Los Angeles County Super. Ct. No. BA075063 Judge: Edward A. Ferns
The opinion of the court was delivered by: Cantil-sakauye, C. J.
Defendant was convicted of the second degree murder of Carlos Adkins and the first degree murders of Compton Police Officer Kevin Burrell and Reserve Officer James MacDonald. The jury found true special circumstance allegations that the officers were killed while engaged in the performance of their duties and that defendant was convicted of more than one murder. (Pen. Code, § 190.2, subds. (a)(3) and (a)(7).)*fn1 The jury found him guilty of one count of being a felon in possession of a firearm. (§ 12021, subd. (a).) Allegations as to all three murder counts that defendant personally used a firearm within the meaning of section 12022.5 also were found true. Defendant also pleaded guilty to one count of being a felon in possession of a firearm (§ 12021, subd. (a)) and to one count of being in possession of a concealed firearm in a vehicle (§ 12025, subd. (a)(1)). The jury set the penalty for the murders of the police officers at death, and the trial court denied defendant's motion for a new trial and the automatic motion to modify the death verdict. The trial court imposed a death sentence on all three murder counts and a total of six years four months for the firearms enhancements on the three murder charges. The trial court also imposed a term of three years on one of the weapons counts, and stayed sentence on the other two weapons counts.
This appeal is automatic. (Cal. Const., art. VI, § 11(a); § 1239, subd. (b).) For the reasons explained post, we modify the judgment to correct the sentence imposed on count 1 for second degree murder, and in all other respects we affirm defendant's convictions and death sentence.
1. Murder of Carlos Adkins
In January 1992, Carlos Adkins was shot to death in the apartment of Janice Chappell, located in the Nickerson Gardens housing project in Los Angeles. Andre and Janice Chappell and their friend Bertrand Dickson witnessed the shooting. Dickson, who was visiting Andre Chappell, went out to purchase some cigarettes. When returning, he thought he heard someone call out his nickname. Believing it to be his friend Romeo, he responded by calling out, "Romeo, down here." Defendant, who was driving by, called out to him, "You don't know me, don't try to sell me something." Dickson explained that he had not been talking to defendant. As he was walking toward the Chappell's apartment, Dickson saw defendant pointing a gun at him from the window of the car.
Dickson went inside the apartment, where Adkins was playing chess with Andre Chappell. He heard a banging at the door. Chappell opened the door and defendant entered, making angry remarks. Defendant had a gun at his side. Dickson explained that he was calling to his friend Romeo and had not been trying to sell anything to defendant. Carlos Adkins then stood up. Defendant asked him what he was going to do, stating "I know you's a Tillman," and hit Adkins with the gun. Adkins stated that he was not named Tillman and defendant told him to "shut up." Janice Chappell, who had been asleep upstairs, was awakened by the sounds of arguing and walked downstairs. She observed defendant, Adkins, Andre Chappell, and Dickson in the living room. Defendant appeared to be angry and Andre Chappell appeared to be trying to calm him down. Defendant started to leave the apartment and as he was walking to the door he apologized to Janice Chappell for the disturbance and stated that the men in the apartment "don't know who I am." Dickson thought he heard defendant identify himself as "Renzi." Adkins then stated to defendant, "You don't know who I am either." Defendant came back inside, placed the gun between Adkins's eyes and threatened to "blow [his] brains out." Adkins grabbed the gun and a struggle ensued, during which two shots were fired.
Dickson ran out of the apartment and called 911. When he went to meet the ambulance, he was stopped by defendant and another man. They told him not to say anything about the incident and pistol-whipped him. The two men forced Dickson into the trunk of their car at gun point, but Dickson got out and ran away. Adkins subsequently died of a gunshot wound to the right lower chest.
The next day Dickson informed his parole officer that he had witnessed a shooting, and was advised to contact the police. When he initially met with police detectives, he described the shooting and told the officers that the shooter's name was "Renzi." Subsequently, Dickson met with a local man named Renzi, who Dickson knew was not the killer. He informed the police that he had learned that the correct name was "Reggie." Dickson identified defendant's picture in a photographic display and later selected him during a live lineup. Janice Chappell also picked defendant's picture from a photographic display, indicating that he looked like the man who shot Carlos Adkins.
