Court: Superior County: Contra Costa Judge: Richard S. Flier Super. Ct. No. 951701-2
The opinion of the court was delivered by: Chin, J.
A jury convicted defendant Michael Nevail Pearson of the first degree murders of Ruth Lorraine Talley and Barbara Garcia with personal use of a firearm and found true the multiple-murder special-circumstance allegation. (Pen. Code, §§ 187, 190.2, subd.(a)(3), former § 12022.5, subd. (a).)*fn1 After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4, subd. (e)) and imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).)
I. FACTS A. Guilt Phase 1. Prosecution Evidence a. Introduction
On the afternoon of Tuesday, April 25, 1995, defendant, a receptionist with the Conventional Housing division of the Richmond Housing Authority (RHA) was fired from his job because he had repeatedly threatened to "do a 101 California," referring to the infamous 1993 massacre of numerous employees in a law office located at 101 California Street in San Francisco committed by Gian Luigi Ferri, a disgruntled client of the law firm.*fn2 Minutes later, defendant hunted down and fatally shot two of his former co-workers, Lorraine Talley and Barbara Garcia. These facts were undisputed at trial. The sole issue for the jury to decide in the guilt phase was whether defendant premeditated and deliberated the murders.
b. Defendant's employment at the RHA and statements to co-workers before the murders
In January 1993, defendant began working in a temporary position for the City of Richmond in the Employment and Training Department. He worked for that department for a year and then his employment was terminated. In July 1994, defendant was hired in a temporary position as an office assistant with the Section 8 division of the RHA, which handled the federal rental subsidy program. After about six months, he was hired by the Conventional Housing division in a permanent position as a receptionist. The terms of his employment included a six-month probationary period, which was scheduled to terminate three days after the murders. Talley was defendant's supervisor.
Defendant chatted often with co-worker Learinza Morris, and complained that he was treated unfairly and had a heavier workload than his co-workers. Defendant specifically mentioned Talley and Shirail Burton in making these complaints. About two months before the shootings, defendant mentioned to Morris that he had received a poor performance evaluation and that it was unjustified because "his work wasn't being evaluated properly--truthfully." Defendant felt he was being "railroaded to a degree." About three weeks before the shootings, defendant told Morris that he wanted to be transferred back to the Section 8 division of the RHA and that "[t]hey better not mess with me because there might be a 101 California."
Some months before the shootings, while commuting to work, defendant told co-worker Leona Kelly, "Well, I know one thing, she [Talley] tries to get rid of me or they try to get rid of me, it's going to be another 101 California."
Defendant complained to Ronald Keeton, a housing project manager at the Conventional Housing division of RHA, that he was being treated unfairly at work. About two or three months before the shootings, defendant told Keeton, "I ought to pull a 101" or "if something happens to me, or if they get on me or make me quit my job or lose my job[,] there might be another 101 going on here." Keeton believed defendant was joking.
On the Friday before the shootings, defendant approached Janet Robinson at her desk at the RHA and said, "Sometimes, you know, I feel like doing a 101 California Street here." Robinson said, "No, no, you wouldn't do that Michael" and "If you do that, I'll lock myself in the safe." Defendant assured her that he would not shoot her. He told her to not tell anyone about what he had said, claiming it was "just a joke." Although Robinson was afraid to reveal the threat, she mentioned it to Garcia, who became terrified.
c. Defendant's termination
On the day of the shootings, Art Hatchett, the RHA's director, and Talley asked defendant to meet with them in Hatchett's office. Hatchett informed defendant that a decision had been made to terminate his employment at the end of his probationary period because his job performance was unsatisfactory. Defendant was asked to return his building keys and identification badge, and he did. Hatchett gave defendant his business card and offered to discuss employment opportunities with RHA and the city at some point in the future. Defendant was given his final paycheck, and Hatchett terminated the meeting, which had lasted about six minutes. Defendant was upset and close to tears, but appeared to be "in control of himself" and not "enraged." Hatchett had decided not to discuss the true reason for defendant's termination, his threats to "do a 101 California."
After the meeting, Hatchett walked to Patricia Jones's office and informed Jones that defendant had been fired. Earlier, Hatchett had told Jones and employees of the personnel department that he intended to fire defendant. They had arranged to have a police officer posted outside the building when Hatchett and Talley met with defendant to discuss his termination.
Hatchett returned to the reception area, where defendant was gathering his personal items at his desk. Defendant did not appear to be enraged, and Hatchett was not concerned that defendant would become violent. When defendant walked down the hallway, Hatchett followed him. Defendant confronted Talley in the office of Hatchett's secretary, Mary Martinez, where Talley had remained after the meeting. Defendant asked Talley if she would speak privately with him. By this point, Hatchett had arrived at Martinez's office, and he told defendant that they could meet again in his office. Hatchett, Talley, and defendant went to Hatchett's office, and defendant asked Talley whether "that was it." Talley responded that, "if you are speaking of this job as a receptionist, yes, this is all." Defendant continued to question Talley about his termination, asking her whether she thought it was fair. Talley did not respond to the question but stated that she was preparing to take vacation and that if defendant had further questions, he could discuss the matter with Hatchett. Talley spoke firmly but respectfully.
After the second meeting, Hatchett walked with defendant back to the reception area. Hatchett followed defendant as he moved through the office. As defendant continued to gather his personal belongings, he appeared hurt and sad. Meanwhile, Talley returned to Martinez's office.
