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The People v. Kenneth Mckinzie

August 2, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KENNETH MCKINZIE, DEFENDANT AND APPELLANT.



Court: Superior County: Ventura Judge: Vincent J. O'Neill

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

Ventura County Super. Ct. No. CR40930

A jury convicted defendant Kenneth McKinzie of first degree murder (Pen. Code, §§ 187, subd. (a), 189) and found true the robbery-murder and burglary-murder special circumstance allegations (Pen. Code, § 190.2, subd. (a)(17); all undesignated statutory references hereafter are to this code). The jury also convicted defendant of first degree robbery (§§ 211, 212.5, subd. (a)), first degree burglary (§§ 459, 460, subd. (a)), carjacking (§ 215, subd. (a)), and kidnapping for robbery (§ 209, subd. (b)), finding as to these counts that the victim was 65 years old or older (§ 667.9, subd. (a)). The jury additionally convicted defendant of two counts of second degree burglary (§§ 459, 460, subd. (b)). The jury deadlocked during the penalty phase, and the trial court declared a mistrial. A second jury was empanelled and, after a new penalty phase, returned a verdict of death. The trial court imposed a sentence of death for the murder. With respect to the remaining counts, the trial court imposed a prison term of life for the kidnapping count plus one year for the elderly victim enhancement, the upper term of nine years for carjacking plus one year for the elderly victim enhancement, and one-third the midterm each for first degree burglary (16 months) and the two second degree burglary counts (eight months each), running these terms consecutively and staying the remaining terms. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We conclude, and the Attorney General concedes, that the judgment should be modified to stay the sentence on the carjacking count. As modified, we affirm the death judgment.

I.

A. Guilt Phase

1. Prosecution Case

At approximately 9:00 a.m. on December 22, 1995, two men discovered the body of 73-year-old Ruth Avril in a drainage ditch at the end of Arnold Road in Oxnard, an agricultural area near the beach. Avril's body was partially submerged in one-and-a-half to two feet of water. The body had no identification, and there were no signs that rigor mortis or livor mortis (blood settling) had begun. Dr. Janice Frank, assistant medical examiner for Ventura County, performed an autopsy, which revealed numerous lacerations and blunt force injuries throughout Avril's body, particularly in the head, face, and neck areas. Avril had a laceration near her left temple and a group of lacerations near her left eye, which could have been caused by a single blow or multiple blows. Avril's right eye was swollen shut, and she also had a "continuous bruise that involved the whole right side of [her] face" as well as a deep laceration on her right cheek that went to the bone. Frank saw petechial hemorrhaging inside of Avril's eyes, which could have been caused by compression of blood vessels in the neck that prevented blood from leaving the head. This type of compression, as well as bruising on Avril's neck and deep neck hemorrhaging, was consistent with manual strangulation. Avril also had suffered subdural hemorrhaging around the brain consistent with blunt force trauma. Frank, who had examined Avril's Ford Taurus, opined that some of Avril's head injuries could have been caused by the edge of the Taurus's trunk lid hitting her head. Frank concluded that the cause of death was "blunt force injuries to the head and manual strangulation." Based upon Avril's body temperature, the presence of rigor mortis or livor mortis, and fluidity of the eye, Frank estimated the time of death to be between 9:00 or 10:00 p.m. on December 21, 1995, and 2:00 or 3:00 a.m. on December 22, 1995.

At the time of her death, Avril lived at 410 East Dollie Street in Oxnard in a three-unit apartment building that she owned. She lived on the top floor and rented out the other two units, one of them to Maria Aragon. Aragon saw Avril daily as Aragon came home from work. Avril owned a black Ford Taurus, which she parked in her garage. Avril routinely left her garage door open until she went to close it at around 11:00 p.m. Aragon last saw Avril at the apartment shortly after noon on December 21, 1995. Aragon eventually reported Avril missing on January 1, 1996. On that date, Oxnard Police Officer Steven Funk accompanied Aragon to Avril's apartment. The front door to Avril's apartment was unlocked and showed no signs of forced entry. Funk and Aragon entered the apartment to find it had been ransacked. The living room had a stereo cabinet, but there was no stereo inside. A Christmas tree had been put up, but there were no presents underneath. The contents of Avril's purse had been dumped onto the living room floor. In one bedroom, the dresser drawers had been pulled out, and empty gift boxes were on the floor.

Edwin Jones, senior criminalist for the Ventura County Sheriff's Department, examined Avril's Ford Taurus, which was found in an Oxnard parking lot. Jones found bloodstains and blood spatters inside the Taurus's trunk. Testing of the blood for DNA revealed that the blood came from Avril. The presence of "blood swipes" inside the trunk lid led Jones to conclude that Avril had been placed in the trunk while still alive. Jones also analyzed blood evidence found in Avril's garage and examined photos of the garage. There was a large area of blood near the center of the garage. Blood spatters appeared to have originated from this area onto the nearby wall and further into the garage. Based upon the blood spatter evidence, Jones concluded that Avril had been struck at least twice inside the garage.

