Court: Superior County: Los Angeles Judge: Madge S. Watai Super. Ct. No. TA006961
The opinion of the court was delivered by: Cantil-sakauye, C. J.
A Los Angeles County jury found defendant George Brett Williams guilty of two first degree murders and found true the special circumstance allegations of multiple murder and that the murders were committed while defendant was engaged in the commission or attempted commission of a robbery. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(3), (17).*fn1 The jury further found defendant guilty of two counts of second degree robbery and found true that defendant personally used a firearm in the commission of the felony offenses. (§§ 211, 12022.5.) After the penalty phase, the jury returned a verdict of death. The trial court denied defendant's motion for new trial (§ 1181) and for modification of the penalty (§ 190.4, subd. (e)) and sentenced him to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)
On January 2, 1990, Willie Thomas and Jack Barron were fatally shot at close range in a house on Spring Street in Los Angeles. Their bodies were dragged to a truck parked in the garage, where they were found when the police arrived in response to a neighbor's call reporting gunshots. The prosecution's theory was that defendant shot both victims in the course of a robbery that had begun as a drug transaction. According to prosecution witnesses, earlier that evening defendant had planned to scam the victims through a fraudulent drug transaction at a bar parking lot by trading fake money for drugs. The victims met defendant at the bar parking lot, but, for reasons unknown, the transaction did not occur there. Instead, later that evening, the victims came to the Spring Street house, which was a frequent hangout for defendant and three associates. According to the testimony of the three associates, all of whom had pleaded guilty in prior proceedings, defendant shot both victims. Additionally, two neighbors to the Spring Street house testified that defendant was present at the house on the night of the killings. The prosecution presented evidence that the pager found at the scene of the crime was defendant's, and that his fingerprints were found in the room where the victims had been shot and on the truck to which the victims' bodies had been dragged. The prosecution also presented evidence that defendant fled Los Angeles after the shooting, and that, upon his return two weeks later, he sought to pay some new acquaintances to fabricate an alibi for him for the night of the killings.
A. Guilt Phase 1. Prosecution Case
The prosecution presented evidence of the murders and the drug deal surrounding it largely through the testimony of two of defendant's accomplices, Patrick Linton and Dauras Cyprian.*fn2 Their testimony was corroborated by the testimony of other witnesses, telephone records, and physical evidence.
Defendant socialized with Patrick Linton, Dauras Cyprian, and Dino Lee. This group often gathered at a house on Spring Street, where Cyprian's half brother, Ernie Pierre, lived.*fn3 On the upstairs floor of the house was a vacant small apartment, where victims Willie Thomas and Jack Barron were shot on January 2, 1990. Cyprian and his mother, Marcella Pierre, lived in a house across the street.
b. Preparations for the Drug Deal
In the week prior to the killings, defendant mentioned to Linton that he intended to "jack someone for some money," meaning that he intended to scam someone through a fraudulent drug deal. On the day of the killings, defendant was socializing with Linton and Cyprian at the Spring Street house. Defendant told Linton he was going to set up a drug deal with victims Jack Barron and Willie Thomas. Telephone records indicated that, on the day of the killings, three calls were made between defendant's house and an air conditioning business called A.R.A. Victims Barron and Thomas worked at A.R.A. Fellow A.R.A. employee Londell Richardson testified that, on the day of the killings, he overheard a telephone conversation by Thomas and Barron indicating that, after work, they were planning to go to a bar to transact a drug deal involving $50,000 and three or four kilos of cocaine.
In preparation for the drug transaction, defendant, Linton, and Cyprian went to defendant's house, where defendant assembled packages of torn-up phonebook pages, which he wrapped to resemble bundles of cash and then placed in a plastic bag. Defendant also brought three guns, which were later found at the scene of the crime, a .38-caliber Smith & Wesson revolver, a .380-caliber Titan automatic pistol, and a carbine rifle.
c. Meeting at a Bar Parking Lot
Linton testified to the following events: Linton drove defendant and Cyprian in Linton's truck, a blue Chevy Blazer, to the parking lot of a bar. Defendant got out of the truck and went over to talk to Barron, whose truck was parked in the back of the lot. Thomas stood next to Barron's truck. Defendant spoke with the victims, Barron and Thomas, for 30 to 45 minutes.*fn4 Defendant returned to Linton's truck and told Linton that they were going to follow Barron and Thomas to a house in South Gate. Barron and Thomas drove out of the parking lot together in a blue Chevy Sprint, an A.R.A. company car that Thomas often drove. Defendant, Linton, and Cyprian followed the Sprint as far as the freeway, but defendant decided at the last moment not to follow it to the house in South Gate, and told Linton to drive instead back to defendant's house. There they dropped off the guns and the plastic bag of fake cash.
