) 22 Cal.3d
258 [California’s forerunner to Batson].) The prosecutor again
refused, claiming there was no prima facie case for any Wheeler
motion.



                                7
                       PEOPLE v. JOHNSON
                         Liu, J., dissenting


      The prosecutor’s vague and evasive statements are cause
for suspicion. While stating that he ran background checks on
jurors who “spark my interest,” the prosecutor never pointed to
anything about Kenneth M.’s questionnaire that sparked his
interest or might have suggested Kenneth M.’s criminal history
warranted further investigation. And because individual voir
dire of Kenneth M. had not yet occurred, there is no suggestion
that something about Kenneth M.’s appearance or demeanor
sparked the prosecutor’s interest. Further, when directly asked
whether he had targeted all black jurors for criminal
background checks, the prosecutor refused to answer. When
defense counsel made clear that this issue would be relevant to
“any potential Wheeler Motion,” the prosecutor again refused to
answer. Even assuming the prosecutor was under no obligation
at that point to disclose how he had selected jurors for
background checks, it is suspicious that he did not simply
answer “no” when directly asked whether he “just checked all
the Black prospective jurors.” If the prosecutor had not targeted
only black jurors, why didn’t he say so? Answering “no” would
have put to rest any notion that he had targeted black jurors,
without requiring any affirmative description of how he had
selected jurors for background checks.
      It is true that “the prosecutor repeatedly accepted the jury
when two African-American jurors were on the panel, and
ultimately accepted a panel with three African-American
jurors.” (Maj. opn., ante, at p. 43.) But the prosecutor accepted
the third black juror on the panel after the three contested
strikes had resulted in two Batson motions. (Cf. Miller-El v.
Dretke (2005) 545 U.S. 231, 250 (Miller-El) [“This late-stage
decision to accept a black panel member willing to impose a
death sentence does not . . . neutralize the early-stage decision


                                 8
                       PEOPLE v. JOHNSON
                         Liu, J., dissenting


to challenge a comparable venireman . . . .”].) And as for the
prosecutor’s acceptance of the other two black jurors on the
panel, this fact may lessen but hardly dispels an inference of
discrimination. (See dis. opn. of Cuéllar, J., post, at pp. 12–13.)
Even if the totality of circumstances here does not amount to
proof of discrimination, it is more than enough to raise a
significant question about the prosecutor’s intent. In situations
like this, “[t]he inherent uncertainty present in inquiries of
discriminatory purpose counsels against engaging in needless
and imperfect speculation when a direct answer can be obtained
by asking a simple question.” (Johnson v. California (2005) 545
U.S. 162, 172.)
      In sum, the record readily supports an inference of
discrimination, and the trial court erred in failing to require the
prosecutor to state his reasons for striking three black jurors.
Because this penalty trial occurred 27 years ago, there is no
“realistic possibility” that the reasons for the strikes “could be
profitably explored further on remand at this late date.”
(Snyder v. Louisiana (2008) 552 U.S. 472, 486 (Snyder).) The
only available remedy is reversal of the penalty verdict, for we
cannot be confident, in light of the Batson error, that Johnson
was sentenced by a jury selected without regard to race.
                                II.
       In finding no inference of discrimination arising from
disproportionate strikes of black jurors, today’s decision is not
an anomaly in our case law. In another death penalty decision
filed today, the court finds no prima facie case of discrimination
where the prosecution’s removal of four black jurors was likely
“substantially disproportionate to the representation of African-
Americans in the jury pool.” (People v. Rhoades (Nov. 25, 2019,


                                 9
                       PEOPLE v. JOHNSON
                          Liu, J., dissenting


S082101) __ Cal.5th __ [p. 52] (Rhoades).) These decisions come
on the heels of another recent case finding no inference of
discrimination arising from the prosecution’s removal of five out
of six black jurors in the capital trial of a black defendant.
(People v. Reed (2018) 4 Cal.5th 989, 998–1003.) And that case
followed yet another decision finding no inference of
discrimination where the prosecutor struck two out of three
black jurors in the capital retrial of a black defendant accused
of raping and murdering a white woman, where the first trial
had resulted in a hung jury with the lone black juror as the
holdout. (People v. Harris (2013) 57 Cal.4th 804, 833–838
(Harris).)
      The facts of each case are unique, and the court must
decide each case based on the circumstances presented. But it
can be illuminating to take a step back and see the forest, not
just the trees. As I explain in Rhoades, this court has reviewed
the merits of a first-stage Batson denial in 42 cases (all death
penalty appeals) during the 14 years since Johnson v.
California. (Rhoades, supra, __ Cal.5th __ [p. 3] (dis. opn. of Liu,
J.).) “Not once did this court find a prima facie case of
discrimination — even though all 42 cases were tried before
Johnson v. California disapproved the ‘strong likelihood’
standard and held that ‘an inference of discrimination’ is
enough.” (Ibid.) Equally remarkable is the fact that it has been
more than 30 years since this court has found any type of Batson
error involving the removal of a black juror. (See People v. Snow
(1987) 44 Cal.3d 216.) This is despite the fact that “[t]he high
court’s opinion [in Batson] responded specifically to the
pernicious history of African Americans being excluded from
jury service, calling such exclusion ‘a primary example of the
evil the Fourteenth Amendment was designed to cure.’ ”