Several months later, defendant was identified during a traffic stop and arrested on a warrant for the shooting of Carlos Adkins. In September of 1992, Dickson, who was then incarcerated, was transported to the Compton courthouse for defendant's preliminary hearing. He was placed in a holding cell with defendant, who asked him why he was going to testify. Defendant stated that he had not meant to "do it" and that it had been his girlfriend's birthday and he had argued with her and was upset. He "just went off." Defendant told Dickson that Dickson "didn't want to end up like Andre [Chappell]." Dickson was aware that Andre had died. He understood defendant to be saying that if he testified, he could not go back to the projects. Defendant offered to give Dickson $5,000 if he "turned the cheek." Dickson told the prosecutor that he had identified the wrong man, and defendant was released.
Defendant was subsequently recharged with the murder of Adkins. At trial, Dickson identified defendant as the person who shot Adkins. Dickson had been promised that if he testified he would serve his sentence outside Los Angeles County if he were convicted on a pending burglary charge. Janice Chappell also testified that defendant looked like the person who shot Adkins, stating that she was 98 percent certain he was the man. Andre Chappell did not testify because he had been shot and killed in the Nickerson Gardens housing project in March 1992.
The jury found defendant guilty of the second degree murder of Carlos Adkins.
2. Murders of Officers Burrell and MacDonald
In March of 1992, defendant purchased a red 1992 Chevrolet 454 pickup truck. Late at night on February 22, 1993, Compton Police Officer Kevin Burrell and Reserve Officer James MacDonald made a traffic stop of a red pickup truck on Rosecrans Avenue in Compton. Margaretta Gully was driving past the scene, accompanied by her 12-year-old son, De'Moryea Polidore, in the front seat, and her 11-year-old daughter and her older son's girlfriend, Alicia Jordon, in the backseat. Through the windshield of her car, Gully observed two officers, one Black and one White, struggling with a suspect. A red pickup truck was parked nearby with the door on the driver's side open. Just after Gully passed the scene, she heard shots fired. Through her rearview mirror, she saw the suspect straddling one of the officers, who was lying on the ground. Her son Polidore heard shots and looked through the back window, observing the suspect shoot the White officer in the head. Polidore then observed the suspect get into the truck and drive away. As the truck passed their car, passenger Jordon saw the driver's face through the side window of the car. At trial, Gully, Polidore, and Jordon testified that defendant had all of the same features and the same body type as the suspect they observed.
Both officers were found lying facedown near the police vehicle. Both officers were in uniform with their guns holstered. There were nine spent nine-millimeter shell casings in front of the police vehicle. Officer Burrell died of multiple gunshot wounds -- one to the arm, one in the face, one in the left foot, and one in the head. Officer MacDonald was also shot four times, in the left armpit, the middle back, the upper back, and behind the right ear, and died of a wound to the chest.
Defendant's wife, Deshaunna Cody Thomas, testified that on the evening of the day the officers were killed, defendant left her apartment in his red pickup truck, stating that he was going to his mother's house in Nickerson Gardens. When she woke up the next morning, defendant was in bed with her and he had a gun in his hand.
Defendant's friend, Keyon Pie, testified that sometime in February of 1993, defendant arrived at her house and asked her to hold a gun for him. He gave her a gun wrapped in a bag and she placed it under her mattress. The next day, a man she had never seen before came and picked up the gun.
That man, Calvin Cooksey, testified that on February 24 or 25, he was at the apartment of his cousin, Philip Cathcart, in Gardena. Defendant, who was a very close friend of Cooksey's cousin, arrived at the apartment. Cooksey was watching a news broadcast relating to the shootings of the two officers. Cooksey looked at defendant, who appeared to be "jittery," and defendant said, "Yeah, I did it. . . . They slipped." Cooksey understood that "slipped" meant that the officers failed to take precautions. Defendant told Cooksey that when Officer Burrell approached the truck, defendant kicked the door open and shot him in the chest. He then shot Officer MacDonald in the face while he was still in the police car. He then shot each of the officers three more times. Cooksey told defendant he did not believe him, but shortly thereafter he asked defendant where the gun was and offered to dispose of it.
Defendant showed Cooksey a house and told Cooksey to return there later to obtain the gun. When Cooksey returned, the woman in the house gave him a bag, which contained a SIG SAUER nine-millimeter pistol. He sold the gun to Robert Rojas.
In early March 1993, defendant was questioned in connection with the shooting of the officers, but was released. He told Cooksey, "They think I did it, but they can't prove it. Somebody is going to have to tell on me in order for them to bust me on this." In mid-March 1993, Cooksey was arrested while in possession of a firearm. A few days later, Cooksey called a sheriff's deputy with whom he was familiar as a result of a prior arrest, and told him that he knew who had killed the officers and that he knew the location of the gun used in the shooting. Cooksey told the deputy that the name of the killer was "Reggie" or "Regis Thomas." He described the sale of the gun. In a subsequent discussion with another deputy, Cooksey asked for help with his pending charges and told the deputy about the sale of the gun and about the conversation in which defendant admitted to shooting the officers.