Defendant lived with his girlfriend, Peggy Garner, and her three sons in an apartment at 421 Helena Way, across an alley from Avril's building. Prior to Christmas 1995, defendant and one of Garner's sons had helped Avril carry her Christmas tree into her apartment.

The preliminary hearing testimony of defendant's friend Ralph Gladney, who died before trial, was read to the jury as follows. Late one night, a couple of days before Christmas 1995, defendant went to Gladney's house and asked if Gladney knew anyone who needed a camera and stated he needed money because he was "broke." Defendant later inquired of Gladney whether Gladney knew of a woman who could help defendant use an ATM card that belonged to defendant's girlfriend. The following day, Gladney went with defendant to a motel room, where defendant told Gladney he "may have killed someone." Defendant explained he had attacked a "nice" woman who lived on Dollie Street whom he knew and "usually helps." Defendant waited for her outside of her garage, then attacked her inside the garage. Defendant "kept hitting her and hitting her" because she would not stop yelling, and he also choked her. Defendant then put the woman in the trunk of her car and "drove her off somewhere in Malibu." Defendant explained to Gladney that he attacked the woman because he needed money for Christmas presents for his children.

Theresa Johnson had known defendant since 1990, and defendant had helped her move a few days prior to Christmas 1995. Late at night, a day after Johnson's move, defendant, whose hands appeared swollen, arrived at Johnson's apartment and asked where he could get drugs. Defendant later showed Johnson a stack of credit cards and an ATM card along with a driver's license depicting an older Caucasian woman. Defendant asked Johnson if she knew how to use the ATM card, and she replied she did. They left in a car Johnson identified at trial as Avril's and drove to a market where Johnson used the ATM machine inside the store. Defendant had given Johnson the PIN number, which was written on a piece of paper, and Johnson used the card twice, withdrawing about $100 each time. They then drove to a convenience store where Johnson again used the ATM card and gave the money to defendant. Defendant gave Johnson $160 and dropped her off at her apartment. Defendant returned a short while later with drugs, and the two of them smoked rock cocaine. At some point, defendant told Johnson that he might have killed someone. Defendant described a woman who lived down the alley from him whom he had seen earlier that day. He had taken her Christmas tree into her residence. Defendant stated that the woman turned off her lights at the same time every night and that he waited for her in the garage to rob her. He hit her with his fists and tried to knock her out, but he could not. As she screamed, defendant continued to hit her, then eventually put her in the trunk of her car and hit her in the head with the trunk lid. Defendant drove her around as she continued to scream from the trunk. Defendant ended up on a back road, pulled the woman out of the trunk, hit her, and threw her into a ditch while she was still alive. Defendant admitted the ATM card they had used belonged to this woman. After this conversation, defendant put on some sunglasses, Johnson donned a wig, and the two drove to a bank to use the ATM again, this time without success. Defendant dropped Johnson off and later returned in a taxi, stating he had "ditched" Avril's car.

Either later the same day or the next day, defendant arrived at Johnson's apartment with an "arm[ful]" of wrapped presents that he said he had obtained from Avril's residence. They opened the presents, which included a doll which defendant gave to Johnson's daughter and some shirts which defendant kept. Defendant later returned to Johnson's apartment with stereo equipment and a VCR. Johnson phoned her sister's boyfriend, C.J. Brewer, who bought the stereo equipment from defendant for $150.

In late December 1995, defendant went to the residence of Erania McClelland, the mother of defendant's daughter Kenisha, and gave to Kenisha a box containing a camera, a small television, and a shirt. Defendant also gave Kenisha a pink robe. McClelland eventually gave the camera to a police investigator. Film from the camera was developed and revealed a photo of Avril and photos of her neighbors. At trial, Avril's daughter-in-law identified the pink robe as the same one she had purchased for Avril as a Christmas present in 1995.

2. Defense Case

Donald Thomas lived two blocks from Avril and met her when he was about seven or eight years old and began doing odd jobs for her. He had known her for about 11 to 12 years prior to her death. In 1991, Thomas installed some stereo equipment in Avril's apartment and, about three months prior to her death, helped her move it. Thomas last saw Avril on December 20 or 21, 1995, when she waved to him as he was playing cards in the garage of a friend's house across the alley from Avril's building. Thomas learned of Avril's death approximately a month later when police detectives talked with him. The detectives also told Thomas that Avril had been beaten to death, and he later conveyed this to his friend. Without prompting from the detectives, Thomas inquired of the detectives whether Avril's stereo had been stolen because he had heard that defendant had a stereo for sale and Thomas was "suspicious" of defendant. Thomas said he knew Avril's body had been dumped off of Arnold Road because that fact had been mentioned in the newspaper. Thomas denied telling an ex-girlfriend that he went into an apartment to steal a television and VCR but "panicked" when the occupant awoke. Thomas also denied any involvement in Avril's death or taking anything from her apartment. Thomas acknowledged having moved to Oregon a few days after defendant's arrest in January 1997 but said that was merely a coincidence.

