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People v. Thompson

May 24, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAMES ALVIN THOMPSON, DEFENDANT AND APPELLANT.



Riverside County Super. Ct. No. CR-45819. Judge: Vilia G. Sherman.

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

On April 24, 1996, a Riverside County jury found defendant James Alvin Thompson guilty of first degree murder and found true the special circumstance allegation that the murder was committed while defendant was engaged in the commission or attempted commission of robbery, in violation of Penal Code section 211. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(17)(A).)*fn1 The jury found not true the allegation that defendant personally used a firearm. (§ 12022.5.) In a subsequent proceeding, the jury also found true the special circumstance allegation that defendant had been convicted of a prior murder in Texas in 1977. (§ 190.2, subd. (a)(2).) After the penalty phase, the jury returned a verdict of death. The trial court denied defendant's motions for a new trial (§ 1181) and for modification of the penalty (§ 190.4, subd. (e)) and sentenced him to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

We affirm the judgment.

INTRODUCTION

On the evening of either August 26 or August 27, 1991, defendant, a 39-year-old White male, met the victim, Ronald Gitmed, a 25-year-old White male with mental developmental disabilities. Defendant convinced Gitmed to drive him to a trailer compound in rural Riverside County to visit Tony Mercurio, whom defendant had met when they were both serving time in prison. Later that same night, defendant, Gitmed, and Mercurio left the trailer compound in Mercurio's truck to go four-wheel driving in the hills around Canyon Lake. On the morning of August 28, Gitmed's body was found floating in a remote section of the lake; he had been killed by three gunshot wounds. The prosecution's main witness was Mercurio, who testified defendant robbed and shot Gitmed at Canyon Lake. Other individuals living at the trailer compound testified that, after the murder, defendant took Gitmed's car and, together with Mercurio, removed Gitmed's property from Gitmed's storage locker in Riverside. The defense challenged Mercurio's credibility and presented an alibi defense that defendant had been with his uncle the entire evening of August 27.

I. Guilt Phase

A. Facts

1. The Prosecution's Case

a. Discovery of the Body and Autopsy

In the late morning of August 28, 1991, a group of people who had gone to Canyon Lake in Riverside County to jet ski discovered the body of Ronald Gitmed floating in the water. The body was clad in a pair of Levis and white socks, but no shirt. An autopsy the next morning found three gunshot wounds to the body, one on the right upper chest, one on the left side of the lower back, and one on the left forearm. Two expended .22-caliber bullets were removed from the body, but whether they had been fired from the same gun could not be determined. The coroner found the remains of hamburger, potato, and pickle in Gitmed's stomach. A blood analysis detected methamphetamine but no alcohol. In the coroner's opinion, Gitmed had died immediately from the gunshot wounds, and the absence of water in his airway passages indicated he had not drowned. The coroner could not pinpoint a time of death beyond saying that Gitmed had not been dead for very many days.

b. Time Frame for the Murder

The prosecution presented evidence that Gitmed was alive at least up to the early evening of Monday, August 26, 1991, but was dead by the morning of Wednesday, August 28, when his body was discovered floating in Canyon Lake.*fn2 Don Fortney, Gitmed's friend, testified that on August 26, Gitmed was vacating his apartment, and Fortney helped him move his possessions to a storage locker, finishing about 3:00 p.m.*fn3 Gitmed also stored stacks of his clothing in his car, a small blue Toyota Tercel hatchback. Gitmed's mother, Naomi Dekens, testified Gitmed visited her at her home that evening about 7:00 p.m. Bank records indicated Gitmed's last automatic teller transaction and last credit card transaction occurred on August 26.

c. Defendant's Interactions with the Victim's Cousin

Defendant met Gitmed through Gitmed's cousin, Michelle Keathley. Keathley had first met defendant at a pool hall in Riverside in August 1991. Defendant would occasionally drop by Keathley's house over the next few weeks. During one of these visits, he used methamphetamine with Keathley, Keathley's sister Alicia Levenson, and Alicia's boyfriend Eric Arias. During that visit, defendant offered Arias up to $2,000 to give him a ride to the Lake Elsinore area in order to collect a $6,000 debt owed him. Defendant mentioned he would be bringing a gun. Arias initially accepted defendant's offer, but later backed out.

