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The People v. Howard Larcell Streeter

June 7, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HOWARD LARCELL STREETER, DEFENDANT AND APPELLANT.



Court: Superior County: San Bernardino Judge: Bob N. Krug Super. Ct. No. FVA07519

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

San Bernardino County

A jury convicted defendant Howard Larcell Streeter of the first degree murder of Yolanda Buttler. (Pen. Code, § 187.)*fn1 It found true special-circumstance allegations of lying in wait (§ 190.2, subd. (a)(15)) and the intentional infliction of torture (§ 190.2, subd. (a)(18)). The trial court declared a mistrial as to the penalty phase after the jury could not reach a verdict. At the beginning of the penalty phase retrial, the trial court released the jury after granting defendant's motion for a continuance. At the second penalty retrial, the jury returned a verdict of death, and the trial court imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. FACTS

A. Guilt Phase

1. The Prosecution's Case

Defendant and Yolanda Buttler lived together for about five years in Fontana. They lived with their child, "Little Howie," Yolanda's two older children, Patrick and Lawanda, and Yolanda's niece, Shavonda.

In December 1996, Yolanda told her siblings, Lucinda and Quentin Buttler, that defendant was beating her and had pulled hair, and that she was afraid of him and wanted to leave him. They agreed to help Yolanda secretly move out of her home when defendant was at work. Quentin advised Yolanda to get a restraining order.

In early January 1997, Yolanda moved out with the children. Initially, Yolanda went to her sister's house in Los Angeles, but then she decided to stay in a motel for safety reasons. After a week's stay in the motel, Yolanda and the children moved to an apartment in Victorville.

On February 7, 1997, Yolanda applied for a restraining order against defendant. In her declaration, she described an incident that had occurred on December 30, 1996, during which defendant had pulled her braided extensions so hard because she would not have sex with him that he pulled hair out of her head.

In April 1997, defendant called Yolanda and convinced her to allow him to see Little Howie. They met in a public area without incident. Afterwards, defendant called frequently and tried to convince Yolanda to reconcile with him. He wanted to see Little Howie again. Yolanda agreed to meet him at a Chuck E. Cheese restaurant in Fontana.

On April 27, 1997, Yolanda drove to the restaurant with Patrick, Shavonda, and Little Howie.*fn2 Patrick accompanied his mother to protect her; Yolanda was nervous that defendant had obtained their telephone number in the Victorville area and had been calling them frequently in an attempt to get back together with her.*fn3 When they arrived at the restaurant, defendant was waiting for them. He was clapping his hands and appeared nervous. Patrick and Little Howie got out of the car, while Yolanda and Shavonda stayed inside the car. Defendant grabbed Little Howie and proceeded towards his car in the parking lot. Yolanda asked, "Where are you taking him?" Defendant replied that he was taking him and said not to worry.

Patrick stated that Yolanda followed defendant in her car, parked next to defendant's car, and got out of her car. Yolanda and defendant began to argue. Yolanda tried to take Little Howie out of defendant's car, but defendant pushed her away. They began pushing each other. Defendant went to the trunk of his car and retrieved a plastic container with gasoline in it. Seeing this, Yolanda ran back towards her car. Defendant chased her and poured gasoline on the front of her car. Yolanda was on the other side of the car and tried to run away, but defendant caught up to her and poured gasoline on her.

In the meantime, Shavonda -- who was disabled and wore leg braces -- was still in the back seat of Yolanda's car. Patrick smelled gasoline and was scared because he knew the car could catch on fire. He jumped inside the car, drove it to the end of the parking lot, and ran back towards Yolanda and defendant. When he got to them, Patrick saw that Yolanda and the plastic container were on the ground and defendant was hitting Yolanda.

Bystanders also witnessed the events. John Martinez was in the restaurant's parking lot when he heard a woman yelling for help. A "couple of" children were nearby. Martinez heard defendant yelling and saw him beating Yolanda and pulling her hair. Defendant struck Yolanda more than four times and slammed her to the ground. He went to his car, took out what appeared to be a plastic antifreeze container from the trunk, and poured gasoline from the container onto Yolanda's car and then on her body. Martinez then saw Patrick drive Yolanda's car to another area of the parking lot. Defendant dragged Yolanda back towards his car "because he had nothing to light the lady with." Martinez ran into a store next to the restaurant and told the owner to call 911. When Martinez and the owner went outside, Yolanda was already on fire and was burning from the top of her head to her waist. People were throwing water on her and wrapping her in blankets.

