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People v. Mills

March 1, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JEFFERY JON MILLS, DEFENDANT AND APPELLANT.



Sacramento County Super. Ct. No. 94FO1464, Judge: James L. Long.

The opinion of the court was delivered by: Werdegar, J.

A Sacramento County jury convicted Jeffery Jon Mills in 1996 of the first degree murder of Sherri Farrar. (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated.) It also convicted defendant of three forcible sex crimes, all involving the murder victim: rape, sodomy, and sexual penetration. (§§ 261, subd. (a)(2), 286, subd. (c), 289, subd. (a).) The jury sustained special circumstance allegations that defendant murdered Farrar while engaged in the commission of the crimes of rape, sodomy, and sexual penetration. (§ 190.2, subd. (a)(17)(C), (D) & (K).) As to each count, the jury also sustained allegations that defendant personally used a deadly weapon, to wit, a knife. (§§ 12022, subd. (b), 12022.3, subd. (a).) On December 30, 1996, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) As we explain, we affirm the judgment.

I. Guilt Phase

A. Facts

Eric Thomas and victim Sherri Farrar were a young couple living in the Sacramento area. They had a young son, who was born in 1992. On February 10, 1994, they wished to go out and arranged to have their friend, Nancy Warner, baby-sit their son. After dropping him off at Warner's house, they went to the Sierra Inn, where they played pool and shared a pitcher of beer. They later went to the Pine Lodge, where they each had one mixed drink before returning to Warner's house. On the way there, they picked up some beer and a pizza, arriving at Warner's house around 10:30 p.m. Farrar appeared to have glassy eyes but was not obviously drunk. Farrar and Warner stayed in the kitchen drinking coffee while Thomas and Warner's boyfriend drank beer and ate the pizza in the living room.

Thomas was ready to leave around 11:00 p.m., as he had to be at work at 7:00 the next morning. Farrar apparently was not ready to leave and they argued, but they eventually left Warner's house around 11:30 p.m. with Farrar driving. During the drive home, Farrar admired the starry sky and accidentally allowed the car to swerve onto the shoulder. Thomas yelled at her and an argument ensued. Past hurtful incidents were recalled, escalating the argument. Farrar eventually stopped the car, grabbed her jacket and purse, and got out. Thomas tried to convince her to return, but she refused and walked away, saying: "[N]o, forget it."

By this time it was past midnight. Thomas walked around and tried to find Farrar but was unsuccessful. She was apparently not going to return that evening; Thomas described her as a very stubborn person. He could recall at least six other times an argument had caused her to abandon the car in this fashion, but she always came home after she had cooled off. He also recalled four incidents in which she had hitchhiked. He assumed Farrar would walk to International Billing Services (IBS), a warehouse business where she had previously worked. IBS was open 24 hours a day and was approximately five miles away from where Farrar had gotten out of the car. Four members of her family worked at IBS, and she also had family members who lived in the area. In the meantime, Thomas was in a quandary. Their young son was in the car, and Thomas had to get him home. Thomas also knew he had had a lot to drink and was worried about driving himself, as he had past arrests for drunk driving. He eventually decided to drive home and wait for Farrar. He arrived home without mishap, put his son to bed, and waited for Farrar on the couch in the living room. He eventually fell asleep. Farrar had not returned by morning, however, and Thomas was worried.

Thomas's surmise about the direction Farrar would take was correct. A cashier at a gas station near where Farrar had gotten out of her car recalled seeing her around 12:15 a.m. She walked from the direction of the public telephones and bought cigarettes, candy, and a lighter. He described her as "maybe a little slightly drunk," but happy and walking without difficulty. She headed off on foot in the direction of IBS. Rebecca Rommel, Farrar's grandmother who had raised her, was working the night shift at IBS that night.

Defendant worked at IBS as a warehouseman. On the night of the crimes, he was out with fellow IBS employee George Solorzano and his girlfriend, drinking and shooting pool. Defendant liked to drink bottles of Miller Genuine Draft beer. They agreed that defendant would spend the night at Solorzano's house in the Placerville area so they could carpool to work the next morning. Sometime between 11:00 p.m. and 1:00 a.m., they left for Solorzano's home in separate cars. Defendant, driving a red car with gray primer paint on it, followed Solorzano for a bit but turned off the highway and never arrived at Solorzano's house. He did not show up for work the next day, and calls to his home were not answered.