Shortly thereafter, Cooksey was released from county jail and, accompanied by a detective, located Rojas. Cooksey told Rojas he wanted to buy back the gun. Rojas contacted Cooksey the next day and informed him that he could get the gun. Cooksey met Rojas, paid for the gun, and gave it to the detective. Ballistics evidence indicated that the cartridge casings found at the scene of the shootings of the officers were fired from this gun.
The jury found defendant guilty of the first degree murders of Police Officers Kevin Burrell and James MacDonald, and found true the special circumstance allegations of multiple murder and murder of a police officer.
B. Penalty Phase 1. Prosecution Case in Aggravation
In aggravation, the prosecution presented court records establishing that defendant had pleaded guilty to being a felon in possession of a firearm and carrying a loaded firearm in a vehicle (charges that were part of the present case). The prosecution presented testimony about an incident in 1990, when police officers stopped defendant while he was driving a van. Defendant pulled into a parking lot and jumped out, yelling and waving his arms. When an officer instructed defendant to put his hands behind his back, he did not comply but instead began to run. Another officer observed defendant reach into his waistband and throw an object. That officer ordered him to lie on the ground and he complied, but when the officer began to handcuff defendant he resisted and fought. He struggled with the two officers, rolling on the ground, kicking, and hitting them. One officer was struck in the eye and the other one on the lip. A loaded handgun was found in a flower bed in the area where defendant had been when he threw the object.
Carlos Adkins's mother and daughter testified about Adkins and how his death had changed their lives. His mother testified that he was a good father to his four children and was attending college and studying architecture. Subsequent to his death, she no longer went out and had been hospitalized for a nervous breakdown. She still thought about him every day. When asked what she would say if she could tell him one more thing, she testified that she would say that she missed him. Adkins's daughter testified that the family was close and that her father had cooked breakfast every morning and come home every night. The night that he was killed was his birthday; his family had prepared dinner and a cake for him but he had not appeared. When she was told that he had died, she fainted. Since that time, she had felt nervous and lonely.
The parents of Officers MacDonald and Burrell testified concerning their sons and how the murders had affected their lives. James MacDonald had always wanted to be a police officer. He was working his last shift as a reserve officer in Compton on the night he was shot. He had previously accepted a position with the San Jose Police Department, which was closer to his parents' home in Santa Rosa. MacDonald's parents initially heard that their son had been shot and was in surgery, and when they called the Compton Police Department they were told he was still alive. Shortly thereafter, however, two Santa Rosa police officers arrived at the house and told them that their son was dead. Services were held for him in both Santa Rosa and Compton. MacDonald's father testified that he went to the cemetery every morning, and that he felt sick anytime he saw a police car making a traffic stop. If he could talk to his son one more time, he would ask to trade places with him. MacDonald's mother testified that she went to the cemetery twice a day, and she felt that her son had taken a piece of her heart with him. If she could speak to him one more time, she would tell him that she missed him, was proud of him, and loved him.
Kevin Burrell had been close to his family and had visited them almost every day. He and his roommate had eaten dinner with his parents on the day he was killed. His parents did not live far from the location of the shooting and his mother heard the gunshots. A police officer came to the house and notified them that their son had been shot, but by the time they got to the hospital, he was dead. Burrell's father testified that the pain of his son's death had not diminished. If he could talk to his son again, he would tell him to remain ready and not to take chances. Burrell's mother testified that she and her son had been very close and did many things together. After his death, she suffered anxiety attacks and sometimes could not leave the house; she cannot visit her son's grave. If she could talk to her son again, she would tell him that she was proud of him, she loved him, and she missed him.
2. Defense Case in Mitigation
Defendant's friends and family members testified about his background and character and about their relationships with him. Growing up, defendant never knew his father. He lived with his mother, two sisters, and two brothers. When defendant was 10 years old, his mother's boyfriend, Willie Riley, moved into the house and acted as a father figure to defendant. However, after two years, he moved out, partly because of defendant's mother's drug addiction. Defendant's mother had been addicted to cocaine since 1976. As a result, she lost her house. At one time, she left home for a week. Defendant was upset about his mother's drug use and he asked her to stop. He would get upset when people were using drugs at the house. In the housing project where they lived, people picked on defendant and bullied him because he was short.