At a subsequent visit to Keathley's house, sometime after 5:00 p.m. on either August 26 or 27, defendant met Gitmed.*fn4 Keathley's friend Ronada Briggs was at the house at the time and remembered meeting defendant and seeing him with Gitmed. For defendant's promise of $1,000, Gitmed agreed to drive him to collect the $6,000 debt. Before they left, defendant said they would first be stopping at "Tony's house." Gitmed drove off with defendant, and Keathley never saw Gitmed again.

d. Visit to the Triplett Family Trailer Compound

After leaving Keathley's house, defendant and Gitmed drove in Gitmed's car to the Triplett family trailer compound. The compound was located on Santa Rosa Mine Road in a rural area outside the town of Perris and consisted of mobilehomes, campers, and storage sheds spread over five acres. There was a "chop shop" on the property, where stolen vehicles were stripped, repainted, or otherwise altered for sale. Barbara Triplett lived there with her daughter Charlene and her brother Danny Dalton, who ran the "chop shop." Also living on the property was Charlene's boyfriend, Anthony Thomas Mercurio, a parolee who had recently been released from prison. Defendant first met Mercurio in July 1991, when both of them were incarcerated in state prison, and he had visited Mercurio at the Triplett compound once before.

Mercurio had not been expecting defendant to come that night, and he did not know Gitmed, whom defendant introduced as his friend "Ron." After a dinner of hamburgers and french fries, defendant, Gitmed, and Mercurio used some methamphetamine that Gitmed brought. While the three of them were walking around the property, Gitmed noticed a red four-wheel-drive pickup truck, and they decided to go "four-bying" in the countryside. The truck, which had been on the property for at least a couple of weeks, was stolen and had to be started with a screwdriver.

e. The Shooting at Canyon Lake

With Mercurio at the wheel, the three drove across the hills to Canyon Lake. It was after dark when they started. When they arrived at the lake, they parked on a peninsula about 30 to 40 feet from the water's edge. Mercurio stayed near the truck while defendant and Gitmed walked out onto the peninsula. Mercurio heard defendant and Gitmed start to argue, but could not make out what the argument was about. Defendant's voice got louder and angrier, and Mercurio heard defendant tell Gitmed to take off his clothes. Gitmed started to get undressed, and Mercurio heard two to three shots. Mercurio got back inside the truck. Defendant returned and threw some things into the back of the truck, including Gitmed's clothing and some small items that might have been Gitmed's wallet or some change. As they drove off, Mercurio saw Gitmed's body on the ground near, but not in, the water. They rode in silence back to the Triplett compound. At the compound, defendant started going through the items in Gitmed's car, which had been left parked there. The car was filled with several trash bags full of clothing and some stereo equipment.

f. Defendant's Activities in the Days Following the Murder

Defendant left the compound in Gitmed's car. Michelle Keathley testified that around 3:30 on the morning following the night defendant and Gitmed had left her house, defendant came to her house to retrieve his bicycle, which he had tied to a tree near the front door. Keathley asked defendant where Gitmed was, and defendant initially said he was down the street and would arrive in a couple of minutes. When Gitmed failed to appear, Keathley again asked: "What happened to Ron?" Defendant then stated there "was a little bit of a scuffle," and Gitmed had gotten "a little scared" and might have gone home.

At the compound a day or two after Gitmed's murder, Mercurio again saw defendant going through the items in Gitmed's car. He saw a small handgun on the car's hood. Several days later, Mercurio, at defendant's request, accompanied defendant to Gitmed's storage locker in Riverside to pick up some furniture defendant said he owned and wanted to give to Mercurio. Defendant drove Gitmed's car, and Mercurio followed in the red pickup truck. Defendant entered the correct code in the box at the storage facility's security gate, and it opened. The two went to the storage locker and loaded several small furniture items into the truck, including a television, a videocassette recorder, and a television stand. They took the items to Charlene Triplett's dwelling at the compound.

