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The People v. Lester Wayne Virgil

June 30, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LESTER WAYNE VIRGIL,
DEFENDANT AND APPELLANT.



Los Angeles County Super. Ct. No. YA016781

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

A jury convicted defendant Lester Wayne Virgil of murdering 22-year-old Soy Sung Lao during a doughnut shop robbery.*fn1 The jury also convicted defendant of two other robberies, both committed with a knife and one accompanied by an assault with force likely to produce great bodily injury, and found true a robbery/murder special circumstance.*fn2 Because the penalty was set at death, this appeal is automatic. We affirm the judgment.

BACKGROUND

I. Guilt Phase A. Robbery of Beatriz Addo

On the morning of October 13, 1992, Beatriz Addo was working alone at the LaBargain Grocery, which she owned with her husband. The store was located in an alley near the intersection of Van Ness Avenue and West El Segundo Boulevard, in Gardena. Sometime between 10:00 and 11:00 a.m., Addo was talking with a neighbor when defendant rode up on a bicycle. He parked outside, walked in, and asked if either woman wanted to buy the bike. When they declined, he asked about a brand of shaving cream. Although Addo said they did not carry the brand, defendant searched the store's shelves for it. He then asked if Addo could give him a job. Addo promised to check with her husband, and defendant wrote down the name "Robert William," a telephone number, and the address "1202 Denker, Apt. #10." He left, and the visiting neighbor left soon thereafter.

About five minutes later, Addo was alone. Defendant returned and walked toward the display shelves. Defendant then grabbed Addo from behind and pushed her toward the bathroom. Addo felt something pricking her in the back. Defendant ordered her to sit on the toilet, but instead she knelt to pray. Defendant left, closing the door behind him. Addo heard the ring of the cash register opening. After about 10 minutes of silence, Addo emerged to find the telephone line had been cut and the cash register left open. Approximately $60 had been taken, along with an envelope containing $600 in rent money, which had been stored underneath the register. Addo had small cuts and scratches on her back but did not require medical attention.

Addo described the robber as a Black man of average weight, with short hair and two to three days' growth of beard. He wore long dark pants and a black T-shirt. In June 1993, Addo picked defendant's picture from a six-photo lineup, and in October 1993, she identified him in a live lineup. She also identified him at both the preliminary hearing and trial.

B. Robbery and Murder of Soy Sung Lao

Around 3:40 in the afternoon on October 24, 1992, Los Angeles County Park Police Sergeant Donald Tiller and his partner went to the Donut King for coffee. The small, family-owned shop was located in a strip mall near the LaBargain Grocery. While his partner waited in the patrol car, Tiller went inside and ordered from Soy Sung Lao, who was working behind the counter. Ms. Lao was the only employee in the shop, and defendant the only customer. Defendant sat at a table with a white styrofoam cup and an orange gym bag nearby. Sergeant Tiller observed defendant during the three minutes he spoke with Ms. Lao at the counter. It seemed unusual that defendant stared fixedly out the window and would not look in his direction. In the sergeant's experience, people usually looked at him when he was in uniform. Defendant was wearing a dark jacket, a dark "Malcolm X" cap, and dark jeans. He appeared to be about six feet tall, 165 to 170 pounds, with "kind of a straggly beard."

Lavette Gilmore worked at a hair salon in the same strip mall. Around 3:30 or 4:00 p.m. on October 24, 1992, she went to the doughnut shop and saw defendant sitting in the window with a small coffee cup and a bag. He wore a cap and a black shirt with red on it and drew Gilmore's attention because he looked "rugged." He was thin and unkempt, with long hair. He slouched and would not return Gilmore's gaze. Gilmore stayed in the shop talking for 20 or 25 minutes. She and Sergeant Tiller left at the same time. Gilmore expressed concern to Tiller that defendant looked "funny."

Debra Tomiyasu had an appointment at Gilmore's hair salon that afternoon. She left around 3:40 p.m. and walked into the Donut King. She noticed an orange duffel bag and a black Malcolm X cap on one of the customer tables but saw no one in the shop. Tomiyasu yelled out "hello" two or three times, to no response. A minute or two later, Deandre Harrison walked in. The two waited a few minutes more, calling for service. Harrison walked in and out of the shop's front door several times to trigger its buzzer. They then heard a series of muffled, high-pitched screams. As the screams grew louder, defendant emerged from the back of the store and walked straight to the cash register, which was partially open. He took the money inside, walked out the front door, and ran across the parking lot. A woman staggered out from the back of the store, covered in blood. Still screaming, she held a blood-soaked white cloth to her neck. She took a few steps, then collapsed. No one else emerged from the back. No sounds indicated anyone else was in the store.

