Los Angeles County Super. Ct. No. BA137272 Judge: Jacqueline A. Connor.
The opinion of the court was delivered by: Chin, J.
A jury convicted defendant Calos Anthony Hawthorne of th.e first degree murder of Vanessa Sells (Pen. Code, § 187),*fn1 the attempted murder of Kristian F. (§§ 187, 664), the first degree robbery of both Sells and Kristian (§ 211), and first degree residential burglary (§ 459). It found true special circumstance allegations of robbery murder (§ 190.2, subd. (a)(17)(A)) and burglary murder (§ 190.2, subd. (a)(17)(G)). After a penalty trial, the jury returned a verdict of death, and the trial court imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
1. The Prosecution's Case
a. The Burglary, Robbery, Shootings, and Defendant's Arrest
On August 25, 1996, 16-year-old Kristian and her mother Vanessa Sells lived in a house on Sunlight Plaza in Los Angeles. In the early evening hours, Kristian was in her bedroom and heard her mother scream from the vicinity of the front door. When Kristian entered the hallway to check on her mother, she saw a man with a revolver in his hand and a bandana covering the bottom of his face. The masked man ordered her to lie on the floor; she complied. Sells then entered the hallway followed by a different man, later identified by Kristian as defendant. Defendant was also armed with a revolver, but was not wearing anything over his face. Defendant ordered Sells, who was crying, to lie on the floor next to her daughter.
Defendant stood watch over the two women as the masked man went through the house. Although Kristian tried to calm her crying mother, defendant threatened to shoot them if they were not quiet and cocked the gun for emphasis. He warned that they would be killed if they reported this incident to anyone. By this time, Sells was crying "very hard" and praying aloud. Defendant ordered Sells to go into her bedroom, followed her, and rummaged through her closet and inside some drawers. As he was looking through everything, he yelled at Sells - who was still crying - to be quiet.
Defendant returned to the hallway and yelled to the masked man to find something to use to tie up the women. Defendant remarked to Kristian that she was a "real pretty girl" and she was "lucky he [was] not Jeffrey Dahmer or he would rape [her]." The masked man produced a T-shirt, but defendant used a telephone cord instead to tie Kristian's hands behind her back and her hands to her feet. Defendant took a silver bracelet with the inscription "Jinneh" from Kristian's wrist and a silver necklace from her neck. He then carried her to her bedroom, placed her on the bed, and searched through her belongings. He ordered the masked man to unplug and take the radio. They then left the bedroom, leaving Kristian there.
From her bedroom, Kristian overheard defendant ask her mother about the location of her money. Sells directed him to her purse on the kitchen table. Shortly afterwards, defendant asked if there was any more money. Sells responded no and explained that she had been laid off from her job two weeks earlier. When defendant inquired about a cellular phone, Sells told him it was in her car. Kristian then heard her mother say she had been cooking and asked defendant to turn off the stove so that the house would not burn down. Defendant retorted, "Do you think this is a fucking joke or something?" He yelled to his masked accomplice, "She think we're playing with her."
Defendant returned to Kristian's bedroom and searched through her closet and dresser drawers. After a few minutes, defendant shouted to his accomplice to check if anyone was outside. The man responded that he saw some neighbors outside and told defendant to "hurry up." Defendant left Kristian's bedroom.
Kristian heard both men walking towards the front door and defendant say, "Fuck that. They're going to tell." She then heard a set of footsteps coming back into the house and the masked man say, "Hurry up." Kristian heard her mother scream "no," followed by three gunshots. Defendant appeared in Kristian's bedroom with a gun. He directed her to turn her head away from him, shot her once in the back of the head, and then shot her again. Pretending she was dead, Kristian closed her eyes and held her breath. Defendant went to the side of the bed where her head was facing and said "hey" to her, but she did not respond. He left the bedroom.
After Kristian thought the two men had left, she untied herself and called 911. While she was speaking to the 911 operator, Jerold Smith, a family friend, arrived and took the phone from her. Kristian tied a shirt around her head to decrease the bleeding and checked her mother. She found her mother tied with a telephone cord and lying motionless on the bedroom floor. Kristian began to cry and told her mother to get up. Her mother did not respond. When Kristian went outside to wait for the ambulance, she noticed that her mother's Lexus automobile was missing from the driveway.