After defendant and Mercurio returned with the furniture, Charlene saw them at the dumpster burning papers. Defendant was cleaning a gun, and Mercurio asked Charlene for some lighter fluid, which he gave to defendant to clean the gun. Later, outside defendant's presence, Charlene confronted Mercurio about why they were burning papers, and he told her defendant had shot Gitmed at Canyon Lake. Later, when Charlene was in the bedroom of her mobilehome she overheard defendant and Mercurio talking outside. Defendant told Mercurio: "Whatever you do, you've got to get your girlfriend and her family to go along with our story."

Defendant asked Charlene whether she wanted to buy the car stereo from Gitmed's car or knew anyone who did. Eventually, Dalton sold the stereo and split the money with defendant and Mercurio. Charlene deduced that the furniture was Gitmed's and asked Dalton to get rid of it. Dalton did not do so and instead stored it in his camper. On learning that, Charlene asked for the television back.

A few days after taking the furniture from the storage locker, defendant was back at the compound trying to figure out how to dispose of Gitmed's car. Defendant tried to give the car to Dalton to strip at his "chop shop," but Mercurio advised Dalton not to have anything to do with defendant or the car. Finally, defendant, along with Mercurio and Dalton driving in a separate vehicle, drove Gitmed's car to some hills near the compound, where defendant set fire to it.

Sometime during this period defendant said something to Barbara Triplett about a person floating in Canyon Lake who was not able to make decisions for himself, which made her "feel very uncomfortable and uneasy." Defendant also started boasting to Dalton about leaving someone floating in the lake, but Dalton told him to shut up because he did not want to know anything about it. When Dalton learned that defendant had told Barbara and Charlene about the floating man, Dalton became angry and told defendant to leave the compound. Barbara gave defendant a ride to the Corona Motel in Riverside, which was the last anyone at the compound saw of him.

g. Police Investigation Following Discovery of the Body

After Gitmed's body was discovered on August 28, 1991, Michelle Keathley's ex-husband told her of newspaper articles about an unidentified body found in Canyon Lake. Because two weeks had passed since she had last seen Gitmed, she became concerned and contacted the police on September 11. The police showed her pictures of the victim, whom she identified as Gitmed. She told police Gitmed had left her house with defendant. On September 13, two police officers located defendant at the home of his mother, Jean Thompson Churder, and conducted a tape-recorded interview of him. Thereafter, defendant was taken into custody on a parole violation. The recorded interview was played to the jury. In it, defendant acknowledged he knew Michelle Keathley and had briefly met Gitmed at her house, but denied ever leaving Michelle's house with Gitmed. He also denied having been at Canyon Lake any time recently.

On September 17, the police searched the Triplett compound pursuant to a narcotics warrant unrelated to the Gitmed murder. In the course of the search, the police came across an address book belonging to Barbara Triplett, which had the name "Tex" (defendant's nickname) with a telephone number. The police asked Mercurio whether he knew anyone named Tex, and Mercurio eventually acknowledged that he did, stating, "I knew you'd want to talk about Tex before you left here today." Mercurio decided to cooperate with the police and, later that day, gave a tape-recorded statement that defendant had shot Gitmed at Canyon Lake. He told them the location of Gitmed's burned car and eventually took the police to the place where Gitmed had been shot. The police asked about the stolen furniture, and Mercurio directed them to a television, a videocassette recorder, three end tables, a vacuum cleaner, a lamp, and a fan. Mercurio stated defendant had given him the furniture, and he thought it belonged to Gitmed.

Eva Lynn Thompson, defendant's sister, testified that sometime before defendant's arrest he brought to her apartment a suitcase and some boxes of clothes and asked her to store them because he was not sure he had a place to stay. After she learned of defendant's arrest, she panicked and had her son, Marc Brendlin, take the items to Churder's house. Brendlin testified that the items included boxes, a bag, some clothing, and a wallet containing business cards, but no identification.