Defendant's wife, Deshauna Cody Thomas, testified that he had been a good husband to her and a good father to their six children. Their children asked about him frequently, and she needed his assistance in raising them. Kawasci Jackson, defendant's former girlfriend and the mother of his son, testified that defendant never abused her and that he helped her by disciplining their son when they spoke by telephone; her son loved his father. A neighbor who worked as a teacher had observed defendant's interaction with his son and had observed his son when defendant talked to his son on the telephone following his incarceration. She believed that defendant was a nice person. Defendant's aunt testified that he had helped a neighbor who was caring for her grandchildren by playing with the children and buying them ice cream. He also had helped a cousin who was suffering from cancer by picking up her medication and other things she needed. Defendant's mother asked the jury not to kill her son stating, "If you take my son, you might as well take me too."
Defendant contends the trial court erred in ordering, over defendant's objection, that the prospective jurors and trial jurors be referred to by number only. He contends that no exceptional circumstances justified use of a numbered jury, and that the use of jury numbers violated his rights to be presumed innocent, to a fair and public trial, to a reliable guilt and penalty verdict, and to be free from cruel and unusual punishment, requiring reversal of his convictions and death sentence. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art I, §§ 1, 7, 15, 16, & 17.)
The prosecutor supported his request to refer to prospective jurors by number rather than name by informing the court that someone had telephoned a prosecution witness, Margaretta Gully, and offered her a bribe not to testify, and that there had been two written threats to unspecified witnesses. Defense counsel countered that the bribe was not a threat and did not amount to good cause to conduct the trial with a numbered jury, and that in any event these incidents had nothing to do with defendant. Defense counsel also argued that the use of numbers would increase the jurors' fears. The trial court ruled that numbers would be used for all prospective jurors but that counsel would have access to their names. In addition, the court informed the jurors that they were being given numbers to protect their privacy because of media interest in the trial.
As defendant acknowledges, People v. Goodwin (1997) 59 Cal.App.4th 1084 held that a procedure similar to the one used here was proper, even without a showing of a particular need to protect jurors' identities. In Goodwin, the Los Angeles County Superior Court had adopted a policy to refer to all potential and actual jurors by number in all criminal trials, in order to implement the requirement of Code of Civil Procedure section 237, subdivision (a)(2) that the names of jurors not appear in the transcript of a criminal case. (Goodwin, supra, at p. 1089.) As in the present case, the court and counsel had access to the jurors' names. (Ibid.) The appellate court held that the procedure did not violate the defendant's right to a public trial because the trial was open and the jurors' faces were visible to anyone present. (Id. at p. 1093.) In addition, any risk that the jury would speculate that the use of numbers related to the defendant's dangerousness was diminished because the trial court indicated it would admonish the jury that the procedure was required in all criminal cases and had nothing to do with the defendant. (Id. at p. 1091, fn. 3.)
Defendant contends that Goodwin is inconsistent with federal law, which he argues requires extraordinary circumstances to justify an anonymous jury. We need not decide whether Goodwin was correctly decided because the procedure employed in the present case was proper even under the federal authorities upon which defendant relies. The federal cases hold that a trial court's "decision to empanel an anonymous jury is entitled to deference and is subject to abuse of discretion review." (United States v. Krout (5th Cir. 1995) 66 F.3d 1420, 1426; accord, United States v. Ross (11th Cir. 1994) 33 F.3d 1507, 1519.) Federal courts recognize two potential problems with an anonymous jury: (1) jurors may infer that the defendant is dangerous, thereby implicating the defendant's right to a presumption of innocence, and (2) the use of an anonymous jury may interfere with the defendant's ability to conduct voir dire and exercise peremptory challenges. (United States v. Shryock (9th Cir. 2003) 342 F.3d 948, 971.) Consequently, federal cases permit an anonymous jury "where (1) there are strong grounds for concluding that it is necessary to enable the jury to perform its factfinding function, or to ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused." (United States v. DeLuca (1st Cir. 1998) 137 F.3d 24, 31; accord, United States v. Shryock, supra, at p. 971; United States v. Ross, supra, at pp. 1519-1520.)
We find no abuse of discretion in the trial court's decision to order that the jurors be identified by numbers. The prosecutor informed the court that two witnesses had been threatened and one had been offered a bribe. These incidents provided reasonable grounds for concern that an attempt might be made to unlawfully interfere with the jurors' performance of their duties. Any interference with defendant's right to conduct voir dire was minimized because the jurors were not completely anonymous -- counsel had access to the names of the jurors. Defendant contends that the procedure interfered with his ability to assist his counsel in jury selection because he was not personally allowed access to the jurors' names. Defendant argues that he might not have recognized a juror's face but might have recognized a name and realized he knew something about the juror or the juror's family that might cause the juror to be biased. Defendant's contention is speculative and in any event any minor interference with the conduct of voir dire that may have occurred was justified by the court's legitimate concerns for the safety and integrity of the jury.