Defendant left the reception area but Hatchett did not follow him because he believed defendant was going to the restroom. Moments later, Hatchett was standing with housing project manager Ronald Keeton when he heard an employee screaming that defendant had a gun. He looked down the hall and saw a number of employees scrambling to leave the building. When Hatchett saw defendant running down the hallway holding a gun in his right hand, Hatchett ran outside the building to the parking lot.
Pamela Kime and Eric Spears were working in the conference room when they heard loud voices coming from the hallway. Defendant was arguing with Talley. He told her that he wanted to talk to her again, and she responded that she had said everything she wanted to say and that they had nothing further to talk about. Defendant's voice became louder as he asked, "You mean all of this work I've done is for nothing?" Talley repeated that she had nothing more to say, and defendant asked her, "So are you saying that all of the time I've spent here has been for nothing?" Talley opened the conference room door and yelled, "Go get Art [Hatchett]!" Defendant repeated his question, and Talley ran around the conference table and rushed past Kime.
Spears saw defendant reach for a gun from his coat, and said, "No, Michael, no Michael." Defendant looked at Spears momentarily and shot Talley, who fell and slumped across a chair.
After Kime heard the first gunshot, she turned around in her chair and saw defendant standing over Talley, pointing his gun at her and saying, "I ain't no joke. I ain't no joke." Defendant again looked at Spears, shrugged his shoulders, and again shot Talley, who had not moved. Defendant held his arm straight out as he fired the shot.
As defendant left the conference room, Kime stood up. Defendant returned, pointed the gun at her, and told her to get back "because he wasn't no joke." Kime sat down. Defendant lowered his gun and left the conference room. Kime checked on Talley, who was still alive with blood spurting from her neck. Spears tried unsuccessfully to call 911, and grabbed Kime, telling her they needed to get out of there. Kime decided to remain behind and try to stop the bleeding from Talley's neck.
After hearing the gunshots, Robinson, Garcia and housing specialist Shirail Burton ran into Jones's office. Burton climbed out a window. Another employee followed her. Robinson and Jones hid under the desk. Garcia ran behind Jones's desk and became trapped in a corner by a computer table, "so afraid that she was running in place," "whimper[ing]." Defendant fired three shots at Garcia.
Robinson came up from under the desk and pleaded with defendant, "Michael, please don't kill me." Defendant said, "Janet, baby, I told you I wasn't going to shoot you." Robinson understood defendant as referring to the conversation they had had the previous Friday. Defendant left. Garcia was sprawled on the floor, breathing heavily, and making gurgling sounds.
On arriving at the scene, police found defendant in the administrative offices and took him into custody.
Defendant had legally purchased from a pawn shop the Lorcin .380-caliber semiautomatic firearm he used in the shootings. After the mandatory 15-day waiting period, he returned to the pawn shop the day before the shootings, picked up the gun, and purchased 50 rounds of .380-caliber ammunition. That evening, defendant went to the shooting range and bought targets for shooting practice, as well as additional ammunition.
When police took defendant into custody, an officer performed a patdown search for a weapon and found none. When the officer asked defendant where he put his gun, defendant said that he placed it on the ledge outside the window. The gun was recovered from a planter box outside the window. It had a bullet jammed in the ejection port, and the magazine clip contained a single unfired PMC .380-caliber round. Three expended .380-caliber shell casings were recovered from Jones's office. Two expended .380-caliber shell casings were recovered from the floor underneath the table in the conference room.
Investigators recovered a lunch box from the reception area that contained a type of plastic bag supplied with the purchase of a Lorcin gun of the kind defendant purchased. Hatchett saw the lunch box on defendant's desk before he shot the victims. At the police station, an unexpended .380-caliber bullet was recovered from defendant's coat pocket.
The day after the shootings, police searched defendant's apartment in Oakland. They recovered an empty box of .380-caliber ammunition, targets with several bullet holes in them, and a book entitled, "Madness in Criminal Law" by Norval Morris. A receipt dated April 24, 1995, for defendant's purchase of a Lorcin .380 semiautomatic firearm from United Jewelry Mart was recovered from inside one of the empty ammunition boxes.
Both Talley and Garcia died as a result of gunshot wounds to the head. Additional evidence based on the autopsy reports and the testimony of a forensic pathologist, Dr. Brian Peterson, is discussed in part II.B.8., post.
During voir dire and at various other times throughout trial, including guilt phase closing argument, defense counsel conceded that defendant shot the victims with an intent to kill, but argued he did not act with the premeditation and deliberation required for first degree murder. The defense presented extensive evidence of the acrimonious working environment at the Conventional Housing division, the hostility that existed between supervisor Lorraine Talley and her co-workers, accusations that Talley showed favoritism toward certain employees, and defendant's belief that Talley and Burton had treated him unfairly.
In addition, Dr. Carol B. Walser, a psychologist who evaluated defendant in April 1996, testified about his mental state at the time of the shootings. Dr. Walser opined that at the time of the shootings, defendant was delusional and suffered from a "brief psychotic disorder with marked stressors," disorganized functioning, chronic posttraumatic stress disorder, an organic "cognitive disorder not otherwise specified," and an impulse control disorder secondary to that disorder. In forming this opinion, Dr. Walser relied on her psychological and neuropsychological evaluation of defendant and her review of the analysis of defendant's Minnesota Multiphasic Personality Inventory II (MMPI-2) prepared by Dr. Alex Caldwell; the results of the Rorschach test conducted by a psychologist, Dr. John Kincaid; a psychological evaluation of defendant performed by Dr. George Wilkinson, a psychiatrist; and the report of defendant's magnetic resonance imaging (MRI) results.