On September 25, the police returned to Churder's home with a search warrant to look for evidence related to the murder. While they were searching the residence, Churder arrived home in her car. Police opened the trunk of her car and recovered a green London Fog jacket and a black, blue, and white nylon duffel bag, both of which Gitmed's mother identified at trial as belonging to her son. Gitmed had been wearing the jacket on Monday, August 26, when he visited his mother. The friend who had helped Gitmed move out of his apartment on August 26 also identified the nylon duffel bag as Gitmed's. A tattered wallet with business cards but no identification was found in Churder's house in a nightstand drawer in the bedroom defendant occupied before his arrest.

h. Mercurio's Plea Agreement

In January 1992, Mercurio engaged the police in an hour-long high-speed auto chase after he ran a red right. He was arrested for felony assault on a police officer and possession of a rifle. Mercurio signed an agreement with the Riverside County District Attorney providing that in exchange for his cooperation in defendant's case the district attorney would drop some of the charges arising from the chase. As part of the agreement, Mercurio pleaded guilty to evading arrest and being a felon in possession of a firearm. He also pleaded guilty to being an accessory after the fact to Gitmed's murder, based on his having helped defendant dispose of Gitmed's car. Mercurio spent one year in custody. Under the agreement, Mercurio was obligated to testify truthfully at defendant's trial. At the time Mercurio testified, he was scheduled to be sentenced in Las Vegas later that month on a separate charge, unrelated to the California cases, of being a felon in possession of a firearm.

2. The Defense Case

The defense presented an alibi for the evening of August 27, 1991, through the testimony of defendant's uncle, who stated he had been with defendant that entire evening. In addition, to dispute Mercurio's account of the events at Canyon Lake the defense put on Marvin Avery, who testified he was at the lake around the time of the murder and saw someone who looked like Gitmed swimming and having a good time. The defense also sought to impeach Mercurio through his grand jury testimony about the murder and his high-speed chase with police officers.

a. Defendant's Dinner with his Uncle

Defendant's uncle, Richard Brent Hartenbach, testified he took defendant out to dinner on the evening of August 27. They went to a restaurant and a bar, and he brought defendant home about 10:30 or 11:00 p.m. After defendant's arrest, Churder called Hartenbach to tell him defendant had been arrested on suspicion of a murder she said occurred on Tuesday, August 27. Hartenbach told her that was impossible because he recalled being with defendant that night, and he knew it was Tuesday because defendant had a Wednesday morning meeting scheduled with his parole officer.

b. The swimming man at Canyon Lake

At the time of the murder, Marvin Avery, who did not know anyone involved in the case, lived in Perris and was a frequent visitor to nearby Canyon Lake. After seeing a newspaper article about the discovery of Gitmed's body, Avery contacted the police. In late August 1991, about four days before he saw the newspaper article, he had been fishing at Canyon Lake. Around 10:00 p.m., he saw four men and a woman in the area. They arrived in an early 1990's model three-quarter ton pickup truck with a black tool box and rack utility boxes. One man from the group, wearing "whitish" jeans and no shirt, was singing and having fun. He walked through Avery's campsite, within five feet of Avery, and then dived into the water. The man was a good swimmer and swam quite a distance out into the lake. Avery testified he had identified the swimming man as Gitmed from photographs shown to him by the police.

Officer Betty Fitzpatrick testified that Avery had contacted the police on August 30, 1991, after police had released a composite drawing of Gitmed, who at that point was still unidentified. The police showed Avery two autopsy photos of Gitmed, and Avery identified them as the person he had seen at Canyon Lake on August 27. On cross-examination, Fitzpatrick testified that Avery took officers to the spot where he had seen the man swimming, a location west and slightly south of the channel across from where Gitmed's body was found. Mercurio later directed police to the exact location where Gitmed's body was found.