Anzerita Chonnay also saw the incident. She heard Yolanda and defendant yelling at each other and saw defendant hitting and kicking Yolanda. Chonnay ran inside a store to have someone call 911. When she returned outside, Chonnay saw defendant retrieve a container from the trunk of his car and began pouring something from it, while people were yelling at him. A man tried to intervene, but defendant pushed him away. Chonnay then saw Yolanda "on fire." The flames shot up "real high." Several people tried to extinguish the fire with their clothing. While Yolanda was burning, Patrick watched as he held the two younger children.

Edward Jasso was seated in his car in the restaurant's parking lot and saw Yolanda and defendant in the parking lot. Jasso saw liquid being thrown. At first, Jasso thought they were having a water fight, but then realized they were not playing after he saw defendant push Yolanda to the ground. Defendant began hitting and kicking Yolanda, and called her a "fucking bitch." Jasso got out of his car and told defendant to leave Yolanda alone. Defendant dragged Yolanda by her hair towards his car, released her, went to his car, and took off his shirt. Dazed, Yolanda began walking towards the Chuck E. Cheese restaurant. Jasso saw defendant retrieve something from his car. Thinking that the item might be a gun or knife, Jasso yelled for everyone to run. Defendant came towards Jasso and Yolanda and was holding a cigarette lighter. Jasso tried to grab the lighter from defendant, but his hand slipped off because defendant's arm was wet from gasoline. Defendant caught up to Yolanda and lit the lighter while he was only three to four inches away from her. Yolanda "went up in flames" immediately. When defendant lit the lighter, Jasso tried to grab him, but having accidentally grabbed Yolanda instead, Jasso's arm also caught on fire. Defendant fled as Jasso tried to extinguish the fire on his arm.

Richard Humphreys saw people yelling at defendant, who was running away from the scene. Humphreys got into his truck, followed defendant, and saw him attempting to climb a fence. Humphreys ordered defendant to stop. Defendant climbed down and began walking away. The police arrived and arrested defendant. Defendant smelled very strongly of gasoline and appeared to be under the influence of alcohol. However, defendant's blood sample, drawn at 5:39 p.m. that night, showed no signs of drugs or alcohol.*fn4

When the paramedics arrived, they saw Yolanda standing within arm's reach of the children. She was calling to them and trying to grasp them. Yolanda was crying, screaming, and in pain. Her clothing was black, burnt, and smoldering, and had melted onto her skin. The paramedics tried to cool Yolanda down with saline solution. During the ride to the hospital, Yolanda was crying and screaming in pain, and repeatedly asked about her children. The paramedics reassured her that the children were with the police. Because Yolanda's burns were so deep and her skin was so thickened, the paramedics could not find or gain access intravenously to a vein and were unable to administer pain medication to Yolanda. Instead, they attempted to relieve her pain by pouring cold water on her burns. While being transported, Yolanda grasped one of the paramedics, pulled him close to her face, and begged, "Just kill me. Please kill me." Yolanda endured the 20-minute ambulance ride without any pain medication.

Yolanda was admitted to the hospital in critical condition. She suffered extensive second and third degree burns from the waist up, including her entire face, arms, front chest, and back. Yolanda sustained burns to 55 to 60 percent of her body's surface. According to the pathologist, the extent of the pain suffered from these burns could be extreme and severe. Her lungs were dense and swollen, evidence of organ failure. Yolanda was treated in the hospital's burn unit for 10 days until her death. She died from pulmonary failure caused by the effects of thermocutaneous burns.

At the scene, the police found a clump of Yolanda's hair, one earring, and the plastic container. Defendant's car was in the parking lot with a "Club" locking device on the steering wheel and the car's gas cap sitting on its bumper. Defendant's shoes, the plastic container, and several items of Yolanda's clothing tested positive for gasoline residue. No gasoline residue was found on defendant's shorts, socks, or underwear, or on Yolanda's earrings or hair.

Inside the glove compartment of defendant's car, the police found a note written by defendant on the back of a smog certificate attached to a vehicle registration form. The note read:

"to mom and pop, I hate to do you gys like this but I don't like liveing the way I am so I don't know what to say but I love you both and I am very sorry to have to put you though this but my life is over I don't have any thing to live for any more, I know it going to cost a lot to berrie me but I am sorry I hope you both understand and I know what I did to Youlanda is worng but she don't dersive to live like me. P.S. If you can get my son Baby Howie and raise him to the best of your abbilty. Tell him his dady is sorry for what I did but I will alway love him and to don't never fall in love with a women. Love alyaw Howie." (Errors in original.)