Dr. William Hoddick, an expert in radiology and diagnostic medical imaging, reviewed defendant's brain MRI and testified that it showed tiny fossa in the pariventricular and subcortical white matter of his brain. Such abnormalities are seen in brain scans of people over age 50 but generally not those without a history of diabetes or cigarette smoking. Also, tiny fossa are commonly present in those who abuse speed, crank, methamphetamine, or cocaine. Dr. Hoddick opined that the fossa were not "clinically significant" abnormalities and would not explain a person's behavior.
Dr. Hoddick said the MRI also showed a small amount of cerebral spinal fluid on defendant's left temporal lobe, consistent with an arachnoid cyst, but "[t]here was no mass effect or pressure associated with it." Dr. Hoddick could see no reason why this particular finding would cause a change in person's behavior.
Two days after the shootings, at the request of the prosecution, Dr. Paul Berg, a psychologist, interviewed defendant while he was in custody in jail. Dr. Berg did not find defendant to be psychotic and disagreed with Dr. Walser's diagnosis that defendant was delusional and suffering from a brief psychotic disorder when he shot the victims.
Dr. Berg opined that when defendant told Talley "I ain't no joke" before he fired the fatal shot to the back of her head, he acted out of anger, retribution, and revenge. Defendant exhibited organized behavior "[w]hen it became apparent to him that he could not talk to [Talley], [. . .] and he shot her and then after the first shot delivered a lethal shot to her head." In Dr. Berg's opinion, defendant's actions belied any claim that he was delusional. Defendant had been concerned for weeks before the murders that he would be fired from his job and he was in fact discharged. According to Dr. Berg, defendant was "absolutely" oriented in reality when he killed Talley.
Finally, Dr. Berg opined that defendant was organized and had a "pretty good memory" when he reminded Robinson, immediately after he fatally shot Garcia, that he had promised her he would not shoot her. The remark indicated that defendant selected his victims and had the ability to recall and refer to a previous conversation. In addition, that defendant brought a concealed gun into work suggested "organization . . . in case he got fired."
B. Penalty Phase 1. Prosecution evidence
Numerous witnesses testified about the impact of the victims' deaths on their family, friends, and the community at large. In addition, several eyewitnesses to the murders testified about how they were affected by the crimes and the victims' deaths.
Defendant helped Gary Reynolds, an acquaintance, overcome his cocaine addiction. Defendant was a positive influence in Reynolds's life and taught him he could have a better life and be a better person.
Defendant's uncle, Charles Thomas (Charles), was a childhood friend of defendant's mother, Mary Jane Thomas (Mary Jane), and had known defendant all his life. Charles knew defendant's father, "Junior," who had abandoned defendant and his mother shortly after defendant was born. Charles could not recall anything unusual about defendant's upbringing, except that when defendant was four or five years old, and for unknown reasons, he was sent to live with his biological father's family. However, defendant eventually returned to live with his mother. Within a few years of defendant's return, Mary Jane and her boyfriend, Pete, had two sons together. Pete abused Mary Jane, and they separated when defendant was six or seven years old. About a year later, Mary Jane married Charles's brother, Lafayette Thomas. Thereafter, the couple, defendant, and defendant's half brothers lived in a housing project in San Francisco. Sometime in the 1960's, they moved to Oakland.
Charles knew defendant to be "a very nice kid" who was always "very respectful towards him." He was "totally surprised" when he learned about the shooting and "figured somebody must have really shoved Michael over the cliff. Somebody must have pushed him really hard. . . . He's never been a violent person."
Mary Jane described defendant as a normal, happy, playful child and an average student, but stated that he was something of a loner. Defendant had seizures in his early childhood years, but was never tested to see if the seizures were related to any abnormal brain activity or might cause him any mental health problems.
After defendant served in the military, he often would talk to himself. He developed a drug addiction, sought treatment at a rehabilitation center, and overcame his addiction. Defendant was happy and proud when he was first hired by the City of Richmond for a temporary position. He wanted to buy his mother a home with the money he earned. After he was hired by the Conventional Housing division at RHA, he talked with his mother about problems he had with his supervisor.
Robert Young, head chef at the Contra Costa County Jail in Martinez, testified that, while defendant awaited trial, he and defendant talked about the murders and defendant appeared to express remorse.
Defendant's half brother, William Keith Pearson, recalled that when defendant was about 13 years old, he had a seizure while playing in a park. Defendant was a good son and brother, rarely had to be disciplined, did well in school, and graduated from high school. Defendant believed he was being treated unfairly in his position at the Conventional Housing division, although he never identified the person he believed was mistreating him.
II. Discussion A. Jury Selection Issues 1. Restriction on voir dire
Defendant contends that the death-qualification portion of voir dire was inadequate because the trial court failed to clarify the term "mitigating circumstance" or to ask prospective jurors whether they could recognize and consider particular facts as mitigating under section 190.3. The claim lacks merit.