Sharon Fulton, an IBS warehouse supervisor, was working that night. She knew that defendant had worked the day shift and gotten off work at 5:00 p.m., so she was surprised to see him at the warehouse around midnight that night. He was still wearing his blue IBS work shirt and appeared intoxicated. Kathy Glaneman, defendant's mother, was also working at the IBS warehouse that night and saw defendant around midnight. Defendant lived with Glaneman, and because it was payday she asked for his share of the rent. He gave her $600 and then left.

Between 5:45 and 6:45 the next morning, several people driving to work along White Rock Road reported seeing a red car on the side of the road. Some drivers noticed the car also bore gray primer paint. Two reported seeing a man who looked like defendant. Others reported seeing a White man in a blue shirt with a logo on it. Two reported seeing the body of someone lying on the ground near the man.

Police investigated and discovered the lifeless body of Sherri Farrar along White Rock Road about 3.7 miles from the IBS warehouse. She was naked and her throat had been cut. Police found a Miller Genuine Draft beer bottle between her buttocks. The bottle bore defendant's thumbprint and had feces around the rim. His fingerprints were also found on other items at the crime scene. A pathologist later estimated Farrar had been killed between 3:00 and 7:00 a.m. A massive wound to her throat caused her death from loss of blood and was probably caused by six to 12 slashes from a blade. Detective Bell testified that police later found box cutters and knives in defendant's car and bedroom; Dr. Robert Anthony, a forensic pathologist, testified any of these items could have caused the fatal wound, although none had any blood on them. In addition to the obvious injury to her throat, the victim also bore other, lesser injuries, including bruising on her knee and hand, two post-mortem stab wounds on her left breast, multiple superficial cuts inflicted before death that were probably caused by a knife tip, and a blow to her temple that could have caused unconsciousness. Mary Hansen, a criminalist, found evidence of semen on vaginal and rectal swabs. A DNA analysis found the semen was consistent with defendant's blood, and the chance the semen would match another Caucasian was only one in 12 billion. Thomas testified he had not had intercourse with Farrar for four or five days.

Defendant called in sick and did not go to work on Friday. His mother, Glaneman, saw him at home that day working on his car. Defendant returned to work on Saturday, February 12, 1994, and spent that night at his friend John Selby's home. The next day (Sunday), defendant, Selby, and Selby's girlfriend Susan Lee went sightseeing in San Francisco and stayed the night in the city. On Monday, the three of them, along with Lee's sister, went snowboarding at Donner Ranch. Police arrested defendant the following day, Tuesday.

Police impounded defendant's car, and a police investigation revealed that fibers found on the victim matched the carpet in the car. Tiny spots of blood in the car were consistent with the victim's blood and inconsistent with defendant's. In an interview with police, defendant denied being on White Rock Road on the night in question or that he was the man witnesses saw there. On the night the victim was killed, he claimed he spent the night sleeping in his car, which he parked in front of a Motel 6 in the Placerville area. Police determined no such motel exists in that area.

At trial, defendant testified in his own defense and told a different story. He admitted he had lied to police when interviewed, claiming he was scared. He testified he saw the victim on the night in question around 1:30 a.m. She was hitchhiking, and he picked her up. According to defendant, she asked if he wanted to play pool; when he agreed, she directed him to a bar he was unfamiliar with. He first stopped at a liquor store and bought 12 bottles of Miller Genuine Draft beer because, at that hour, no establishment would be serving alcohol. He could not, however, recall either the name or the location of the bar or the liquor store. He stopped at a pay phone at 1:30 a.m. and called in sick for the next day. (The parties stipulated that defendant's foreman would testify that he had received a message from defendant calling in sick around that time.)