A sheriff's detective from the arson squad and a captain from the fire department conducted a joint investigation and concluded that gasoline had been poured on Yolanda and ignited.

2. The Defense Case

Defendant's defense was that he caused Yolanda's death, but did not intend to kill or torture her. Defendant claimed that he was so emotionally distraught, upset, and angry at Yolanda for taking his son away from him, for being late that afternoon, and for making him wait at the restaurant, that he was guilty of, at the most, second degree murder or voluntary manslaughter when he poured gasoline on Yolanda and ignited it.

Defendant testified in his own defense. He stated that he and Yolanda had lived together since 1991 and had had a loving relationship until 1996, when their relationship began to fall apart. According to defendant, the strain was caused by Yolanda's desire to buy a house, which defendant could not afford.

Defendant stated that when he came home on January 4, 1997 about 4:00 p.m., he discovered that Yolanda had moved out with the children. She had given no indication she was leaving and had taken some of the furniture and electronic equipment. He was hurt and in shock. He called Yolanda's brother, Victor, who claimed that he did not know her whereabouts. Defendant bought alcohol and rock cocaine, went back to his home, drank the alcohol and took the drugs until 10:00 or 11:00 p.m., and called Victor again. Victor told defendant to stop calling.

Defendant then went to Victor's house to find Yolanda. When no one answered the door, defendant broke Victor's wife's van window with a bat. He then went to the house of another of Yolanda's brothers. When no one answered the door, defendant yelled that he wanted his wife and kids back, threw a rock through a window, and drove to Yolanda's sister's house. When her sister Lucinda told defendant she did not know where Yolanda was, he warned that if they tried to keep his family from him, something bad would happen to them.

Defendant called Victor again the next day. This time, Victor said that Yolanda and Little Howie were there, and that he could get his son. When defendant arrived at Victor's house, Victor told him to put his gun down, although defendant denied he had a gun. Victor kept stalling him. Suspecting that Yolanda and his son were not there and that he was being set up, defendant decided to leave. As he was driving away, he saw that police officers were parked around the corner waiting for him. The officers stopped and arrested him, and took him to jail. Defendant pleaded guilty to one count of assault with a deadly weapon and was released from jail on February 28, 1997.

Defendant then "moved from place to place," having lost his apartment while he was in jail. Two weeks after his release, defendant's mechanic called and demanded payment for servicing Yolanda's car. After defendant refused to pay unless the mechanic told defendant where Yolanda was staying, the mechanic provided Yolanda's telephone number. Defendant called Yolanda and said he loved her and wanted her back. She refused to give him another chance. Defendant called again that same night and told Yolanda he wanted to see the children. Agreeing to meet with defendant at the Discovery Zone, Yolanda brought Little Howie and Shavonda and spent an hour and 45 minutes with him. When defendant said he wanted to see them again, Yolanda told him to call.

During the next several weeks, defendant repeatedly called Yolanda and told her he wanted her back. When she refused, defendant warned that if she did not return, he would do something to himself. They agreed to meet at a Chuck E. Cheese restaurant at 4:00 p.m. on April 27, 1997. Defendant stated that he arrived on time, and became angry and frustrated because he waited for Yolanda and the children for 30 to 45 minutes. When Yolanda drove up, defendant took Little Howie out of Yolanda's car, declared he was going to leave, placed Little Howie inside his car, and got into the driver's seat. As he tried to remove the locking device from the steering wheel, Yolanda began arguing with defendant about taking Little Howie, and scratched and hit defendant. Defendant pushed her away and got out of the car. They got into a "scuffle." Defendant stated that he took out the container of gasoline that he normally kept in the trunk of his car for his carburetor, but did not know why he took the container out. He was upset and in a "rage" and remembered only "bits and pieces" of the proceeding events, including pouring gasoline on Yolanda and himself. Someone tried to grab him, and the next thing he knew, they were both on fire.

