Court: Superior County: Los Angeles Judge: David D. Perez Super. Ct. No. A086662
The opinion of the court was delivered by: Cantil-sakauye, C. J.
A jury found defendant John Alexander Riccardi guilty of the first degree murders of Constance (Connie) Navarro and Susan (Sue) Jory by use of a firearm. (Pen. Code, §§ 187, subd. (a), 12022.5, subd. (a).)*fn1 The jury also found true the special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and that defendant committed Connie's murder while engaged in the commission of a burglary (§ 190.2, subd. (a)(17)). Subsequently, the jury fixed the penalty at death.
This appeal is automatic. (§ 1239, subd. (b).) We reverse the judgment of death because of the erroneous excusal of a prospective juror during jury selection. We also reverse the burglary special circumstance and one of the two multiple-murder special-circumstance findings, but the judgment is affirmed in all other aspects.
Prosecution's case a. Background of the relationship
Defendant and one of the victims, Connie, began dating in 1980. During their relationship, defendant had his own residence, but stayed at Connie's condominium frequently. Connie had a teenage son, David Navarro, and she shared joint custody of him with his father, her ex-husband, James "Mike" Navarro. David became close to defendant and regarded him as a trusted friend. In the fall of 1982, defendant's relationship with Connie began to unravel, with frequent breakups followed by brief reconciliations. In January 1983, Connie firmly decided to end the relationship and no longer wanted to see defendant.
Over the next two months, defendant had difficulty coping with the breakup and began stalking Connie. On March 3, 1983, he killed Connie and her friend, Sue Jory. During the two-month period, defendant appeared uninvited at restaurants where Connie was dining and at dinners at her ex-husband's house. Connie received multiple phone calls, but the calling party would hang up after she answered. On some occasions, defendant followed Connie and her friend, Marilyn Young, to a fitness center, and stood outside staring at Connie through the center's picture window while she exercised. Defendant also began making midnight phone calls to Young, to inquire about Connie and to express his despair. Connie became frightened by defendant's behavior, avoided going anywhere alone, and had an alarm system installed at her residence. Defendant, who enjoyed a secret life as a burglar, would later put his burglary skills to use at Connie's home.
Several witnesses testified regarding specific instances of defendant's stalking of Connie during the two months leading to her death.
b. The George Hoefer incident and other incidents in January 1983
In early January 1983, George Hoefer, an executive for an advertising agency, met with Connie at a restaurant to discuss a job opportunity. After the dinner, as they parted ways in the parking lot, George and Connie shook hands and Hoefer kissed Connie on the cheek. The following morning at his hotel room, Hoefer received a telephone call from a man with a New York or New Jersey accent who identified himself as Connie's boyfriend.*fn2 The man was enraged and demanded to know why Hoefer had been kissing his girlfriend. The man warned Hoefer that if he did not stop seeing Connie, the man would " 'break her knees.' " Hoefer tried to calm the man by explaining that he was happily married and that he had no romantic involvement with Connie. The following day, Hoefer received a second telephone call from the same man. The man revealed that he knew Hoefer's flight itinerary back to Connecticut and his home address there. The man asked how Hoefer would like it if he paid a visit to Hoefer's wife in Connecticut. Hoefer again explained that he was not romantically involved with Connie, and assured the man he was returning home. The man became calm and asked Hoefer not to tell Connie about the conversation. Hoefer testified that papers in his rental car contained his personal information, address, and his flight itinerary. Upon returning to Connecticut, Hoefer told Connie about the threatening telephone calls.
After this incident, defendant's stalking escalated. According to Connie's friend, Marilyn Young, in mid or late January 1983, defendant broke into Connie's condominium and forced her to sleep with him. He spent the night holding her and refused to allow her to leave the bed. Near the end of January 1983, according to Young, Connie's vehicle failed to start, and defendant suddenly appeared and told Connie he had tampered with the wires. On January 31, 1983, based on an entry in her day planner, Connie had her locks changed.
c. The weekend "kidnapping" and other events in February 1983
According to Young, in early February 1983, Connie agreed to meet with defendant to discuss his behavior, but only if their meeting took place at a public restaurant. Young was to pick Connie up from that meeting, but before Young arrived, defendant brandished a gun and demanded that Connie go away with him for the weekend. Connie, fearing for her life, agreed, hoping to calm defendant. She convinced him to rent a hotel room in the Los Angeles area, where she felt it was less likely that he could harm her without anyone else hearing. During the weekend with defendant in the hotel room, Connie made telephone calls to her friends and family explaining where she was and who she was with. In those telephone calls, Connie sounded nervous. At the end of the weekend, defendant allowed Connie to leave. In their testimony, Young and Connie's ex-husband, Mike, characterized this incident as a kidnapping.
In mid-February 1983, Connie invited defendant to dinner at a restaurant with Young and her boyfriend. According to Young, both she and Connie pleaded for defendant to leave Connie alone. Defendant said he would leave Connie alone, but, according to Young, he had an angry smirk on his face.
Soon after this incident, Connie and her friend, Sue Jory, were having breakfast with their friend, Craig Spencer, when defendant suddenly appeared and sat down at their table uninvited. According to Spencer, defendant said nothing and merely stared at Connie for three to four minutes. Because Connie and Sue became visibly agitated and nervous, Spencer tried to break the silence by introducing himself to defendant. Defendant said nothing, but shook Spencer's hand, stood up, and then made a gesture with his forefinger and thumb, in the shape of a gun, pointed it at Connie, and dropped his thumb, as if he was pulling a trigger. He then quietly walked away.