                                  10
                       PEOPLE v. JOHNSON
                         Liu, J., dissenting


(Hardy, supra, 5 Cal.5th at p. 124 (dis. opn. of Liu, J.), quoting
Batson, supra, 476 U.S. at p. 85.)
      A few months ago, the high court in Flowers reviewed our
nation’s history of excluding African Americans from jury
service and, with that context in mind, underscored the core
principles of Batson. (Flowers, supra, 588 U.S. at p. __ [139
S.Ct. at pp. 2238–2242].) Flowers went on to say: “In the
decades since Batson, this Court’s cases have vigorously
enforced and reinforced the decision, and guarded against any
backsliding,” citing Foster v. Chatman (2016) 578 U.S. __ [136
S.Ct. 1737], Snyder, supra, 552 U.S. 472, and Miller-El, supra,
545 U.S. 231 — all cases involving the removal of black jurors.
(Flowers, at p. __ [139 S.Ct. at p. 2243].) Clearly, racial
discrimination against black jurors has persisted. Yet no
comparable record of vigorous enforcement appears in our case
law over the same period. (Cf. People v. Gutierrez (2017) 2
Cal.5th 1150 [this court’s lone finding of Batson error in the past
18 years].)
      Although the Batson principle has been extended in
various ways, the high court’s decisions indicate that the
removal of black jurors from the criminal trial of a black
defendant remains the paradigmatic case. Such exclusion
results in three dimensions of harm. First, “the State denies a
black defendant equal protection of the laws when it puts him
on trial before a jury from which members of his race have been
purposefully excluded.” (Batson, supra, 476 U.S. at p. 85.)
Second, “by denying a person participation in jury service on
account of his race, the State unconstitutionally discriminate[s]
against the excluded juror.” (Batson, at p. 87.) “Other than
voting, serving on a jury is the most substantial opportunity
that most citizens have to participate in the democratic process.”

                                 11
                        PEOPLE v. JOHNSON
                           Liu, J., dissenting


(Flowers, supra, 588 U.S. at p. __ [139 S.Ct. at p. 2238].) For
“otherwise qualified and unbiased persons” like Lois G., Shanna
H., and Sharon H., exclusion “from the petit jury solely by
reason of their race” is “a practice that forecloses a significant
opportunity to participate in civic life.” (Powers, supra, 499 U.S.
at p. 409.) The exclusion of African Americans, in particular,
has long been condemned as a denial of equal citizenship, “ ‘an
assertion of their inferiority, and a stimulant to . . . race
prejudice . . . .’ ” (Flowers, at p. __ [139 S.Ct. at p. 2239], quoting
Strauder v. West Virginia (1880) 100 U.S. 303, 308.) And third,
the frequent and disproportionate exclusion of fully capable and
qualified black citizens from jury service breeds distrust of law
enforcement and “undermine[s] public confidence in the fairness
of our system of justice.” (Batson, at p. 87.) It is for this reason
that the high court in Batson said “[t]he harm from
discriminatory jury selection extends beyond that inflicted on
the defendant and the excluded juror to touch the entire
community.” (Ibid.)
      “Today, as when Batson was decided, it is a troubling
reality, rooted in history and social context, that our black
citizens are generally more skeptical about the fairness of our
criminal justice system than other citizens.” (Harris, supra, 57
Cal.4th at p. 865 (conc. opn. of Liu, J.).) The high court in recent
years has spoken with clarity, regularity, and urgency about the
continuing need to eliminate racial discrimination from our
justice system. It has described “racial bias” as “a familiar and
recurring evil that, if left unaddressed, would risk systemic
injury to the administration of justice.” (Peña-Rodriguez v.
Colorado (2017) 580 U.S. __, __ [137 S.Ct. 855, 868].) It has said
“[t]he duty to confront racial animus in the justice system”
belongs to the courts and “is not the legislature’s alone.” (Id. at


                                   12
                        PEOPLE v. JOHNSON
                          Liu, J., dissenting


p. __ [137 S.Ct. at p. 867].) It has said “ ‘[d]iscrimination on the
basis of race, odious in all aspects, is especially pernicious in the
administration of justice.’ ” (Buck v. Davis (2017) 580 U.S. __,
__ [137 S.Ct. 759, 778].) And it has said clearly and recently:
“Equal justice under law requires a criminal trial free of racial
discrimination in the jury selection process.” (Flowers, supra,
588 U.S. at p. __ [139 S.Ct. at p. 2242].)
      It is time that we, too, bring a greater sense of urgency to
ferreting out racial discrimination in the criminal justice
system. With respect to enforcing Batson, this means we must
not “elevate[] the standard for establishing a prima facie case
beyond the showing that the high court has deemed sufficient to
trigger a prosecutor’s obligation to state the actual reasons for
the strike.” (Harris, supra, 57 Cal.4th at p. 864 (conc. opn. of
Liu, J.).) Viewing today’s decision in its particulars and in the
broader context of our case law, I continue to “have serious
doubts as to whether our jurisprudence has held true to Batson’s
mandate.” (Id. at p. 866 (conc. opn. of Liu, J.); see Rhoades,
supra, __ Cal.5th __ [pp. 16–22] (dis. opn. of Liu, J.).) I
respectfully dissent.
                                                LIU, J.