Tomiyasu followed defendant and chased him across the parking lot, screaming for help. Meanwhile, Harrison ran to another shop and called 911. After Tomiyasu lost sight of defendant, she also attempted to call the police, but they arrived before she had time to dial. Other than defendant and the bleeding woman, Tomiyasu and Harrison saw no one else in the shop, and no one else left after defendant fled.

Ella Ford was picking up dry cleaning at the strip mall when she heard a woman screaming from the Donut King. She dismissed the screams as the sound of children playing. Defendant ran out of the doughnut shop and almost knocked her down. She noticed he was holding something close to his body in his left hand. Ford turned away but looked back at defendant after someone yelled, "he stabbed her." She eventually lost sight of defendant as he ran down the street.

Felipe Santoyo was working at a fish market in the strip mall when he heard the commotion. A crying woman said, "she's bleeding." Santoyo ran to the doughnut shop, where several people had gathered. He saw Lao, whom he knew, lying on the floor, "bleeding a lot." He went to her and placed some bags under her head "so she didn't feel on the floor." Santoyo was soon joined by Lavette Gilmore and Trina Simmons, who had run to the shop from Gilmore's salon when they learned of the stabbing. Lao's eyes were open and she was asking for help. She managed to give her family's phone number before she lost consciousness. Santoyo left to call Lao's family.

Gardena Police Officers Blane Schmidt and Jody Schnabl were the first authorities to arrive at the scene. Paramedics arrived minutes later. They transported Lao to a hospital, but her condition deteriorated rapidly in the ambulance and she never regained consciousness.

After the paramedics left, Officer Schmidt interviewed Simmons, Harrison, and Tomiyasu. Tomiyasu described defendant as having a round face, dark skin, a "scraggly" beard and mustache, a "wild-like appearance to his eyes," and dark smudges on his face. His hair was very short, and he appeared to be in his late 20's or early 30's. Defendant looked like a homeless or transient person because he was very thin, with a drawn face and wild-eyed look. He wore blue jeans, dark shoes, and a black T-shirt with an outline of Africa on the front. Harrison also remembered that defendant wore blue jeans and a black T-shirt with Africa depicted in red, yellow, and green. He was tall and thin, with medium-brown, dirty skin and a "rough, ruggish" beard and mustache. Ella Ford gave a similar description. She said defendant was a little over six feet tall, 150 pounds, with a full beard, and wearing jeans, tennis shoes, and a black T-shirt with "African colors." Twice that evening, the police asked Tomiyasu to view suspects they had detained, but she did not make a positive identification of either.

At the crime scene, police officers found the cash register drawer open but with no bills in the tray. A blood trail extended from the restroom to where Lao had fallen. Behind the closed door of the restroom, a large blood pool was oozing into the drain. Blood was smeared on the inside doorknob and doorjamb. A knotted towel and a pair of women's shoes lay on the floor. Police officers never discovered a murder weapon. At one of the tables in the dining area, someone had left an open gym bag, a baseball cap, a styrofoam cup, and a pair of shoelaces. The gym bag contained several raffle tickets. Defendant's latent palm print was lifted from the table. Although other latent fingerprints were recovered, none could be matched to defendant.

Lao was stabbed 30 times with a single-edged blade approximately five-eighths of an inch wide and five to six inches long. Her hands and arms showed multiple defensive wounds. Two stab wounds pierced the rib cage and sliced completely through her liver, causing massive abdominal bleeding. Another stab wound to the chest collapsed a lung. Forensic evidence established that the stabbing took place in the employee restroom. The bathroom door was closed after the attack, but Lao managed to open it. Bleeding from her many wounds, Lao moved toward the silent alarm button and collapsed nearby. The many undisturbed blood pools and droplets in the hallway showed that Lao's attacker left the bathroom before she did.

C. Robbery and Assault of Samuel Draper

Samuel "Joe" Draper was a mechanic at the Southwest Bowl. On October 31, 1992, defendant appeared in the doorway of the mechanic shop and asked Draper for a dollar for bus fare. Draper recognized defendant from the bowling alley, but they had never spoken before. Draper gave him a dollar from his shirt pocket. Defendant started to leave but then asked for another dollar. Draper walked into the shop to retrieve a dollar from his wallet. Defendant took the money and left. He returned about five minutes later carrying a plastic shopping bag, which he asked Draper to keep for him. When Draper turned to carry the bag inside, defendant grabbed him from behind and put a knife to his throat. Draper tried to grab the knife, cutting his fingers on the blade. Defendant said, "Get down and I won't hurt you." When Draper complied, defendant tied his hands and feet with an extension cord and belt and tied a dirty rag around Draper's mouth as a gag. Defendant plucked the wallet from Draper's pocket, took out $40 to $50 in cash, and left, dropping the empty wallet.