As to the presumption of innocence, federal cases have recognized that "the danger that the jury might infer that the need for anonymity was attributable to the defendant's character is minimized when the trial court gives the jurors a plausible and non-prejudicial reason for hiding their identities." (United States v. Ross, supra, 33 F.3d at p. 1520 [court explained it wanted to insulate the jury from contact from either side and that its decision did not reflect on the defense]; United States v. Shryock, supra, 342 F.3d at p. 972 [trial court instructed the jury that the "reason for their anonymity was to protect their privacy from curiosity-seekers"]; United States v. Thomas (2d Cir. 1985) 757 F.2d 1359, 1365 [trial court's explanation that anonymity was to deter unwanted press attention minimized potential for prejudice to the defendants].) Here, the court's explanation that numbers were being used to protect the jurors' privacy in light of media interest in the case served to minimize the possibility of prejudice to defendant.
2. Denial of Individual Sequestered Death Qualification Voir Dire
Defendant contends the trial court erred in refusing his request that the court conduct individualized, sequestered voir dire of the jurors regarding their views on the death penalty, in accordance with Hovey v. Superior Court (1980) 28 Cal.3d 1. Hovey was abrogated by the adoption of Code of Civil Procedure section 223, which provides that "[v]oir dire . . . shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases." Defendant urges us to reconsider our conclusions that Hovey was abrogated by statute and that individualized sequestered voir dire is not constitutionally required -- conclusions we have reaffirmed many times -- but he provides no compelling reason for us to do so. (See, e.g., People v. Lewis (2008) 43 Cal.4th 415, 494; People v. Stitely (2005) 35 Cal.4th 514, 537-538 (Stitely); People v. Box (2000) 23 Cal.4th 1153, 1180; People v. Waidla (2000) 22 Cal.4th 690, 713.)
Defendant alternatively contends the trial court abused its discretion in denying the motion for sequestered voir dire. Under Code of Civil Procedure section 223, the trial court retains the discretion to conduct sequestered voir dire if it concludes that collective voir dire would not be practicable. (See Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168.) At trial, both defense counsel and the prosecutor requested sequestered voir dire, because both believed that if jurors were questioned individually they were more likely to be candid and less likely to be influenced by responses they heard from other jurors. Neither party, however, cited any particular circumstances of the present case that would justify conducting individual voir dire. Each juror filled out an extensive questionnaire, and was instructed to mark any question addressing sensitive or confidential matters to which he or she wished to respond in private. After the court questioned the jurors who were seated in the jury box, the attorneys were given the opportunity to inquire further. Under similar circumstances, we have held that the trial court did not abuse its discretion in denying individual sequestered voir dire. (See People v. Brasure (2008) 42 Cal.4th 1037, 1050-1051.)*fn2
3. Excusal for Cause of Two Prospective Jurors
Defendant contends the trial court erred under Wainwright v. Witt (1985) 469 U.S. 412 (Witt) in granting the prosecution's challenge for cause of two prospective jurors based on their inability to impose the death penalty. He contends the error violated his rights to an impartial jury, a fair capital sentencing hearing, and due process of law under the federal and state Constitutions.
A prospective juror in a capital case may be excused for cause on the basis of his or her views regarding the death penalty only if those views would prevent or substantially impair the performance of the juror's duties. (Witt, supra, 469 U.S. at p. 424; People v. Stewart (2004) 33 Cal.4th 425, 441; People v. Cunningham (2001) 25 Cal.4th 926, 975.) We will uphold the trial court's decision to excuse a prospective juror under Witt if that decision is fairly supported by the record. (Stewart, supra, at p. 441; People v. Cunningham, supra, at p. 975.) The court must have "sufficient information . . . to permit a reliable determination" whether a prospective juror's views would disqualify the juror from service in a capital case. (Stewart, supra, at p. 445.) Even if the prospective juror has not expressed his or her views with absolute clarity, the juror may be excused if "the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law." (Witt, supra, at p. 425.) If, after reasonable examination, the prospective juror has given conflicting or equivocal answers, and the trial court has had the opportunity to observe the juror's demeanor, we accept the court's determination of the juror's state of mind. (People v. DePriest (2007) 42 Cal.4th 1, 20-21; People v. Moon (2005) 37 Cal.4th 1, 14, 16.)*fn3
Defendant contends that Prospective Juror Randy J. was erroneously excused because his views on the death penalty would not prevent him from following the law. Defendant points to the circumstances that Randy J. stated he could follow the law if he felt the death penalty were appropriate and that he could impose the death penalty if a person murdered 50 people.