Before death qualification voir dire commenced, the prospective jurors completed a written questionnaire. In response to a series of multiple choice questions, the prospective juror who eventually was seated as Juror No. 4 (hereafter, Juror No. 4) indicated that the state should "sometimes" (as opposed to "always" or "never") impose the death penalty on "everyone" who kills unlawfully, intentionally, or with deliberate and premeditated intent. In the adjacent explanation section, Juror No. 4 added that "[t]here could be circumstances, such as self defense, fear of life, accidental occurrences, etc. [in which the death penalty should not be imposed]" The trial court asked Juror No. 4 whether he could properly consider and weigh evidence offered in aggravation and mitigation in deciding penalty, and whether he could vote for a life sentence if the mitigating circumstances outweighed the aggravating and impose the death penalty if the opposite were true. Juror No. 4 stated he could.
Outside the presence of the panel, defense counsel, Mr. Veale, expressed concern that, based on Juror No. 4's written responses to the questionnaire, the juror did not understand that if a defendant was found not guilty of murder because, for example, he killed in self-defense or the killing was the result of an accident, then no penalty trial was required. He asked the court to inquire whether the juror would vote for a life sentence only if the case involved self-defense or accidental death. The court denied defense counsel's request, finding that the mitigating circumstances the juror identified did not represent the only circumstances not warranting death, but were merely representative of those in which he could vote for life. In addition, the court precluded counsel from asking prospective jurors about case-specific mitigating factors. After the conference, counsel was permitted to clarify for Juror No. 4 and the other panelists that a killing committed in self-defense is not murder and that a defendant who killed under these circumstances would not face a penalty trial. At the prosecutor's request, the court read to the prospective jurors CALJIC No. 8.85, which listed the statutory sentencing factors they would later be asked to consider in deciding penalty.
The People assert that defendant failed to preserve this claim for review because he did not utilize all of his peremptory challenges, express dissatisfaction with the jury as sworn, or raise a specific constitutional challenge to voir dire. We disagree.
"A defendant's failure to raise a for-cause challenge or to exhaust all peremptory challenges is relevant to the question whether he has preserved a claim on appeal that members of his jury were unacceptable to him." (People v. Taylor (2010) 48 Cal.4th 574, 606.) But without an adequate voir dire, "the defense is denied information upon which to intelligently exercise both its challenges for cause and its peremptory challenges. Because the exercise of peremptory challenges cannot remedy the harm caused by inadequate voir dire, we have never required, and do not now require, that counsel use all peremptory challenges to preserve for appeal issues regarding the adequacy of voir dire." (People v. Bolden (2002) 29 Cal.4th 515, 537-538.) In addition, as discussed below, defense counsel made multiple requests to question the prospective jurors regarding their ability to properly consider the statutory mitigating factors. Under these circumstances, the claim is not forfeited on appeal. (See People v. Taylor, supra, 48 Cal.4th at p. 606.)
Defendant contends that the trial court was obligated to ask prospective jurors whether they were able to identify and consider specific circumstances as mitigating. He contends that questioning along these lines was necessary to ensure that the prospective jurors would not limit their consideration of mitigating circumstances to those identified by Juror No. 4, self-defense and accident, which did not apply in this case. We disagree.
A prospective juror may be excused for cause when the juror's views on capital punishment would prevent or substantially impair the performance of his or her duties as a juror. (Wainwright v. Witt (1985) 469 U.S. 412, 424.) A prospective juror is substantially impaired within the meaning of Witt and may properly be excused for cause if he or she is unable to follow the trial court's instruction and "conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate." (People v. McWhorter (2009) 47 Cal.4th 318, 340.) " 'Our decisions have explained that death-qualification voir dire must avoid two extremes. On the one hand, it must not be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair the performance of their duties as jurors in the case being tried. On the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and aggravating evidence likely to be presented. [Citation.] In deciding where to strike the balance in a particular case, trial courts have considerable discretion.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 47).
Keeping these principles in mind, this court has held that "either party is entitled to ask prospective jurors questions that are specific enough to determine if those jurors harbor bias, as to some fact or circumstance shown by the trial evidence, that would cause them not to follow an instruction directing them to determine penalty after considering aggravating and mitigating evidence." (People v. Cash (2002) 28 Cal.4th 703, 720-721.) In other words, a trial court errs in precluding all counsel "[from] ask[ing] jurors if they would automatically vote for or against death 'in cases involving any generalized facts, whether pleaded or not, that were likely to be shown by the evidence' [citation]." (Id., at p. 720.)
Here, defense counsel was permitted to ask prospective jurors whether they could weigh all the evidence before deciding penalty in a case involving multiple murder and whether they could consider a defendant's lack of criminal history as mitigating. Counsel was also permitted to clarify for the prospective jurors that a defendant who killed in self-defense did not commit murder and would not face a penalty trial. Indeed, as this court has recognized, "it would be 'rare . . .' to find mitigating evidence in a capital case which could justify or excuse the defendant's conduct." (People v. Crandell (1988) 46 Cal.3d 833, 884.) Counsel informed the prospective jurors that defendant would not rely on a defense of either self-defense or accidental death. Therefore, the trial court did not err by precluding counsel from further questioning the prospective jurors regarding these specific circumstances.
Defense counsel also sought to describe for the prospective jurors various circumstances other than self-defense and accidental death that could properly be considered among the statutory mitigating factors, and to ask whether they would consider such factors mitigating. But counsel are not entitled to indoctrinate the jurors as to a particular view of the facts and ask whether they would cause him or her to vote for a specific penalty. (People v. Jenkins (2000) 22 Cal.4th 900, 991.) The court did not err in precluding counsel from pursuing this line of questioning.