                                  13
                    PEOPLE v. JOHNSON
                            S029551


            Dissenting Opinion by Justice Cuéllar


      Racial discrimination in jury selection is unlawful. But
“there can be no dispute,” the United States Supreme Court
warns us, that the system of peremptory challenges — which
allows a party to dismiss a juror for any reason, or no reason at
all — “permits ‘those to discriminate who are of a mind to
discriminate.’ ” (Batson v. Kentucky (1986) 476 U.S. 79, 96
(Batson).) Only if courts are vigilant can society prevent
prejudiced or unscrupulous lawyers from using peremptory
challenges as tools for unlawful discrimination. So when a trial
court has even a suspicion of discriminatory excusals, clear
precedent requires it to act by asking the party exercising the
peremptory challenge to explain why the juror is being excused.
      That’s a far cry from what happened in this case. The trial
court had compelling evidence that the prosecutor, even before
striking any African American jurors, had singled out African
American jurors for special — and unlawful — scrutiny. Yet
when the prosecutor sought to excuse a majority of the African
American prospective jurors from the jury that would decide
whether defendant Joe Edward Johnson would be subject to the
death penalty, no one asked the prosecutor to explain his
reasons.
      We should not affirm the trial court’s penalty phase
verdict on this record. A careful review of that record reveals
more than sufficient evidence to suggest that the prosecutor’s


                               1
                       PEOPLE v. JOHNSON
                        Cuéllar, J., dissenting


peremptory excusal of African American prospective jurors may
have been based on their race. First, issues of race were salient
in this case — defendant is African American, while the victims
of his murder and rape were white — which provided the
prosecutor a plausible motive to minimize the number of jurors
he might stereotypically perceive as favorable to Johnson.
Second, the prosecutor appeared to single out African American
jurors in conducting his extrajudicial criminal history
investigation, and he pointedly refused to deny this when he was
questioned about it. Third, the prosecutor was successful in
targeting the African American prospective jurors: he not only
removed most of the African Americans who made it into the
jury box, but he exercised peremptory challenges against
African American jurors at a far higher rate than other jurors.
Fourth, this record does not establish race-neutral reasons that
would necessarily dispel any inference of bias in striking these
jurors. Nor does the majority offer any. What the record does
reveal is a motive for the prosecutor to discriminate against
African American jurors, a plan to effectuate that
discrimination, and the prosecutor’s success in removing such
jurors.
      Yet not once did the trial court ask the prosecutor why he
struck the African American jurors. If I were a trial judge
presented with these circumstances, I would consider it my duty
under the Constitution to ask the prosecutor his reasons for
excusing them. A court’s clear-as-day responsibility is to do so
whenever “ ‘the totality of the relevant facts give rise to an
inference of discriminatory purpose.’ ” (Johnson v. California
(2005) 545 U.S. 162, 168 (Johnson).) That we’re reviewing this
record on appeal does not relieve us of this burden. In this case,
as the majority admits, our role is just like the trial court’s: we


                                  2
                       PEOPLE v. JOHNSON
                        Cuéllar, J., dissenting


must review the record “ ‘independently.’ ” (Maj. opn., ante, at
p. 40; accord, Wade v. Terhune (9th Cir. 2000) 202 F.3d 1190,
1199.)
      The majority opinion purports to undertake such a review
and concludes that the record is insufficient to raise an inference
of discrimination. But it does so by mischaracterizing the worst
of the prosecutor’s misconduct. (Maj. opn., ante, at p. 44.) It
glosses over the prosecutor’s success in achieving his goal. (Id.
at pp. 42-43.) And it artificially compartmentalizes the relevant
facts to avoid confronting the disturbing mosaic these facts
reveal. While it can thereby safely conclude that each isolated
fact does not raise a discriminatory inference (id. at pp. 42, 46),
that’s not how we’re supposed to review claims of discrimination
in jury selection. (See Flowers v. Mississippi (2019) 588 U.S. ___
[139 S.Ct. 2228, 2235] (Flowers).) What’s worse, it sets a bad
example for trial courts adjudicating such claims in the future.
I have no choice but to dissent, with respect.
                                  I.
      We analyze a claim of discrimination in jury selection in
three distinct steps. First, the opponent of a peremptory strike
must make out a prima facie case by showing that the totality
of the relevant facts gives rise to an inference of discriminatory
purpose in the exercise of peremptory challenges. Second, if the
opponent of the strike successfully makes out a prima facie case,
the burden shifts to the strike’s proponent, who must explain
the basis for excusing the juror by offering permissible,
nondiscriminatory justifications. Third, if the party who used a
strike offers a nondiscriminatory reason, the trial court must
decide whether the strike’s opponent has proved the ultimate