Minutes later, Draper managed to free himself. He went inside the bowling alley and reported the incident. Later, Draper spoke to two men who believed they had seen defendant living out of a van parked in a nearby alley. Draper reported this information to the police and showed them the van, but defendant was not in the area. Draper described defendant as six feet tall, of medium build, and with a mustache and goatee.

While investigating the Draper robbery, Detective Jacques LaBerge learned that the suspect may have been the same person recently arrested for stealing a pie from a church bake sale. Using that booking photograph of defendant, LaBerge prepared a photographic lineup, which he showed to Draper. Draper identified defendant as the person who had robbed him.

D. Investigation

During the investigation of Lao's murder, Sergeant Hernandes Lobo determined that the raffle tickets found in the gym bag were originally sold to Joe Vaouli in late September or early October of 1992. Shortly afterward, they were stolen from Vaouli's car while he was visiting his friend Joe Draper at the Southwest Bowl. Vaouli had reported the theft to the raffle's organizer but not to the police.

In June 1993, the Gardena Police Department prepared and circulated a flier about the doughnut shop killing. Along with information about the date and location of the crime, the flier displayed photographs of the gym bag and other items found at the scene, a description of the suspect, and a composite sketch prepared with Tomiyasu's assistance. The flier was distributed to surrounding police agencies.

Detective Richard Cohen thought the suspect in the flier resembled defendant, whom he had recently arrested for burglarizing a church. In addition to noting this resemblance, Detective Cohen knew that defendant "had been hanging around the Southwest Bowl and possibly committing crimes there." Detectives Cohen and LaBerge met with Sergeant Lobo to share information about the possibly related crimes. Afterward, Sergeant Lobo prepared a new mug shot lineup containing the photograph of defendant that had previously been shown to Draper.

Tomiyasu and Harrison both identified defendant in the photo lineup. Beatriz Addo identified defendant as the person who had robbed her. Sergeant Tiller did not make an immediate identification when shown the photographs but asked if he could see pictures of the men in profile. Sergeant Lobo created a new group of profile photographs, and Tiller identified defendant. A live lineup was conducted at the sheriff's department on October 19, 1993.*fn3 Tiller, Addo, Harrison and Draper all identified defendant. Tomiyasu could not decide between defendant and another man in the lineup. Although defendant looked like the robber, he had gained significant weight. Tomiyasu asked to see another photographic lineup. When one was prepared, she identified defendant as "definitely the man that I saw in the donut shop."

Lavette Gilmore said she could not distinguish between defendant and another man in Sergeant Lobo's first photographic lineup. When shown the profile photographs shown to Sergeant Tiller, Gilmore identified defendant. At the live lineup in October 1993, Gilmore identified a different suspect. She later confessed to the police, however, that she had purposefully picked the wrong person because her husband had warned her not to get involved. Gilmore later asked to see another photographic lineup. On January 20, 1995, shortly before trial, she viewed another six photos and was "over a hundred percent sure" defendant was the man she had seen at the doughnut shop.

Ella Ford avoided contact with the police for years because she was afraid of retaliation. She did not attend the live lineup and refused to speak with the police about the incident until shortly before defendant's trial. On January 6, 1995, Ford finally met with the police and identified defendant from a photographic lineup.

Defendant did not present any evidence in the guilt phase of trial, and the jury convicted him of all charges.

II. Penalty Phase

A. Prosecution Evidence

1. Victim Impact

Soy Sung Lao was 22 years old when she was murdered. She was the youngest of six siblings in a close-knit family. After their parents died in 1975 and 1976, the siblings took care of each other. In 1980, when Lao was 10 years old, they fled from a communist regime in Cambodia. Sleeping in the forest and hiding from soldiers, they escaped first to Thailand, then came to the United States. The family settled in San Diego.

In 1987, Lao's sister Lynn Lao Ngov married and moved to Los Angeles to run the Gardena doughnut shop. When she graduated high school, Lao moved nearby and enrolled in the University of Southern California. Lao was a full-time college student majoring in international relations, scheduled to graduate in May 1993. Lao was very close to Ngov's two children.