Even if a prospective juror expresses a willingness to follow the law, he or she may be excused under Witt if other responses "furnished substantial evidence of [his or] her inability to conscientiously consider a death verdict." (People v. Barnett (1998) 17 Cal.4th 1044, 1114-1115 [upholding dismissal of juror even though some of her responses reflected a willingness to follow the law and the court's instructions].) Randy J.'s responses to voir dire, taken as a whole, clearly support the trial court's conclusion that his views concerning the death penalty "would prohibit him from doing his job properly." Asked whether he could see himself choosing the death penalty in an appropriate case, he stated "I cannot choose the death penalty. . . . Because it's something I have to live with . . . ." He stated that he would follow the law and the court's instructions, but when asked whether he could impose death he responded, "I would say not." Asked whether he could impose the death penalty if he thought the facts warranted it, he said, "No," explaining, "Because it's a tough decision." Asked whether there was a circumstance in which he could make that decision, he replied, "Probably if [the defendant] murdered 50 people." Randy J. indicated that he could "probably" follow the court's instructions and when asked whether he could impose the death penalty if he felt it was appropriate he responded, "If I felt that way." When asked whether the death penalty goes against his moral or religious beliefs, however, he responded, "It goes against everything I stand for. I can't live with myself putting [a] death sentence on somebody and living with that." When asked finally whether he could see himself coming in after the deliberations and stating in open court that the defendant should die he stated, "I don't think I'm the man for it."
That the prospective juror might possibly have been able to overcome his views in a case involving 50 victims does not establish that he could conscientiously consider the death penalty in a case like the present one. (See People v. Roybal (1998) 19 Cal.4th 481, 519 [upholding dismissal of juror in a case involving a single victim, even though juror might have been able to impose a death sentence in a case involving multiple victims].) The trial court did not err in concluding that Randy J.'s views on the death penalty would substantially impair his ability to perform the duties of a juror.
Defendant also challenges the excusal of Prospective Juror Milton T. On his questionnaire, Milton T. indicated that he could impose the death penalty or life without possibility of parole in an appropriate case. But he also stated, "If there are people strong willed enough to give the other person the death penalty, that's that. I'm not sure that I can handle it. . . . I just don't know if I could mentally or morally handle sentencing another person to [death]." Milton T. indicated that he was in favor of the death penalty if a child were intentionally killed and did not indicate that he would always vote for life; he agreed that he could follow the law. He also wrote that, because of his moral and religious views, he was reluctant to judge others, but that he could set aside his personal feelings and follow the law. In response to a question concerning whether there was any reason he would prefer not to serve he wrote, "I don't like deciding a case of such a serious moral matter."
When the court questioned Milton T. about these responses he stated, "The situation with my duty as a juror, I guess I would have to go beyond the way I feel and make the decision." He stated, however, that based on what he knew of the circumstances of this case, "it would be really hard for me to come up with something like that." He agreed that if the jury reached the penalty phase, he was capable of following the law and weighing whatever was presented. But in response to questioning by the prosecutor, he stated he was "very uncomfortable" with the prospect of deciding whether to impose capital punishment. Asked whether he would have difficulty making the decision to return a verdict of death he stated, "It's my job to do so, so I would. But my own personal self, I would have to deal with it after I leave from here." Asked to clarify whether he could vote that the defendant is to die he replied, "I can't say if I can answer that truthfully or not because I haven't been through it . . . . I'm not sure if I could be able to go through with it. I don't know if I would be able to come up with that verdict or not." The prosecutor asked, "Is it your opinion then that regardless of the evidence . . . is it your state of mind now that you don't know if you could, in fact, come in with a verdict that the defendant is to die." He responded, "Right."
The court granted the prosecutor's challenge for cause, explaining, "I think emotionally, truly from his demeanor and even while you two are asking questions of other jurors, I watched him and I watched his body language, and I think that his personal views would substantially impair him from performing his duties as a juror . . . and I think that the man is trying. But I don't think that he can do the job under the standard."