                                  3
                       PEOPLE v. JOHNSON
                       Cuéllar, J., dissenting


question of purposeful discrimination. (Johnson, supra, 545
U.S. at p. 168.)
       This case involves only the “low threshold” inquiry at the
first step. (People v. Scott (2015) 61 Cal.4th 363, 384 (Scott).)
The threshold is low because “[t]he Batson framework is
designed to produce actual answers to suspicions and inferences
that discrimination may have infected the jury selection process.
[Citation.] The inherent uncertainty present in inquiries of
discriminatory purpose counsels against engaging in needless
and imperfect speculation when a direct answer can be obtained
by asking a simple question.” (Johnson, supra, 545 U.S. at p.
172.) Our task is to examine the record so we can determine
whether “discrimination may have occurred.” (Id. at p. 173,
italics added.) Where (as here) the trial court failed to inquire
into the prosecutor’s reasons, we may affirm only if “[n]o
reasonable inference” of discrimination could arise from the
totality of the relevant facts. (State v. Robbins (N.C. 1987) 356
S.E.2d 279, 296; accord, People v. Howard (2008) 42 Cal.4th
1000, 1018.)
                                 A.
      Our state and federal Constitutions forbid prosecutors
from striking “a black juror based on an assumption or belief
that the black juror would favor a black defendant.” (Flowers,
supra, 139 S.Ct. at p. 2241; accord, People v. Wheeler (1978) 22
Cal.3d 258, 281.) In practice, though, a prosecutor may
nonetheless harbor just such a belief and try to capitalize on it.
So we have deemed it “especially relevant” to the discrimination
inquiry whether the defendant and the excused jurors are
members of the same identified group and whether the victims
are members of the group to which a majority of the remaining



                                 4
                       PEOPLE v. JOHNSON
                        Cuéllar, J., dissenting


jurors belong. (People v. Reed (2018) 4 Cal.5th 989, 999 (Reed);
see People v. Rhoades (Nov. 25, 2019, S082101) ___ Cal.5th ___
[p. 62] (Rhoades) [“the racially charged nature of a case may
properly inform an appellate court’s consideration of whether a
pattern of strikes establishes a prima facie case of
discrimination”].) Both factors are present here. Johnson, like
the prospective jurors who were the subject of the
Batson/Wheeler motion, is African American. The murder
victim, Aldo Cavallo, was white. So is Mary S., who was the
victim in perhaps the most incendiary act offered in
aggravation: a brutal assault and rape at gunpoint, in her
church after mass. So the race of the defendant and the victims
in this case does raise “heightened concerns about racial bias in
jury selection.” (Rhoades, at p. __ [p. 65].) 1
      The racially charged nature of this prosecution would not
have been lost on a prosecutor who sought to discriminate in
jury selection. (See Smith v. U.S. (D.C. 2009) 966 A.2d 367, 376-

1
       Yet contrary to our clear precedent, the trial court did not
find these circumstances “especially relevant” or worthy of
“heightened concern.” Rather, the trial court began its analysis
of the Batson/Wheeler motion by asserting — incorrectly — that
“if you compute the number of Caucasians that were available,
his exclusion rate for them would be the same or greater than
for the black persons who have come into the jury box.” Defense
counsel diplomatically chose “not to disagree with [the court’s]
math so much” and focused instead on the especially relevant
fact that “Mr. Johnson is not white. He’s black,” like the jurors
who were the subject of the Batson/Wheeler motion.
Unfortunately, the trial court erroneously failed to accord that
fact — or the race of the victims — any heightened concern. It
first offered a non sequitur — “you don’t have to be black to
make this motion” — and then summarily dismissed defense
counsel’s stated concerns: “So, it isn’t just race specific to a
defendant. That’s just a side issue that we need not get into.”


                                  5
                       PEOPLE v. JOHNSON
                        Cuéllar, J., dissenting


377.) Which is why we apply “ ‘closer scrutiny’ ” to the
prosecution’s peremptory challenges in this case. (Id. at p. 377;
see Powers v. Ohio (1991) 499 U.S. 400, 416 [“Racial identity
between the defendant and the excused person might in some
cases be the explanation for the prosecution’s adoption of the
forbidden stereotype, and if the alleged race bias takes this form,
it may provide one of the easier cases to establish both a prima
facie case and a conclusive showing that wrongful
discrimination has occurred”].)
                                  B.
     “Searching” is not a word we can plausibly apply to the
majority’s scrutiny of the record.
       Among the most troubling aspects of this case is the
prosecutor’s unwillingness — or inability — to deny a direct
accusation that he had singled out the African American jurors
in his criminal history investigation. But the majority’s analysis
nowhere addresses this remarkable, if implicit, admission of
discriminatory conduct. Instead, it erects and then knocks down
an argument of its own creation. In the majority’s view, Johnson
is “arguing that the prosecutor appeared to conduct a criminal
background check on only Kenneth M.” (Maj. opn., ante, at p.
44.) The majority then hastens to point out how the record
indicates “that Kenneth M. was not the only juror he
investigated”; it shows merely “that Kenneth M. may have been
the only juror checked who provided inaccurate information on
his questionnaire.” (Ibid.) The majority is correct on both
points, but neither responds to the argument Johnson makes.
Indeed, Johnson explicitly recognized that “the prosecutor
apparently investigated more than one juror.”