c. Gitmed's Storage Locker

The defense presented testimony of the manager of the ministorage facility where Gitmed used a locker. Entry to and exit from the facility required punching in an individual code at the gate, which was recorded on tape. Records from the facility showed that on August 26, there were three entries/exits at 2:12/2:24 p.m., 3:46/4:01 p.m., and 5:45/6:01 p.m., respectively.*fn5 There were no entries on August 27. On August 28, there were two entries/exits at 12:45 p.m./1:02 p.m. and 4:24/4:41 p.m., respectively.*fn6

d. Mercurio's Grand Jury Testimony

The defense read Mercurio's grand jury testimony about the shooting, which differed in some details from his testimony at trial. Unlike in his testimony at trial, in his grand jury testimony Mercurio recalled seeing defendant hold a gun on Gitmed, saw the wallet and personal items being placed on the hood of the truck, and saw Gitmed fall down at the edge of the water.

e. Mercurio's High-Speed Chase

At trial Mercurio testified that in the high-speed chase culminating in his arrest he had never tried to ram the pursuing officers with his car. To impeach this testimony, the defense called two of the police officers involved in the chase. About 3:00 a.m., after running a stop sign, Mercurio led the officers in a vehicle pursuit that lasted nearly an hour, spanned about 20 miles, and eventually involved three or four police cars. He drove his car head on at police cars, and the police had to take evasive action to avoid being hit. Eventually, he fled on foot, and a scuffle ensued before he was apprehended.

3. Prosecution Rebuttal

Gitmed's mother, Naomi Dekens, and his younger brother Bruce testified that Gitmed was generally anxious and appeared slow and almost mentally retarded to people who did not know him. He had been under the care of a doctor from grade school through adulthood. He was very fearful of the water and would not go into it when they went to the beach. His mother forced him to take swimming lessons as a child, but he did not continue swimming after the lessons ended. He was self-conscious about his body and always wore big, bulky clothing. She had never seen him take off his shirt.

Thomas Crompton, the defense investigator who interviewed defendant's uncle, Richard Hartenbach, testified that Hartenbach told him that August 27, 1991, was the night he was with defendant. However, Crompton did not put that date in his report, but rather referred to the night as the date of the murder, which he believed was August 27. Nor did he include in his report that the reason Hartenbach had to have defendant home by 11:00 p.m. was that defendant had a meeting with his parole officer the next morning.

The parties stipulated that Mercurio had not received immunity from prosecution for any events concerning Gitmed's death.

B. Pretrial Issues

1. Exclusions of Prospective Jurors for Cause Based on Their Questionnaires

The trial court had the prospective jurors fill out a 25-page questionnaire, composed of 71 questions. On the basis of the questionnaire alone and without any oral voir dire, the trial court excused 18 potential jurors for cause. Defendant contends the substitution of written questionnaires for oral voir dire was impermissible under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.*fn7 Alternatively, defendant contends (1) even if the exclusion of prospective jurors on the basis of written questionnaires alone was not per se unconstitutional, the questions used were confusing to the jurors or were biased, and (2) even assuming the questions were not deficient, the trial court's findings of substantial impairment for each excluded prospective juror were unreasonable and unsupported by the record. Furthermore, defendant alleges the exclusion of the identified jurors violated his rights to equal protection because the trial court's reliance on the questionnaires caused it to be more inclined to excuse life-leaning prospective jurors than those favoring the death penalty.

As discussed below, we reject all of defendant's contentions of error.

a. Background

The questionnaire was originally proposed by defense counsel and had primarily been shaped by the review and revision of the two previous judges assigned to the case. The judge who eventually tried the case oversaw some additional minor revisions to the questionnaire before using it in jury selection. Before the prospective jurors filled out the questionnaires, the trial court addressed the jurors with a lengthy introduction to the case and to the questionnaire, explaining the function of the guilt and penalty phases, the special circumstances, and evidence in aggravation and mitigation.