At 7:17 p.m. the following evening, August 26, defendant made a 911 call. He told the operator that he had some helpful information about "some lady missing a Lexus" as had been reported on television and that he had found the keys to that car. When asked how he found the keys, defendant claimed he saw two men - who appeared to be "dope smokers" - switch the license plates on a Lexus car. They abandoned the unlocked car; the keys were under the driver's seat. Defendant said he drove the car to a location near his house, claiming this had occurred around 3:25 p.m. that day. When the operator asked defendant if he would wait there for the police, he replied, "Hell no, they might kill my ass."
Defendant related the car was silver/bronze in color, like "what they [had] said on TV," and provided some crude directions to its location. When asked for better directions, defendant replied he could not stay there and said he would leave the keys on the roof of the car. When the operator asked defendant to place the keys under a mat instead, he refused, saying, "I ain't touching that car no more." When the operator pointed out that defendant had already touched the car, defendant responded, "I wiped my shit off." When the operator suggested defendant use his shirt sleeve to open the door handle and put the keys inside the car, defendant agreed.
Defendant asked if he would be "getting something for this," but refused to give his telephone number for fear the police would come to his house. Although defendant provided his name, race, and age, he refused to meet with the police and explained he did not want to "get labeled as no informant." Nevertheless, he related he was at a pay telephone across the street from a Fedco store, described his clothing, and added he had "real curly hair."
In the meantime, police officers responded to a radio broadcast regarding an auto theft and found the stolen Lexus car near Sunlight Plaza. The dispatcher directed the officers to the pay telephone from which defendant was calling, located about 10 blocks away. The officers found defendant - who was still talking to the operator and holding the keys to the Lexus car - and arrested him. They discovered Kristian's silver necklace and bracelet in defendant's pocket.
Five days after the shootings, Sells died from three gunshot wounds to the head and base of her skull and neck. Kristian survived, with a bullet still lodged inside her head at the time of trial.
b. Defendant's Tape-Recorded Confession
Shortly after defendant's arrest, Detectives Ray Morales and Bill Smith interviewed defendant. Initially, defendant denied any personal knowledge of, or involvement in, the crimes against Sells and Kristian. He claimed that, while walking around, he saw the Lexus car and recognized it from a television news report of the robbery and shooting that occurred the night before. He saw three "dope fiends" taking things from inside the car. After they left, defendant found the car keys inside the unlocked car and drove the car home. His mother warned defendant not to drive the car because the police were looking for it. Defendant asserted that Kristian's silver necklace and bracelet belonged to his sister.
When the detectives expressed disbelief at his story, defendant admitted he was involved in the crimes, but claimed that the other man - whom he called Charles Williams - was the mastermind. Although defendant did not want to be involved in the incident, he went along because Williams was bigger, had a gun, and had just gotten out of prison. At first, defendant asserted that Williams ordered the women on the ground, demanded money, shot the women, and stole their belongings. Defendant claimed that he was not armed and did not know Williams was going to shoot the women, and that Williams later gave him the stolen jewelry. Defendant volunteered that he turned off the stove when requested by Sells and suggested that the fact he was unmasked supported his nonculpability.
When the detectives continued to express their disbelief, defendant began admitting piecemeal his direct participation in the crimes. He maintained that Williams shot the women, claiming he only held the gun "for a minute," pointed it at the women when they were on the floor, tied up Kristian after Williams ordered him to do so, and carried Kristian into her bedroom. He admitted making a comment about Jeffrey Dahmer, but asserted he had to persuade Williams not to rape the victims.
Eventually defendant admitted he shot the victims, but claimed that Williams "made" him after he threatened to "get" defendant if he did not shoot them. He told the police he liked both women and did not want to shoot them.
At defendant's request, the trial court admitted a copy of a form defendant signed consenting to a search of his home. Otherwise, he rested on the state of the evidence and did not present any witnesses in the guilt phase.