                                  6
                       PEOPLE v. JOHNSON
                       Cuéllar, J., dissenting


       What matters in this case is not how many jurors the
prosecutor investigated, but what triggered his selective
investigation of certain jurors in the first place. As Johnson
explains clearly enough, “The prosecutor’s explanation that he
might investigate a particular juror if ‘something on the
questionnaire sparks my interest’ [citation] does nothing to
dispel the suspicion that race played a role in what sparked his
interest.” When we examine the totality of the relevant facts, it
is fair to infer the prosecution appeared to have a plan to target
the African American jurors.
      Consider the relevant facts. The prospective jurors filled
out a questionnaire. Prior to the voir dire of any African
American juror — and armed only with that questionnaire,
which included information about the juror’s race — the
prosecutor announced he had run a computer criminal history
check on “some of the jurors” and happened to discover that
Kenneth M., an African American prospective juror, had two
misdemeanor convictions. Those convictions were inconsistent
with a response on his jury questionnaire, which asked whether
he had ever been accused of or arrested for a crime.
      Defense counsel immediately wondered just what it was
about Kenneth M. that would have sparked the prosecutor to
conduct a special investigation into that particular juror.
Indeed, defense counsel noted the questionnaire itself didn’t
indicate that the juror was lying “or lead one to suspect that
maybe he’s misinforming the Court or us with his background.”
Yet the prosecutor admitted that he had not checked “all the
jurors so far” — indeed, he said that “takes too much time. I
don’t have time to do that.” Given the racially charged nature
of the prosecution, defense counsel asked the question that
would be on anyone’s mind: “I am wondering if [the prosecutor]

                                 7
                       PEOPLE v. JOHNSON
                        Cuéllar, J., dissenting


just checked all the black prospective jurors with respect to any
criminal record.”
       Under ordinary circumstances, that seems like a
straightforward question that should be easy to answer: Were
you racially profiling the African American prospective jurors?
An answer wouldn’t reveal the prosecutor’s legitimate strategy
or thinking. What would make the question daunting for the
prosecutor to answer, though, is if he was in fact racially
profiling the African American jurors. To say yes would be
admitting to what the majority calls “a prima facie case of
discrimination.” (Maj. opn., ante, at p. 44, fn. 5.) To say no
would be lying to a tribunal, an ethical violation. (Rules Prof.
Conduct, rule 3.3(a)(1).)      A natural inference from the
prosecutor’s actual response — “I don’t think I am obliged to
answer that inquiry” — is that the prosecutor wanted to avoid
making that choice. The basis for the discriminatory inference
became even stronger when the prosecutor continued not to
answer, even when the court made clear the price of his silence:
“Obviously, if we reach a stage in the proceeding in which there
is some issue of Wheeler-type concerns, then the state of mind
and the purpose of the prosecutor then would become relevant.”2




2
      The record does not indicate that the trial court ever
considered this pivotal fact in denying Johnson’s Batson
challenge, however. Fortunately, as an appellate court, “we
have the benefit of being able to examine the record in more
detail, and at a great deal more leisure, than a trial court in the
midst of jury selection.” (Rhoades, supra, ___ Cal.5th ___ [p. 55,
fn. 16].) But we must actually examine the record in detail to
get the benefit of this perspective. The majority opinion falls
short in this regard.


                                  8
                       PEOPLE v. JOHNSON
                        Cuéllar, J., dissenting


      The majority notes the absence of any significant
disparities in the prosecutor’s questioning of the African
American jurors in voir dire. (Maj. opn., ante, at p. 44.) But this
glosses over the fact that the best evidence of a disparity in the
overall selection of jurors was unavailable precisely because the
prosecutor refused to answer a direct question about that
disparity. (See Johnson, supra, 545 U.S. at p. 171, fn. 6, citing
Vajtauer v. Comm’r of Immigration (1927) 273 U.S. 103, 111;
Vajtauer, at p. 111 [“ ‘Silence is often evidence of the most
persuasive character’ ”].)
        When the majority finally gets around to acknowledging
that direct question — and the inferences to be drawn from the
prosecutor’s unwillingness or inability to answer — its analysis
proves less than persuasive. The majority speculates that
maybe the prosecutor didn’t want to encourage further probing
into his “trial strategy.” (Maj. opn., ante, at p. 45.) But no
legitimate trial strategy can encompass racial profiling of
prospective jurors.      Moreover, the prosecutor’s reticence
naturally culminated in the repeated follow-up requests that a
simple “yes” or “no” could have avoided. Such conduct matters
not because the prosecutor was legally obligated under
Batson/Wheeler to answer defense counsel’s question. What
matters instead is that the record taken as a whole — the racial
atmospherics of the charged crimes, the absence of anything in
Kenneth M’.s questionnaire responses that would trigger a
selective background inquiry, and the fact that Kenneth M. and
defendant were of the same race — would lead any reasonable
observer to wonder whether the prosecutor had racially profiled
him (and perhaps the rest of the African American jurors). Even
if it’s conceivable the prosecutor declined to address this issue
simply because he wasn’t legally obligated to do so, it’s also