Cyprian gave a slightly different account than Linton of the events at the bar parking lot, testifying as follows: While he was waiting in Linton's truck, he saw a Camaro drive in. A Hispanic man got out of the Camaro and approached Linton's truck. After the Hispanic man walked away, Linton said, "That was Tony." "Tony" then went over and talked to defendant and Barron. Barron left with Tony in the Camaro. Linton, however, denied seeing someone named Tony that night.
Jose Pequeno's testimony was in accord with Linton's that Barron and Thomas left together in the blue Sprint.
d. Shootings at the Spring Street House
Linton and Cyprian gave substantially similar testimony concerning the events at the Spring Street house later that night. Defendant and Linton drove to the Spring Street house in separate cars. Defendant drove his Mercedes 190, which he parked in the driveway.*fn5 Linton drove his Chevy Blazer, with Cyprian as his passenger, and parked in front of the house. Defendant, Linton, and Cyprian stayed in front of the house drinking beer for about an hour. They eventually made their way to the vacant upstairs apartment and continued to drink and smoke marijuana. At some point, defendant received a page and made a call. Defendant told Linton that Barron wanted to come to the house to do the drug deal. In the meantime, Dino Lee had arrived and joined the others in the upstairs apartment.*fn6 About 10 minutes after Lee arrived, Barron and Thomas arrived in the blue Sprint. Defendant went outside to talk to them. Defendant returned and told Linton that they should go to defendant's house to get the guns and the fake cash. They left and returned while Barron and Thomas waited in their car parked outside.
Defendant, Linton, Barron, and Thomas then went to the upstairs apartment, where Cyprian and Lee were waiting. Linton entered the apartment first, and heard someone say, "Get down." Cyprian testified that defendant said, "Don't nobody move," and pulled out a .38-caliber revolver. Linton was armed with a .380-caliber weapon. Barron and Thomas lay prone on the floor. Defendant took shoestrings out of his coat pocket and instructed the others to tie the victims' hands and feet. Cyprian went through the victims' pockets and removed their wallets.
Defendant propped up Barron, who was now bound, against one of the walls, with his feet in front of him and his hands behind his back. Defendant put the .38-caliber revolver up to Barron's face and told him he wanted three kilos of cocaine. At this point, defendant told Cyprian to move the victims' car, which was parked in front of the Spring Street house, in case the victims' associates came looking for them. Cyprian left the apartment and went to re-park the victims' car around the block.
Defendant told Barron to talk to his associates on the phone, say that Barron had counted the money, and convince them to give defendant the cocaine. Defendant warned Barron not to speak any Spanish. Kneeling and holding his gun, defendant dialed the phone and held the receiver up to Barron's ear. Barron told him that the phone was not making a connection. Still holding his gun, defendant brought the phone down and started redialing the number. While defendant was dialing, his gun discharged and shot Barron in the chest. Defendant exclaimed, "Ah, shit, Ah, shit, man." Defendant then got up off his knees, walked over to Thomas, who was lying bound on the floor across the room, and shot him twice in the head. He then walked back over to Barron and shot him in the head once.
After the shootings, defendant, Linton, and Lee went to the backyard, and were standing around when Cyprian returned from moving the victims' car. Linton testified that defendant told Cyprian: "I had to kill a man, I had to kill him." Cyprian testified that defendant told him: "I shot 'em. It was an accident so I killed the other one because I didn't want a witness."