Defendant claimed that he and Farrar eventually left the bar and went searching for a party. Finding none, he stopped his car on White Rock Road, where he claimed they engaged in consensual sex. After he ejaculated, he claimed he looked down at her buttocks and remarked, "[D]amn, you're thick." He said he meant the remark as a compliment, but the comment angered her. According to defendant, Farrar, while standing by the side of the road with her pants around her ankles, began arguing with defendant, eventually telling him: "Fuck you, I got AIDS." At this, defendant said he "just exploded and I jumped at her." He testified he pulled out the Swiss Army knife he kept on his keychain, unfolded the blade, and twice stabbed her in the chest before cutting her throat. When he realized what he had done, he noticed cars were driving by so he fled in his car. He almost immediately had a change of heart and made a U-turn on White Rock Road, returning to the scene. Farrar was not moving. He turned her onto her stomach and, becoming angry, shoved a bottle in her rectum. He fled the scene a second time, this time with Farrar's jacket and purse. He told the jury he later discarded these items, as well as the rest of the beer bottles, his bloody clothes, and his Swiss Army knife. He went home, showered, and then spent the day washing and vacuuming his car. He admitted going to San Francisco that Sunday with John Selby and his girlfriend and then snowboarding the day after that.

Defendant admitted suffering prior convictions for auto theft, false personation, possession of marijuana, and residential burglary.

B. Pretrial Issues

1. Failure to Instruct Prospective Jurors on Their Civic Duty

Prior to trial, defendant moved to have the prospective jurors instructed that unless they were unable to do so, it was their civic duty to set aside any personal scruples they might have against the death penalty. In support, he cited the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution as well as article I, sections 1, 7, 13, 15, 16, 17, and 27 of the California Constitution. The prosecutor opposed the motion, arguing no such requirement exists, but stated at the hearing he had no objection to the type of instruction typically given to jurors in non-capital cases regarding their civic duty to serve. At that same hearing, defense counsel explained more precisely the type of instruction he desired: "[W]hat we are suggesting is that simply because a juror says I don't believe that I could sentence anyone to death, that that should not be an automatic exclusion. So, we believe the Court should explain to the jurors that they should approach this as they would in any case with the inclusion of the fact that they will at some point have to decide the penalty to be imposed in this case should we reach that point. [¶] And what we are asking the Court to do and it may mean that we need to formulate some type of a proposed procedure, that we want the Court to explain to the [jurors] that they have a civic duty and an obligation to sit on a jury and that we should not just allow them to say I can't vote [for] death or I will vote [for] death in every case without an explanation of what their responsibilities are."

The trial court denied the motion but did so expressly without prejudice, explaining that if defense counsel would prepare in written form "what you wish me to represent to the jury regarding their civic responsibilities, I would be glad to consider that and that would give the People the opportunity to review it as well as the Court." (Italics added.) Defense counsel indicated he understood the court's ruling, but although he subsequently filed many written motions, he apparently elected not to submit any further written briefing on the matter despite the opportunity to do so. Both sides later agreed to the introductory remarks the trial court would deliver to the prospective jurors. On at least two occasions during the voir dire proceedings, the trial court instructed the prospective jurors generally about their civic obligation to serve as jurors "in cases such as this one" but did not include in that instruction any specific mention of the death penalty. Defendant did not object on either occasion.

Defendant now contends the trial court erred prejudicially when it failed to instruct the prospective jurors regarding their civic duty to serve as jurors in a death penalty case. We reject the argument at the threshold for it was not preserved for appellate review. As a general matter, when a trial court denies a motion without prejudice the matter is forfeited if not renewed. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1124 [change of venue motion].) In any event, because the trial court explained to defense counsel that it was denying the motion without prejudice and would consider the matter should counsel file additional written argument, the court was entitled to assume that in the absence of any renewed briefing, counsel had abandoned the motion. This assumption would have been confirmed when counsel made no later objection. A party must make a timely and specific objection to the manner in which a trial court conducts jury selection or the matter is forfeited for appeal. (People v. Holt (1997) 15 Cal.4th 619, 656-657.)