Oxnard Police Detective Michael Palmieri spoke with Thomas on the phone on January 3, 1996. Thomas indicated that the Black Mafia gang had been responsible for various burglaries and robberies in the area, and he opined that the gang might have been involved in Avril's death. Thomas also asked if Avril's stereo had been stolen and offered to identify it if it was recovered. In a later interview, Thomas reiterated his concern over the Black Mafia gang and also named defendant as a possible suspect, though Thomas did not specify why he suspected defendant.

James Young testified that he was in Thomas's bedroom with Thomas's girlfriend when Thomas described a burglary. Thomas said he went to an apartment "across from the garage" where they would "hang out" and obtained a television and VCR, when someone woke up and things got "bad."

Dr. Ronald Siegel, a psychopharmacologist, testified generally regarding the effects of cocaine on the body. Cocaine might make a person more paranoid and may adversely affect long-term memory.

Defendant testified that he had known Avril as he occasionally helped her with various tasks. Around Christmas 1995, defendant and his ex-girlfriend's son carried Avril's Christmas tree into her apartment and helped her set it up. Sometime afterward, but in the same timeframe, defendant saw Thomas in a car with some other men. Thomas showed defendant a VCR and some credit cards, and asked if he wanted to buy them. Defendant offered to sell the VCR for him, and Thomas let defendant take the car he had. Defendant also offered to take the credit cards to find out how they could be used. Defendant drove the car to Gladney's residence and sold him the VCR for $40, keeping $10 and giving the remainder to Thomas. After selling the VCR, defendant drove to Johnson's house to see if she could use the cards. Defendant and Johnson smoked some cocaine, and Johnson agreed to use the cards. They drove to a grocery store and then a convenience store where Johnson used the cards to withdraw money. After the two returned to Johnson's house and smoked some more drugs, defendant left to give Thomas a share of the money. When defendant met up with Thomas, Thomas showed defendant a stereo and asked if defendant could sell it. Thomas then told defendant that he had obtained "the stuff" from Avril and "she got beat." Thomas claimed "they" put Avril's body in the trunk of her car and drove her to Malibu. Thomas eventually gave defendant a stereo, bathrobe, camera, and a stuffed animal. Defendant drove the items to Johnson's apartment. Because he "couldn't deal with it" anymore, he told Johnson the items came from Avril, who had been beaten and her body dumped. At some point, defendant figured out the car given to him by Thomas was stolen because he had seen Avril's photo on one of the credit cards, and he decided to drive the car to a motel parking lot. Defendant later spoke to Thomas, who elaborated that "[t]hey waited on her and things got bad." Defendant eventually gave the camera and bathrobe to his daughter, and Johnson helped him sell the stereo. Defendant denied killing or beating Avril.

B. Penalty Phase

1. Prosecution Case

As noted, the first jury deadlocked at the penalty phase, and the penalty phase was retried to a second jury. Part of the evidence at the second penalty phase trial consisted of recounting the crime facts in a manner that mirrored the guilt phase as recounted above. In addition to this evidence, the following was presented at the second penalty phase trial.

About a month before the start of the second penalty phase trial, Ventura County Sheriff's Deputy Anthony Bellissimo was transporting defendant from his cell in preparation for a jail visit when another inmate asked defendant how his case was going. Defendant responded that he was going to see his psychologist and that "the D.A. didn't know this yet, but he was going to plead guilty, that he had killed a 73-year-old lady and that he needed to take responsibility for his actions" so he could "go with dignity if that was the case." After his jail visit, defendant asked Bellissimo not to say anything because " '[i]t will mess up [his] case.' "

Avril's daughter-in-law, Janet, testified that Avril had worked for General Telephone until she retired when she was 67 years old. Avril had lived alone after her divorce in 1945 or 1946 and had lived in Oxnard as long as Janet had known her. Avril had one son, Richard, and Janet and Richard came to visit every Christmas.

Aragon testified that she had known Avril for 18 years prior to her death and that they met when Aragon rented a unit in Avril's building. Avril was "[v]ery independent" and active with gardening, baking, and crafts. She was "very patriotic," had a flag outside her building, and sent cards to her friends for birthdays and Christmas. Several days after she had last seen Avril, Aragon was contacted by the police and identified photos of Avril.

McClelland testified that she was defendant's girlfriend between 1975 and 1987 and that they had a daughter together. Their relationship was "on and off," and they had "violent confrontations" about twice a year. McClelland suffered some "painstaking injuries" as a result of these confrontations, including black eyes and bruises. In one incident, defendant put a gun in McClelland's mouth. In January 1988, after their relationship had ended, defendant confronted McClelland at a bar, demanded money, then beat her when she did not comply until she gave him $10. On cross-examination, McClelland agreed that she and defendant were "mutually involved" in fighting. During McClelland's pregnancy, defendant treated her "very well." McClelland said defendant was a good, attentive father but acknowledged that defendant was incarcerated for most of the time their daughter was growing up.