1. The Prosecution's Case
In addition to relying on the circumstances of the charged offenses, the prosecution introduced evidence that defendant committed two prior bicycle thefts and presented the testimony of Kristian, as well as that of Sells's father, regarding the impact of Sells's death.
The bicycle thefts occurred in 1991 and 1993. Defendant was 14 years old at the time of the first theft and 17 years old at the time of the second. Humberto Sanchez, whose bicycle was stolen in 1991, and the arresting officer testified. Regarding the 1993 offense, the prosecution introduced documentary evidence to establish that the case was certified to adult court, where defendant suffered a conviction for second degree robbery with a finding that he used a BB gun during its commission. The parties stipulated that defendant was released from the former California Youth Authority (CYA) on July 9, 1996, less than two months before the crimes in this case.
The defense presented evidence relating to defendant's history of emotional and behavioral problems, his religious education, and his family background. The evidence included testimony of an early childhood diagnosis of attention deficit disorder (ADD) and the physical abuse inflicted on his mother by his stepfather.
Defendant testified about the physical abuse inflicted on him by his stepfather and the violence inflicted on him outside of the home. He was kidnapped and tortured when he was 12 years old, hit by a car when he was 13 years old, and shot in a drive-by shooting when he was 16 or 17 years old. Regarding the crimes in this case, defendant essentially repeated the same statements made to the police. He admitted that he shot the two victims, but claimed that a man named "Lumpy" forced him to do so and to participate in the robbery. Defendant, who was not armed, acted out of fear because "Lumpy" was armed, had just been released from prison, and was older, physically bigger, and stronger than he was. He stated he did not intend or plan to rob or kill anyone. He apologized for what he did, but said there was nothing he could do to change it, and asked for "a chance to do something good in [his] life."
Defendant, who is African-American, claims the prosecutor improperly exercised peremptory challenges against three African-American prospective jurors on the basis of race. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) The applicable law is well settled. Under Wheeler, supra, 22 Cal.3d 258 "[a] prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias-that is, bias against 'members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds'-violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution. [Citations.]" (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008.) "Such a practice also violates the defendant's right to equal protection under the Fourteenth Amendment. [Citations.]" (Ibid., citing Batson, supra, 476 U.S. at p. 88.)
"The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard trial courts should use when handling motions challenging peremptory strikes. 'First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [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." [Citation.]' " (People v. Lewis and Oliver, supra, 39 Cal.4th at pp. 1008-1009, quoting Johnson v. California (2005) 545 U.S. 162, 168.)
Without objection from defense counsel, the prosecutor exercised her first peremptory challenge to excuse Prospective Juror D.T. and her fourth peremptory challenge to excuse Prospective Juror L.W. After the prosecutor used her 11th peremptory challenge to excuse Prospective Juror C.C., defense counsel made "a Wheeler motion" because the prosecutor had excused three prospective jurors who were African-American. The trial court found that based on the circumstances before it, it did "not find a prima facie case."
Nevertheless, the trial court then asked the prosecutor if she wanted to give an explanation "to protect the record." The prosecutor explained that as to Prospective Juror D.T., she "felt her answers here in court conflicted with her answers on her jury questionnaire, which made me feel very uncomfortable about her responses. That is why I kicked her." Regarding Prospective Juror L.W., the prosecutor recalled, "Her views on the death penalty were very weak. She seemed very uncomfortable with that decision. I think she said she would prefer not to sit on a death case." The prosecutor continued, "[She] said she had a problem with the death penalty. . . . [M]y feeling about her was because she said she had a problem with it and she was uncomfortable with making this kind of a decision, I didn't think she would ever make this decision." With respect to Prospective Juror C.C., the prosecutor stated, "His personality is such that I didn't think he would mix with the rest of the jurors, and I also had him as a weak juror on the death penalty. He wants to know everything. No one can know everything before making this decision. And for that reason, I felt that he would be a weak juror on death. In fact, I scored him low even before he took the box."