In late February 1983, Connie had difficulty operating the sliding glass door in her bedroom, which opened onto a second-floor balcony. Her neighbor, Carl Rasmussen, discovered that the sliding door's bolt latch had been damaged, and, when he removed the latch to inspect it, he realized it had been sawed almost all the way through. According to Rasmusson, the damage to the latch could have been made only by someone inside Connie's bedroom. Rasmussen attempted to fix the latch and reinstalled it.
At about this time, Connie expressed her fears of defendant in a draft letter addressed to defendant dated February 18.*fn3
Connie wrote: "I'm so sorry that you're still so angry and you feel a need for vengeance and punishment. You're accomplishing your goal. I feel like a walking dead person going through the motion of life. Like a small wild animal who knows it's surrounded by a pack of wolves. The smallest sound or movement makes me jump. The sound of the phone now is frightening. Another hang-up. . . . I'm so locked up in my own house afraid of every sound the walls have probably always made. I walk out of my house, a coffee shop, a gym, looking. Terror. Until I get into my car and I know that the doors are locked and I can breathe again until I get out. Then it starts all over again. How long is it going to go on?"
d. The break-in incident involving David Navarro
Sometime in the last week of February 1983, defendant broke into Connie's home while Connie's 15-year-old son, David, was home sick, instead of being at school. According to David, after his mother left on her routine morning jog, he heard the sound of someone trying to enter the sliding glass door to his mother's bedroom. David caught a glimpse of defendant outside on the balcony trying to remove the sliding glass door from its track. David became frightened and hid in the bathroom behind the shower curtain. David heard defendant enter the bathroom in which he was hiding, then exit the bathroom and walk downstairs. He then heard the sound of the answering machine being played back. David saw that a gun had been placed on the bathroom floor near the door. He left the bathroom and called out to defendant, asking if he or his mother was home and if someone was "trying to break in." Defendant went upstairs, showed David the sliding door, which was back on its tracks, and assured him that no one had broken in. Out of fear, David pretended to go along with defendant's assurances. While sitting at the edge of Connie's bed, defendant told David that he was very upset that his mother did not want to see him anymore and said he was going to kill himself but wanted to talk with David's mother first. Defendant then pulled out a gun from under the bed and pointed it at David, but said he was going to kill himself. Defendant apologized and told David that he was not going to hurt him, but then produced a pair of handcuffs and handcuffed David in the bathroom. Defendant left the bathroom, saying that he had to deal with David's mother, and closed the door behind him.
A half hour later, when Connie returned home, David could hear defendant and his mother arguing loudly, and heard his mother demand to know where David was. The argument lasted 20 to 30 minutes, and, at one point, David heard the sound of someone being slapped. Defendant, sobbing, returned to the bathroom, uncuffed David, and begged him not to tell his mother. Defendant later left without further incident. Because David was afraid of defendant, he did not tell his mother what had happened earlier, but a few weeks after his mother's death, he described the incident to a deputy district attorney.
e. The weekend before the killings
Young described the circumstances surrounding Connie's decision to leave her home the weekend before the killings. On approximately February 25, 1983, one of Connie's friends warned Connie that defendant's astrological "signs" showed that he was in a "rage" and was going to "erupt" during that weekend. Donnie Clapp, a mutual friend of Connie's and defendant's, also warned her that defendant had been breaking into Connie's home and that he appeared to be in a "rage." Clapp advised her to leave. Because Connie no longer felt safe in her home, she and Young decided to stay out of town for the weekend. Before they left, Connie told Young that defendant had called wanting to know where she was going that night. When Young arrived to pick up Connie, defendant was outside Connie's home, staring at them. According to Young, defendant had a "very kind of frightened look on his face." When they drove away, defendant initially followed them in his car.
After returning from her weekend away, Connie decided that she and David should stay at her ex-husband Mike Navarro's residence. When Connie and David briefly returned home to pick up clothes, they discovered someone had disabled the front door alarm. According to Young, Connie later learned from Clapp that defendant was inside the condominium, hiding in a closet, while she and David picked up their clothes. According to Young, Clapp told Connie that defendant admitted to him that he had broken into her home through a skylight.
f. The days leading to the killings
On the morning of March 1, 1983, two days before the killings, Mike's answering machine recorded a telephone call between Connie and an unidentified female in which Connie asked questions about how to obtain a restraining order. Later that day, Connie met with an attorney, whom Mike had recommended, to discuss obtaining a temporary restraining order against defendant.*fn4
On March 2, 1983, the day before the killings, Connie, her friend Marilyn Young, and Sid Young (Young's ex-husband), were eating breakfast at a restaurant when defendant appeared uninvited. Defendant persuaded Connie to move to an empty table where they could speak more privately, but Young heard Connie accuse defendant of breaking into her home and disabling her alarm system and heard defendant admit that he had done so. Defendant then admitted that he had taken something from Connie's home, and showed Connie a letter she had written to him but had not yet sent. He claimed that "there are no locks that could keep me out of anyplace" and that, if he had wanted, he could have hurt her anytime. He also stated, "I could hurt you right here and nobody would do anything." Defendant explained that he wished Connie had sent him the letter earlier because he had not believed that she cared about him until he read it. Defendant promised Connie that he would not bother her anymore and that she could return home. As defendant was leaving, Young observed that defendant looked "horrible" and "scary," as if he had not been able to sleep. She suggested to defendant that he admit himself into a hospital, but he rejected the idea with a laugh.
After defendant left, Connie decided to return to her home that night, against the advice of her ex-husband Mike, but she agreed to let David stay at his father's house.
g. The night of the killings
On March 3, 1983, the night of the killings, Connie, Sue Jory, and Young planned to go out for dinner and drinks, but Young's plans changed and she was unable to attend.