In January 1990, defendant's sister Darlene was living with her parents and her two sons. One day, defendant came to the house, they fought, and he hit her and her mother. She told police that defendant had grabbed her by the neck and thrown her across the room. Darlene told a police investigator that in one incident, defendant had tried to burn his sister Wylene with an iron when she "said something" about defendant's girlfriend Garner. In another incident, defendant had hit Darlene and pulled her hair. Darlene also told the investigator that defendant had been physically violent with her and her sister at least 20 times, although she said at trial that she had exaggerated the claim.

Garner was defendant's girlfriend from 1986 until his arrest in the instant case, and they had a son together. In May 1995, defendant came to her apartment late at night, broke her window, demanded to be let in, and accused Garner of being with another man. Garner denied that defendant hit her on this occasion. Garner claimed defendant was good to their child and her sons; they would eat together, and defendant wrote letters from jail. But Garner admitted having written a letter to defendant's parole officer in October 1996 in which she said she wanted defendant to have only one-hour supervised visits, out of concern for her son's safety.

One of Garner's sons, Donnie Bullard, testified that defendant took the place of his father and that defendant never hit him. With respect to the May 1995 incident, defendant entered their apartment, Garner swung an ashtray at defendant, and Bullard and his brother Ronald Thompson physically separated them. Defendant only grabbed Garner in self-defense. Thompson testified that although he saw defendant and Garner struggle a little, he did not see defendant hit her. Defendant never hit Thompson, they did a lot of activities and sports together, and Thompson loved him like a father. Oxnard Police Officer Felice Epps responded to a domestic violence call in May 1995. Garner told Epps that defendant had broken a window of her apartment and that when Garner let him in, he ran inside and accused her of being with a man. Defendant then grabbed her by the neck and pulled her arm. Thompson told Epps that he saw defendant and Garner struggling and that he eventually wrestled defendant away from Garner.

Maria Garcia testified that, in June 1983, she and her sister went to an Oxnard bank where she cashed a check for $1,000. As Garcia returned to her car, defendant ran up to her, hit her in the face, and tried to take her purse. Garcia pushed defendant, and he ran off. Garcia was afraid for a couple of years after the attack.

In June 1994, Jon Snyder worked as an orderly at the Ventura County Jail commissary. One day, Snyder called out the name of Joel Epperson, and defendant approached with a nonstandard armband to claim Epperson's commissary items. Suspicious, Snyder did not give defendant the items and reported the incident to his supervisor. Epperson testified that he received his commissary items the next day. Defendant approached Epperson, stated he had "picked up a felony charge" for trying to get Epperson's commissary, and demanded Epperson give him half of his items or he would kill him. Epperson obliged.

The parties stipulated that defendant had been convicted of four prior felonies: grand theft auto in 1978, attempted burglary in 1979, attempted robbery in 1983, and possession of a controlled substance in 1994.

2. Defense Case

According to defendant's father, defendant was a "good little boy until he [grew] up [a] little bit," and he taught defendant how to do construction work. They went fishing, defendant did work around the house, and he was respectful. Defendant's mother described defendant as "smart" and said he was "very good" about helping around the house. She conceded defendant had previously struck her, but he apologized thereafter. A couple of weeks before her testimony, defendant confided in her that he had killed Avril.

Defendant testified and admitted killing Avril and having lied at the first trial. He decided to tell the truth to defense counsel and his parents, and he felt relieved. Defendant recounted he had learning problems in school and began skipping class. He regretted not staying in school and getting help. Defendant started using drugs as a teenager when he stopped attending school and smoked PCP almost daily. He used cocaine after a state prison term, and he began to smoke it every day. Defendant explained the circumstances that led to him to strike his sister Darlene. Darlene had disobeyed their mother and "got smart" with defendant, and he threw her against a wall while she also hit him. Defendant helped raise Garner's sons, and he was proud of them. Defendant admitted trying to take McClelland's purse, and he pleaded guilty and served a prison term for that offense. With respect to the present offenses, defendant recounted that he had no money to buy his family Christmas presents. He was smoking outside, thinking about how to get money, when he saw Avril's car and decided to rob her, without a plan. Defendant approached the garage next door, removed his shoes, put his socks on his hands, and waited. He grabbed Avril when she turned off the garage lights. Avril bit him, and he hit her multiple times until she was unconscious. He did not plan to kill her, and he just "acted stupid." Defendant carried Avril to the trunk of Avril's Ford Taurus, placed her inside, and slammed the trunk lid on her head as she started to regain consciousness. Defendant had blood on him, so he drove to his parents' house and changed clothes. Defendant then drove around and eventually decided to leave Avril on Arnold Road. Defendant helped Avril out of the trunk, and she slipped and fell into a ditch. Defendant denied strangling Avril. Defendant did not realize Avril would die in the ditch, and he just wanted to get away from her. He then recounted how he sold a VCR to Gladney and talked to Johnson about Avril's ATM and credit cards. Defendant told Johnson about what he had done because he felt bad about it.

II.