The trial court denied defendant's Wheeler motion, stating, "Again, the court does not find a prima facie case," without articulating the standard used in finding that defendant failed to establish a prima facie case.*fn2 Nevertheless, defendant contends that reversal is required because the trial court presumptively used the wrong standard, i.e., whether defendant established a "strong likelihood" that a juror has been peremptorily challenged on the basis of group bias. (Wheeler, supra, 22 Cal.3d at p. 280.) The high court later disapproved that standard for purposes of a defendant's establishing a prima facie case. (Johnson v. California, supra,545 U.S. at pp. 166-168.) Under Batson, the court stated, the prima facie burden is simply to "produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Johnson v. California, at p. 170.)
Here, we cannot be sure the court used the correct standard as later established by Johnson v. California. Regardless of the standard used by the trial court, we have reviewed the record independently (applying the high court's standard) to resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race. (People v. Bonilla (2007) 41 Cal.4th 313, 342.) We conclude that the record does not support such an inference.
In establishing a prima facie showing, a defendant has the burden of demonstrating that the facts and circumstances of the case raise an inference that the prosecutor excluded prospective jurors based on race. (Batson, supra, 476 U.S. at p. 96.) In making such a showing, a defendant should make as complete a record of the circumstances as is feasible. (Wheeler, supra, 22 Cal.3d at p. 280.)
Here, in support of his Wheeler/Batson motion, defendant relied solely on the fact that, at that point, the prosecutor had used three of her 11 peremptory challenges to excuse African-American prospective jurors. He never claimed that the prosecutor used her peremptory challenges to strike most or all African-American prospective jurors from the jury venire (Wheeler, supra, 22 Cal.3d at p. 280) or that there were no African-American prospective jurors remaining on the jury panel -consisting generally of 18 prospective jurors - when the Wheeler/Batson motion was made. Thus, the record is silent as to the number of African-American prospective jurors, if any, that were included in the entire jury venire or in the jury panel when the motion was made. Further, the record is silent regarding the racial composition of the jury that ultimately tried and sentenced defendant. (Contrast Johnson v. California, supra, 545 U.S. at pp. 164-165, 173 [of 43 eligible prospective jurors, only three were Black; prima facie case established where prosecutor used three of his 12 peremptory challenges to remove all Black prospective jurors and defendant was tried by all White jury].) Defendant's cursory showing (see People v. Yeoman (2003) 31 Cal.4th 93, 115 [cursory reference to prospective jurors by name, number, occupation, and race insufficient]; People v. Farnam (2002) 28 Cal.4th 107, 136-137), along with the relatively "small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible." (People v. Bell (2007) 40 Cal.4th 582, 598.) Moreover, the prosecutor's race-neutral reasons for the excusals confirmed the trial court's finding that there was insufficient evidence to permit the court to draw an inference that discrimination had occurred.*fn3 Because defendant failed to meet his burden of establishing a prima facie case of group discrimination, the trial court correctly denied his Wheeler/Batson motion.
Defendant contends that his right to an impartial jury under the federal and state Constitutions was violated because the trial court erred in excusing two prospective jurors for cause. (Wainwright v. Witt (1985) 469 U.S. 412, 424; People v. Moon (2005) 37 Cal.4th 1, 13.) "A prospective juror may be challenged for cause based upon his or her views regarding capital punishment only if those views would ' "prevent or substantially impair" ' the performance of the juror's duties as defined by the court's instructions and the juror's oath." (People v. Cunningham (2001) 25 Cal.4th 926, 975, quoting Wainwright v. Witt, supra, 469 U.S. at p. 424.) "On review of a trial court's ruling, if the prospective juror's statements are equivocal or conflicting, that court's determination of the person's state of mind is binding. If there is no inconsistency, the reviewing court will uphold the court's ruling if substantial evidence supports it." (People v. Hillhouse (2002) 27 Cal.4th 469, 488.)
The trial court excused two prospective jurors for cause. As will appear, because the excused prospective jurors indicated either that they were not prepared to impose the death penalty or were undecided as to their ability to do so, the trial court did not err in excusing them. (People v. Cunningham, supra, 25 Cal.4th at p. 982.) Moreover, at the least, the potential jurors' statements were equivocal and conflicting regarding their ability to render a death verdict. (People v. Moon, supra, 37 Cal.4th at p. 14.) Thus, we must defer to the trial court's determination of their states of mind.
a. Prospective Juror A.R.