Milton T.'s answers demonstrate that he was not opposed to the death penalty in theory, but that he was extremely reluctant to make the decision whether someone should be executed. Although he expressed a willingness to follow the law, when asked whether he could actually impose the death sentence, he indicated that he did not know whether he could, regardless of what the evidence might be. His equivocal answers, combined with the trial court's observations of his demeanor, convinced the trial court that his ability to perform the duties of a juror in a capital case would be substantially impaired by his reluctance to be personally responsible for sentencing someone to death. Giving appropriate deference to the trial court's determination of the prospective juror's state of mind based on its firsthand observations, we find no error. (See People v. Solomon (2010) 49 Cal.4th 792, 836 [trial court did not err in excusing juror who, although not opposed to the death penalty in theory, "was unable to state that she could set aside her reluctance to be personally responsible for sentencing someone to death and vote for the death penalty in an appropriate case"]; People v. Cunningham, supra, 25 Cal.4th at p. 981 [trial court did not err in excusing "prospective juror on the basis that she could not personally impose the death penalty despite viewing it as an appropriate punishment"].)
4. Prosecutor's Use of Peremptory Challenges to Strike African-American Prospective Jurors
Defendant contends the trial court erred in denying his motion for a mistrial claiming that the prosecutor's use of peremptory challenges was based on race, in violation of People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson). At the time defendant made the motion, the prosecutor had used peremptory challenges against six African-American prospective jurors. Defense counsel stated that none of the African-Americans except one, Leticeia H., had expressed any reservation about the death penalty. The trial court ruled that defendant had not established a prima facie case of racial discrimination and that, consequently, the prosecutor was not required to provide an explanation for why he had challenged these jurors.
A prima facie case of racial discrimination in the use of peremptory challenges is established if the totality of the relevant facts gives " 'rise to an inference of discriminatory purpose.' " (Johnson v. California (2005) 545 U.S. 162, 168.) Johnson reversed a prior decision of this court holding that the applicable standard was whether it was "more likely than not" that purposeful discrimination had occurred. (See People v. Johnson (2003) 30 Cal.4th 1302, 1318.) In cases like the present one, in which it is not clear whether the trial court applied the proper standard, "we independently determine whether the record permits an inference that the prosecutor excused jurors on prohibited discriminatory grounds." (People v. Carasi (2008) 44 Cal.4th 1263, 1293 (Carasi).) In doing so, we must consider "all relevant circumstances." (Batson, supra, 476 U.S. at p. 96.)
Defendant cites the following as supporting an inference that the prosecutor exercised six peremptory challenges on the basis of race: The case involved an interracial offense (defendant is African-American, and one of his victims, Officer MacDonald, was Caucasian); two of the African-American jurors challenged by the prosecutor gave answers that appeared to strongly favor the prosecution (Alyn C. stated that she favored the death penalty for repeat offenders and Jacqueline R. had a friend in the Compton Police Department); and the excluded jurors had little more than their group membership in common and were otherwise a diverse group of individuals that would have made acceptable jurors. (See Wheeler, supra, 22 Cal.3d at p. 280; People v. Turner (1986) 42 Cal.3d 711, 719).
These circumstances do not raise an inference that the prosecutor exercised peremptory challenges based on race. Although one of the victims was Caucasian, the other two victims were African-American. Contrary to defendant's contention, the answers given by Prospective Jurors Jacqueline R. and Alyn C. were not so obviously favorable to the prosecution that it can be inferred that the prosecutor's excusal of these two must have been based on race. Although Jacqueline R. had a friend in the police department and could have been viewed as a juror who would be sympathetic to the victims, she had mixed feelings about the death penalty and at one time did not believe in it at all. In addition, her son was in prison for armed robbery, and she stated that she believed he was not treated fairly because the prosecutor in that case was trying to make an example of him. (See People v. Cornwell (2005) 37 Cal.4th 50, 70 [excused juror's voir dire disclosed numerous reasons for a prosecutor to excuse her, including personal experience with an allegedly unfair homicide prosecution of a close relative].) Although no obvious reason appears why the prosecutor would have chosen to strike Alyn C., neither were her answers so favorable to the prosecution that it would be reasonable to infer, solely on that basis, that she was excused because of her race.*fn4
Even if the struck African-American jurors had nothing in common with each other besides their race, that circumstance does not, in itself, create an inference that they were excused because of their race where, as here, obvious bases for the prosecutor's decision to excuse many of the jurors appear in the record. As noted above, Jacqueline R. had doubts about the death penalty and believed that her son had been prosecuted unfairly. Diana T. wrote on her questionnaire that she did not believe in the death penalty and that she would always vote for life and reject death, regardless of the evidence presented at the penalty trial. Leticeia H. indicated on her questionnaire that, based on her personal and religious beliefs, she did not believe that a criminal should be put to death and that she would always vote for life. It is not apparent exactly why the prosecutor would have wanted to excuse Jeanine P., but the record demonstrates that the trial court observed something about her that caused it to believe that she would be perceived as a problem by the prosecution.*fn5
Although no obvious reason appears why the prosecutor would have chosen to strike Alyn C. or Patricia S., the absence of a reason that is apparent on the record does not, in the context of all the other circumstances, suggest that the reason was race. Here, "the prosecution's pattern of excusals and acceptances during the peremptory challenge process reveals no obvious discrimination" against African-American jurors. (Carasi, supra, 44 Cal.4th at p. 1294.) The trial court observed that the first time the prosecution accepted the panel, it appeared to the court that there were two African-American males and two African-American females on the panel. The court noted that the prosecution subsequently accepted the panel with three African-Americans and that, at the time the motion was made, the panel included two African-American females and one female who was half African-American.*fn6 At the time of defendant's Wheeler motion, African-Americans constituted 26 percent of the prospective jurors who had been called into the jury box (15 out of 61) and the prosecutor had exercised 37 percent of his challenges (6 out of 16) against African-Americans. This disparity is not significant enough, in itself, to suggest discrimination. (See Carasi, supra, at pp. 1291, 1295 [no prima facie case of gender discrimination even though prosecutor used 20 out of 23 peremptory challenges against female prospective jurors]; People v. Bonilla (2007) 41 Cal.4th 313, 345 [no prima facie case of gender discrimination even though women represented 38 percent of the jury pool and the prosecutor used 67 percent of his strikes against women].) We conclude that the totality of facts did not give rise to an inference of discrimination.