Just hours before the killings, defendant met Stephanie Brizendine, a former girlfriend, and her friend, Toni Natoli, at a restaurant. Even though Brizendine did not know Connie and could not remember the last time she had seen defendant, defendant seemed interested only in telling her about the problems he was having with Connie. When discussing Connie, defendant sweated profusely and appeared to be nervous and agitated. At one point, defendant showed Brizendine a letter Connie had written him. Brizendine was stunned to read Connie's description of how she was "absolutely living in fear" due to defendant. In the letter, Connie mentioned defendant breaking into her residence, and begged defendant to leave her alone. Defendant seemed nonchalant about Connie's fears. Brizendine told defendant that he should leave Connie alone and move on with his life.
When they left the restaurant, defendant led Brizendine to a pay phone and, before dialing the phone, instructed her that if a boy answered, she should tell him that Dean loved him, and if a woman answered, she should ask for Dave. When they called, no one answered, and an answering machine activated. Defendant told Brizendine to hang up and then said, "That fucking bitch, Connie, is not answering the phone."
Brizendine accompanied defendant to his car, and thought that she saw a gun in his trunk.*fn5 After saying goodbye, defendant drove away sometime between 10:00 and 10:30 p.m. As defendant departed, he seemed agitated and angry, and said nothing about leaving town the next day. Connie's residence was only four miles away.
Sometime between 10:30 and 11:00 p.m., Connie's neighbors heard the sounds of gunshots and several muffled thumps. Approximately 15 to 20 minutes later, a neighbor saw a large man, whom she could not identify, leave Connie's residence and drive away in Connie's vehicle.
h. The scene of the killings
On March 4, 1983, Mike found Connie and Sue shot to death in Connie's home. Connie's body had been stuffed into the second-floor linen closet with a pillow over her face, and Sue's body was found facedown in Connie's bedroom. From bloodstains and drag marks on the carpet, it appeared that Sue's body had been moved from David's bedroom to Connie's.*fn6
Connie had received two gunshot wounds. The first bullet entered the left side of her chest, passed through her left lung, and exited her back. The second bullet entered on the right side of her chest, passed through the aorta and the spine, and stopped at the back of the left chest near the fifth rib. Sue was shot once at close range, possibly as close as two inches. That bullet penetrated through her left hand at the base of her thumb, exited, and then entered her jaw area, tore through her left carotid artery, and exited through the back of her neck. The injury to Sue's left hand may have been a defensive wound, because it was consistent with her raising her hand to defend against the assailant. The bullets recovered from the scene were .38 or .357 caliber*fn7 and were most consistent with having been fired from a .38-caliber Colt handgun.
Connie's and Sue's purses had been stuffed into a closet in Connie's bedroom. The only items that were identified as missing from the residence or the victims were their car keys. Both Connie's and Sue's vehicles had been moved from outside Connie's home and parked two blocks away in opposite directions.
Connie's condominium bore no signs of a forced entry. A skylight in Connie's bathroom, however, appeared to be askew and slightly off its frame. Because of its height from the floor, the police at the time believed it was unlikely the perpetrator could have entered the residence from the skylight; accordingly, they did not check it for fingerprints and did not photograph it.
Defendant's fingerprints were located on the linen closet door where Connie's body was found. In addition, on the kitchen counter were some wine glasses and a glass pitcher. One of the wine glasses and the pitcher bore Connie's fingerprints, but a print obtained from a second wine glass was too incomplete for matching.*fn8 With the exception of three prints, all the latent prints lifted from Connie's household matched either Connie or defendant. The three remaining prints -- those lifted from a dining room telephone, Connie's bedroom door, and the doorjamb of the linen closet -- did not match Connie, David, Sue, Mike, or defendant.
i. Defendant's flight and arrest
Defendant left Los Angeles immediately after the killings, abandoning his car, his motorcycle, his apartment, and virtually all of his possessions. At defendant's apartment, the police found ammunition, three handguns, a shotgun, and a box for a .38-caliber Colt handgun, but they did not find a .38-caliber Colt handgun or .38-caliber ammunition. In addition, the police recovered four sets of handcuffs. Later in March 1983, a warrant was issued for defendant's arrest.
Defendant was apprehended nearly eight years after the killings, following a nationwide broadcast of a televised program detailing defendant and the homicides.*fn9 At the time of his arrest in January 1991, defendant was living in Houston and making a living as a burglar using various aliases. According to the FBI, defendant was a suspect in more than 100 burglaries in the Chicago, Los Angeles, Miami, and New York areas. He had undergone plastic surgery to his face, having his nose shortened and a mole removed. Evidence found inside defendant's Houston home showed that, a few days after the killings, he had obtained documents instructing how to change his identity, and by the end of the month he had applied for a passport under the name of another person.
In April 1991, while at a hearing in a federal court in Houston, defendant tried to escape by kicking out a 10th-floor window. Defendant remained on the 10th-floor ledge for almost 12 hours, threatening to jump, but was eventually coaxed back inside.
j. Defendant's admissions
Defendant's occasional burglary partner-in-crime, Samuel Sabatino, testified that, before the homicides, defendant told him that Connie had left him, and he "felt like he was going to kill himself and that he was going to kill her." Several weeks later, defendant admitted to Sabatino that he had committed the killings. According to Sabatino, defendant explained that he broke into Connie's home through a skylight and waited for her to come home. When she arrived home, her friend, Sue Jory, was with her. Connie went upstairs, where defendant confronted her. During an ensuing argument, defendant shot Connie. When Jory came upstairs, defendant shot her as well. Defendant told Sabatino he used either a .38- or a .32-caliber weapon and bragged that he hid the weapon under law enforcement's "noses" by concealing the gun under some roofing material on the roof of his apartment.