Ngov last saw Lao at the doughnut shop on the day of the murder. She had left the shop around noon, while Lao worked on alone. When someone phoned saying Lao had been stabbed, Ngov was shocked and drove straight to the doughnut shop. She arrived just after the ambulance drove away. Ngov still felt shocked and "numb" about the murder. Two and a half years later, she still thought about her sister every day.

2. Other Crimes

On several occasions in October 1992, defendant rented a room at the Hilltop Motel, where Julio Montulfar and his wife Benita Rodriguez worked as nighttime caretakers. The first time defendant checked in, he had about $300 cash. He did not have enough money to pay for his room on other nights, however, and borrowed money from Montulfar.

Around 9:00 p.m. on October 29, 1992, five days after Lao's murder, defendant came into a room Benita Rodriguez was cleaning. Defendant asked after Montulfar, and Rodriguez explained that he had gone to the store. About 10 or 15 minutes later, Rodriguez began cleaning another room. When she emerged from the bathroom, defendant was standing near the bed holding a knife. The door to the room was closed. Defendant put a finger to his lips, motioning Rodriguez to be quiet. At knifepoint, defendant took Rodriguez's rings and watch, then asked for the office key. Rodriguez, who spoke little English, repeatedly told defendant, "No money." She knelt at defendant's feet, imploring him not to kill her. Defendant tried to tie Rodriguez's hands behind her back using a shoelace, but she refused to cooperate. He gestured for Rodriguez to remove her pants. When she did not understand, defendant "got on all fours on top of the bed" and told her to imitate the position. When Rodriguez refused, defendant repeatedly kicked her, stabbed her in the side, and tried to suffocate her. He stabbed her a total of 20 times in the face, arm, stomach, and leg. Fearing for her life, Rodriguez screamed and tried to grab the knife blade, which was about five or six inches long. She managed to take hold of the blade and break it off, seriously injuring her finger. Defendant fled. Trailing blood, Rodriguez staggered to the office and told Montulfar defendant had stabbed her.

Rodriguez underwent three surgeries to treat the injuries to her stomach and intestines. She suffered persistent digestive problems and could eat only once a day. The attack left her face disfigured. Her left eye drooped partially closed, impairing her vision. She had difficulty sleeping and was afraid to be alone.

In addition to the attack on Benita Rodriguez, the jury learned that defendant had been convicted of burglary in 1983, in California, and again in 1989, in Louisiana.

B. Defense Evidence

Defendant's older sister, Debra Virgil, testified about his upbringing. Defendant and his sister were raised by a teenage mother in Los Angeles. Defendant's father moved back to Louisiana before defendant's birth. His mother waitressed and relied on welfare payments for support. The family moved often and lived in small apartments. They always had enough food and clothing, and their mother was always attentive to her children's educational needs. When defendant and his sister were very young, their mother was convicted of manslaughter. She was jailed for a brief period, during which the children stayed with their aunt. Their mother drank excessively and sometimes disciplined defendant harshly, using her hand, a belt, or an extension cord. The discipline grew more severe as defendant got older; he became angry and resentful. Defendant's mother always had a reason for imposing discipline, but she never demonstrated affection.

Another child, Dexter, was born when defendant was almost 12 years old. Dexter's father was also involved in defendant's life. Loving and affectionate, he tried to teach the children positive values. Nevertheless, defendant's grades began dropping in junior high school, and he ran away from home briefly when he was 14 or 15. He started working part-time jobs and dropped out of high school at age 16 or 17. Defendant had few friends outside his extended family. In 1982, after he served a county jail sentence for stealing tools from a garage, defendant moved with his sister to Tallulah, Louisiana. Defendant worked at different jobs, eventually entered the job corps, and started a romantic relationship with Annie Antoine.

Antoine testified that she and defendant began living together in Shreveport, Louisiana, in 1987. Antoine noticed changes in defendant's behavior when he started spending time with his cousin Chester, a cocaine user. Defendant still worked but began staying out late at night. In 1989, he was arrested and imprisoned for burglarizing a warehouse. When paroled in May 1991, defendant moved in with Antoine and his sister Debra, who were living together in Los Angeles. During this time, Antoine continued to notice changes in defendant's personality, and their relationship deteriorated. After a few months, defendant moved to Las Vegas. When Antoine joined him two weeks later, she noticed that he had lost a significant amount of weight and displayed mood swings. Defendant stayed out all night, or for days at a time. When Antoine accused him of having an affair, defendant admitted he was abusing cocaine. Antoine eventually moved to live with a sister in Salt Lake City. She then discovered she was pregnant with defendant's child.