A. Jury Selection

1. Wheeler/Batson

Defendant contends that the prosecutor's use of a peremptory challenge against a single African-American prospective juror was improperly based upon race. "The prosecution's use of peremptory challenges to remove prospective jurors based on group bias, such as race or ethnicity, violates a defendant's right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution and his right to equal protection under the Fourteenth Amendment to the United States Constitution." (People v. Blacksher (2011) 52 Cal.4th 769, 801 (Blacksher); see Batson v. Kentucky (1986) 476 U.S. 79, 89; People v. Wheeler (1978) 22 Cal.3d 258, 276-277.) "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; see People v. Thomas (2011) 51 Cal.4th 449, 473 (Thomas).)

Before the final phase of the selection process for the first jury, defense counsel raised a concern that "[t]here are very, very few black jurors in this panel" and requested that the prosecution be required to justify the exercise of a peremptory challenge against any African-American prospective juror because "if we wait until there's a systemic exclusion, there won't be any left." Defense counsel estimated that there were "three, possibly four" African-American jurors in a jury pool of 72, and the estimate was not challenged. The trial court noted that the proportion was "entirely normal in this county, the way the population is made up . . . ." The trial court denied the defense request, but the parties agreed they would approach the bench if the prosecution decided to peremptorily challenge an African-American prospective juror.

The prosecutor later indicated he would be exercising a peremptory challenge against Prospective Juror K.S., the only African-American person then on the petit jury. Defense counsel made a Wheeler motion, noting that K.S. indicated during individual questioning that he could be fair, that he had previously applied to work as a police officer, and that he had marked "8" on a scale of 1 to 10 that he was in favor of capital punishment (with 10 indicating strongly in favor and 1 strongly opposed). After examining K.S.'s jury questionnaire, the trial court found that the defense had not made a prima facie case of discrimination, but "in an abundance of caution," the trial court asked the prosecutor to state his reasons for the challenge. The prosecutor explained K.S. had been convicted of domestic violence recently (in 1997), and the prosecution's penalty phase evidence would include defendant's acts of domestic violence against various family members. The prosecutor also indicated K.S.'s "lifestyle does not particularly thrill me," stating that K.S. indicated he spent "his spare time playing basketball, darts and dancing, so he doesn't seem to have a whole lot of depth in areas that I would deem to be important." The prosecutor noted K.S. also indicated he had had "a bad experience with the police" regarding a traffic stop. Finally, the prosecutor suggested K.S. might "have a bad attitude" because he "kind of swaggered into the court" and "sat there with . . . his chin on his palm of his hand, resting his elbow on the arm of the chair, which seemed to be kind of a disrespectful attitude toward the whole process and the seriousness of this trial." The trial court commented that, had it found a prima facie case, "I'd be finding those reasons adequate and highlighted by [K.S.]'s own brush with the law."

Defendant argues that the prosecutor's reasons for challenging K.S. were pretextual. He notes that the prosecutor did not challenge several jurors who had similar hobbies, nor did the prosecutor challenge at least two jurors who previously had had negative police contacts. Initially, the trial court did not find a prima facie case of discriminatory use of a peremptory challenge. However, because "the trial court requested the prosecutor's reasons for the peremptory challenges and ruled on the ultimate question of intentional discrimination," "whether defendant established a prima facie case is moot." (People v. Lenix (2008) 44 Cal.4th 602, 613, fn. 8 (Lenix).) "We thus proceed to determine whether the trial court erred in finding that the prosecutor's reasons for exercising his peremptory challenge . . . did not show purposeful racial discrimination." (Thomas, supra, 51 Cal.4th at p. 474; see People v. Mills (2010) 48 Cal.4th 158, 174 [noting the case was "a first stage/third stage Batson hybrid" and stating "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 six African-American prospective jurors"] (Mills).)

"[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it." (Miller-El v. Dretke (2005) 545 U.S. 231, 251-252.) "[E]vidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record is adequate to permit the urged comparisons." (Lenix, supra, 44 Cal.4th at p. 622; see Miller-El, supra, 545 U.S. at p. 241 ["If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step."].) "[C]omparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination." (Lenix, supra, 44 Cal.4th at p. 622; see People v. Lomax (2010) 49 Cal.4th 530, 572.) "[A] retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial. In that situation, an appellate court must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable." (Snyder v. Louisiana (2008) 552 U.S. 472, 483.)

As the trial court here observed, K.S.'s "own brush with the law" rendered him materially dissimilar to the other seated jurors, irrespective of any similarities in hobbies. "[S]pecific bias may be properly inferred from the juror's prior arrest or conviction . . . ." (People v. Allen (1989) 212 Cal.App.3d 306, 312.) When the prosecutor questioned him about his prior domestic violence conviction and inquired whether he felt he had been "treated fairly by the criminal justice system," K.S. responded, "I'm not really sure [how] to answer that question. I don't know." When asked if his prosecution left "a bad taste in [his] mouth for the criminal justice system," K.S. responded that the "financial burden" the process placed on him "sort of hurt" his "family situation." Notwithstanding K.S.'s assurance that he could be fair to both sides, the prosecutor could have surmised otherwise based upon K.S.'s responses to questions concerning his prior conviction. (See People v. Ledesma (2006) 39 Cal.4th 641, 679 [challenged juror's prior convictions for brandishing a weapon and driving under the influence distinguished him from other jurors with traffic citations].) Further, given the proposed penalty phase evidence regarding defendant's prior acts of domestic violence, the prosecutor could have reasonably concluded that K.S. might be sympathetic to defendant. (See People v. Watson (2008) 43 Cal.4th 652, 675 [substantial evidence supported the trial court's finding of no discrimination where the challenged juror's "voir dire answers . . . suggested she might be overly sympathetic to an individual with defendant's background"]; People v. Stanley (2006) 39 Cal.4th 913, 940 [finding sympathy for defendant a valid race-neutral reason for peremptory challenge] (Stanley).)