Sabatino confirmed that he had suffered three burglary-related felony convictions and was testifying against defendant pursuant to a plea agreement in return for a reduced sentence. Sabatino also admitted that he wanted to "get even" with defendant because defendant had never repaid a $100,000 loan and because defendant had provided information to the FBI that led to Sabatino's arrest.
Defendant's stepmother, Rosemary Riccardi, testified that soon after the killings, defendant admitted to his father that he committed the homicides. Defendant's father died in 1986. Rosemary claimed that, in addition to relaying this information in a meeting with an FBI agent only three weeks prior to her testimony, she also had disclosed defendant's admission to the FBI during the 1980's. She denied writing a story about the killings, but admitted she had expressed some interest in writing about defendant's upbringing because she thought it would make an interesting book.
2. Defense case a. Rebuttal of Rosemary Riccardi's testimony Defendant called two witnesses to rebut his stepmother's testimony.
First, FBI Special Agent Gary Steger testified that while defendant was a fugitive, there were 27 reported contacts between Rosemary and the FBI, and none of the reports document that Rosemary relayed that defendant had admitted to the killings.
Second, defendant's cousin, Mario Ragonesi, testified that while defendant was a fugitive, Rosemary had repeatedly spoken of her desire to write a book about defendant's life and had discussions with him and other family members in order to research defendant's history. Finally, Ragonesi recounted that Rosemary repeatedly told him she thought defendant was innocent of the homicides and never mentioned anything about an admission.
Defendant testified in his own defense. He denied shooting Connie and Sue, but he admitted he felt depressed and suicidal as a result of his breakup with Connie. He also admitted he called Connie frequently, to the point of annoying her.
He acknowledged, to varying degrees, the encounters he had with Connie in the two months preceding the killings, but denied he was stalking Connie and explained that most of his encounters were due to coincidence because they had the same favorite restaurants and her fitness center was along his regular jogging route.
As to the incident involving George Hoefer, defendant denied following Connie and Hoefer and claimed that he inadvertently saw them at a table at a restaurant that he and his friend had entered. Defendant admitted that he later spoke with Hoefer over the telephone at Connie's home after grabbing the phone from her when she received a telephone call. He acknowledged he had exchanged angry words with Hoefer and then hung up on him. Defendant admitted he was jealous but denied knowing where Hoefer was staying, knowing his airline information, or threatening to break Connie's knees.
Defendant also denied accosting Connie and kidnapping her over a weekend. He claimed instead that Connie willingly stayed with him at a hotel. Defendant admitted to meeting Craig Spencer, Connie, and Sue Jory at a restaurant, but he denied remaining mute or feigning the pointing of a gun at Connie's head.
Defendant corroborated, to a large extent, David's account of defendant breaking into his mother's home while David was sick at home and not at school, but defendant claimed he had entered Connie's home through a partially open sliding glass door after no one answered the front door. He denied ever pointing a gun at David or handcuffing him, but claimed, instead, that he told David to stay in his bathroom because he did not want him to be a witness in case he shot himself.*fn10 According to defendant, after Connie arrived, she calmed defendant down and convinced him not to kill himself. Following their talk, he and Connie went to David's bathroom and told him everything was fine and that defendant was not going to kill himself.
Defendant also acknowledged he met with Connie at breakfast the day before the killings to discuss a letter she had written to him, but he denied breaking into Connie's home and stealing that letter. He claimed he broke into Connie's home only once -- the incident in which David was home. He also denied telling Connie that if he wanted to hurt her, he could have done so. He claimed he told Connie that morning of his plan to fly to New York for a few weeks.
Defendant admitted meeting Brizendine at a restaurant and discussing Connie with her on the night of the killings. He could not remember if he showed her a letter Connie had written him. He admitted that he had Brizendine call Connie's home because he was afraid Connie would not pick up the phone if she heard his voice. He denied giving Brizendine instructions about what to do if David answered. He also denied having a gun in his car.
Defendant testified that he did not go to Connie's condominium on the night of the killings, but was at home that night and left in the morning on a flight to New York to visit his terminally ill aunt. He claimed his friend, Michael Hammerman, who was deceased by the time of trial, drove him to the airport. He asserted that he did not learn about the killings until days later when Hammerman informed him over the telephone and warned him that he was a suspect. According to defendant, when he learned he was a suspect, he decided not to return to Los Angeles because he was afraid of being convicted of a crime he did not commit.
Defendant admitted to having prior felony convictions for burglary, possession of stolen goods, and possession of a firearm by a convicted felon. He acknowledged that he had committed other uncharged burglaries in several different states. Defendant also admitted to having had his nose shortened and a mole removed some two years after the killings.
The defense introduced into evidence two long hair strands that were "stuck" to Jory's bloody hands when the police processed the crime scene. Los Angeles Police Department Criminalist Doreen Music testified that, in 1983, she had microscopically examined the two hairs and concluded that the hair strands were dissimilar to strands of defendant's hair, taken from his hairbrush. She did not attempt to match the hairs with hairs from Connie, Jory, or David Navarro. She testified that although the length and color of David's hair at the time of the killings may have been consistent with the hairs found on Jory's hands, she did not perform a match test. She added that David's hair would have changed in the last 11 years between the killings and the time of trial, rendering any new match testing unreliable. Music believed the hairs found in Jory's hands were consistent with "shed hairs" and that it was possible that a bloody hand wiped across the carpet could have picked up the hair strands.