Further, to the extent defendant contends the trial court was required to inform the prospective jurors that they must give mitigating effect to a defendant's lack of prior criminal history, he is mistaken. "The absence of prior violent criminal activity and the absence of prior felony convictions are significant mitigating circumstances in a capital case, where the accused frequently has an extensive criminal past." (People v. Crandell, supra, 46 Cal.3d at p. 884.) However, what import, if any, a juror assigns to relevant aggravating and mitigating circumstances is solely for the juror to decide. (See People v. Clark (1992) 3 Cal.4th 41, 165; CALJIC No. 8.88.)
2. Comments regarding the penalty of life without possibility of parole
Defendant contends the trial court erroneously informed prospective jurors during death qualification that they were permitted, but not required, to vote for a life sentence if the mitigating circumstances outweighed the aggravating circumstances. We disagree.
During voir dire of the third panel of prospective jurors, one panelist indicated that he would never be able to vote for the death penalty under any circumstances, and thus would be unable to participate in penalty phase deliberations. The trial court told him that "it isn't the duty of a juror to vote for death or life without the possibility of parole, but it's the obligation of the jury to at least be able to consider those things." It then asked whether it was "getting the [correct] impression from your comments you could not do that?" He responded, "That's correct." Thereafter, this panelist was excused. Two of the remaining panelists eventually served on the jury, as Jurors No. 6, the foreperson, and No. 11.
While examining the prospective jurors of the fourth panel, the court stated, "If you find that . . . the mitigating evidence outweighs the aggravating evidence, you could vote for life without the possibility of parole. As a matter of fact, the instructions as I would indicate to you  suggest that that should be a consideration [. . .] [as] part of [. . . ] [your] analysis . . . . [¶] But as you can see there is no burden of proof in that particular portion of the case. It is very much a decision that's made by each juror after they weigh and consider the aggravating and mitigating factors." One member of that panel sat on the jury as Juror No. 1.
Preliminarily, defendant forfeited his ability to challenge the court's explanation by failing to make a specific and timely objection. (People v. Mills (2010) 48 Cal.4th 158, 170.) In any event, the claim lacks merit.
Defendant contends that the court's comments to the third and fourth panels erroneously "instructed" the prospective jurors that they were not required to vote for a life sentence under any circumstances, and that this information contravenes section 190.3.*fn3 Even assuming the court's comments were error as defendant suggests, any error was harmless.
The court's statements during jury selection were not the full instructions regarding the jury's deliberative process. The full jury instructions came only after the evidence portion of trial, when the court instructed the actual jury regarding its obligations. (See People v. Edwards (1991) 54 Cal.3d 787, 840-841.) Before deliberations, the court instructed the jurors to follow its penalty phase instructions and "[d]isregard all other instructions that were given to you in other phases of this trial." Additionally, the jurors were instructed under CALJIC No. 8.84.2 (now 8.88) as follows: "To return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole." (CALJIC No. 8.84.2 (1986 rev.).) We presume that jurors understand and follow the court's instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
Further, we reject defendant's related contention that in the absence of an "instruction" to the prospective jurors that they must vote for life if the mitigating evidence outweighed the aggravating evidence, the voir dire process failed to identify pro-death jurors who would disregard the law and vote for death regardless of the weight of mitigating evidence. He asserts that the court's examination of the panelist who became Juror No. 11, for example, failed to obtain an assurance from this juror that he could vote for life based on the weight of mitigating evidence presented. The record reveals that, although this juror initially indicated that he would hesitate to vote for life in such a scenario, he did so only in response to inartfully phrased questions posed by the court. In context, this juror made clear that he could keep an open mind during the penalty phase and consider all of the evidence offered in aggravation and mitigation in determining the appropriate penalty. Defendant identifies no juror who indicated he or she would impose a death sentence without regard to the weight of any mitigating evidence presented. As we have repeatedly stated: " '[t]he only question the court need resolve during this stage of the voir dire is whether any prospective juror has such conscientious or religious scruples about capital punishment, in the abstract, that his views would " 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " ' [Citation.]" (People v. Visciotti (1992) 2 Cal.4th 1, 47; People v. Clark (1990) 50 Cal.3d 583, 597.) The court's voir dire was adequate in this regard.
3. Comments regarding aggravating circumstances
Defendant contends that the trial court erred when it stated to prospective jurors during the death qualification portion of jury selection that they could consider the bare elements of murder (e.g., intent to kill, premeditation, deliberation) and "all" of the crime facts as aggravating factors under section 190.3, factor (a), which permits jurors to consider the "circumstances of the crime" in deciding penalty. As a result, defendant claims the court's examination of prospective jurors was inadequate to reveal a potential inability or unwillingness to follow CALJIC No. 8.88, which defines the term "aggravating factor" as "any fact, condition or event attending the commission of a crime which increases its severity or enormity, or adds to its injurious consequences which is above and beyond the elements of the crime itself." (Italics added.) Defendant maintains that because neither the court nor counsel could identify jurors who were disqualified on this basis, the jury as sworn was "tainted." We disagree.
According to defendant, the court erroneously defined "aggravating circumstances" while it conducted individual voir dire of certain pro-life or pro-death prospective jurors, none of whom were selected to serve on the jury. For example, in qualifying a member of the first panel, the court stated: "In phase two you are going to be asked to evaluate mitigating and aggravating factors. Certainly one of the aggravating factors may be the crime facts themselves, such as whether or not this was deliberate and premeditated murder." To a member of the third panel, the court commented on the standard instruction defining deliberate and premeditated murder (CALJIC No. 8.20), as follows: "Based on the instruction I have just given you, I can tell you that a first degree murder is a murder that is committed with premeditation and deliberation. All right. That is one of the crime facts you consider in the penalty phase of this trial." It then asked this prospective juror, "Do you feel based on your current frame of mind you would be able to evaluate possible mitigating circumstances as well as the crime facts before you determined what penalty to impose?"