Defendant proposed moving the bodies. Linton moved the Blazer from the street into the garage of the Spring Street house and closed the garage doors. All four of them worked to move the dead bodies of Barron and Thomas into the back of the Blazer. Cyprian unsuccessfully attempted to clean up some of the blood on the garage floor by throwing a bucket of water on it. Defendant and the others were ready to drive off with the bodies, but Lee cried out a warning that the police were coming. About 20 to 30 minutes had elapsed between the shootings and the arrival of the police. Defendant and the three others fled, leaving the Blazer with the victims' bodies in the backseat, where police discovered them.
e. Testimony of the Neighbors (1) Marcella Pierre
Marcella Pierre was the mother of Dauras Cyprian (who, as described above, was one of defendant's accomplices who testified against him) and of Ernie Pierre, who lived at the house on Spring Street in which the killings occurred. Mrs. Pierre lived with Cyprian across the street. She came to know defendant, Linton, and Lee because they visited Cyprian almost daily in the five-month period before the killings.
On the evening of the killings, January 2, 1990, Mrs. Pierre testified that she had seen defendant, Linton, Lee, and Cyprian at Ernie Pierre's house. About 10:00 p.m., she was at her home across the street. She heard three or four sounds that sounded like gunshots. Approximately 10 to 15 minutes before she heard these shots, she had seen defendant, Linton, and two men she did not know standing at the gate of the house. Immediately after the shots, she looked out her window, but did not see anyone. Approximately five to 10 minutes after the shots, however, she saw defendant, Cyprian, Linton, and Lee talking loudly and arguing out on the street. She heard Cyprian ask defendant, "What did you do that for, man?" Cyprian then came across the street and filled a bucket of water from her front yard and took the bucket back toward the house. Shortly after that, the police arrived.
Irma Sazo lived on Spring Street next door to the house where the killings occurred. Shortly after 10:00 p.m. on the night of the killings, Sazo heard three or four shots and telephoned the police. In the six months before the crime, Sazo had seen defendant visit Ernie Pierre at the house almost every day. The men would congregate in front of the house with Linton, Cyprian, and Lee. They often drank, smoked marijuana, and played loud music late into the night.
On the night of the killings, Sazo arrived home at 7:00 p.m. and saw what she recognized as defendant's car, a new-looking black BMW, parked next door to her house.*fn7 Around 10:00 p.m., she heard three or four shots coming from the house next door. Looking out her window at the street, she saw that defendant's black BMW was no longer parked there, but Linton's blue Chevrolet Blazer truck was there. She then saw four individuals in the house's front yard, whom she later identified as defendant, Linton, Cyprian, and Lee. When defendant moved closer to her house and saw her watching inside, he said, "Oh, oh, the lady is in the window." She saw Cyprian trying to open the lock on the garage door at the house where the killings occurred. Sazo also saw Cyprian go get a bucket of water from Marcella Pierre's house and bring it to the house next door.
At trial Sazo testified she saw defendant, Linton, and Lee leave the scene in Linton's Blazer.*fn8 However, the officer who interviewed her on the night of the killings testified that she told him she did not see those three leave the scene, but only noticed they were gone when she returned to the window after calling the police.
f. Defendant and Cyprian Leave Los Angeles
Cyprian testified regarding his actions with defendant after the killings. Initially Cyprian fled the crime scene by foot, but defendant picked him up in a car. They drove to defendant's house, where they removed their bloody clothing, which they placed in a bag that they gave to defendant's girlfriend (later wife) Monique Williams, who took the bag away in her car to dispose of it. Defendant and Cyprian then drove in defendant's car, the Mercedes 190, to a motel in Long Beach, where they stayed the night. The next day, defendant sold the Mercedes. Monique drove them to buy new clothing and took them to a Travelodge where defendant arranged to buy tickets for a flight to New York.*fn9 Monique brought suitcases and drove them to the airport, where defendant and Cyprian departed for New York. In New York, they registered at the Hotel Stanford as Michael and Mark Cole. After two or three days they moved to another hotel down the street. After another two days, they left New York. Defendant went to the airport and flew to an undisclosed destination, while Cyprian took a Greyhound bus to Las Vegas. Defendant and Cyprian eventually met in Las Vegas along with their respective girlfriends. The two couples spent two or three days together there. Cyprian returned to Los Angeles on January 14 or 15. Defendant returned to Los Angeles by January 17.