B. Penalty Phase 1. Prosecution's case
Christianne "Christy" Jory, the daughter of Sue Jory, was 13 years of age when her mother was killed. Christy testified that she thought of Connie Navarro, her mother's best friend and her godmother, as a second mother to whom she affectionately referred as "Aunt Connie." Christy had hoped that, if anything happened to her mother, she would live with Connie and her son, David, because the two of them were family to her. She felt that she had lost her family on the day that her mother and Connie were taken from her. In the immediate aftermath of the killings, Christy wrote a letter to defendant, in which she asked him how he could be "so selfish to think he had the right to fuck up everybody's life like this." Thereafter, she went through therapy for six years and was forced to live with her father. Because of a "difficult" and "horrible" relationship with her stepmother, Christy spent the four years following her mother's death "locked . . . in [her] room."
David Navarro, who was 15 years of age when his mother was killed, testified that the event "destroyed [his] life." Because his father was so devastated by Connie's death, David took care of his father, who was a "wreck" after her loss. David himself became suicidal, and his father was unable to care for him. He began to use marijuana and eventually graduated to heroin, which he used daily for many years. He underwent constant therapy for much of his adult life and was hospitalized seven times in rehabilitation facilities because of his drug addiction. David testified that since the murders, he has always been afraid of defendant and often has nightmares about him. He feared defendant would return to kill him and his father. David also blamed his mother's death on himself because he failed to discuss the incident in which defendant broke into their home and handcuffed him to the toilet. He stated that he wished defendant had killed him instead of his mother.
Liz Brooks had sustained a friendship with defendant for nearly 15 years. She described defendant as very considerate, respectful, and helpful. Brooks also knew Connie Navarro and she and her husband would often socialize with them, including going out to dinner together on occasion. According to Brooks, it appeared that defendant loved both Connie and her son. She testified that David and defendant were very close -- like father and son -- and that, when defendant and Connie broke up, defendant was upset and became depressed. But according to Brooks, despite being depressed and wanting to reconcile, defendant eventually began to come to terms with the breakup. In the time since defendant's incarceration, Brooks has kept in regular contact with him by phone and considers him to be a very close friend.
Henry Kaney, an associate pastor at Hope Chapel, in Hermosa Beach, met defendant in the late 1970's. They developed a close friendship. Kaney stated that there was a time when Connie and defendant were very happy and in love. Eventually, trouble emerged in the relationship, and it appeared to be ending. Kaney and his wife suggested to defendant that he leave Connie alone and place some distance between the two of them. He described defendant dramatically losing 20 to 30 pounds during this period. Additionally, defendant became despondent, resistant, and suicidal -- all of which were out of character for defendant according to Kaney. Kaney testified that he maintains contact with defendant, mostly by telephone. He asked the jury to show mercy toward his "brother," whom, he said, he loves.
II. Pretrial Issues A. Dismissal of Jurors for Cause
Defendant contends the trial court erred by dismissing, over his objection, four prospective jurors based solely on their responses concerning the death penalty in their written questionnaires. We conclude that the trial court erred by failing to conduct voir dire with respect to one prospective juror, whose written questionnaire reflected conflicting and uncertain views concerning the death penalty and her ability to serve. Although this error did not result in the seating of an unqualified juror, it requires automatic reversal of defendant's sentence of death under existing United States Supreme Court precedent. (Gray v. Mississippi (1987) 481 U.S. 648, 659-667 (Gray) (opn. of the court); id., at pp. 667-668 (plur. opn.); id., at p. 672 (conc. opn. of Powell, J.).)
1. The standard of review
Under decisions of the United States Supreme Court, prospective jurors who express personal opposition to the death penalty are not automatically subject to excusal for cause as long as "they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law." (Lockhart v. McCree (1986) 476 U.S. 162, 176; see also Witherspoon v. Illinois (1968) 391 U.S. 510, 522 (Witherspoon).) To determine if a prospective juror is excusable for cause without compromising a defendant's constitutional rights, we inquire whether the prospective juror's views on the death penalty "would 'prevent or substantially impair the performance' " of the juror's duties in accordance with the court's instructions and his or her oath. (Wainwright v. Witt (1985) 469 U.S. 412, 424 (Witt).) But "this standard . . . does not require that a juror's bias be proved with 'unmistakable clarity,' " because the questioning of prospective jurors may not always render their bias " 'unmistakably clear.' " (Id. at pp. 424, 425.) Often, prospective jurors "may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings." (Id. at p. 425.)
The excusals at issue here were based solely on the prospective jurors' responses to the written questionnaire. We have held that "when an excusal was based on questionnaire responses alone, the excusal may be upheld if those answers, 'taken together,' clearly demonstrate the juror's unwillingness or inability, because of attitudes about the death penalty, to perform his or her duties in a capital trial." (People v. McKinnon (2011) 52 Cal.4th 610, 647, quoting People v. Avila (2006) 38 Cal.4th 491, 533.) In reviewing dismissals for cause based upon only written answers, we apply a de novo standard of review. (People v. McKinnon, supra, at p. 647.)
2. The questionnaire used below was not flawed
Defendant rests his challenge on People v. Stewart (2004) 33 Cal.4th 425 (Stewart), in which the trial court excused five prospective jurors for cause based solely on their written answers to a single, multipart question concerning their views on the death penalty. We concluded the information elicited by the question, standing alone, was insufficient for determining bias under the Witt standard because the preface to the question asked the prospective juror whether he or she held " 'a conscientious opinion or belief about the death penalty which would prevent or make it very difficult for' " the prospective juror to find the defendant guilty of first degree murder, find a special circumstance to be true, or vote to impose the death penalty. (People v. Stewart, supra, at p. 442, italics added.) We concluded that the use of the "make it very difficult" language in the preface to the question made it impossible to determine whether the prospective jurors' subsequent "yes" or "no" answers revealed that their personal views would have actually prevented or substantially impaired the performance of their duties as jurors under the Witt standard. "In other words, the question as phrased in the juror questionnaire did not directly address the pertinent constitutional issue. A juror might find it very difficult to vote to impose the death penalty, and yet such a juror's performance still would not be substantially impaired under Witt, unless he or she were unwilling or unable to follow the trial court's instructions by weighing the aggravating and mitigating circumstances of the case and determining whether death is the appropriate penalty under the law." (Stewart, supra, at p. 447; see also People v. Avila, supra, 38 Cal.4th at p. 530 ["we stressed a material flaw in the Stewart questionnaire itself"].) We concluded, therefore, that the trial court erred in excusing five prospective jurors for cause based only on their answers to this problematic question and without further inquiry.