                                  9
                       PEOPLE v. JOHNSON
                        Cuéllar, J., dissenting


plausible that the prosecutor declined to provide a response
because he was caught on the horns of a dilemma: either admit
his discriminatory intent and jeopardize the venire, or deny it
and risk a disciplinary inquiry.
       Of course, Johnson’s burden at this stage of the inquiry is
not to prove that the prosecutor’s criminal history investigation
was race-based. All he needs to show is that the record raised
an inference of discriminatory intent. Because there can be no
legitimate explanation for targeting only the African American
jurors for a criminal history check, such disparate treatment —
if it occurred — would be powerful evidence of discriminatory
intent. (See Flowers, supra, 139 S.Ct. at pp. 2246-2248.)
                                  C.
      The record also supports the inference that the
prosecutor’s efforts to target the African American jurors was
not limited to criminal history investigations. As the majority
concedes, the prosecutor struck more than half of the African
American jurors during voir dire — but fewer than a third of the
other jurors. Moreover, the prosecutor used 21 percent of his
strikes (4/19) to remove African American jurors — which was
62 percent higher than their representation in the relevant pool
(7/54).
      At least in this case, such disparities tend to support an
inference of bias. (See, e.g., Fernandez v. Roe (9th Cir. 2002) 286
F.3d 1073, 1078 [inference established where “[t]he prosecutor
struck four out of seven (57%) Hispanics, . . . thus supporting an
inference of discrimination. While Hispanics constituted only
about 12% of the venire, 21% (four out of nineteen) of the
prospective juror challenges were made against Hispanics”];
Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 813 [inference


                                  10
                        PEOPLE v. JOHNSON
                         Cuéllar, J., dissenting


established when the prosecutor used 56 percent of her challenges
against African Americans, who comprised only 30 percent of the
pool — a relative disparity of 87 percent], overruled on other
grounds in Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 685; U.S.
v. Alvarado (2d Cir. 1991) 923 F.2d 253, 255-256 [inference
established where the prosecutor challenged 50 percent of
minority venirepersons, who represented only 30 percent of the
pool]; id. at p. 256 [“We think a challenge rate nearly twice the
likely minority percentage of the venire strongly supports a prima
facie case under Batson”]; Cazares v. Evans (C.D.Cal. Nov. 8, 2010,
No. CV 05-1045-VBF(JC)) 2010 U.S. Dist. Lexis 142142, *43
[inference established where “[t]he prosecutor had used four of 15
challenges (i.e., 27 percent of its challenges) to remove Hispanic
jurors, removing 57 percent of the available Hispanic jurors, in a
case where Hispanics comprised roughly 19 percent of the jury
pool”].)
      The majority endeavors to avoid this conclusion by
misdirecting the focus of the inquiry. According to the majority,
these statistics “do not by themselves suggest an inference of
discrimination.” (Maj. opn., ante, at p. 42.) Yet no one claims they
do. Indeed, the small sample size limits to some extent the import
of these disparities. (See Carmichael v. Chappius (2d Cir. 2017)
848 F.3d 536, 549, fn. 79.) What we must do, though, is consider
the disparities in the context of all the other relevant facts. (People
v. Gutierrez (2017) 2 Cal.5th 1150, 1158.) Those facts include the
racially charged aspects of the trial — as well as a strong suspicion
that the prosecution may have targeted the African American
jurors for special scrutiny when conducting background checks. It
is in light of those facts that we must consider statistical evidence
of the disparate rate at which the prosecution excused jurors who
were African American relative to jurors who were not. Reviewing


                                   11
                        PEOPLE v. JOHNSON
                           Cuéllar, J., dissenting


the circumstances independently — as the majority recognizes we
must — I’d say at a minimum it rises to the “sure looks suspicious”
standard. (Cf. Carmichael, at pp. 548-549 [“Had we been presiding
over jury selection in Carmichael’s case in the first instance, we
might very well have concluded that Carmichael made out a prima
facie showing of race discrimination”].)
      The majority casts aside such concerns by purporting to rely
on Reed, supra, 4 Cal.5th 989.               But that case is readily
distinguished.   The prosecutor in Reed used 44 percent of his
strikes to excuse African American jurors, which was only 29
percent higher than their representation in the venire (34 percent).
(Id. at p. 1000.)     Here, though, the strike rate for African
Americans was 62 percent higher than their representation in the
venire. Nor was there any discussion in Reed of a disparity in the
exclusion rate for African American jurors relative to the rest of
the pool. In this case, by contrast, the disparity in the exclusion
rate was substantial. The prosecutor removed 57 percent of the
African American jurors, but only 32 percent of the remaining
jurors — an absolute disparity of 25 percent and a relative
disparity of 78 percent.
      True: the jury that decided Johnson’s fate included three
African Americans. But their presence, as the majority concedes,
“ ‘does not necessarily settle all questions about how the
prosecution used its peremptory challenges.’ ” (Maj. opn., ante, at
p. 43, quoting Reed, supra, 4 Cal.5th at p. 1000.) Indeed, while
their presence may “ ‘help lessen the strength of any inference of
discrimination that the pattern of the prosecutor’s strikes might
otherwise imply’ ” (ibid.), the lessening of the inference in this case
is slight. After all, the prosecutor did not have enough peremptory
challenges left to remove each of the remaining African American
jurors and Kenneth M. (See maj. opn., ante, at p. 42.) Moreover,