The questionnaire asked detailed questions about the prospective jurors' background, prior experiences with law enforcement and the court, and ability to follow the general presumptions of the law. It also contained specific questions about "Attitudes Towards Capital Punishment."

b. Analysis

(1) Asserted Unconstitutionality of Exclusions Based Solely on the Questionnaires

Under Wainwright v. Witt (1985) 469 U.S. 412, " '[a] prospective juror who would invariably vote either for or against the death penalty because of one or more circumstances likely to be present in the case being tried, without regard to the strength of aggravating and mitigating circumstances, is . . . subject to challenge for cause . . . .' " (People v. Ledesma (2006) 39 Cal.4th 641, 671.) Defendant contends the trial court violated Witt by excusing 18 prospective jurors for cause based solely on their written questionnaires and without any follow-up questioning. He argues the trial court had a constitutional duty to personally question prospective jurors. As an initial matter, respondent contends defendant has waived this claim because defendant's trial counsel himself urged the trial court to excuse jurors solely on the basis of their written questionnaires. We agree. The record indicates that trial counsel explicitly endorsed the procedure defendant now challenges on appeal. Defendant has therefore waived this claim. (Cf. People v. Stewart (2004) 33 Cal.4th 425, 452 [claim not waived because the record disclosed no indication defendant conceded the propriety of the procedure].)

In the alternative, defendant contends that even if his trial counsel urged the procedure, the issue should be reviewed because counsel's performance was deficient under Strickland v. Washington (1984) 466 U.S 668. Defendant contends the only reason for excusing prospective jurors solely on the basis of their questionnaires was to speed up the voir dire process (which he argues is not a valid tactical reason), and trial counsel had no other valid tactical reason for urging the procedure. We disagree. On excusing prospective jurors solely on the basis of questionnaires, we have cautioned that "[t]he legitimate pursuit of laudatory efficiency should not be transformed into an arbitrary pursuit of speed for its own sake." (People v. Avila (2006) 38 Cal.4th 491, 530, fn. 25.) But such was not the case here. As expressed by trial counsel and the trial court, the reason for using the questionnaires to exclude obviously Witt-impaired prospective jurors was not to gain speed for its own sake; rather, it was to spend more time with the remaining jurors at voir dire. For example, Defense Counsel Jay Grossman asserted that "I think having 20 jurors on Monday morning is better than having 30 when you know there's ten or eight that you're not going to have anyway based on this questionnaire," and that "my idea in suggesting that we do this, is that it gives us more time to focus on people that both sides kind of agree are a reasonable part of the pool." The record thus indicates trial counsel had a reasonable tactical strategy in urging the procedure and placing heavy initial reliance on the questionnaires.*fn8

Turning to the merits of the claim, we have, as defendant acknowledges, previously rejected the argument that excusing a prospective juror for cause solely on the basis of a written questionnaire is per se unconstitutional. (People v. Wilson (2008) 44 Cal.4th 758, 781-790.) "[R]eliance on written responses alone to excuse prospective jurors for cause is permissible if, from those responses, it is clear (and 'leave[s] no doubt') that a prospective juror's views about the death penalty would satisfy the Witt standard (Wainwright v. Witt, supra, 469 U.S. 412) and that the juror is not willing or able to set aside his or her personal views and follow the law." (Id. at p. 787.) As discussed below, we conclude from our review of the individual questionnaires that the trial court did not err in discharging these prospective jurors for cause.

(2) Asserted Deficiencies in the Form of the Questions

As a further general objection to the exclusions based on the questionnaires, defendant contends that the form of the questions was confusing or biased and thus answers to those questions could not provide an adequate basis for the trial court's rulings. Because defense counsel initially drafted the questions, agreed to the various revisions the trial court and prosecutor suggested, and accepted, without apparent objection, the final form of the questionnaire, defendant waived these claims. Were we nevertheless to address the merits, we would find the claims meritless.

Defendant first asserts the questionnaire used specialized legal terms such as "mitigation and aggravation," "penalty phase," and "special circumstances." He contends that to conclude the prospective jurors, without any guidance or explanation, would have grasped the full significance of these concepts when they wrote their responses is unreasonable. But defendant's premise is faulty because the trial court explained the terms and procedures to the prospective jurors before submitting the questionnaires to them. As noted above, the trial court presented a lengthy introduction to the case and to the questionnaire in which it explained the guilt and penalty phases, special circumstances, and evidence in aggravation and mitigation. The prospective jurors were thus given sufficient explanation of the legal terms to respond intelligently to the questions.