Even assuming for argument the issue were properly before us, it would be meritless. In People v. Hamilton (1989) 48 Cal.3d 1142, the defendant made the precise argument defendant now raises, claiming that "before excluding venirepersons on the basis of their death penalty views, the trial court should have instructed sua sponte that they had a `civic duty' to subordinate their personal views to the law and their oaths." (Id. at p. 1166, fn. 15.) We rejected the argument, explaining that "no case has imposed the obligation of a sua sponte instruction to that effect, and we decline to impose one here." (Ibid.) As defendant recognizes, we have affirmed Hamilton's conclusion, and declined to revise or revisit it, several times in the intervening years. (See, e.g., People v. Hoyos (2007) 41 Cal.4th 872, 908; People v. Gordon (1990) 50 Cal.3d 1223, 1261.) Defendant nevertheless argues our previous holdings were erroneous for failing to provide sufficient content to his federal constitutional rights to an impartial jury, due process, equal protection, and a reliable penalty determination. It is difficult to imagine what additional protection would be derived from the proposed jury instruction, given the extensive vetting of prospective jurors and their views regarding the death penalty by use of a jury questionnaire and in-court oral voir dire according to the standards set forth in Wainwright v. Witt (1985) 469 U.S. 412. Accordingly, we reject the argument.

2. Denial of Motion to Prevent Death Qualification of the Jury or for Separate Juries

Prior to trial, defendant moved to prevent the trial court from excluding prospective jurors who could not remain impartial regarding imposition of the death penalty (a process known as "death qualification") or, in the alternative, for the empanelment of separate juries to try the guilt and penalty phases of the trial. In support, he claimed the death qualification process violated his federal and state constitutional and statutory rights to a fair and impartial trial and a jury drawn from a cross-section of the community because it impermissibly produced a jury substantially more likely to convict at the guilt phase, i.e., a so-called guilt-prone jury. The prosecutor opposed the motion, and the trial court denied it.

Defendant recognizes that the process of juror "death qualification" - the removal from the venire of all prospective jurors who would automatically vote either for life imprisonment or for death, irrespective of the facts of the individual case - has long been a part of capital trials in California. (Hovey v. Superior Court (1980) 28 Cal.3d 1.) He argues, however, that the continuing legitimacy of Hovey and its legal progeny depends on the absence of any social science evidence that the relative number of those jurors who would invariably vote for death (what Hovey called the " `automatic death penalty' group" (id. at p. 20)) was insignificant compared to the number who would always vote for life. This is so, he argues, because (1) Hovey itself opined that "the use of a `death-qualified' jury pool to select a guilt phase jury would be unconstitutional if juries so selected would tend to return more verdicts favorable to the prosecution than would juries selected from a `neutral' jury pool" (id. at p. 22, fn. 54); (2) Hovey's result depended on its observation that existing studies were flawed because they surveyed juries that included jurors - ineligible in California - who would automatically vote for the death penalty if a defendant was convicted of murder (the so-called automatic death penalty group) (id. at p. 63); and (3) those flawed studies could not be rehabilitated by simply subtracting the jurors in the automatic death penalty group because, although the Hovey defendant had argued the number of jurors in that group was inordinately small compared to those in the automatic life group, "there is no reliable evidence in the record to support [the defendant's] assumption as to the minute size of the `automatic death penalty' group. The defense experts below repeatedly admitted that `nobody knows' the size of this group." (Id. at p. 64.)

While acknowledging there was a sparse record in Hovey v. Superior Court, supra, 28 Cal.3d 1, concerning the number of jurors holding particular death penalty views, defendant claims that advances in social science since Hovey have demonstrated that the number of jurors in the automatic death penalty group "are less than 10% as numerous as jurors excludable by virtue of unbending opposition to the death penalty." This statistic, he contends, undermines the efficacy of Hovey's endorsement of the death qualification process. (See generally Kadane, Juries Hearing Death Penalty Cases: Statistical Analysis of a Legal Procedure (1983) 78 J. American Statistical Assn. 544; Kadane, After Hovey: A Note on Taking Account of the Automatic Death Penalty Jurors (1984) 8 Law & Human Behavior 115.)