The questions utilized in the present case do not suffer from the defect present in Stewart. The questionnaire form employed here posed 14 questions, some containing subparts, that probed several aspects of the prospective jurors' views on the death penalty. The two questions most directly relevant to the Witt standard were death penalty questions No. 65 and No. 68. Question No. 65 asked: "Could you set aside your own personal feelings regarding what the law ought to be and follow the law as the court explains it to you?" The questionnaire form specifically called for a "yes" or "no" answer to this question. Question No. 68 asked: "Do you have such an opinion concerning the death penalty that, regardless of the evidence that might be developed during the penalty phase of the trial . . . you would automatically and absolutely refuse to vote for the death penalty in any case?" This question did not call for any specific response and was followed by a blank that the prospective juror could use to answer. Unlike the questions posed in Stewart, these two questions, by themselves, were "sufficiently clear" such that a "yes" or "no" answer to each of them would " 'leave no doubt' " as to whether a prospective juror was "willing or able to set aside his or her personal views and follow the law." (People v. Wilson (2008) 44 Cal.4th 758, 787, 790.)
3. The trial court properly dismissed three of four prospective jurors based on only their written responses
Defendant maintains the same objections he raised below -- that the written responses of four prospective jurors to the entire questionnaire, not only questions No. 65 and No. 68, raised sufficient ambiguity to require further examination by the court or counsel to determine whether they should be excused for cause based upon their reservations concerning the death penalty. We conclude that the trial court erred by excusing one of these four prospective jurors for cause without personally examining her.
The four prospective jurors that the trial court excused over defendant's objection are A.K., N.K., E.H., and J.F.
Prospective Jurors E.H. and J.F. wrote "yes" in response to question No. 68, which asked whether the prospective juror would automatically and absolutely refuse to vote for the death penalty in any case. Given that question No. 68 was phrased unequivocally, a prospective juror's decision to write "yes" as an answer clearly established that the prospective juror held a bias against the death penalty that "would 'prevent or substantially impair' " the performance of his or her duties as a juror even if the evidence leaned in favor of imposing death. (Witt, supra, 469 U.S. at p. 424.) In addition, E.H. and J.F. both checked "no" in response to question No. 65, indicating that they could not "set aside" their "own personal feelings regarding what the law ought to be and follow the law . . . ." Although question No. 65, as presented on the questionnaire form, called for only a "yes" or "no" answer, Prospective Juror E.H. further wrote, "no, not if it includes the death penalty."
Prospective Jurors E.H. and J.F. also made clear that they opposed capital punishment in answering other death-penalty-related questions.*fn11 When asked to describe her "general feelings regarding the death penalty" in question No. 57, E.H. wrote her belief that "it is wrong to take a life for any reason, the chance of error is too great," and she also expressed her thought that the penalty was imposed too randomly. Similarly, in describing her "general feelings regarding the death penalty," J.F. wrote that the government "should not have the right to execute a citizen" because of the possibility of innocence. (Original underscoring.) When expressing her feelings about the frequency with which the death penalty is used, J.F. wrote, "I feel uncomfortable whenever it is used." Although in other death-penalty-related questions, E.H. and J.F. both wrote that they would consider all the evidence before deciding whether the death penalty was appropriate, and E.H. wrote that her views on the death penalty would not automatically cause her to refuse find a defendant guilty of murder or to find true a special circumstance allegation, their answers to these questions did not indicate that they could actually impose a verdict of death. Based on their answers to questions No. 65 and No. 68, E.H. and J.F. clearly could not do so, and they were properly excused as a result.
Like Prospective Jurors J.F. and E.H., Prospective Juror A.K. wrote "yes" in response to question No. 68, meaning that he would automatically and absolutely refuse to vote for the death penalty in any case. Although he wrote "yes" in response to question No. 65, indicating that he could "set aside" his "own personal feelings regarding what the law ought to be and follow the law," as to question No. 66, which asked whether his opposition to the death penalty would cause him to "refuse to vote" for a verdict of murder in the first degree even if the prosecution proved guilt beyond a reasonable doubt, A.K. wrote "yes." In describing his feelings about the death penalty, A.K. wrote "I desagri [sic]." He wrote that he believed the death penalty was used too often. Again, his answers to this question clearly indicated that A.K.'s personal views about the death penalty "would 'prevent or substantially impair' " performance of his duties as a juror even in the face of what the law required. (Witt, supra, 469 U.S. at p. 424.)
Unlike the three previously described prospective jurors, however, N.K. expressed her support for the death penalty, writing that she favored the reinstatement of capital punishment in California. She believed the death penalty "is not used enough" and observed that the sentence is not carried out "for many years later." N.K. also wrote "no" in response to question No. 68, indicating that she would not automatically and absolutely refuse to vote for the death penalty in any case.