Preliminarily, defendant's failure to make a timely and specific objection on the ground he now raises forfeits the claim on appeal. (See People v. Foster (2010) 50 Cal.4th 1301, 1324.) In any event, the claim fails on the merits.
We have repeatedly rejected related arguments that a penalty phase jury is precluded from considering in aggravation "any aspect of the crimes that was part and parcel of the elements of first degree murder." (People v. Coddington (2000) 23 Cal.4th 529, 640, italics added; see also Lowenfield v. Phelps (1988) 484 U.S. 231, 246 ["the fact that the aggravating circumstance duplicated one of the elements of the crime does not make [the death] sentence constitutionally infirm"]; People v. Millwee (1998) 18 Cal.4th 96, 164 [the jurors' consideration of the bare "elements" required for conviction of first degree murder in aggravation as a "circumstance" of the crime did not "preclude any meaningful distinction between first degree murderers who receive death and those who do not"]; People v. Marshall (1990) 50 Cal.3d 907, 945-946 [the "triple use" of the same crime facts does not offend the cruel and unusual punishments clause].) "All circumstances of the crime or crimes may be considered." (People v. Coddington, supra, 23 Cal.4th at p. 640; see § 190.3, factor (a).)
Here, the court preliminarily informed the prospective jurors in each panel that the purpose of the death qualification portion of jury selection was to ensure that their personal views would not preclude them from voting for either penalty. By its questions and comments, the court stressed that at the beginning of any penalty trial, a juror must have an open mind on the question of punishment and consider all the evidence offered in aggravation and mitigation before deciding penalty. Moreover, the court repeatedly emphasized that a juror could not vote for death simply because the defendant was convicted of first degree premeditated murder and a special circumstance was found true. As indicated above, however, the court's remarks varied slightly on occasion, and some may have been understood to mean that the elements of the crimes and the facts were themselves aggravating factors. Nonetheless, any error was harmless because any improper statements amounted to minor discrepancies when compared with the court's otherwise accurate description of a capital juror's duties. Additionally, neither the court nor the parties otherwise were precluded from asking additional questions in assessing whether a potential juror was disqualified.
4. Prospective jurors' ability to follow the law
Defendant contends that the trial court was not evenhanded in conducting death qualification voir dire. Specifically, he contends that, with respect to prospective jurors whose questionnaire responses indicated strong support for the death penalty, the court's questions focused on their willingness to properly consider and weigh evidence offered in aggravation and mitigation in deciding penalty, and avoided the issue of whether the prospective juror could vote for life without possibility of parole. In contrast, in questioning prospective jurors whose questionnaire responses indicated strong opposition to capital punishment, the court inquired about their ability to impose a death sentence, but not whether they would consider all the evidence before deciding penalty. As a result, defendant asserts the jury selection process was unfair.
Preliminarily, because defendant did not object to the adequacy of voir on the ground he raises on appeal, the claim is forfeited. (People v. Harris (2005) 37 Cal.4th 310, 330.) It also lacks merit.
"Decisions concerning the qualifications of prospective jurors to serve rest within the ' "wide discretion" ' of the trial court, and the manner of the court's conduct of voir dire is ' "seldom disturbed on appeal." ' (People v. Thornton [(2007)] 41 Cal.4th [391,] 420.)" (People v. Martinez (2009) 47 Cal.4th 399, 445.)
While trial courts "should be evenhanded in their questions to prospective jurors during the 'death-qualification' portion of the voir dire, and should inquire into the jurors' attitudes both for and against the death penalty to determine whether these views will impair their ability to serve as jurors" (People v. Champion (1995) 9 Cal.4th 879, 908-909), they are not required to examine each prospective juror in the same manner, "lest the court feel compelled to conduct a needlessly broad voir dire, receiving answers to questions it does not need to ask" (People v. Thornton, supra, 41 Cal.4th at p. 425).
We disagree that the court's voir dire predisposed the selected jury to favor the death penalty. The court examined each prospective juror individually and fairly in determining whether his or her attitudes would prevent him or her from performing the duties of a capital juror, and properly inquired of each prospective juror whether he or she was able and willing to follow the law, weigh the aggravating and mitigating factors, and vote for either penalty. There is no indication in the record that the court questioned prospective jurors differently based on their death penalty views. Counsel were permitted to pose questions designed to expose jurors' bias in favor of or against the death penalty that would undermine their ability to perform their duties. Furthermore, defendant does not now contend that the court erroneously excluded or retained a particular prospective juror. Thus, "[t]he trial court's questions caused no prejudice, and therefore do not warrant reversal of defendant['s] convictions." (People v. Champion, supra, 9 Cal.4th at p. 909.)
5. Group voir dire on attitudes toward the death penalty
Defendant contends that the trial court did not exercise informed discretion in denying his request to conduct the death qualification portion of voir dire with each prospective juror individually and in sequestration. The claim lacks merit.