Defendant also challenges the wording of question No. 60, which stated that no circumstance exists in which a jury must automatically return a judgment of death, and that, irrespective of what the evidence might show, the jury always retains the option in the penalty phase of choosing life imprisonment without the possibility of parole. Question No. 60 then went on to ask, given that two options would be available, "can you see yourself": (A) voting for the death penalty or (B) voting for life imprisonment. Defendant contends a prospective juror might answer "no" to (A) simply because he or she could not "imagine" the situation, rather than because he or she would be unable to consider the option of imposing the death penalty. Defendant's reading of this question is unreasonable and thus unpersuasive. Within the context of the questionnaire as a whole and the court's explanations to the prospective jurors, the jurors would reasonably have understood the question as referring to their willingness to consider the option of imposing the death penalty. (See People v. Rogers (2006) 39 Cal.4th 826, 873 [reviewing court inquires whether the jury was " 'reasonably likely' " to have construed ambiguous jury instructions in a manner that violates the defendant's rights].)

Finally, defendant contends question No. 58 was used to eliminate death penalty opponents when they answered they would "never" impose the death penalty, but not to eliminate death penalty proponents when they answered they would "always" impose it. This argument merely recasts defendant's equal protection claim, discussed below, that the trial court was more willing to dismiss life-leaning than death-leaning prospective jurors on the basis of their questionnaires alone. In sum, even assuming defendant had preserved the claim for appeal, his challenges to the questionnaire's adequacy are meritless.

(3) Exclusion of Prospective Jurors for Cause Based on the Questionnaires

Defendant contends that, even assuming it was constitutional for the trial court to excuse prospective jurors for cause based on the information in their written questionnaires alone, and even assuming the questions were not deficient in form, the trial court erred in dismissing 13 prospective jurors for cause.*fn9 As a threshold matter, respondent contends that defendant has waived any challenges to these exclusions because trial counsel stipulated to them. We previously have precluded challenging on appeal exclusions of prospective jurors for cause when defense counsel stipulated to the exclusion. (People v. Benavides (2005) 35 Cal.4th 69, 88; People v. Ervin (2000) 22 Cal.4th 48, 73.) As defendant acknowledges, defense counsel stipulated or otherwise expressly agreed to the exclusion of five of the excused prospective jurors he now challenges, namely, R.H., A.A., J.J., L.K., and N.E. Defendant's claims are therefore barred as to them.*fn10 For the eight remaining excused prospective jurors, however, trial counsel merely stated that he "submitted" the exclusion to the discretion of the court, or that he would not object. Thus, while trial counsel did not stipulate to the exclusions, neither did counsel object to them. In such a circumstance, "failure to object does not forfeit the right to raise the issue on appeal, although it does suggest counsel concurred in the assessment that the juror was excusable." (People v. Cleveland (2004) 32 Cal.4th 704, 734-735.)

" '[A]ssessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court.' " (People v. Ledesma, supra, 39 Cal.4th at p. 668.) Generally, a trial court's rulings on motions to exclude for cause are afforded deference on appeal because, in addition to the answers given, the trial court considers the tone and demeanor of the prospective jurors. (People v. Avila, supra, 38 Cal.4th at p. 529.) "But such deference is unwarranted when, as here, the trial court's ruling is based solely on the 'cold record' of the prospective jurors' answers on a written questionnaire . . ." (ibid.), which is available on appeal. Accordingly, we review the record de novo. (Ibid.) As we conclude below, the trial court did not err in excusing any of the challenged jurors.