g. Defendant's Attempts to Fabricate an Alibi
Raymond Valdez and his girlfriend Kathleen Matuzak testified about defendant's efforts to get them to fabricate an alibi for him for the night of the killings. In January 1990, Valdez lived with Matuzak in an apartment complex in Wilmington. By mid-January, defendant and Monique had moved into the complex, and Valdez had become acquainted with defendant; they frequently played pool at the apartment recreational center. Valdez and Matuzak testified they initially knew defendant as "Patrick," and later as "George." Valdez bought marijuana from defendant. Defendant offered Valdez $1,500 and a substantial amount of marijuana to come to court and testify that he was with defendant on January 2, 1990 (the night of the killings). Defendant made the same offer to Matuzak and to another pair of neighbors. Valdez, however, had not even known defendant on January 2, 1990.
Valdez initially agreed because he believed defendant when he said he had been framed for the crime by a friend. After defendant was arrested, Monique Williams frequently visited Valdez and Matuzak and talked to them about getting their stories "right." Valdez also received about six telephone calls from defendant while he was in jail expressing concern that Valdez and Matuzak get their stories straight. At one point during this period, three African-American males, who Valdez thought were Rollin 60s*fn10 gang members, came to Valdez's apartment late at night and asked Valdez whether he was still going to testify for defendant. Defendant had told Valdez that he was a Rollin 60s gang member. The visit made Valdez fear for his and Matuzak's lives. Valdez was eventually evicted from the Wilmington apartment complex for failure to pay rent. In the week before Valdez was to testify at defendant's trial, Monique ran into Valdez in his new neighborhood and inquired whether he was still planning to testify for defendant.*fn11
h. Testimony About the Pager Found at the Crime Scene
The prosecution contended that the pager found at the crime scene belonged to defendant. To prove this, the prosecution called Deitrich Francheska Pack, an employee of Delcomber Communications, the store that sold and provided service for the pager. Pack personally knew both defendant and defendant's girlfriend Monique Williams, with whom she had attended high school. Pack knew Linton because she had dated his cousin. Pack testified that defendant and Linton came to the Delcomber store sometime in 1989. She identified a Delcomber's contract for the purchase of a Panasonic Vanguard pager filled out by "Patrick Cole" and dated October 30, 1989. The model and serial numbers of the pager found at the crime scene matched this contract. Pack had not, however, personally sold that pager. At some point after defendant's arrest, Monique called Pack to ask her whether she could locate and destroy the Delcomber file on "Patrick Cole" in return for $100. Pack said she did not think she could do that, and had no further contact with Monique.
i. Monique Williams's Testimony for the Prosecution
Monique Williams was defendant's girlfriend at the time of the crime and married him after his arrest. Although defendant had many tattoos on his body referring to the Rollin 60s gang, Monique testified that, since first meeting him at the end of 1988, she had never known him to be a gang member. She denied that defendant ever owned any guns, although she also stated that defendant told her he lent Linton a gun on the night of January 2, 1990 (the night of the killings). She maintained that defendant was constantly in her company from Christmas Eve 1989, through mid-January 1990 (including the time of the killings) and had never left her presence longer than the time it took to get something from the store.*fn12 She testified that, on January 3, 1990 (the day after the killings), Cyprian came to their house and defendant asked her to drive Cyprian to the airport. Monique, defendant, and Cyprian first stopped at a hotel where Cyprian picked up a suitcase. Monique testified that she dropped Cyprian at the airport, but defendant stayed with her in Los Angeles through January 8, 1990.*fn13 She testified that on January 9, 1990, she and defendant travelled to Las Vegas by Greyhound bus and stayed there through January 15, 1990. While in Las Vegas, they saw Cyprian and his girlfriend. Upon returning to Los Angeles, they moved into the apartment complex in Wilmington on January 20, 1990. She admitted to speaking with Raymond Valdez and Kathleen Matuzak about testifying falsely on defendant's behalf. She denied, however, asking Deitrich Pack at Delcomber Communications to destroy the paperwork on a pager.