The Hovey court's concerns about the state of the statistical evidence have been superseded by subsequent decisions finding "[t]he exclusion of those categorically opposed to the death penalty at the guilt phase of the trial does not offend either the United States Constitution (Lockhart v. McCree (1986) 476 U.S. 162, 176-177 . . .) or the California Constitution (People v. Ashmus (1991) 54 Cal.3d 932, 956- 957 . . .). As the United States Supreme Court explained, death penalty opponents, `or for that matter any other group defined solely in terms of shared attitudes that render members of the group unable to serve as jurors in a particular case, may be excluded from jury service without contravening any of the basic objectives of the fair-cross-section requirement.' (Lockhart, supra, 476 U.S. at pp. 176-177 . . . ; see also People v. Fields (1983) 35 Cal.3d 329, 353 . . . .) It is also well settled that this exclusion does not violate defendant's right to an impartial jury. (Lockhart, supra, 476 U.S. at pp. 183-184 . . . ; Ashmus, supra, 54 Cal.3d at p. 957.) [¶] Thus even if it were true, as defendant argues extensively, that social science evidence now shows conclusively that death-qualified juries are more prone to convict than those not thus qualified, that evidence does not support a constitutional prohibition of such death qualification. (Lockhart v. McCree, supra, 476 U.S. at p. 173 . . . .) His claim is therefore without merit." (People v. Jackson (1996) 13 Cal.4th 1164, 1198-1199, italics added.)*fn1

We have recently reaffirmed this position, explaining: "This court and the United States Supreme Court have repeatedly rejected the claim that separate juries are required because jurors who survive the jury selection process in death penalty cases are more likely to convict a defendant. [Citations.] Defendant here has provided no compelling reason for us to deviate from these holdings." (People v. Davis (2009) 46 Cal.4th 539, 626; see also People v. Richardson (2008) 43 Cal.4th 959, 987.)

Defendant's further contention that he was, in the alternative, entitled to a separate jury to try his penalty phase is similarly meritless. "Section 190.4, subdivision (c), expresses the Legislature's long-standing preference for a single jury to decide both guilt and penalty, and this preference does not violate a capital defendant's federal or state rights to due process, to an impartial jury, or to a reliable death judgment." (People v. Davis, supra, 46 Cal.4th at p. 626.)

3. Alleged Batson/Wheeler Error

Defendant contends the prosecutor violated his state and federal constitutional rights by exercising his peremptory challenges to excuse six prospective jurors because they were African-American. (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162; Batson v. Kentucky (1986) 476 U.S. 79 (Batson).)*fn2 " `In [Wheeler] . . . we held that the use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership 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 California Constitution. Subsequently, in [Batson] . . . the United States Supreme Court held that such a practice violates, inter alia, the defendant's right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution.' " (People v. Catlin (2001) 26 Cal.4th 81, 116.)

The law applicable to Wheeler/Batson claims is by now familiar. "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.' " (Johnson v. California, supra, 545 U.S. at p. 168, fn. omitted.)

In this case, defense counsel moved to quash the jury venire, citing Wheeler, supra, 22 Cal.3d 258, later adding his reliance on Batson, supra, 476 U.S. 79, as well, and citing both the state and federal Constitutions. After inviting the prosecutor to volunteer his reasons for exercising peremptory challenges against the six identified prospective jurors and hearing argument from both sides, the trial court denied defendant's motion, stating: "[I]n terms of the prima faci[e] case, I'm satisfied that the defense has not made a prima faci[e] case. [¶] For [the] sake of argument, had they made such a prima faci[e] case, I am satisfied that from the jury questionnaires of the African-American jurors who were questioned, from their voir dire and also from the explanation given by the prosecutor, that their exclusion was occasioned by valid trial reasons based on factors other than race."

As the preceding passage makes clear, the trial court ruled that defendant failed to make a prima facie showing of group bias (the first stage of a Batson inquiry), and also passed judgment on the prosecutor's actual reasons for the peremptory challenges (the third stage of a Batson inquiry), expressly noting that the court was "satisfied . . . from the explanation given by the prosecutor" that the motivation for the challenges was not based on race.*fn3

This case is thus a first stage/third stage Batson hybrid. As we have both the prosecutor's actual reasons and the trial court's evaluation of those reasons, this case is similar to People v. Lenix (2008) 44 Cal.4th 602 (Lenix), where "the trial court requested the prosecutor's reasons for the peremptory challenges and ruled on the ultimate question of intentional discrimination. Thus, the question of whether defendant established a prima facie case is moot." (Id. at p. 613, fn. 8.) Accordingly, we express no opinion on whether defense counsel established a prima facie case of discrimination and instead skip to Batson's third stage to evaluate the prosecutor's reasons for dismissing six African-American prospective jurors.*fn4

"At the third stage of the Wheeler/Batson inquiry, `the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.' [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her. [Citation.] [¶] Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] `We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges " `with great restraint.' " [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]' " (Lenix, supra, 44 Cal.4th at pp. 613-614, fn. omitted, italics added.)