(a) Prospective Juror R.R. Excused for Reasons other Than his Attitude Toward the Death Penalty

Under California law, a juror may be challenged for cause for one of the following reasons: "(A) General disqualification--that the juror is disqualified from serving in the action on trial. [¶] (B) Implied bias--as, when the existence of the facts as ascertained, in judgment of law disqualifies the juror. [or] [¶] (C) Actual bias--the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party." (Code Civ. Proc., § 225, subd. (b)(1)(A)-(C).) Code of Civil Procedure section 228 sets forth the grounds for a challenge based on general disqualifications and includes "(b) [t]he existence of any incapacity which satisfies the court that the challenged person is incapable of performing the duties of a juror in the particular action without prejudice to the substantial rights of the challenging party." Code of Civil Procedure section 229 sets forth the grounds for a challenge based on implied bias and includes "(f) [t]he existence of a state of mind in the juror evincing enmity against, or bias towards, either party."

Prospective Juror R.R. expressed a marked antipathy toward the legal system and law enforcement in his questionnaire, which the trial court cited as the basis for his exclusion. Responding to a question asking whether something might "distract him during the trial," R.R. marked "YES" and wrote: "I find judges and lawyers pompous and boring." Responding to a question whether the nature of the charges would "make it difficult or impossible for you to be fair and impartial," he answered in the affirmative and wrote: "Obviously (since I haven't heard of the man), the defendant is not rich or famous. Consequently his justice will be harsher than people who are privileged." R.R.'s negative feelings about the judicial system apparently stemmed from his having been charged with assaulting with a deadly weapon someone he claims was the initial aggressor. R.R. felt that law enforcement's response to that situation was completely inadequate. The trial court also noted that R.R. had indicated he would change his opinion during deliberations if it were late in the day and he was tired because "I get claustrophobic, especially if I feel I couldn't get outside if I wanted to (or if I knew I had to sit still/stay in)." Based on our de novo review, we conclude R.R.'s answers expressed bias against the legal system and law enforcement and indicated his inability to engage in the deliberation process. Accordingly, the trial court did not err in excluding R.R. for cause. (Code Civ. Proc., § 225.)

Although we conclude the trial court did not err in excusing R.R., we also note defendant has cited no authority for his assumption that an error in excusing a juror for reasons unrelated to that juror's view on the imposition of the death penalty requires reversal. " '[T]he general rule [is] that an erroneous exclusion of a juror for cause provides no basis for overturning a judgment.' " (People v. Holt (1997) 15 Cal.4th 619, 656.)

(b) Prospective Jurors Excused for their Attitudes Toward the Death Penalty

Defendant contends the trial court erred in excusing several prospective jurors, based solely on their questionnaire answers, as being substantially impaired to serve as capital case jurors under Wainwright v. Witt, supra, 469 U.S. 412. As noted above, the questionnaire had a special section on attitudes toward the death penalty. For assessing impairment under Witt for unwillingness ever to impose the death penalty, the most significant questions were Nos. 54, 56, 58, and 60.

Question No. 54 asked whether the prospective juror's opposition to the death penalty was so strong that, at the guilt phase, no matter what the evidence showed, the juror would refuse to vote for guilt as to first degree murder or would refuse to find a special circumstance true, in order to keep the case from going to the penalty phase. Question No. 56 asked whether the prospective juror's opposition to the death penalty was so strong that, at the penalty phase, the juror would automatically vote against death, no matter what evidence in aggravation or mitigation was presented.

Question No. 58 asked whether the prospective juror was always, never, or sometimes willing to impose the death penalty, depending on the following special circumstances: (A) murder committed for financial gain; (B) defendant previously convicted of murder; (C) defendant convicted of multiple murders; (D) murder committed upon a peace officer; or (E) murder committed during the course of a robbery.

Question No. 60, the last of the section, asked about the prospective jurors' ability to impose the two options available at the penalty stage. This question first reminded the prospective jurors that under no circumstances were they required to return a penalty of death, and that they would always have the option of choosing life without the possibility of parole. Question No. 60 then presented two subparts, A and B. Part A asked whether, in the appropriate case, the prospective jurors could see themselves rejecting the death penalty and instead choosing life imprisonment without the possibility of parole. Part B asked whether, in the ...


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