In her questionnaire, Prospective Juror A.R. stated that she was generally against the death penalty, but that her view might be impacted if her own family member or friend had been murdered. She explained that she felt that way about the death penalty because "I don't believe anyone has the right to choose who lives or dies, unless acting in self defense." When asked if her feelings about the death penalty were "very strong," Prospective Juror A.R. responded, "yes" and explained, "My feelings are pretty set - but I have no way to know if an individual case m[a]y impact them."
Prospective Juror A.R. agreed with the statements "you should hear all of the circumstances surrounding a case" and "you should hear and review all of the circumstances concerning the defendant and his background before deciding between the penalties of life without parole and death." On the other hand, when asked, "in what cases do you believe the death penalty may be appropriate?" she replied, "none." When asked, "in what cases do you believe the death penalty may not be appropriate?" she answered, "all." Given two options in the appropriate case, she could see herself rejecting the death penalty and choosing life without the possibility of parole, but could not see herself rejecting life imprisonment and choosing death.
The questionnaire further asked, if defendant was found guilty of first degree murder and the felony-murder special circumstance allegation was found to be true, would she always vote for death and reject life without parole, regardless of the evidence at the penalty phase. Prospective Juror A.R. circled "no." However, when the same hypothetical was posed in terms of whether she would always vote for life without parole and reject death regardless of the evidence at the penalty phase, Prospective Juror A.R. circled "yes," and wrote in, "I don't know." Regarding the felony-murder special circumstance allegation, she indicated that she "strongly disagree[d]" that "anyone who commits murder during the course of a robbery or burglary should always get the death penalty," but "agree[d] somewhat," that "anyone who commits murder during the course of a robbery or burglary should never get the death penalty."
In response to the trial court's questions, Prospective Juror A.R. reiterated that she was against the death penalty in theory, and that she could not see herself rejecting life imprisonment and choosing the death penalty. She acknowledged there may be cases in which she might vote for the death penalty, although she would "still have great difficulty." When asked to elaborate, she replied, "I guess I don't know the specifics. I guess I would have to be presented with the information that would make me feel that way." The court responded that it could not present particular facts, but attempted to explore the topic further. In response to more questions from the court, Prospective Juror A.R. indicated that certain circumstances relating to malice, remorse, and life experiences might influence her to choose the death penalty. The court then asked if she could "see [her]self voting for death if [she] thought it was appropriate" in the following situation: she found defendant guilty of first degree murder, determined the truth of the special circumstance allegation, and decided that the aggravating factors outweighed the mitigating factors. Prospective Juror A.R. stated she could not answer that question, but assured the court she could give both sides a fair trial. Defense counsel refused to stipulate to an excusal for cause.
Later, during questioning by the prosecutor, Prospective Juror A.R. acknowledged that, although it was difficult for her to envision circumstances in which she would vote for death, she asserted that she could vote for the death penalty "if the circumstances would allow me to do that." She would consider the heinousness of the crime, the person who committed it, and whether the victim had been tortured. But when the prosecutor asked, "When it comes right down to it, do you really feel that you could ever say death?" Prospective Juror A.R. answered, "I guess I don't know."
In granting the prosecutor's challenge for cause, the trial court reasoned, "She takes a long time in answering. She is obviously struggling; this is difficult for her. It's clear to me this is something that would be almost impossible. She might come up with some imaginary situation, but I find she would be substantially impaired and I do find cause." In response to the court's invitation for further argument, defense counsel said, "submitted," and the court reiterated, "I do find cause."
As in People v. Schmeck (2005) 37 Cal.4th 240, 262, defendant merely submitted the question to the trial court. "Hence, as a practical matter, he 'did not object to the court's excusing the juror, but . . . also refused to stipulate to it.' (People v. Cleveland (2004) 32 Cal.4th 704, 734.) Although 'this failure to object does not forfeit the right to raise the issue on appeal, . . . it does suggest counsel concurred in the assessment that the juror was excusable.' (Id. at pp. 734-735; see Witt, supra, 469 U.S. at pp. 434-435 [in light of counsel's failure to question the prospective juror or object to her excusal for cause, ...