Antoine resumed contact with defendant when he was in jail. Defendant took pride in his son, Nigel, and arranged for his family to help with the boy's care. Despite defendant's addiction to cocaine, Antoine believed he would be a good father. He had never been violent toward her. She was shocked to learn about the doughnut shop murder.

DISCUSSION

I. Guilt Phase Issues

A. Defendant's Absence from Court Proceedings

Defendant claims that the occurrence of several bench conferences during jury selection and trial deprived him of his statutory (§ 1043) and constitutional rights to be personally present during critical stages of the trial.*fn4 Defendant has not shown that his absence from these conferences " 'prejudiced his case or denied him a fair and impartial trial.' " (People v. Bittaker (1989) 48 Cal.3d 1046, 1080, quoting People v. Jackson (1980) 28 Cal.3d 264, 309-310.) We reject his claims as unduly speculative. (See People v. Waidla (2000) 22 Cal.4th 690, 742.)

During voir dire, the trial court conducted all cause challenges at sidebar. Defendant did not object to this procedure, although defense counsel expressed a preference that challenges be conducted in open court. He now complains of 12 instances in which prospective jurors were questioned at sidebar about sensitive matters. Some of these sidebar hearings resulted in the prospective juror's dismissal for cause or the denial of a cause challenge. In four instances, sidebar questioning led to a prospective juror's excusal by stipulation. Defendant also complains of 16 occasions when trial proceedings were conducted outside his presence. Fourteen of these incidents were brief bench conferences held during the presentation of evidence or argument. Once, outside the presence of the jury, defendant was removed from the courtroom so that witnesses Montulfar and Rodriguez could be brought into court and ordered to return the following day. Defendant was also removed from court during part of a posttrial hearing when the court identified by name the jurors who had spoken at a previous hearing.

" 'A criminal defendant's right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution . . . . [Citations.] A defendant, however, "does not have a right to be present at every hearing held in the course of a trial." [Citation.] A defendant's presence is required if it "bears a reasonable and substantial relation to his full opportunity to defend against the charges." [Citation.] The defendant must show that any violation of this right resulted in prejudice or violated the defendant's right to a fair and impartial trial. [Citation.]' (People v. Hines [(1997)] 15 Cal.4th [997,] 1038-1039.)" (People v. Lucero (2000) 23 Cal.4th 692, 716-717; see Kentucky v. Stincer (1987) 482 U.S. 730, 745; United States v. Gagnon (1985) 470 U.S. 522, 526.) The same analysis applies under article I, section 15 of the California Constitution. (People v. Ochoa (2001) 26 Cal.4th 398, 433; People v. Waidla, supra, 22 Cal.4th at p. 742.) "The standard under sections 977 and 1043 is similar. ' "[T]he accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him . . . . [Citation.]" [Citation.]' [Citations.]" (People v. Rogers (2006) 39 Cal.4th 826, 855.)*fn5

"On appeal, we apply the independent or de novo standard of review to a trial court's exclusion of a criminal defendant from pretrial and trial proceedings, either in whole or in part, 'insofar as the trial court's decision entails a measurement of the facts against the law.' (People v. Waidla, supra, 22 Cal.4th 690, 741.)" (People v. Cole (2004) 33 Cal.4th 1158, 1230.) After independent review, we find no error. Defendant's constitutional right to be personally present was not violated.

Defendant has not indicated how his presence at any of the various sidebar conferences during voir dire or trial bore a reasonably substantial relation to his opportunity to defend himself. All of the bench conferences during trial concerned routine evidentiary or legal matters, and "we cannot conclude with respect to any one of them that [defendant's] personal presence either was necessary for an 'opportunity for effective cross-examination,' for purposes of the Sixth Amendment's confrontation clause [citation]; or would have 'contribute[d]' to the trial's 'fairness' in any marginal way, for purposes of the Fourteenth Amendment's due process clause [citation]; or bore a ' " ' "reasonably substantial relation to the fullness of his opportunity to defend," ' " ' for purposes of section 15 of article I of the California Constitution and also sections 977 and 1043 of the Penal Code [citation]." (People v. Waidla, supra, 22 Cal.4th at p. 742, italics omitted.) Defendant complains he should have been present at bench conferences when questions about his attorney's performance might have been raised, such as when the court sustained prosecutorial objections or overruled defense objections, when defense counsel agreed to limit his questioning to accommodate witnesses' schedules, and when defense counsel once asked to end the day early to attend to a personal matter.*fn6 Defendant also asserts that he should have been present when the prosecutor was criticized for failing to provide discovery on some witnesses.*fn7 In both cases, however, nothing suggests defendant's presence would have accomplished anything useful. Defendant does not claim that discovery violations by the prosecutor infringed his rights or entitle him to a new trial. Nor does he argue his attorney provided constitutionally ineffective representation. Defendant observed his attorney's performance in court, and he does not claim to have been unaware of defense strategies discussed at sidebar. Although counsel's sidebar arguments were not always successful, defendant has not identified any particular shortcoming that could have been grounds for a successful motion under People v. Marsden (1970) 2 Cal.3d 118.