5. Alleged Prosecutorial Misconduct During Voir Dire
Defendant contends the prosecutor committed prejudicial misconduct during voir dire by explaining the presumption of innocence to prospective jurors in a manner that undermined that concept, thereby violating his rights to due process of law, proof beyond a reasonable doubt, the presumption of innocence, a fair jury trial, and a reliable and non-arbitrary penalty determination, as guaranteed by the state and federal Constitutions. The prosecutor described a hypothetical situation in which the prospective juror is in a cashier line in a grocery store and personally observes a person rob and murder the cashier. The prosecutor commented, "That person, if that person could be caught, would be prosecuted for murder. But that person would be presumed innocent, even though you saw it happen right before your eyes. The law places this legal presumption that that person is presumed innocent until one of two things happens. One, the person comes into the courtroom and says, 'I'm guilty,' or, two, 12 jurors decide that he's guilty. And until and unless that occurs, that person is presumed innocent and it wouldn't matter if just you by yourself witnessed it or if there were 40 people in the line and 40 people observed it. The trial court overruled defendant's objection to these statements, but explained to the prospective jurors that they would not serve as jurors in a case if they had witnessed the crime.
"In general, a prosecutor commits misconduct by the use of deceptive or reprehensible methods to persuade either the court or the jury." (People v. Price (1991) 1 Cal.4th 324, 447.) "When, as here, the point focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Berryman (1993) 6 Cal.4th 1048, 1072.) We find no misconduct. Defendant argues that the prosecutor's comments "diluted the presumption of innocence by suggesting to the jury that it did not need to put aside any bias [the jurors] might have against [defendant] due to the fact that he stood in front of them indicted and accused by the prosecution of a crime because there was a significant possibility that he was actually guilty, just like the murderer of the cashier in the prosecution's example." We disagree. Although one of the conclusions a juror might have drawn from the prosecutor's example was that the presumption of innocence does not mean that the defendant actually is innocent, the main point of his example was that the presumption of innocence applies in court once the person has been charged with a crime, regardless of the circumstances. In other words, jurors must set aside any biases they might have against the defendant, presume him to be innocent, and convict him only if his guilt has been proved in court beyond a reasonable doubt. The prosecutor's statements "were not legally erroneous, and defendant had ample opportunity to correct, clarify, or amplify the prosecutor's remarks through his own voir dire questions and comments." (People v. Medina (1995) 11 Cal.4th 694, 741.)*fn7
"Moreover, as a general matter, it is unlikely that errors or misconduct occurring during voir dire questioning will unduly influence the jury's verdict in the case. Any such errors or misconduct 'prior to the presentation of argument or evidence, obviously reach the jury panel at a much less critical phase of the proceedings . . . .' " (People v. Medina, supra, 11 Cal.4th at p. 741.)
1. Trial Court's Refusal to Sever the Carlos Adkins Murder Charge
Defendant contends the trial court's denial of his motion to sever the murder charge of Carlos Adkins from the murder charges of the two police officers was error and denied him a fair trial. In the trial court, defendant argued that evidence regarding the shooting of the police officers was likely to inflame the jury so much that he could not receive a fair trial on the Adkins homicide. Additionally, defense counsel indicated there was a possibility that defendant might testify regarding self-defense or imperfect self-defense in ...