Defendant testified that he did not intend to set Yolanda on fire and kill her. Regarding the note, defendant explained that it was a suicide note and his statement he knew what he did to Yolanda was wrong was only a reference to the December 30, 1996 incident, the subject of Yolanda's declaration for the restraining order. Defendant claimed that, during that incident, they argued over Yolanda's refusal to have sex with him and that he only pulled on Yolanda's braided hair extensions so that she would come to bed. He denied raping her and claimed he still loved her. Defendant further claimed that he did not intend to hurt Yolanda. Instead, when he wrote that Yolanda did not deserve "to live like me," he meant only that she did not deserve to live the lifestyle that he was living (i.e., drinking alcohol and taking drugs) and that she deserved a house, which he could not afford. He intended to show the note to Yolanda in the hope she would feel sorry for him and take him back. The note asked his parents to raise Little Howie because defendant did not want him to be raised by a stepfather.

On cross-examination, defendant admitted that although the note was dated April 27, 1997, he wrote the note three to five days earlier when he was drinking. Defendant claimed that he did not know how his gas cap got on the bumper, but thought that he might have left it there when he put gasoline in his car in Los Angeles before driving to the Chuck E. Cheese restaurant in Fontana. He denied that he siphoned the gasoline from his fuel tank to put into the plastic antifreeze container before Yolanda's arrival. Defendant denied that he planned to run away from the scene and that he put the Club on his car to prevent its theft after he fled.

On redirect examination, defendant testified that when he grabbed Little Howie from Yolanda's car, his intent was to leave with the baby.

3. Rebuttal

Yolanda's children, Patrick and Lawanda, testified about their mother's and defendant's relationship. Patrick stated that defendant was mean to Yolanda and that Patrick went to Chuck E. Cheese so that nothing bad would happen. He did not see defendant attempt to remove the Club from the steering wheel.

Lawanda stated that she disliked defendant because he threatened Yolanda, pushed her around, and threw things at her. Lawanda described the December 30, 1996 incident. She was awakened by her mother's screams. Lawanda saw defendant pulling Yolanda's hair and dragging Shavonda by her leg braces, while Little Howie watched. Defendant warned Lawanda that if she wanted to watch, he would pull her mother's hair even harder. Defendant got on top of Yolanda and did "something sexually" to Yolanda after she refused to have sex with him. According to Lawanda, defendant "tortured" Yolanda for hours and Yolanda complained her head was sore the next day. Defendant would throw things around and shove Yolanda around "continually." He behaved this way during the last year of their relationship, and possibly even before.

Yolanda's brother, Victor Buttler, testified that on January 4, 1997, defendant pounded loudly on Victor's door around 3:00 or 4:00 a.m. He then broke the window of Victor's wife's van. When Victor ran outside, he saw defendant driving away. Victor called the police and filed a report. Later that night, defendant called Victor, admitted he broke the van window, and warned that people in the family would start "dropping like flies" if Victor did not divulge Yolanda's whereabouts. Defendant returned that night. As defendant was walking towards Victor's front door, Victor saw him pull out a gun and immediately closed the door. Defendant walked back to his car and drove away. Over the next several weeks, defendant continued to call Victor often, threatening to kill people in his family if he did not find out Yolanda's whereabouts.

Yolanda's sister, Lucinda Buttler, testified that Yolanda spoke of leaving defendant for two years. During the last year or two of their relationship, Yolanda explained that defendant was abusive to her. Lucinda once saw defendant push Yolanda out of their mother's house. Yolanda would often call Lucinda secretly because defendant did not want the sisters to talk with or see each other.

The day after Yolanda moved out, defendant went to Lucinda's house and asked where Yolanda was. When Lucinda replied she did not know, defendant warned that if Yolanda did not show up, he would start killing her family members one by one. He told Lucinda what he had done to Victor so that she would take his threats seriously.

B. Penalty Phase 1. The Prosecution's Case

Because the penalty phase was tried before a different jury than the guilt phase, the prosecution presented much of the guilt phase evidence, relating to defendant's history with Yolanda and the circumstances of the crime -- at the penalty phase. That evidence included defendant's abusive and controlling behavior towards Yolanda, the December 30, 1996 incident, which was the subject of Yolanda's restraining order, defendant's visits to the homes of Yolanda's siblings after Yolanda left him, his threats to her siblings when he was trying to locate Yolanda, and expert testimony on the burns suffered by Yolanda.