Nor has defendant shown that his presence would have affected the outcome of the for-cause juror challenges argued at sidebar. (See People v. Benavides (2005) 35 Cal.4th 69, 89.) With few exceptions, defendant simply describes the proceedings and does not explain how his presence would have made a difference. In the examples he does discuss in detail, and which we consider below, we perceive no reasonable or substantial relation between defendant's absence from the proceedings and his ability to present a defense.

During sidebar conferences, two prospective jurors reported being abused as children. Defendant now contends his absence from these discussions was detrimental because he could have "provide[d] input to counsel regarding his assessment" of the effect of such abuse on the prospective jurors' views. Neither of these prospective jurors was excused immediately, however, and in both instances defendant and his attorney had an opportunity to discuss the information revealed at sidebar. In discussions of sensitive issues such as a prospective juror's childhood abuse, "allowing the defendant to be present 'could well undermine the confidence and cooperation' necessary" to encourage candor. (People v. Ochoa, supra, 26 Cal.4th at p. 435, quoting People v. Hovey (1988) 44 Cal.3d 543, 573.)

Defendant complains of another sidebar that was requested by one of the sworn jurors during the selection of alternates. This juror revealed at sidebar that he was familiar with the locations of the crimes and had talked with relatives about criminal activity in the area. After he returned to his seat, the lawyers remained at the bench and immediately agreed the juror had to be excused from service. In discussing how to fill the juror's seat, defense counsel requested that the court seat the first alternate juror but also give both sides an additional peremptory challenge. The court agreed. Defendant now complains that that this procedure was critically important and his absence deprived him of the "opportunity to provide . . . input to counsel." He raised no objection at the time, however, and even now fails to explain what useful "input" he could have given or what different procedure he might have urged. At most, defendant's absence from this tactical discussion deprived him of "a mere 'shadow' benefit" and does not amount to a constitutional or statutory violation. (People v. Ochoa, supra, 26 Cal.4th at p. 433; see Snyder v. Massachusetts (1934) 291 U.S. 97, 106-107 [accused has no constitutional right to be present "when presence would be useless, or the benefit but a shadow"].)

Finally, more than three years after briefing in this case had been completed, defendant filed a supplemental brief raising the new argument that the questioning of jurors at sidebar violated his federal constitutional right to a public trial. In Presley v. Georgia (2010) __ U.S. __ [130 S.Ct. 721], the high court held that a criminal defendant's Sixth Amendment right to a public trial extends to jury selection. (Presley, at p. 724.) However, the court recognized that "there are exceptions to this general rule. '[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information.' (Waller[ v. Georgia (1984)] 467 U.S.[ 39,] 45.)" (Presley, at p. 724.)

Initially, we note that the claim is forfeited because defendant failed to object on this ground below. "A defendant 'may, by his own acts or acquiescence, waive his right [to a public trial] and thereby preclude any subsequent challenge by him of an order excluding the public. Unlike the jury trial right which requires an express personal waiver [citation], the constitutional guarantee of a public trial may be waived by acquiescence of the defendant in an order of exclusion.' [Citations.]" (People v. Edwards (1991) 54 Cal.3d 787, 813.)

This late-raised argument claim also fails on the merits. Not every sidebar conference rises to the level of a constitutional violation. Trial courts retain broad power to control their courtrooms to maintain security, protect the defendant's interest in a fair trial, protect the privacy concerns of prospective jurors, and efficiently dispose of matters outside the hearing of jurors or testifying witnesses. (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1150; People v. Esquibel (2008) 166 Cal.App.4th 539, 552.) We have also held that even a partial or temporary exclusion of the public from certain proceedings, if justified, imposes no more than a de minimus restriction on the constitutional right to a public trial. (People v. Woodward (1992) 4 Cal.4th 376, 385-386; see also People v. Bui (2010) 183 Cal.App.4th 675, 683-687 [concluding Presley did not alter the "de minimis" exception recognized in Woodward].)