In order to further link the pager found at the crime scene with defendant, the prosecution introduced telephone records showing that numerous phone calls were placed to the pager from Monique Williams's parents' house between December 1989 and January 3, 1990. The prosecution also presented phone records to connect defendant to the victims. Records showed that, on January 2, 1990 (the day of the killings), three calls were placed from defendant's house to A.R.A. Automotive Accessories, where the victims, Barron and Thomas, worked. Two calls were made in the morning, and one in the afternoon. Phone records also showed that, on the afternoon of the same day, one phone call was placed from A.R.A. to defendant's house.
k. Condition of the Bodies
A medical examiner testified that Thomas died from two gunshot wounds to the upper right side of his head. The presence of soot or powder burns indicated the muzzle of the gun had been pressed against the skin when it was fired. Barron had likewise died from two contact wounds, one behind the left ear and one in the chest.
Police investigators discovered two guns in the upstairs apartment where the killings occurred: a .38-caliber Smith & Wesson revolver, and a .30-caliber carbine rifle. A third gun, a .380-caliber Titan automatic pistol, was found in the garage.*fn14 The prosecution theory was that the .38-caliber Smith & Wesson revolver was the murder weapon.
A police investigator observed blood spatters on the .38-caliber Smith & Wesson revolver, which were evident in a photograph of the gun taken at the crime scene. These spatters were consistent with blood being blown back in the opposite direction of the trajectory of a bullet. A firearms examiner analyzed the projectiles retrieved from the bodies of both victims and determined they were fired from either a .38 Special or a .357 Magnum revolver.*fn15 The projectiles recovered from the bodies had markings consistent with the .38-caliber Smith & Wesson revolver found at the crime scene. The examiner, however, could not conclusively determine that it was the weapon that fired the bullets because the projectiles were damaged.
Defendant's fingerprint was found on the outside driver's side mirror of Linton's Blazer, which police discovered parked in the garage with the bodies of the two victims in the backseat. Defendant's fingerprints were found on the base of a telephone in the apartment where the shootings took place. His fingerprint was also found on a cabinet in the apartment. Fingerprints of Linton, Cyprian, and Lee also were found at the crime scene.
The defense contended through various witnesses, except Lee, that the defendant was not present that night at the scene and that defendant did not commit any of the charged crimes.
The defense called Dino Lee, the third of defendant's accomplices. Lee had not testified for the prosecution. Lee's testimony, however, hurt rather than helped the defense case. Lee testified that he saw defendant shoot Barron and Thomas.*fn16 Lee's account of the evening was substantially similar to the testimony of the prosecution witnesses Linton and Cyprian.
The defense called Detective Herrera, who investigated the crimes and who had testified for the prosecution on various details of the crime scene. Herrera testified that defendant phoned the police and voluntarily surrendered to them on February 8, 1990.
Monique Williams's defense testimony largely repeated her prosecution testimony, namely, that she had never seen defendant with guns and had no knowledge of his participation in any criminal activities. Additionally, she testified defendant had sold his black BMW before Christmas 1989 (that is, before the killings in January 1990). The defense introduced a Department of Motor Vehicles record that showed defendant had transferred title to the BMW on December 21, 1989. Monique testified defendant had never owned or driven a Mercedes 190. She also specifically denied that, on the third day of defendant's trial, she had approached Ray Valdez in a liquor store in Harbor City to encourage him to testify falsely at defendant's trial.
In-grid Tubbs was Monique Williams's aunt. Tubbs testified that, during the first week of defendant's trial, Monique was staying at the home of Monique's parents in Gardena and baby-sitting Tubbs's children. Tubbs's testimony was intended to support Monique's denial that she had approached Ray Valdez in Harbor City on the third day of defendant's trial.
The parties stipulated that, before testifying at defendant's trial, Linton, Cyprian, and Lee had pleaded guilty to second degree murder on January 23, 1991, January 24, 1991, and July 9, 1990, respectively.