Even if the prosecutor's assertions that K.S. lacked "depth" based upon his hobbies and had a "bad attitude" based upon his "swagger" were relatively weak bases for challenging K.S., the prosecutor's first stated concern regarding the prospective juror -- his recent domestic violence conviction -- unquestionably constituted a valid, race-neutral ground for the challenge. In sum, the trial court could reasonably find the totality of the record supported a conclusion the prosecutor's challenge was not based upon group bias.

2. Prosecutorial Misconduct

Defendant argues that the prosecutor committed prejudicial misconduct under the state and federal Constitutions by "leaking" a story to the press during jury selection. As noted, the first jury deadlocked during the penalty phase, and the penalty phase was retried before a second jury. The trial court conducted Hovey voir dire of prospective jurors, a procedure "by which prospective jurors are asked individually about their views concerning the death penalty and may be excused if they would not vote to impose the death penalty under any circumstances." (People v. Jennings (2010) 50 Cal.4th 616, 687; see Hovey v. Superior Court (1980) 28 Cal.3d 1, 69-82.) During Hovey voir dire of the second jury, defense counsel Willard Wiksell raised an issue outside the presence of prospective jurors. Wiksell indicated that defendant was "getting a little irritated" because the prosecutors had repeatedly referred to defendant as "that man" in front of the prospective jurors, which defendant believed was demeaning. The trial court agreed that the word "that" and "a little bit of tone" made the reference "a little unduly pointed" and told the prosecution the court would "prefer to either hear Mr. McKinzie's name or some phrasing that isn't 'that person,' 'that man.' " Deputy District Attorney Donald Glynn said that he did not believe the phrase was insulting and that defendant did not "deserve[] . . . that type of consideration" since he "did kill a 70 year old . . . ." The trial court replied, "this is not the time to be pointing fingers and in that light," and asked the prosecutor "to change the phrasing that you have been using most of the time."

During examination of the next prospective juror, Deputy District Attorney Cheryl Morgan referred to defendant as "this man." After that juror was examined and another juror was excused for cause, defendant stated twice, "I'll tear his head off." After the parties examined another juror, all counsel met with the trial court in chambers outside of defendant's presence. The trial court indicated that due to defendant's "anger over the recent events in the courtroom," the bailiffs had recommended defendant be shackled. Defense counsel objected, noting that counsel had calmed defendant down and that he had made no threats before those at issue here. The trial court made a record of what occurred: "As one juror was . . . leaving and we were waiting for the next one to come in, Mr. McKinzie, in a voice audible to me at the bench, at counsel table there was used some kind of a phrase about socking Mr. Glynn, and 'I have got nothing to lose.' And then there were some very aggressive comments apparently made in the lockup area and during the break." Defense counsel again indicated that they had calmed defendant down, that defendant did not feel he created the situation, and that he was becoming more angry based upon some comments between the prosecution and defense counsel. The trial court asked Glynn, "why shouldn't you be ordered to refer to [defendant] either as 'the Defendant' or 'Mr. McKinzie'?" Glynn said that he had done nothing wrong and that "if the Court orders me . . . to show respect to this murderer, . . . I think you have gone too far." While finding the prosecution was not "intentionally trying to aggravate [defendant] or denigrate him," the trial court ordered the prosecution "not to use 'that man' or 'person,' " finding this to be a "practical solution [] so we can get through the second half of Hovey." Glynn objected to the ruling and continued to argue against it, stating that "[t]his man who has killed a 73-year-old lady is getting undue deference because it is upsetting him . . . ." The trial court decided not to shackle defendant but warned him security was paramount. The next morning, Glynn informed the trial court that he had learned of defendant's comment, "I am going to rip his head off," and said he was concerned about his safety. Glynn asked that defendant be shackled. The trial court denied the request, noting that security had been increased.

On Monday, April 26, 1999, the prosecution filed a "Third Amended Notice of Proposed Evidence in Aggravation," which added as proposed aggravating evidence, "Evidence of a threat of force or violence against Donald C. Glynn on 4-22-99." The defense asked the trial court for a tentative ruling on the admissibility of this evidence. Defense counsel argued there was a "tremendous [Evidence Code] 352 problem" and expressed concerns about Glynn having to testify. The trial court indicated that it was tentatively inclined to exclude the evidence because the court was not convinced defendant had made a criminal threat within the meaning of Penal Code section 422. Glynn indicated that he would like a hearing at which the bailiff could testify regarding what defendant had said. The trial court obliged and scheduled a hearing on the issue for Friday, April 30, 1999.