Here, the courtroom was not closed. Defendant has directed us to no case that holds sidebar conferences to discuss sensitive or potentially prejudicial matters are akin to a closure of the courtroom, violating state or federal constitutional public trial guarantees. In Presley, the trial court had excluded all members of the public from the courtroom during voir dire, including one of the defendant's family members. (Presley v. Georgia, supra, 130 S.Ct. at p. 722.) Defendant was present and the public was allowed, but the court questioned jurors at sidebar about sensitive subjects bearing on potential cause challenges. We agree that, as a general rule, the questioning of prospective jurors should be conducted in open court, with sidebar conferences reserved for particularly sensitive or prejudicial topics. However, having reviewed the record, we are satisfied that the brief bench conferences during jury selection here imposed no more than a de minimus infringement of the public trial guarantee. These brief episodes of questioning and argument at the bench did not deprive defendant of his right to a public trial.

B. Cause Challenges

Defendant claims the court erred in its rulings on challenges to three prospective alternate jurors for cause and improperly limited defense counsel's questioning of a fourth prospective juror. We find no abuse of discretion.

1. Denial of Defense Challenges

a. Prospective Alternate Juror John B.

During voir dire, the court questioned Prospective Alternate Juror John B. at the bench about disclosures in his questionnaire concerning child abuse. After this topic was explored, defense counsel requested permission to ask John B. "one question." He then asked whether "a person who has committed cold-blooded, premeditated murder in the commission of a robbery has forfeited his right to live and should automatically get the death penalty regardless of his circumstances?" John B. disagreed with the word "automatically" and said he would not vote for death automatically. He explained, however, that he could imagine circumstances when a murderer would forfeit the right to live, such as if the victim was murdered even when doing his or her best to cooperate. When defense counsel asserted "that is precisely what the People are going to try to prove," John B. admitted that, in that case, he would "lean very strongly" in favor of voting for death. The court interrupted the juror and asked if the prosecutor had any questions. In response to the prosecutor's questioning, John B. repeatedly stated that he would "weigh the circumstances" in deciding whether to impose the death penalty and would not impose death automatically. John B. stressed that he would always take the circumstances of the case into account. He could vote for life imprisonment without parole, but he conceded that in certain circumstances, like the murder of a compliant victim, he would lean strongly toward the death penalty.

Defense counsel interposed the beginning of a question: "But if a person goes out of his way to take a robbery victim who is not resisting, and take them to another area and murder them by repeatedly stabbing them --." The court sustained an objection, and counsel rephrased the question. Directing John B.'s attention to a questionnaire response stating that a person who committed premeditated murder had " 'forfeited the right,' " defense counsel asked whether a fact pattern of premeditated murder would cause John B. to "automatically vote for death." John B. responded, "I'm going to object to the term 'automatic.' I would lean much more heavily towards it. But I mean, there are circumstances that would have to be weighed all the way around."

The next day, defendant moved to dismiss John B. for cause, arguing there was no reasonable possibility John B. would impose life imprisonment without parole under the facts of this case. The court denied the challenge. Having observed John B.'s demeanor at sidebar, the court "found him to be very thoughtful in his answers, and . . . very credible." Although John B. said he would strongly lean toward death in certain cases, the court concluded this statement was not a sufficient basis for disqualification. The court observed, "Yes, he's a strong pro-deather. But he made it very, very clear that he would be willing to look at the circumstances, although his feelings on the subject matter are very strong." After his cause challenge was denied, defendant exercised a peremptory challenge to excuse John B. and exhausted all four peremptory challenges allotted for the selection of alternate jurors. However, defense counsel did not express dissatisfaction with the jury as sworn.

"As a general rule, a party may not complain on appeal of an allegedly erroneous denial of a challenge for cause because the party need not tolerate having the prospective juror serve on the jury; a litigant retains the power to remove the juror by exercising a peremptory challenge. Thus, to preserve this claim for appeal we require, first, that a litigant actually exercise a peremptory challenge and remove the prospective juror in question. Next, the litigant must exhaust all of the peremptory challenges allotted by statute and hold none in reserve. Finally, counsel . . . must express to the trial court dissatisfaction with the jury as presently constituted." (People v. Mills (2010) 48 Cal.4th 158, 186.) Defendant satisfied the first two of these requirements, but not the third. We have declined to find claims forfeited under these circumstances in cases tried before 1994, when the expression of dissatisfaction requirement was clarified in People v. Crittenden (1994) 9 Cal.4th 83, 121, footnote 4 (see Mills, at pp. 186-187); however, defendant's trial was in 1995.