B. Penalty Phase 1. Prosecution Case
The prosecution presented evidence of four incidents in aggravation under section 190.3, factor (b): three assaults and the possession of a firearm.
a. Assault on Kenneth Moore
Latrece Abraham and Kermit Richmond testified that on May 28, 1983, a group of boys about 13 to 15 years old from the 59 Hoover Crips gang attacked a group of bicycle riders about the same age, including Kenneth Moore. Gang member Eddie Jackson then shot and killed Moore. Abraham testified that defendant was among the gang members who hit and kicked Moore. A police detective testifying as a gang expert stated that defendant was a member of the 59 Hoover Crips gang at the time of the assault on Moore. The prosecutor stipulated that defendant was charged with and convicted of misdemeanor assault with a deadly weapon, namely, fists and feet. He further stipulated that neither the charge nor the conviction involved possession or personal use of a firearm.
b. Shots Fired at Officer Sims
Police Officer Carl Sims testified that, on December 3, 1983, shots were fired at him. He was in full uniform standing outside his squad car when the gunfire erupted from behind him. He saw an African-American male standing behind a palm tree 50 to 75 feet away facing in the direction the shots were fired. When Officer Sims aimed a shotgun at him, the suspect ran. Sims followed the suspect, who joined a group of 10 to 11 individuals dressed in gang attire who were attempting to get into a flatbed pickup truck. Sims ordered all of them to raise their hands and they were taken into custody. Sims identified defendant as the suspect behind the palm tree whom he followed to the truck. A search of the truck revealed a fully loaded .38-caliber Smith & Wesson revolver. A search of the defendant revealed that he had six rounds of live .38-caliber ammunition in his left front trouser pocket. The prosecutor stipulated that no criminal charges were ever filed against defendant in connection with this incident.
c. Robbery and Assault on Mona Thomas and her Father
Mona Thomas testified that on the evening of July 7, 1985, she and her father were assaulted and robbed by a group of men when their car broke down. Around 30 men surrounded the car carrying guns. Someone threw a brick at the window. Another person demanded money. The group pulled Thomas and her father from the car. They were both beaten and bloodied.
Police Officer Michael Daly was on patrol and came across Mona Thomas and her father immediately after the assault. She told the officer that the group that had just assaulted her was standing in front of an apartment building about 100 feet away. As the officer approached the group, it began to disperse, but the officer managed to detain several individuals, including defendant, whom Officer Daly identified in court. At the scene, Mona Thomas stated that the individuals that Officer Daly had detained were the ones who had beaten and robbed her and her father. Mona Thomas was unable to identify defendant in court or identify him from an arrest photograph from the incident.
d. Possession of Concealed Weapon
Detective Michael Bowers testified that, on December 7, 1985, he conducted a traffic stop of defendant's car. He found a Smith & Wesson .38-caliber revolver containing five live rounds inside the car, between the console and the driver's seat. He arrested defendant for possession of a concealed weapon, but (as stipulated by the prosecutor) no criminal charges were ever filed.
The defense case in mitigation presented the testimony of defendant's mother and his two sisters.
Betty Williams Hill and Edna Williams Vickers, defendant's two sisters, testified about defendant's family background, which Betty described as "upper middle class or upper class."*fn17 Defendant's parents, Jessie and Charles Williams, took in defendant as a foster child when he was about one year old, and adopted him at age three or four. The Williams family later became foster parents for several mentally disabled children. Defendant was friendly with these children and would help his parents care for them. Defendant was respectful toward his parents, and helped care for his aunt when she was ill with cancer. Defendant was the father of five children, ranging in age at the time of trial from two to six years of age.*fn18 His sister described him as a "faithful father." Both sisters stated they were unaware of defendant's previous arrests and gang-related activities.
Defendant's mother, Jessie Mae Williams, presented a profile of defendant similar to that given by his two sisters. She testified that defendant had no disciplinary problems at school, but that he dropped out of high school around the 10th or 11th grade. She stated she was unaware of defendant's previous arrests and gang activity, although she did recall a time in the early 1980s when he was incarcerated. During cross-examination, she stated she did not remember any incidents in which the police had returned defendant to her custody after he was arrested for criminal activity as a juvenile.
The prosecutor entered the following stipulation: On July 2, 1980, defendant was arrested for possession of a deadly weapon. Because defendant was a juvenile, he was booked and transported home, where the arresting officer turned over custody of defendant to his mother and advised her of the nature of the arrest.