On the next day, Tuesday, April 27, 1999, an article appeared in the Ventura County Star newspaper entitled, "Prosecutor to use courtroom threat against murderer." The article reported that the jury at the new penalty phase trial "will know Kenneth McKinzie said he'd like to rip lawyer's head off" and also reported that defendant was overheard "in court saying he'd like to punch the prosecutor, and 'I've got nothing to lose.' " According to the article, "Kenneth McKinzie's threat in court last week led prosecutor Donald Glynn to file court papers Monday saying he will use it to bolster the prosecution's case that the defendant is a violent person who should be put to death." Citing "court transcripts," the article described how defendant became angered at being referred to as "that man," recounted the in-chambers discussion about courtroom security, and noted that an extra bailiff was added on Monday.

Defense counsel Wiksell brought the article to the court's attention that morning and accused Glynn of "filing this frivolous motion so that he could get before the jury what he knew could never have been before the jury, given the rules of recusal, and it is outrageous." Wiksell indicated that a defense investigator saw the author of the article, Amy Bentley, come into the courtroom on April 26 and ask to see the bailiff. The bailiff, in turn, spoke with Glynn, who handed the bailiff some transcripts, which the bailiff gave to Bentley. Wiksell argued that "there must have been some communication" between Glynn and the reporter. After examining some more prospective jurors, the trial court returned to the issue and asked Glynn about it. Glynn said that he "did not know that this was a closed courtroom" and that when reporter Bentley "asked if anything's going on in the trial," he "directed her to the appropriate day of the transcript" and allowed her to borrow his transcripts. The bailiff confirmed that Bentley stated Glynn "had some papers for her to view" and that she handed Bentley two volumes of transcripts. The trial court said it would postpone ruling on the defense request to halt jury selection for a week to allow the taint of the article to dissipate, questioning the effectiveness of such a delay. Wiksell conceded that he did not "think there's been any actual showing . . . of prejudice to Mr. McKinzie" but argued there should be some sanction for the "deliberate dissemination of material with an intent to prejudice" defendant. Glynn again asserted that a "reporter called [him] up and asked [him] if anything . . . was going on in the McKinzie case" and that he "directed her to read a transcript of an open court proceeding for a particular day and said [he] was going to file an amended notice of factors in aggravation." Glynn said, "we all know how boring Hovey is, but I directed her to something that was happening that had a certain interest to it," and "she requested the material and wrote an article." Glynn asserted he had done nothing unethical. The trial court commented that Glynn "should have known better regarding calling the reporters to a situation that is very iffy at best, whether it is coming into evidence" and that "it showed very poor judgment . . . to call her attention to this at this delicate stage of the case" where "this is clearly an issue that you knew was up in the air," and "as it was presented to the reporter, it appears as if it is a done deal, that it is coming into evidence." Glynn later "clarif[ied]" that he, in fact, contacted Bentley first and that she had returned his phone call. The trial court commented, "So in other words, you felt the need to have this matter appear in the newspaper, is that it?" to which Glynn responded that he "frequently" spoke with Bentley and merely directed her to a portion of the transcript.

Later, after the parties discussed the admissibility of defendant's statements, Wiksell argued that Glynn's conduct constituted misconduct and that the trial court "should do something" such as "find there was misconduct and say it on the record." The trial court ultimately excluded the evidence of defendant's statements, finding that the statements did not constitute a criminal threat and that there was "danger of confusion [of] the jury and undue consumption of time" within the meaning of Evidence Code section 352. The trial court additionally commented that it would have excluded the evidence "as a sanction for the People's action in orchestrating the newspaper article . . . ." In response to Glynn's inquiries, the trial court commented at length that it believed Glynn had acted improperly in seeking to publicize defendant's statements when the admissibility of the evidence was still in question and when jurors were still being selected and might be exposed to the erroneous news article.

At the defense's request, the trial court admonished the prospective jurors that an article had been published in the Ventura County Star that contained "a major inaccuracy" regarding "what evidence is likely to be in the penalty phase of this case" and that "it's crucial that it be disregarded if you know what was printed there." The trial court told prospective jurors that they should inform the court if they saw or read the article, and the court again emphasized that "there's an affirmative, direct, substantial inaccuracy in the article . . . ." Of the jurors and alternates actually seated, only Alternate Juror No. 2 "got partway into" the article before realizing it was about the case and stopped reading. Alternate Juror No. 2 agreed the article was not part of the case and said he could ignore it. Juror No. 11 said that although her husband and a friend told her there had been an article about the case, they did not reveal the substance of the article, and she never read it.