But Prospective Juror N.K.'s other responses were inconsistent with her expressed support of the death penalty and her ability to set aside her views. When asked in question No. 66 whether she would refuse to vote in favor of defendant's guilt of murder in the first degree, even if it were proved beyond a reasonable doubt, because she opposes the death penalty and would not want the jury to have to consider the death penalty, N.K. responded "yes." N.K. checked "no" in response to question No. 65, indicating that she could not "set aside" her "own personal feelings regarding what the law ought to be and follow the law . . . ." As to question No. 71, which asked whether the prospective juror had any views that might affect the prospective juror's ability to be fair and impartial or cause her to be unable to serve as a juror, she answered "yes." N.K. further explained, "I'm afraid I could not feel right in imposing the death penalty on someone even though I feel it is nessasary [sic] under some circumstances."
In light of N.K.'s other answers expressing her support for the death penalty, her inconsistent answers are susceptible of two interpretations -- either she, like other jurors not disqualifiable under Witherspoon-Witt, feared that actually being on a death jury would be difficult or uncomfortable, or she was advising the court that she could not impose a decision of death, even if the evidence warranted its application. From the questionnaire alone, we cannot possibly determine which scenario prompted her answers. Under these circumstances, N.K.'s answers did not clearly reveal that she was unable to impose the death penalty, thereby preventing her from performing her duties as a juror.
Accordingly, we conclude the trial court erred by failing to question Prospective Juror N.K. in open court to determine whether she was excusable as someone who could not face of the enormity of the task of judging life or death.
The general rule is that, absent a showing of prejudice, an erroneous excusal of a prospective juror for cause does not mandate the reversal of judgment. This rule is based on the principle that a "[d]efendant has a right to jurors who are qualified and competent, not to any particular juror." (People v. Holt (1997) 15 Cal.4th 619, 656.) But as previously noted, under existing United States Supreme Court precedent, the erroneous excusal of a prospective juror for cause based on that person's views concerning the death penalty automatically compels the reversal of the penalty phase without any inquiry as to whether the error actually prejudiced defendant's penalty determination. (Gray, supra, 481 U.S. at pp. 659-667 (opn. of the court); id., at pp. 667-668 (plur. opn. of Blackmun, J.); id., at p. 672 (conc. opn. of Powell, J.).)
Under compulsion of Gray, we reverse defendant's penalty phase verdict.
B. Asserted Errors During Jury Selection
Despite our reversal of the penalty phase verdict, we will address defendant's other claims of error during jury selection to the extent that they may also implicate the validity of his guilt phase verdict. Defendant claims the trial court committed error under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) by finding no prima facie case of discrimination based on the prosecutor's use of peremptory challenges to remove a total of six African-American prospective jurors.*fn12 He alleges the trial court's finding violated his state constitutional right to a trial by a jury drawn from a representative cross-section of the community, and that this assertedly biased selection of jurors violated his Sixth Amendment right to an impartial jury and his Fourteenth Amendment right to equal protection under the federal Constitution. We conclude the trial court properly denied defendant's objection to these peremptory challenges.
Defendant is Caucasian, as were the victims. One of defendant's defense attorneys, Carl Jones, was African-American.
After an initial screening of prospective jurors based on hardships and their answers to the jury questionnaire, the trial court began general voir dire of the remaining prospective jurors. The court randomly called a group of 23 prospective jurors into the jury box and examined them individually and as a group. After addressing the first 23 prospective jurors, the court resolved excusals for cause, and then allowed each party in turn to use a peremptory challenge against only the first 12 seated prospective jurors. If a party exercised a challenge against one of the first 12 prospective jurors, the next-numbered prospective juror from seats 13 through 23 would replace that challenged prospective juror. The parties continued to exercise their peremptory challenges until only 12 prospective jurors remained from the first group of 23. At that point, the court randomly called another group of 11 prospective jurors to repopulate seats 13 through 23, and another round of questioning would begin again. After four such rounds, each party exhausted its 20 peremptory challenges and the court swore in the first 12 jurors.
At the beginning of the first round, of the first 12 seats, three were occupied by African-Americans, C.B., E.C., and E.G. Near the end of the first round, each side used four peremptory challenges, and one of the prosecutor's peremptory challenges included E.C. At this point, the prosecutor accepted the panel, which still included three African-Americans, C.B., E.G., and newly added Prospective Juror D.P. The defense did not accept the panel and exercised another peremptory challenge against a prospective juror, who was then replaced by D.H., another African-American. The prosecutor then used his fifth peremptory challenge to remove D.H. D.H. was then replaced by M.F., another African-American. After the defense used its sixth peremptory challenge, the court stopped the challenges and began the second round by calling another group of 11 prospective jurors to fill seats 13 through 23. At the beginning of the second round, the first 12 prospective jurors included four African-Americans, C.B., D.P., E.G., and M.F.
Near the end of the second round, the prosecutor exercised his sixth peremptory challenge against M.F., and the defense responded with its first Wheeler motion. Defense counsel pointed out that the prosecutor had used three of his challenges against African-American jurors, and claimed that there was a prima facie showing of discrimination based on race, because Prospective Jurors D.H. and M.F. were "ideal prosecution jurors were they not Black." Before the trial court ruled on whether there had been a prima facie showing, the prosecutor claimed that he challenged D.H. and M.F. because "they were bad on death." The court agreed with the prosecutor's assessment and denied defense counsel's motion.
After the defense exercised its seventh peremptory challenge, the prosecutor accepted the panel, which then contained three African-American Prospective Jurors C.B., D.P., and E.G. The defense did not accept the panel, and the parties continued to exercise their peremptory challenges. The prosecutor used his ninth peremptory challenge against D.P., and the defense made a second Wheeler motion. Defense counsel stated that there was nothing about D.P.'s answers besides "her skin color that would lead her to being challenged." The prosecutor interjected, "[o]ther than the fact that she was arrested," and the trial court denied the motion. After the defense exercised another peremptory challenge, the prosecutor accepted the panel for a third time, which then contained two African-Americans, Prospective Jurors C.B. and E.G. The defense did not accept the panel, and the parties continued to exercise their peremptory challenges until the end of the second round.