II. Discussion A. Pretrial Issues 1. Asserted Batson/Wheeler Error
Trial counsel brought three separate motions under Batson v. Kentucky (1986) 476 U.S. 79, 84-89 and People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler) in connection with the prosecutor's use of peremptory challenges against five African-American women prospective jurors. The three-stage procedure of a Batson/Wheeler motion is now familiar. "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.' " (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)
The trial court denied all three Batson/Wheeler motions at the third stage. Defendant contends the trial court erred. "Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions." (People v. Lenix (2008) 44 Cal.4th 602, 613.) "We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses." (People v. Burgener (2003) 29 Cal.4th 833, 864.) As long as the court "makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal." (Ibid.) As explained below, we discern no error in the trial court's denial of the Batson/Wheeler motions.
a. Background (1) First Batson/Wheeler Motion
The first motion was brought after the prosecutor had exercised peremptory challenges against three African-American women prospective jurors: H. R., T. C., and P. C. The prosecutor offered to justify the excusals, and the trial court requested him to do so, remarking that "I have to say that I did have some of them marked that I expected to be exercised on." The prosecutor explained the excusals as follows: He employed a ratings system by which he rated the reluctance of a prospective juror toward answering questions he had posed about the death penalty, which he considered reflective of reluctance to impose that penalty.*fn19 During individual questioning, he had rated all three prospective jurors as very reluctant in terms of their ability to impose the death penalty. "They would either say, well, I think I might be able to, or I could, but their reluctance to impose it was evident not only from the answers they gave [but also] from the time that it took them to respond to the question, their general demeanor in answering the questions, and my impression from each of them." The prosecutor's general impression from their answers was that "in spite of what they said, they wouldn't have the ability to impose it when it actually came down to it." Trial counsel noted that, of the 40 prospective jurors called to the box so far, only four were African-American, and the prosecutor had dismissed three of them (all of whom were women), leaving one African-American male on the jury. The trial court denied the Batson/Wheeler motion.
(2) Second Batson/Wheeler Motion
Trial counsel made a second Batson/Wheeler motion when the prosecutor exercised a peremptory challenge against Prospective Juror R. P., an African-American woman. Trial counsel noted that four out of the six African-Americans called to the box had been peremptorily challenged, and all four of them had been women. The trial court called on the prosecutor to state his reasons. The prosecutor said that, from R. P.'s initial written questionnaire, he had rated her a "two plus" on his reluctance scale, but downgraded her to a 1 after hearing her voir dire responses. The prosecutor noted that he had written next to her name on his list, "ambivalent, no opinions," which he stated was distinctive because he usually did not write anything next to the names. He read to the court three of R. P.'s voir dire responses that had given him the impression that she would be hesitant to impose the death penalty.*fn20
In response, trial counsel argued that R. P.'s answers to other questions indicated she was willing to impose the death penalty. The prosecutor replied that his impression "had a lot more to do with not what she said but how I read what she was saying from being present in court with her and observing her demeanor and the way she answered questions. It clearly isn't from the words that are written down. It was my general impression from the way she answered the questions, not what she said."
The trial court denied the motion. It stated that, though it had taken notes relating to the demeanor and manner of responding of some of the prospective jurors, it did not have any notes on R. P., but would accept the prosecutor's explanation.
(3) Third Batson/Wheeler Motion
Trial counsel made a third Batson/Wheeler motion when the prosecutor peremptorily challenged Prospective Juror R. J., an African-American woman. Trial counsel observed that five out of six African-American prospective jurors had thus far been challenged and noted that R. J. was on the panel at a time when the prosecutor had accepted it. The prosecutor replied that he had accepted this prospective juror because "the [jury] composition was somewhat satisfactory to me," but that he reviewed his notes, and had seen that he had rated her as very reluctant to impose the death penalty. The prosecutor's impression, which he stated was formed not only from her answers to the questions but from her demeanor and the fashion in which she answered them, was that she would not be able to impose the death penalty in any case.
The trial court denied the Batson/Wheeler motion. It did not recall R. J.'s responses and, as observed earlier, had stopped taking notes by the time she was questioned. The trial court stated that it could only go by what the prosecutor was saying, and it accepted the prosecutor's explanation.
Defense counsel then asked the trial court "to respond to the numbers," arguing that they "speak for themselves." The trial court replied, "I have to say in my other death penalty cases I have found that the black women are very reluctant to impose the death penalty; they find it very difficult no matter what it is." The trial court then made clear, however, that it was not making its ruling based on that observation.