                                     12
                        PEOPLE v. JOHNSON
                         Cuéllar, J., dissenting


as luck would have it, jurors in that racial group “were
overrepresented in the box compared to their representation in the
candidate pool.” (Id. at p. 43.) The prosecutor likely feared he
could not have excused additional African American jurors without
attracting uncomfortable attention.
      At core, the essential question that merits attention here is
whether racial discrimination may have occurred in the excusal of
the jurors that are the subject of the Batson/Wheeler motion, “ ‘not
on the fact that other blacks may remain on the jury panel.’ ”
(Holloway v. Horn (3d Cir. 2004) 355 F.3d 707, 729 [finding an
inference of discrimination, despite the presence of three African
American jurors on the panel]; U.S. v. Alvarado, supra, 923 F.2d
at p. 256 [“The discrimination condemned by Batson need not be
as extensive as numerically possible”].) This is so because our
state and federal Constitutions prohibit efforts to reduce the
number of African American jurors, not just efforts to bar them
entirely. (See People v. Snow (1987) 44 Cal.3d 216, 225 [allowing
a prosecutor to “ ‘ “avoid the appearance of systematic exclusion by
simply passing the jury while a member of the cognizable group
that he wants to exclude is still on the panel” ’ ” would “ ‘ “ignore[]
the fact that other members of the group may have been excluded
for improper, racially motivated reasons” ’ ”]; accord, Sanchez v.
Roden (1st Cir. 2014) 753 F.3d 279, 288, 306-307 [finding an
inference of discrimination, despite the presence of five African
Americans on the jury panel]; U.S. v. Battle (8th Cir. 1987) 836
F.2d 1084, 1086 [finding an inference of discrimination, despite the
presence of two African Americans on the panel; “the striking of a
single black juror for racial reasons violates the equal protection
clause, even though other black jurors are seated, and even when
there are valid reasons for the striking of some black jurors”];
People v. Bolling (N.Y. 1992) 582 N.Y.S.2d 950, 953-954 [finding


                                   13
                        PEOPLE v. JOHNSON
                        Cuéllar, J., dissenting


an inference despite the presence of five African Americans on the
panel]; see generally U.S. v. David (11th Cir. 1986) 803 F.2d 1567,
1571 [“[T]he command of Batson is to eliminate, not merely to
minimize, racial discrimination in jury selection”].) The majority,
unfortunately, fails to grant Johnson the full measure of
constitutional protection to which he is entitled.
                                  D.
      Taken together, these circumstances support an inference
that the prosecutor was targeting the African American jurors.
What should have triggered further concerns among the members
of the majority is the absence of any “nondiscriminatory reasons
for [the] peremptory challenge[s] that are apparent from and
‘clearly established’ in the record [citations] and that necessarily
dispel any inference of bias.” (Scott, supra, 61 Cal.4th at p. 384.)
      Consider, for example, Prospective Juror Lois G. As the
majority concedes, there are no obvious race-neutral reasons for
this African American juror’s excusal. She would have been, by all
accounts, a more than capable juror. She was a 59-year-old middle
school administrator who was pursuing her doctorate in education.
Among her responsibilities was student discipline. She assisted
teachers when problems arose and interacted with the police “a
lot.” She described her school’s “biggest problems” as guns, knives,
and drugs, and said the prevalence of gangs was “real
disheartening.”
      Nor did her views on law enforcement seem disqualifying,
either. She had twice served on a jury that reached a verdict, one
of which was a homicide case. Her close friends included police
officers, and she had herself been the victim of a burglary and a
car theft. (See People v. Turner (1986) 42 Cal.3d 711, 719 [finding
an inference of discrimination where the prosecutor struck the