Even if defendant's claim had been preserved, it would fail on the merits. Defendant first argues the court erred in limiting his attorney's questioning of John B. In general, both parties are entitled to ask prospective jurors questions "that are specific enough to determine if those jurors harbor bias, as to some fact or circumstance shown by the trial evidence, that would cause them not to follow an instruction directing them to determine a penalty after considering aggravating and mitigating evidence. [Citation.]" (People v. Cash (2002) 28 Cal.4th 703, 720-721.) However, "[o]ur decisions have explained that death-qualification voir dire must avoid two extremes. On the one hand, it must not be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair the performance of their duties as jurors in the case being tried. On the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and aggravating evidence likely to be presented. [Citation.] In deciding where to strike the balance in a particular case, trial courts have considerable discretion. [Citations.]" (Id. at pp. 721-722.)

Defense counsel had ample opportunity to question John B. and did so at length. This questioning was cut short on only one occasion, when the court sustained an objection to counsel's question whether John B. would impose the death penalty upon a person who had moved an unresisting robbery victim to another location and then repeatedly stabbed them. This hypothetical question included several key facts about defendant's alleged crime: (1) The murder was committed during a robbery; (2) the victim did not resist; (3) the victim was moved to another location; and (4) in that location, the victim was stabbed repeatedly and killed. Given this specificity, the trial court did not abuse its discretion in concluding that the question improperly called for Prospective Alternate Juror John B. to prejudge the penalty determination based on evidence likely to be presented.

Defendant next argues substantial evidence does not support the court's denial of his challenge of John B. for cause. "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. (Wainwright v. Witt (1985) 469 U.S. 412, 424; People v. Crittenden[, supra,] 9 Cal.4th [at p.] 121; People v. Mincey (1992) 2 Cal.4th 408, 456.)" (People v. Cunningham (2001) 25 Cal.4th 926, 975.) "If a juror's responses are conflicting or equivocal, the trial court's ruling is binding on us. [Citations.] If not, we will uphold the trial court if the ruling is fairly supported by substantial evidence in the record, giving deference to the trial court which had the opportunity to observe and listen to the juror. [Citations.]" (People v. Holt (1997) 15 Cal.4th 619, 651.)

Substantial evidence supports the trial court's conclusion that John B. could remain impartial and apply the law despite his personal beliefs regarding the death penalty. The trial court found John B.'s responses to be thoughtful and credible, and we defer to this assessment. (People v. Navarette (2003) 30 Cal.4th 458, 490; People v. Crittenden, supra, 9 Cal.4th at p. 122.) John B. repeatedly averred that he would not impose the death penalty automatically, but would consider all the relevant circumstances in making a decision. Although he admitted he would lean toward death in the case of a robber who proceeded to murder a cooperative victim, he stressed that no particular penalty would be "automatic." In context, John B.'s statements appear to convey his view that the premeditated murder of an unresisting victim presents, in the abstract, a collection of aggravating circumstances that tip the balance heavily in favor of death. John B. did not rule out a different result, however, if mitigating circumstances were also taken into account.

b. Prospective Alternate Juror Tracey S.

Prospective Alternate Juror Tracey S. worked as a registered nurse with the Los Angeles County Sheriff's Department, treating inmates at the Men's Central Jail. She came in contact with deputy sheriffs but none were her friends. At sidebar, defense counsel disclosed that defendant remembered being treated by Tracey S. in the past. Defendant had seen her talking to deputies and believed she dated deputies. Defense counsel challenged Tracey S. for cause "out of an abundance of caution" and conceded the challenge was not based on "anything specific." Counsel explained that he would feel "uncomfortable" having Tracey S. as a juror given that she could encounter defendant at the jail during the trial and "we're trying to pretend he's not in custody." The court observed that Tracey S. would not have contact with defendant if she served as a juror "because she obviously wouldn't be going to work; she would be coming here." Nevertheless, the court asked if Tracey S. recognized anyone at counsel table, and she replied that she did not. The court denied the challenge. Immediately after this ruling, defense counsel declined to exercise a peremptory challenge against Tracey S. and expressly accepted the alternate jurors. Tracey S. was sworn as an alternate and eventually sat as a regular juror.

Defendant now claims the court erred in denying his challenge. Assuming this claim was not waived by defense counsel's express acceptance of the alternate jurors, it fails on the merits. Tracey S. said she did not recognize anyone at the defense table. Defense counsel could not identify any specific reason why Tracey S. could not serve as a fair and impartial juror. He referred only to his discomfort, defendant's speculation, and counsel's conjecture that Tracey S.'s job, which she would be away from during trial, might alert her to defendant's custodial status. These vague and speculative objections were not sufficient to support ...


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