"In Hovey v. Superior Court (1980) 28 Cal.3d 1, 80, this court decided that in capital prosecutions the death-qualification portion of each prospective juror's voir dire should be sequestered, meaning that it should be conducted out of the presence of other prospective jurors. This court did not hold that sequestered voir dire was constitutionally required; instead, we mandated this practice as a rule of procedure. [Citations.] In 1990, however, the voters abrogated this aspect of Hovey by enacting Proposition 115, which added section 223 to the Code of Civil Procedure. That statute provides, in part, that 'where practicable' the trial court must conduct voir dire 'in the presence of the other jurors in all criminal cases, including death penalty cases.' (Code Civ. Proc., § 223.)" (People v. Jurado (2006) 38 Cal.4th 72, 100.)*fn4
During pretrial proceedings, the court informed counsel of its experience using a modified Hovey voir dire of prospective jurors in groups of six, and solicited counsel's suggestions regarding the procedure to apply in this case. The prosecutor asked for nonsequestered voir dire because, among other things, individual sequestered voir dire would require an additional two weeks to select a jury. Defense counsel requested individualized voir dire, expressing concern that group voir dire would inhibit a juror's "full disclosure" of his or her views on the death penalty. The court acknowledged that group voir dire may not be appropriate in all cases but stated that, in its experience, jurors were more candid in responding to questions "by having other [jurors] present who could talk about their fears and anxieties and concerns about sitting on the jury." The court solicited and received additional comments from counsel and thereafter ruled that it would conduct the death qualification voir dire in groups of 25 prospective jurors.
Preliminarily, we disagree with the People's assertion that defendant failed to preserve his claim for review because he did not formally object to the court's procedure on the grounds he asserts on appeal. During the discussions regarding death qualification, defense counsel indicated his opposition to the court's intention to conduct group voir dire and offered justification for individualized voir dire. The issue is cognizable. (See People v. Taylor, supra, 48 Cal.4th at p. 606 [defendant who timely objects to group voir dire and proposes that the trial court conduct individually sequestered voir dire "has done all that is necessary"].)
Defendant contends that the trial court erred in denying his request for individual, sequestered voir dire because it misunderstood the scope of its discretion under Code of Civil Procedure former section 223. Specifically, he asserts that the court erroneously assumed the statute limited its discretion to conduct Hovey voir dire in only highly publicized cases or cases presenting unusual circumstances. Defendant also complains that the court erred by deciding the voir dire issue before it reviewed the prospective jurors' written responses to the juror questionnaire.
An appellate court reviews a trial court's denial of a motion for individual and sequestered voir dire for abuse of discretion. (People v. Lewis (2008) 43 Cal.4th 415, 494.)
Defendant fails to show an abuse of discretion. Viewed in context, the court's comments, described above, do not show that it misunderstood its discretion under Code of Civil Procedure former section 223. Instead, the statements reveal the court's correct understanding that whether Hovey voir dire was required was a matter falling solely within its broad discretion and that it might order such voir dire when warranted by the circumstances of a particular case, for example, when there had been substantial pretrial publicity. (See People v. Ramos (2004) 34 Cal.4th 494, 513-514.) Nowhere did the court express an understanding that it could exercise its discretion only under such circumstances.
Additionally, the court invited counsel to comment on its proposed approach and solicited suggestions for any alternative procedures they cared to propose. The court's actions suggested it was well aware of its discretion under Code of Civil Procedure former section 223. Furthermore, the trial court's rejection of defense counsel's argument that individualized voir dire would yield more candid responses was reasonable. (See People v. Taylor, supra, 48 Cal.4th at p. 607.) The court, moreover, conducted individual, sequestered voir dire when a prospective juror expressed concerns about the death penalty and also permitted counsel to question prospective jurors about their responses to the written questionnaire.
We have held that "[g]roup voir dire may be 'impracticable' when it has resulted in 'actual, rather than merely potential, bias.' " (People v. Taylor, supra, 48 Cal.4th at p. 606, quoting People v. Vieira (2005) 35 Cal.4th 264, 288.) Defendant has not established that the trial court's comments or the prospective jurors' responses to the trial court's questions negatively affected any prospective juror. Also, defendant fails to "describe any specific example of how questioning prospective jurors in the presence of other jurors prevented him from uncovering juror bias." (People v. Navarette (2003) 30 Cal.4th 458, 490.) Finally, defendant has not shown that the court's failure to review the jury questionnaires before ruling in this regard resulted in the participation of any biased jurors.
Finally, defendant contends that the court's denial of his request for Hovey voir dire deprived him of his rights to a fair trial and impartial jury. We disagree. (See, e.g., People v. McKinnon (2011) 52 Cal.4th 610, 633; People v. Avila (2006) 38 Cal.4th 491, 559.)
Defendant claims the trial court erred in denying his motion under Batson v. Kentucky (1986) 476 U.S. 79 (Batson ) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) based on the prosecutor's exercise of a peremptory challenge to excuse an African-American prospective juror. We disagree.
During jury selection, defense counsel objected to the prosecutor's excusal of Prospective Juror S.G., an African-American, on the ground that there were "so few" African-Americans on the panel. The trial court denied the motion, finding defendant failed to show "systematic exclusion."
"Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) . . . '[T]he United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant's are made. "First, the defendant must make out a prima facie case by 'showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.' [Citation.]" ' (People v. Cornwell (2005) 37 Cal.4th 50, 66-67, quoting Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted (Johnson).)" (People v. Guerra (2006) 37 Cal.4th 1067, 1100.) "[A] defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Johnson v. California, supra, 545 U.S. at p. 170.)
" 'When a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial court's ruling. [Citations.] We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question.' [Citation.]" (People v. Guerra, supra, 37 Cal.4th at p. 1101.)