Other evidence presented at the penalty phase included the testimony of another of Yolanda's brothers and additional testimony by Yolanda's brother, Victor. Rallin Buttler, another brother, testified that after Yolanda moved out, defendant made threatening calls to Rallin and his mother, who lived in Rallin's house. Defendant called Rallin's mother names and threatened to do bodily harm to her and her family if she did not disclose Yolanda's whereabouts. Defendant threatened to kill Rallin, to "take" him and his entire family "out" if they refused to give the location of Yolanda, and to "blow away" anyone who got in his way, including Yolanda. Defendant said that when he found Yolanda, she was going to regret it.

Rallin testified that on January 4, 1997, he and his family were awakened by a loud banging on the front door. Rallin heard the shattering of his front window and saw defendant driving away in defendant's car. Rallin saw 10-15 dents in his front door that appeared to have been made by a gun.

Victor Buttler testified that Yolanda told him she was afraid of defendant and that he had threatened to kill her if she ever left him.

The prosecution also presented evidence that defendant had pleaded guilty to felony assault with a deadly weapon (§ 245, subd. (a)(2)) on February 18, 1997 for the gun incident at Victor's house and had also been convicted of shooting at an inhabited dwelling (§ 246) in 1982, a misdemeanor. On the felony assault conviction, defendant was placed on probation. Regarding the conviction for shooting at an inhabited dwelling, the prosecution presented evidence of the underlying circumstances. Defendant had followed Paul Triplett, a man who was dating the mother of one of defendant's children, and they got into a physical altercation. After the fight, defendant fired a shotgun into the house Triplett had entered. The shot shattered the window in a room in which an infant lay in a bassinet. No one was hurt.

The prosecution presented victim impact evidence, including the severe emotional trauma Little Howie and the other children suffered and the behavioral problems they were still exhibiting.

2. The Defense Case

Defendant presented testimony from his mother and a neighbor who portrayed defendant as a devoted father, son, and boyfriend. Defendant's mother testified that Little Howie did not experience traumatic shock from his mother's death or act differently after she died.

Defendant testified in detail about his loving relationship with Yolanda, his desperation when she left him, his use of drugs and alcohol before the crime, and his writing the suicide note as a ploy to get Yolanda back, not as an expression of his intent to kill her. He denied that he threatened Yolanda's family members or used a gun at her brothers' houses. As in the guilt phase, defendant testified in detail about the events leading up to the murder, including his phone calls to Yolanda, his prior meeting with Yolanda and the children, the fight between him and Yolanda at the Chuck E. Cheese in Fontana, and his lack of memory regarding his pouring gasoline on Yolanda and setting her on fire. He denied that he intended to kill or hurt Yolanda. Also, as in the guilt phase, defendant testified that on December 30, 1996, he only pulled Yolanda's braided hair extensions so that she would come to bed.

Defendant explained that as expressed in his note to Yolanda, he intended to kill himself, but had no idea how, though the possibility of a police chase or police shooting occurred to him. He wanted to have someone else kill him because he is Christian and wanted to go to heaven. He was sorry for what he had done to Yolanda, but that because his life belongs to the Lord Jesus Christ and if God gives him the opportunity, he will make it up by leading other inmates in the right direction.

3. Rebuttal

The People's rebuttal consisted primarily of defendant's statements during the booking process, and to three psychologists who examined him during the pendency of the case.

During the booking process, defendant made a spontaneous statement that his "ex-wife" had broken up with him in January, she had packed up the children and moved to Victorville, she had ruined his life, and he wanted to ruin her life.

In a statement to one of the psychologists, defendant admitted that he threatened Yolanda's family. In statements to two psychologists, defendant described how he had set Yolanda on fire. In one statement, defendant described that he had splashed Yolanda with gasoline, but claimed that he lit the lighter only to scare her. A bystander grabbed his hand, causing him to flick the lighter and ignite the gasoline. In another statement, defendant stated that he and Yolanda had argued over Little Howie and that Yolanda started scratching and hitting defendant. Defendant removed the gasoline from his car, doused her with it, then lit a cigarette lighter, which led to her being burned.

II. DISCUSSION

A. Jury Selection Issue Peremptory Challenges

Defendant claims that during voir dire of the penalty phase retrial, the prosecutor improperly exercised peremptory challenges against three African-American prospective jurors on the basis of race. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) Defendant is and the victim was African-American. The applicable law is well settled. Under Wheeler, " '[a] prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias--that is, bias against "members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds -- violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution. [Citations.]' " (People v. Hawthorne (2009) 46 Cal.4th 67, 77-78.) Such a practice also violates the defendant's right to equal protection under the Fourteenth Amendment. (Batson, supra, 476 U.S. at p. 88; People v. Hawthorne, supra, 46 Cal.4th at p. 78.)