                                  14
                         PEOPLE v. JOHNSON
                         Cuéllar, J., dissenting


first two African Americans in the box: each had been a victim of
crime, one had a friend who was a police officer, and the defendant
was a member of the excluded group but his alleged victims were
white].)   She believed courts were fair in sentencing criminal
defendants, at least in the cases with which she was familiar. She
was not predisposed to vote for or against the death penalty, and
said her judgment would be based on the evidence in the case.
Most importantly, she intended to be fair and listen to all the facts
before coming to a decision.
      The reasons conjured in the Attorney General’s brief for the
first time in this court are strained and fall far short of “dispelling”
an inference of discriminatory intent. (Reed, supra, 4 Cal.5th at p.
1001.)     He contends first that Lois G. “harbored a certain
skepticism or distrust regarding the fairness of the criminal justice
system.” As proof, he claims that she replied “equivocally” when
asked about the fairness of criminal sentencing — but her
questionnaire answer does not reveal any such equivocation. In
response to a question soliciting her view whether courts are “too
lenient, too strict, or usually fair and appropriate in sentences
handed down to criminal offenders,” the juror responded, “In cases
I’ve heard about the court seemed to be fair. It is difficult to judge
if you’re not part of the situation.” In any event, the prosecutor did
not ask any follow-up questions on this topic, as he “probably
would have done if [the issue] had actually mattered.” (Miller-El
v. Dretke (2005) 545 U.S. 231, 246.)
      The other proffered reason is a hypothesis that the
prospective juror “would be particularly sympathetic to the
mitigating evidence of childhood abuse and alleged mental illness”
because of her “career choice[].” This seems quite unlikely. A
substantial part of the defense strategy was to offer psychiatric
and psychological experts to opine about Johnson’s mental

                                   15
                        PEOPLE v. JOHNSON
                        Cuéllar, J., dissenting


disorders. (See maj. opn., pp. 14-16.) Yet Lois G. agreed with the
prosecutor that the value of those opinions could only be as good
as the information underlying those opinions: “I think you have to
assess the facts because otherwise you’re biased if you are not
looking at — if you look at somebody’s opinion that creates another
problem because everybody has a different opinion . . . .”
      Both of these belatedly hypothesized reasons, moreover,
constitute rank speculation that the prosecutor excused the juror
for a nondiscriminatory reason. The prosecutor was never asked
to offer his reasons for excusing Lois G. — or any of the other
African American prospective jurors. It’s certainly possible that if
the prosecutor had been asked to provide his reasons, he might’ve
offered these two. And it’s possible, I suppose, that the trial court
might’ve credited these reasons as sincere and not pretextual —
even though the record tends to cast doubt on both of them. In the
absence of that actual exchange, though, what’s obvious is the lack
of a compelling or even modestly convincing reason — other than
her race — for excusing Lois G. So this factor, too, weighs in favor
of an inference of discriminatory intent. (See Boyd v. Newland (9th
Cir. 2006) 467 F.3d 1139, 1147.)
                                 II.
      The stakes are as high as they can get in this case. Johnson
was sentenced to death in a proceeding that may have been tainted
by racial discrimination in selecting the jury that decided his fate.
Yet the majority unjustifiably declines to investigate whether that
inference of discrimination became a reality.
      But there’s more.     By failing to grapple with what the
prosecutor actually did, the court unwittingly provides a road map
for ensuring that unlawful discrimination evades judicial scrutiny.
The majority effectively encourages prosecutors to frontload their


                                  16
                        PEOPLE v. JOHNSON
                         Cuéllar, J., dissenting


unlawful targeting of disfavored groups: single out the disfavored
group for intensive investigation prior to jury selection, use the
results to disqualify as many members of that cognizable group as
possible in voir dire, and then stonewall any inquiry into whether
the investigation was mere racial profiling.         The cost to a
prosecutor bent on discriminating? Nothing. Getting a leg up in
striking disfavored groups from the jury pool, so that fewer
discriminatory excusals are needed during voir dire? Priceless.
But justice — and the appearance of justice –– are prized less. (See
Batson, supra, 476 U.S. at p. 87 [“Selection procedures that
purposefully exclude black persons from juries undermine public
confidence in the fairness of our system of justice”]; cf. Campbell v.
Louisiana (1998) 523 U.S. 392, 399.)
      The prosecutor excused most of the African Americans in the
jury pool. There’s more than enough evidence to raise an inference
that the prosecutor may have acted with discriminatory intent in
doing so. We should not affirm the judgment without demanding
the prosecutor provide his reasons for excusing those prospective
jurors. And we should not turn a blind eye when a prosecutor
makes apparent efforts to single out African American prospective
jurors for criminal history investigations. Because the majority’s
decision all but bestows its blessing on such conduct from the
prosecution, I must dissent with respect.
                                               CUÉLLAR, J.
I Concur:
LIU, J.




                                   17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Johnson
_______________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

_______________________________________________________________________________

Opinion No. S029551
Date Filed: November 25, 2019
_______________________________________________________________________________

Court: Superior
County: Sacramento
Judge: Peter Mering

_______________________________________________________________________________

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointments by the
Supreme Court, Kent Barkhurst and Andrew C. Shear, Deputy State Public Defenders, for
Defendant and Appellant.

Brian Stull; Linda Lye; Lydia Gray; and David Loy for ACLU, ACLU of Northern California,
ACLU of Southern California and ACLU of San Diego and Imperial Counties as Amici Curiae on
behalf of Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell, Stephanie
A. Mitchell and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Andrew C. Shear
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607
(510) 267-3300

Melissa Lipon
Deputy Attorney General
1300 I Street
Sacramento, CA 95814
(916) 210-7662