Near the end of the third round, after using his 11th peremptory challenge, the prosecutor accepted the panel for a fourth time, at which point the panel still contained two African-Americans, Prospective Jurors C.B. and E.G. The defense did not accept the panel, and the prosecutor's next peremptory challenge brought a third African-American, Prospective Juror R.B., into the first 12 seats. The prosecutor then used his 13th peremptory challenge to remove C.B. After the defense exercised another peremptory challenge, the prosecutor accepted the panel for a fifth time, at which point the panel contained two African-Americans, Prospective Jurors R.B. and E.G. The defense did not accept the panel, and the parties continued to exercise their peremptory challenges.
At the end of the third round, the defense made its third Wheeler motion, claiming that the removal of C.B., despite being accepted on the jury panel by the prosecutor previously, and the removal of the other African-American prospective jurors, revealed a "prima facie case as to the systematic exclusion of minorities." Defense counsel stated that none of C.B.'s answers justified her removal, and the prosecutor did not offer a reason for her removal at that time. The trial court denied defendant's motion.
Near the end of the fourth round, the defense exhausted its peremptory challenges, but the prosecution had five remaining. The prosecutor's next peremptory challenge brought a third African-American, Prospective Juror D.M., into the first 12 seats. The prosecutor then used his 17th peremptory challenge to remove D.M. After the prosecutor exhausted his last three peremptory challenges, the court empanelled the 12 remaining jurors.
After selection of the four alternate jurors,*fn13 the defense made its fourth Wheeler motion, claiming that there was no good cause to remove D.M. and that there was a prima facie showing of bias because none of D.M.'s answers "were out of the ordinary." Although the trial court denied the motion, the prosecutor explained that he was uncomfortable with D.M.'s responses concerning the relevance of evidence of flight and he "didn't like his earring." As for the other African-American prospective jurors he challenged, the prosecutor stated he made his challenges based on their ability to decide the death penalty and whether "they or someone close to them had some type of record." Defense counsel responded that there was a seated Caucasian juror who had an earring and other seated Caucasian jurors with arrest records. The prosecutor replied, "What about little earring versus big earring?"
The 12-person jury consisted of two African-American Jurors, R.B. and E.G., one Hispanic juror, eight Caucasian jurors, and one juror who declined to state her race on the jury questionnaire. In all, 57 prospective jurors were subjected to voir dire to select the first 12 jurors.
Procedures governing motions alleging the discriminatory use of peremptory challenges are settled. "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.' [Citation.] 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.)
Here, in three of the four Wheeler motions, before the trial court explicitly addressed whether a prima facie showing of discriminatory purpose had been made, the prosecutor explicitly volunteered his actual reasons for the contested peremptory challenges. As to one Wheeler motion, the court simply denied it without the prosecutor immediately offering a race-neutral reason for the excusal, but, as we will explain, the prosecutor did eventually supply a reason, in response to defendant's last Wheeler motion. Moreover, in denying defendant's first Wheeler motion, the court expressly agreed with the prosecutor's reasons, and thereafter appeared implicitly to agree with the prosecutor's reasons given in response to defendant's subsequent Wheeler motions. We have characterized such a circumstance as a "first stage/third stage Batson hybrid," which renders " 'moot' " whether defendant established a prima facie showing of a discriminatory purpose. (People v. Mills (2010) 48 Cal.4th 158, 174 (Mills), quoting People v. Lenix (2008) 44 Cal.4th 602, 613, fn. 8 (Lenix).) "Accordingly, we express no opinion on whether defense counsel established a prima facie case of discrimination and instead skip to Batson's third stage to evaluate the prosecutor's reasons for dismissing [the] African-American prospective jurors." (Mills, supra, at p. 174; see also People v. Booker (2011) 51 Cal.4th 141, 165.)
"[T]he critical question in determining whether a prisoner has proved purposeful discrimination" at a third-stage inquiry "is the persuasiveness of the prosecutor's justification for his peremptory strike. At this stage, 'implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.' [Citation.] In that instance the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." (Miller-El v. Cockrell (2003) 537 U.S. 322, 338-339 (Miller-El I), quoting Purkett v. Elem (1995) 514 U.S. 765, 768.) " 'In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province." ' " (Miller-El I, supra, at p. 339, quoting Witt, supra, 469 U.S. at p. 428.)
Accordingly, because the trial court is "well positioned" to ascertain the credibility of the prosecutor's explanations and a reviewing court only has transcripts at its disposal, on appeal " 'the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal' and will not be overturned unless clearly erroneous." (Miller-El I, supra, 537 U.S. at pp. 339, 340, quoting Hernandez v. New York (1991) 500 U.S. 352, 364.)
Finally, given that we are engaging in a third-stage inquiry, we will examine defendant's claim that a comparative juror analysis shows that the prosecutor's stated reasons for striking the African-American prospective jurors were pretextual because non-African-American prospective jurors were not challenged for similar reasons. (Lenix, supra, 44 Cal.4th at p. 622.) Defendant summarily raised such comparisons at the trial court, and we will consider additional comparisons he raises for the first time on appeal because, if the record permits such comparisons, they can provide useful " 'circumstantial evidence' " in determining "the legitimacy of a party's explanation for exercising a peremptory challenge." (Mills, supra, 48 Cal.4th at p. 177, quoting Lenix, supra, at p. 627.) Nevertheless, " 'we are mindful that comparative juror analysis on a cold appellate record has inherent limitations.' [Citation.] In addition to the difficulty of assessing tone, expression and gesture from the written transcript of voir dire, we attempt to keep in mind the fluid character of the jury selection process and the complexity of the balance involved. 'Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or ...