In ruling on a motion challenging the exercise of peremptory strikes, the trial court follows a three-step procedure. "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.' [Citation.]" (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted (Johnson).)

Without objection from defense counsel, the prosecutor exercised his third peremptory challenge to excuse Prospective Juror No. 3 and his fourth peremptory challenge to excuse Prospective Juror No. 44. After the prosecutor used his fifth and final challenge to excuse Prospective Juror No. 46, defense counsel made a Wheeler/Batson motion because the prosecutor had excused three prospective jurors who were African-American. At the time of the motion, seven African-Americans had been called to the jury box. The prosecutor peremptorily excused three of them, while the defense peremptorily excused two of them. Two African-American prospective jurors remained in the jury box.

In support of his motion, defendant argued that the prosecutor used his last three peremptory challenges to "systematically eliminat[e] Black jurors." When the trial court noted that the defense peremptorily challenged two African-American prospective jurors, defense counsel explained that he was justified in those excusals, and that they had come after the trial court denied his challenges to them for cause. The trial court responded, "I don't think there is any dispute that you had a valid reason in your mind and your client's mind to excuse the two. You did. That is not an issue, really."

The prosecutor argued that defendant failed to make a prima facie showing and offered to relate his concerns regarding Prospective Juror No. 44. The trial court responded, "If you wish." The prosecutor commented that she had a BA in sociology, and had "done social work and nursing all of her life." The prosecutor further commented that her questionnaire answers indicated that although some murders may be intentional, the fact they are committed by a person who is temporarily insane or emotional might affect her decision regarding imposition of the death penalty. The prosecutor explained that "given the facts of this particular case, I don't think that juror could ever actually render the death verdict given what we know to be the facts of our case." The prosecutor also expressed concern with Prospective Juror No. 44's demeanor, noting that she appeared to be distant when the other prospective jurors responded to questions and appeared to be a "loner," which could lead to a hung jury.

The prosecutor pointed out that he and defense counsel stipulated to several excusals for cause, including two African-American prospective jurors who could not be impartial, and that he argued vigorously to retain the two Black prospective jurors that had been challenged by the defense for cause, but that the defense used its peremptory challenges against them. The prosecutor asserted that he challenged the African-American prospective jurors "for reasons having nothing to do with skin color."

The trial court denied defendant's motion, finding there was an insufficient showing of a prima facie case.

Defendant argues that although the trial court did not state which standard it was using, it presumptively used the wrong standard, i.e., whether defendant established a "strong likelihood" that a juror has been peremptorily challenged on the basis of group bias. (Wheeler, supra, 22 Cal.3d at p. 280.) After the trial in this case, the high court disapproved that standard for purposes of a defendant's establishing a prima facie case. (Johnson, supra, 545 U.S. at pp. 166-168.) Under Batson, the court stated that the prima facie burden is simply to "produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Johnson, supra, 545 U.S. at p. 170.) In addition, defendant claims that in finding no prima facie showing, the trial court relied on irrelevant grounds.

Regardless of the standard or considerations used by the trial court, we have reviewed the record independently (applying the high court's standard) to resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race. (People v. Hawthorne, supra, 46 Cal.4th at p. 79.) We conclude that the record does not support such an inference.

In establishing a prima facie showing, a defendant has the burden of demonstrating that the facts and circumstances of the case raise an inference that the prosecutor excluded prospective jurors based on race. (Batson, supra, 476 U.S. at p. 96.) Notably, defendant's only stated basis for establishing a prima facie case at trial was that the prosecutor exercised three of five peremptory challenges against African-American jurors. Defendant attempts to buttress that stated basis by arguing on appeal that 28 percent of the prospective jurors called to the jury box were African-American, while the prosecutor used a disproportionate ratio of his strikes (60 percent) against African-Americans. However, defendant's numerical showing falls short of a prima facie case. (People v. Clark (2011) 52 Cal.4th 856, 905 [no prima facie case where prosecutor challenged four of five African-American prospective jurors ]; People v. Cornwell (2005) 37 Cal.4th 50, 70 [no prima facie case where prosecutor challenged one out of two African-American prospective jurors]; People v. Yeoman (2003) 31 Cal.4th 93, 115 [prima facie case not established by cursory reference to prosecutor's strike of three prospective jurors by name, number, occupation and race]; People v. Farnum (2002) 28 Cal.4th 107, 136-137 [prima facie case not established by asserting prosecutor exercised four of five peremptory challenges against Black prospective jurors]; People v. Adanandus (2007) 157 Cal.App.4th 496, 503-504 [no prima facie case established by asserting prosecutor exercised three peremptory challenges against Black prospective jurors].)