Defendant argues that Glynn committed misconduct by "trying this case in the media" and attempting to place before prospective jurors potentially inadmissible evidence and to generate negative publicity. He claims he was deprived of a fair penalty trial under the state and federal Constitutions. " '[A]t the penalty phase a prosecutor commits misconduct under the federal standard by engaging in conduct that renders the trial so unfair as to constitute a denial of due process.' [Citations.] Under state law, it constitutes reversible misconduct for the prosecutor to employ deceptive or reprehensible methods to persuade the court or the jury [citation], when 'there is a reasonable possibility that without such misconduct, an outcome more favorable to the defendant would have resulted.' [Citations.]" (People v. Williams (2010) 49 Cal.4th 405, 464 (Williams); see People v. Dykes (2009) 46 Cal.4th 731, 786 (Dykes).) "The focus of the inquiry is on the effect of the prosecutor's action on the defendant, not on the intent or bad faith of the prosecutor." (People v. Hamilton (2009) 45 Cal.4th 863, 920; see People v. Hill (1998) 17 Cal.4th 800, 822-823 (Hill).)

In support of his claim, defendant requests judicial notice of the superior court case files in People v. Holland (Super. Ct. Ventura County, 1998, No. CR39530), another capital case in which Glynn was the prosecutor and Wiksell was defense counsel. Noting that the jury in Holland chose to impose a life term, defendant contends that this shows Glynn was motivated to avoid another "loss" by leaking information about the instant case to the press. "Although a court may judicially notice a variety of matters (Evid. Code, § 450 et seq.), only relevant material may be noticed." (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on another ground in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276; see People v. Curl (2009) 46 Cal.4th 339, 360, fn. 16.) As noted, Glynn's subjective motivations are not relevant to defendant's prosecutorial misconduct claim; we focus instead "on the effect of the prosecutor's action on the defendant." (People v. Hamilton, supra, 45 Cal.4th at p. 920.) Accordingly, we deny this judicial notice request.

Defendant points to our decision in People v. Brommel (1961) 56 Cal.2d 629 (overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 509), which reversed the defendant's murder conviction due to the admission into evidence of an involuntary confession. In Brommel, "the district attorney released to the press copies of the confessions and admissions of defendant before they were admitted into evidence by the court." (Brommel, supra, 56 Cal.2d at p. 636.) Brommel noted the "obvious impropriety of this conduct" and said: "Prosecuting officers owe a public duty of fairness to the accused as well as to the People, and they should avoid the danger of prejudicing jurors and prospective jurors by giving material to news-disseminating agencies which may be inflammatory or improperly prejudicial to defendant's rights." (Ibid.)

Defendant is correct that prosecutors "are held to an elevated standard of conduct" "because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state." (Hill, supra, 17 Cal.4th at pp. 819-820; see Berger v. United States (1935) 295 U.S. 78, 88 ["It is as much [the prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."]; Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 709 ["Prosecutors are public fiduciaries. They are servants of the People, obliged to pursue impartially in each case the interests of justice and of the community as a whole."].) Whatever the motivation for Glynn's disclosure, there seems little doubt that his conduct posed a real risk of tainting the jury pool by disseminating potentially prejudicial and inadmissible evidence. (In re Martin (1987) 44 Cal.3d 1, 35 [a prosecution investigator's act of arresting a defense witness outside the courtroom in front of the press and other defense witnesses constituted misconduct].) As the trial court observed, Glynn "should have known that the admissibility of this evidence was highly questionable and would be strongly contested," and his actions "injected highly questionable evidence into the media at a rather tender moment in terms of the jury selection . . . ." Whether intended to influence the trial court's pending decision regarding the admissibility of defendant's statements or to put before prospective jurors potentially prejudicial and inadmissible evidence regarding defendant's character, Glynn's conduct derogated from his duty to act as an impartial public fiduciary sworn to promote the even-handed administration of justice.

However, Glynn's misconduct was not prejudicial to defendant under either federal or state law. "In order to be entitled to relief under state law, defendant must show that the challenged conduct raised a reasonable likelihood of a more favorable verdict. In order to be entitled to relief under federal law, defendant must show that the challenged conduct was not harmless beyond a reasonable doubt." (Blacksher, supra, 52 Cal.4th at p. 828, fn. 35.) Defendant cannot make such a showing on the present record. The trial court acted reasonably in handling the situation by excluding the disputed evidence, making a complete record of the circumstances, and making appropriate inquiries regarding the impact of the newspaper article upon the jury pool. As noted, only Alternate Juror No. 2 read the article in question "partway," and none of the other seated jurors saw the article. Alternate Juror No. 2 ultimately did not participate in deliberations here. Although defendant suggests that the article irreparably tainted the jury pool, the trial court strongly admonished the prospective jurors that the article was inaccurate and should not be considered. In addition, after the trial court said that anyone who read the article should come forward, only four prospective jurors (other than Alternate Juror No. 2) indicated they had read the article, and they were all excused.

"This case is not the first in which pretrial publicity may create an issue with respect to ensuring a fair trial for the defendant, nor is it the first in which one side or the other may be inordinately responsible for that publicity." (Hollywood v. Superior Court (2008) 43 Cal.4th 721, 733.) As Hollywood observed, such matters regarding potential publicity should be "handled during voir dire through the close questioning of individual prospective jurors," which is exactly what occurred here. (Ibid.) Indeed, defense counsel acknowledged that defendant had not been prejudiced and that he was not asking for a mistrial or to start jury selection anew ...


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