At the threshold, we find the parameters of defendant's contention to be unclear. He argues, "there were six African-American prospective jurors in this case, 100% of whom made it `into the box' and 100% of whom were [challenged by the prosecutor]." As respondent argues and the record shows, however, there were 13, not six, prospective jurors who were African-American. We take defendant's argument, then, to be that the prosecutor challenged all six African-Americans who were at one time or another seated in the box. When the trial court suggested counsel's motion was based on the fact the prosecutor had exercised peremptory challenges against four African-American prospective jurors, however, counsel did not disagree. Later, counsel stated it was his "understanding that once I make the showing that all of the black African-American prospective jurors were dismissed peremptorily by the People, then they have to [justify their actions]." We assume defendant intends to challenge the prosecutor's decision to strike four African- Americans from the regular jury and two from the alternates, or six prospective jurors in all.

Before turning to an examination of the six prospective jurors defendant identifies, we address and reject two threshold arguments he raised in his supplemental brief. First, he argues we should not defer to the trial court's credibility determinations because the court did not rely expressly on an assessment of the demeanor of the jurors and the prosecutor. (Lenix, supra, 44 Cal.4th at p. 614; People v. Jackson, supra, 13 Cal.4th at pp. 1197-1198.) But although such reliance was not express, the court unquestionably weighed the credibility of the prospective jurors and the prosecutor when it denied the Wheeler/Batson motion after stating it had considered the voir dire of the African- American prospective jurors as well as "the explanation[s] given by the prosecutor." Deference is thus appropriate " `[s]o long as the trial court [made] a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered . . . .' " (Lenix, at p. 614.)

Second, defendant contends the prosecutor, in explaining his peremptory challenges, relied almost exclusively on the prospective jurors' written answers on their questionnaires. Although we have recently explained that excusing a prospective juror in a capital case for cause by relying solely on the juror's written answers to a questionnaire is permissible, so long as it is clear from those written answers that the juror is unable or unwilling to set aside his or her personal beliefs and follow the law (People v. Wilson (2008) 44 Cal.4th 758, 787; People v. Avila (2006) 38 Cal.4th 491, 531), the same restriction does not apply to peremptory challenges. A party's justification for exercising a peremptory challenge " `need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice.' [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons." (Lenix, supra, 44 Cal.4th at p. 613.)

We turn now to an examination of the circumstances in which the prosecutor excused the six African-American prospective jurors identified by defendant. As we explain below, the trial court considered and evaluated the merits of the prosecutor's stated reasons for excusing these jurors, finding each peremptory challenge was supported by a permissible motive. Applying the appropriate deferential standard of review, we conclude substantial evidence supports the trial court's assessment of the prosecutor's stated reasons. (Lenix, supra, 44 Cal.4th at pp. 613-614.)

a. Prospective Juror K.B.

Addressing the reason he chose to exercise a peremptory challenge against Prospective Juror K.B., the prosecutor explained he challenged her "primarily" because she was undecided about the death penalty, stating: "[I]t is a difficult case and I need people that have some thoughts already on the subject and are strong in that area." In addition, he was concerned K.B. had indicated in her jury questionnaire that, in murder cases, the prosecution should bear a higher burden of proof. The trial court accepted both reasons. If supported by substantial evidence, either reason can serve adequately as a race- neutral reason to excuse a juror with a peremptory challenge. (People v. Smith (2005) 35 Cal.4th 334, 347-348 [a prospective juror's doubts about the death penalty can be a legitimate, race-neutral reason to exercise a peremptory challenge]; People v. Catlin, supra, 26 Cal.4th at pp. 116, 118 [same]; People v. Kelly (2008) 162 Cal.App.4th 797, 805, fn. 10 [proper to excuse a juror when it appeared the juror " `did not understand the concept of burden of proof' "]; People v. Rodriguez (1999) 76 Cal.App.4th 1093, 1114 [juror successfully "challenged based on her difficulty in understanding the burden of proof"].)*fn5