The totality of the relevant facts of voir dire refutes an inference of discriminatory purpose. (People v. Clark, supra, 52 Cal.4th at p. 905; People v. Gray (2005) 37 Cal.4th 168, 186.) Before he exercised a single peremptory challenge against an African-American juror, the prosecutor accepted the jury four times with up to three African-American prospective jurors seated in the jury box. During the first three times, the prosecutor accepted the jury with two African-American prospective jurors (Nos. 3 and 23) seated.

Another African-American prospective juror (No. 35) came into the jury box to replace an excused juror. Defense counsel challenged Prospective Juror No. 35 for cause. The prosecutor opposed the challenge and questioned the juror in an attempt to rehabilitate him. The trial court denied defendant's challenge for cause.

The prosecutor accepted the jury a fourth time with three African-American prospective jurors (Nos. 3, 23, and 35) seated. At that point, defense counsel did not peremptorily challenge Prospective Juror No. 35, but used his fifth peremptory challenge against another prospective juror. That juror was replaced with Prospective Juror No. 42, who was African-American. The prosecutor then used his third peremptory challenge against Prospective Juror No. 3, which was his first peremptory challenge against an African-American juror. Prospective Juror No. 3 was replaced with Prospective Juror No. 43, who was also African-American.

Defense counsel challenged Prospective Juror No. 43 for cause. The prosecutor opposed the challenge and questioned the juror in an attempt to rehabilitate him. The trial court again denied defendant's challenge for cause.

Defense counsel exercised his sixth peremptory challenge against Prospective Juror No. 43, who was replaced by another African-American prospective juror (44). The prosecutor exercised his fourth peremptory challenge against Prospective Juror No. 44, which was his second peremptory challenge against an African-American juror. Prospective Juror No. 44 was replaced by another African-American juror (No. 46), leaving four African-American jurors seated in the jury box. After defense counsel exercised his seventh peremptory challenge, the prosecutor accepted the jury a fifth time, with those four African-American jurors (Nos. 23, 35, 42, and 46) seated. Defense counsel used his eighth peremptory challenge against Prospective Juror No. 35. The prosecutor used his fifth peremptory challenge against Prospective Juror No. 46, leaving two African-American prospective jurors seated in the jury box (Nos. 23 and 42). Defendant then made a Wheeler/Batson motion.

After the trial court denied the motion, defense counsel exercised his ninth and final peremptory challenge against Prospective Juror No. 42, his third peremptory challenge against an African-American prospective juror. Prospective Juror No. 23 was the only African-American juror who sat on the final penalty phase jury.

Thus, the record reflects that before defendant made the Wheeler/Batson motion, the prosecutor accepted the jury five times with up to four African-American prospective jurors seated in the jury box. The prosecutor accepted the jury four times with Prospective Juror No. 3 seated and one time with Prospective Juror No. 46 seated before finally excusing them. (People v. Clark, supra, 52 Cal.4th at p. 906 [no prima facie case where prosecutor passed two African-American jurors during several rounds before finally excusing them].) The prosecutor's acceptance of a panel including African-American prospective jurors, while not conclusive, was " 'an indication of the prosecutor's good faith in exercising his peremptories, and . . . an appropriate fact for the trial judge to consider in ruling on a Wheeler objection . . . .' " (People v. Hartsch (2010) 49 Cal.4th 472, 487.) The record also reflects that there was an African-American on the jury panel ultimately sworn, and the prosecutor repeatedly passed that juror on his peremptory challenges. (People v. Clark, supra, 52 Cal.4th at p. 906; People v. Cornwell, supra, 37 Cal.4th at p. 70; People v. Adanandus, supra, 157 Cal.App.4th at pp. 503-504.) It further reflects that after extensive questioning, the prosecutor successfully rehabilitated two African-American jurors, Prospective Jurors Nos. 35 and 43, staving off defense challenges for cause. The prosecutor's desire to keep African-American jurors on the jury tended to show that the prosecutor was motivated by the jurors' individual views instead of their race. (People v. Hartsch, supra, 49 Cal.4th at p. 487.)