Preliminarily, defendant asserts that, because the trial court did not articulate the standard it used in denying his Batson/Wheeler motion, we must assume that it applied the "strong likelihood" standard that Johnson disapproved, instead of the correct "reasonable inference" standard under Batson. Defendant contends that because the court failed to properly determine whether he established a prima facie case of racial bias, it's ruling should be accorded no deference and reversal is required. We disagree.
"Regardless of the standard employed by the trial court, and even assuming without deciding that the trial court's decision is not entitled to deference, we have reviewed the record and, like the United States Supreme Court in Johnson, supra, 545 U.S. 162, are able to apply the high court's standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race." (People v. Cornwall, supra, 37 Cal.4th at p. 73.)
Defense counsel sought to establish a prima facie case of discrimination based solely on the circumstance that the prosecutor exercised his second challenge against one of three African-American prospective jurors on the 24-member panel. On appeal, defendant contends that a prima facie case is established because, in excusing Prospective Juror S.G., the prosecutor had used 50 percent of his peremptory challenges against a group comprising only 12.5 percent of the 24-member panel.
We have held that "[a]lthough the prosecutor's excusal of all members of a particular group may give rise to an inference of impropriety, especially if the defendant belongs to the same group, that inference . . . is not dispositive." (People v. Crittenden (1994) 9 Cal.4th 83, 119; cf. People v. Guerra, supra, 37 Cal.4th at p. 1101 [no prima facie showing where the prosecutor excused the only Hispanic sitting in the jury box, with only two other Hispanics remaining on the entire panel].) The prosecution did not excuse all African-American prospective jurors. Defense counsel acknowledged that "[his motion] was probably [too] early" to succeed. Indeed, defendant points to no "suspicious" appearance created by the prosecutor's use of his second peremptory challenge against S.G. (See People v. Lancaster (2007) 41 Cal.4th 50, 76 [the percentage of African-American women excused by the prosecutor was not " 'suspicious,' " nor had it "reached a level that suggested an inference of discrimination"].) In any event, the record suggests that the prosecutor had several race-neutral reasons for challenging this juror.
During voir dire, Prospective Juror S.G. described herself as very religious and indicated she would find voting for the death penalty "hard" because of her religious beliefs. (See People v. Hoyos (2007) 41 Cal.4th 872, 902-903 [a prospective juror's equivocation about the death penalty and strong religious beliefs against capital punishment provide race-neutral reasons for a prosecutor's decision to exercise a peremptory challenge].) In addition, like defendant, S.G. was a "governmental" employee and "responsible to a supervisor." One of S.G.'s neighbors, who was employed by the City of Richmond, first informed her about the case. Also, S.G. indicated in her questionnaire that psychologists and psychiatrists "are good," that they "would have a good opinion" in court, and that either she or a close relative had seen a psychologist or psychiatrist. Further, S.G. was acquainted with the prosecutor from prior employment in which she had cleaned his office, and also knew defense witness Connie Taylor. Each of these responses individually would provide an adequate reason other than racial discrimination to support the prosecutor's challenge.
Finally, defendant contends that a prima facie case is established based on the circumstance that Prospective Juror S.G. would not have been excusable for cause. However, "the circumstance that a juror is not subject to exclusion for cause does not, on its own, support an inference that group bias motivated the peremptory challenge." (People v. Hoyos, supra, 41 Cal.4th at p. 902; People v. Cornwell, supra, 37 Cal.4th at p. 70.)
7. Asserted error in granting defendant's challenge for cause of a prospective juror
Defendant claims that the trial court improperly granted his request to exclude a prospective juror for cause. Defendant challenged the juror due to concern that she would automatically favor the death penalty. The court granted defendant's challenge based on her death penalty views and in doing so, expressed concern that the prospective juror stated "she would vote according to certain feelings she had about race."
Defendant now claims that the trial court applied the Witt standard in a racially discriminatory manner. However, "defendant is not free to contend on appeal that the trial court erred in granting his motion to excuse the prospective juror for cause." (People v. Schmeck (2005) 37 Cal.4th 240, 265.) In Schmeck, the trial court granted the defendant's challenge for cause of a prospective juror on the ground that the prosecutor had made an assertedly impermissible comment to that juror that might later improperly infect the jury's penalty deliberations. (Id. at pp. 264-265.) We held the defendant forfeited the claim that the trial court erred by granting his challenge because he failed to pursue a remedy by other methods available at trial short of excusal (e.g., a clarifying instruction) for any misunderstanding arising from the assertedly improper comment. (Id. at p. 265; see also People v. Hill (1992) 3 Cal.4th 959, 1003 [defendant's joinder in the prosecution's challenge for cause forfeited his claim that the trial court erred in granting the challenge].) Defendant maintains that the claim is properly before us because, as the high court has explained, a discriminatory jury selection process inflicts harm on not only the defendant but also the excluded juror and community at large. (See Batson, supra, 476 U.S. at p. 87; Powers v. Ohio (1991) 499 U.S. 400, 406.) However, whatever harm an erroneous ruling on a challenge for cause may inflict on the excluded juror and community at large, a defendant may waive his right to complain. In People v. Edwards, supra, 54 Cal.3d 787, a local television station had requested extensive media coverage of the entire trial. (Id. at p. 812.) The defendant objected, and the court denied the request at least during part of jury selection. (Ibid.) On appeal, the defendant argued that the ruling violated the public's ...