Defendant argues the prosecutor's reasons for excusing Prospective Juror K.B. were pretextual, that he instead excused her because of racial bias, and that we may infer as much because the prosecutor left unchallenged other, non-African-American prospective jurors who had expressed sentiments similar to K.B.'s. In short, he urges us to conduct a comparative juror analysis. We have recently explained that "[c]omparative juror analysis is a form of circumstantial evidence" (Lenix, supra, 44 Cal.4th at p. 627) courts can use to determine the legitimacy of a party's explanation for exercising a peremptory challenge, although such evidence may not alone be determinative of that question (id. at p. 626), can be misleading, especially when not raised at trial (id. at p. 620), and has inherent limitations given the "[m]yriad subtle nuances" of a person's demeanor that might communicate meaning to an attorney considering a challenge (id. at p. 622). With those caveats in mind, we examine defendant's arguments.

The prosecutor indicated Prospective Juror K.B.'s views about the death penalty were the main reason he challenged her. Defendant argues Jurors Nos. 7, 8, and 11 - all of whom are White - gave "identical or very similar answer[s]" to those given by K.B. In particular, defendant relies on the answers given by K.B. and the three White jurors to questions Nos. 88, 88a, and 89, which sought to elicit prospective jurors' views about the death penalty. After a long preface explaining the penalty phase procedures, question No. 88 asked prospective jurors to "[b]riefly describe your opinions about the death penalty." The four jurors defendant asks us to compare answered question No. 88 this way:

K.B. --"No opinion."

Juror --"I have no opinion." No. 7

Juror --"It may be a necessary punishment in some murder No. 8 cases."

Juror --"Haven't thought about it much at all." No. 11

K.B.'s answers and those of Jurors Nos. 7 and 11 appear similar. Arguably Juror No. 8's answer shows somewhat more support for the death penalty.

Question No. 88a asked whether the prospective juror believes the death penalty is imposed "Too often," "Not often enough," or "About right," and then asks the juror to explain his or her answer. The four jurors defendant asks us to compare answered question No. 88a this way:

K.B.-- She did not check anything and explained: "Don't know."

Juror-- She checked "About right," but did not provide an No. 7 explanation.

Juror-- He did not check anything and explained: "I've never sat No. 8 on a jury and can't really answer that."

Juror-- She did not check anything and explained: "I don't No. 11 really know. I don't follow cases enough to answer this."

It is difficult to discern much of a difference between these answers. If anything, Juror No. 7's answer showed a more developed understanding of the death penalty.

Finally, question No. 89 asked prospective jurors to explain: "What purpose do you think the death penalty serves?" The four jurors defendant asks us to compare answered question No. 89 this way:

K.B.-- "Don't know how decided on exact reasoning (based on the law) [sic]."

Juror-- "Not sure, NEVER thought much about it." No. 7

Juror-- "Hopefully as a deterrent to others who would commit No. 8 terrible crimes."

Juror-- "It kills." No. 11

The answers of K.B. and Juror No. 7 appear similar. Arguably the answers of Jurors Nos. 8 and 11 show somewhat more support for the death penalty.

From this data, defendant argues that "on every one of these [death penalty related] questions, there are one or more non African-American jurors who had one identical or very similar answer in common with [Prospective Juror K.B.]" Were this the only evidence in the record regarding the death penalty views of these four prospective jurors, defendant might have a plausible case, although the vague answers make it difficult to reach any firm conclusions. As respondent points out, however, there was additional evidence from which the prosecutor could reasonably distinguish between K.B. and Jurors Nos. 7, 8, and 11, based on their views concerning capital punishment. For example, question No. 90a asked: "In what type of cases, if any, do you think the death penalty should be imposed?" The four jurors defendant asks us to compare answered question No. 90a this way:

K.B.-- "I don't know."

Juror-- "Very violent crimes." No. 7

Juror-- "That's not my decision - the judge should tell the jury No. 8 if the ...


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