Finally, the record of voir dire shows race-neutral reasons for the prosecutor's excusals of Prospective Jurors Nos. 3, 44, and 46. Prospective Juror No. 3 was a married, 27-year-old woman with two children who worked for the San Bernardino County Department of Social Services as a social services caseworker. On the questionnaire, she stated that she "strongly disagreed" that anyone who intentionally killed another person should get the death penalty. She stated that if under certain circumstances, the person killed with "good reason" he or she "should be punished, but not put to death." She explained, "[w]hen I say good reason, I mean in their minds." Prospective Juror No. 3 further stated that "maybe" the death penalty was appropriate in cases where a person of sound mind admits to death and commits willful acts of cruelty, such as execution-style or gang murders.

From Prospective Juror No. 3's responses, the prosecutor could have reasonably been concerned with her emphasis on the killer's subjective perspective, especially in a case such as this one, where the defense would be that the defendant snapped under extreme emotional despair and did not intend to kill. Her responses also indicated a willingness to impose the death penalty only under very limited circumstances and if the defendant confessed, facts not present in this case. As with Prospective Juror No. 44, the prosecutor could also have reasonably believed that as a social services caseworker, Prospective Juror No. 3 might be more sympathetic to the defense. (People v. Clark, supra, 52 Cal.4th at p. 907 [peremptory challenge properly based on juror's experience in counseling or social services]; People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [peremptory challenge properly based on juror's educational background and experience in psychiatry or psychology].)

Prospective Juror No. 44 was a 63-year-old widow with grown children, who worked for San Bernardino County as a supervising social worker. She graduated from college with a BA in sociology and was a social worker for 30 years. On the questionnaire, she stated that she had served 30 days in custody for committing credit card fraud 30 years earlier and had visited her husband in jail for drunk driving. She indicated that her decision to impose the death penalty might be affected where an intentional murder is "so emotional," or the person is temporarily insane.

Other than the prosecutor's concerns with the juror's demeanor, the record supports his stated concerns regarding Prospective Juror No. 44's employment as a social worker, and her unwillingness to impose the death penalty in cases such as this one involving a defense centered on defendant's emotional instability.

Prospective Juror No. 46 was a married, 44-year-old woman with three children, who worked for the Los Angeles County Department of Public Health as an eligibility worker and Medi-Cal liaison. On the questionnaire, she indicated she had not thought much about the death penalty, could not think of a general purpose it would serve, and believed that life imprisonment was a harsher penalty than death. Prospective Juror No. 46 strongly disagreed that anyone who intentionally kills another person should automatically get the death penalty. When asked if she could impose the death penalty in an appropriate case, she answered "possibly."

From Prospective Juror No. 46's responses, the prosecutor could have reasonably concluded that she was uncertain about her ability or willingness to impose the death penalty, even in the most extreme cases. Also, as with Prospective Jurors Nos. 3 and 44, the prosecutor could have reasonably been concerned with Prospective Juror No. 46's employment in the social services field. Thus, the record discloses race-neutral reasons for the excusals.*fn5

Because defendant failed to meet his burden of establishing a prima facie case of group discrimination, the trial court correctly denied his Wheeler/Batson motion.

B. Pretrial Issues Regarding Penalty Phase 1. Denial of Defendant's Marsden Motion

Defendant claims that the trial court improperly denied his motion to replace appointed counsel at the penalty phase retrial, resulting in a violation of his federal and state constitutional rights. The trial court did not abuse its discretion in denying defendant's motion.

a. Facts

On August 27, 1998, during jury selection for the guilt phase of trial, defendant made his first motion to substitute Defense Counsel Robert Amador. The trial court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. Defendant stated that, although counsel had been assigned at the beginning of the case, defendant had not seen any police reports or documents and was unaware of his defense. He believed that Amador was not prepared because he had not filed a written response to one of the prosecution's motions, but had only responded verbally. When defendant stated he believed counsel was not adequately defending him, the trial court asked him to provide specific examples of what he wanted Amador to do that he had not done. Defendant responded that the prosecution's motions contained "lies" and he wanted Amador to challenge the truthfulness of the evidence. The court noted ...


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