The final composition of the jury, which the prosecutor put on the record, was seven Caucasians and five African-Americans, of whom four were men and one was a woman.
b. Analysis (1) Asserted Bias of Trial Court
Defendant acknowledges the "great deference" an appellate court gives to the trial court's ability to distinguish bona fide reasons from "sham excuses." (People v. Burgener, supra, 29 Cal.4th at p. 864.) Defendant argues, however, that no deference should be given here to the trial court's evaluation of the prosecutor's professed race-neutral reasons because, he asserts, the trial court itself was biased against African-American women, as indicated by its comment quoted directly above.
The trial court's observation came in specific response to trial counsel's question about the numbers of such peremptories at that point in voir dire. The court clarified that its general observation did not influence its ruling. The trial court quickly made clear that its observation played no role in its ruling on the Batson/Wheeler motion: "I am just making a little point. I just wanted to tell you my observation that I have seen this before and I can understand why. That's why. But I am not making my ruling based on that." Further, it was an isolated comment, and the record as a whole does not support defendant's contention that the trial court was biased against African-American women. We have no reason to doubt that the trial court made its rulings on the Batson/Wheeler motions based on the evidence before it. On this record, we perceive no bias on the trial court's part, and we therefore grant its rulings their usual deference.
(2) Adequacy of the Trial Court's Review of the Prosecutor's Race-neutral Reasons
Defendant contends the trial court failed to adequately clarify or probe the prosecutor's explanations about the demeanor of the prospective jurors. In particular, he points to the two jurors challenged in the second and third Batson/Wheeler motions, R. P. and R. J., as to whom the trial court indicated it had not taken notes and had no independent recollection at the time of those Batson/Wheeler motions.
"Although we generally 'accord great deference to the trial court's ruling that a particular reason is genuine,' we do so only when the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror." (People v. Silva (2001) 25 Cal.4th 345, 385-386.) "When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient." (Id. at p. 386.) However, we also have stated that a trial court is not required "to make explicit and detailed findings for the record in every instance in which the court determines to credit a prosecutor's demeanor-based reasons for exercising a peremptory challenge." (People v. Reynoso (2003) 31 Cal.4th 903, 929.) With these principles in mind, we will review the record below of the five challenged prospective jurors.*fn21
The prosecutor's stated race-neutral reason for striking the challenged prospective jurors -- reluctance to impose the death penalty -- was not "inherently implausible." As we have stated, "[a] prospective juror's views about the death penalty are a permissible race- and group-neutral basis for exercising a peremptory challenge in a capital case." (People v. McDermott (2002) 28 Cal.4th 946, 970-971.) We therefore examine the record to see whether it supports the prosecutor's stated race-neutral reason that these prospective jurors appeared reluctant to impose the death penalty. The prosecutor's stated reason has both a semantic aspect and a demeanor aspect, that is, a prospective juror's hesitancy to impose the death penalty can be reflected in both what the prospective juror said and how he or she said it. At certain points during his explanation the prosecutor emphasized the demeanor aspect over the semantic aspect. As we discuss below, the trial court stated that it did not recollect the demeanor of two of the challenged prospective jurors, R. P. and R. J. However, as we further discuss below, the prosecutor based his explanation on both words and demeanor. In reviewing the correctness of a trial court's ruling on a Batson/Wheeler motion, we consider "all the circumstances of the case." (People v. Reynoso, supra, 31 Cal.4th at p. 908, citing Wheeler, supra, 22 Cal.3d at p. 280.) The circumstances of the case include what the jurors said and wrote in connection with voir dire and the reasonable inferences that can be drawn from those statements. We conclude that the record supports the prosecutor's stated reasons for exercising the peremptory challenges.
(i) Prospective Juror H. R.
In her jury questionnaire, in response to a question about her general feelings concerning the death penalty, Prospective Juror H. R. wrote: "I feel the death penalty should only be enforced only under certain hardcore murders." As to whether the death penalty is used too often, she wrote: "I really don't know of a case in which it was used." As to whether California should have the death penalty today, she marked "yes," and as to why, she wrote: "Under certain circumstances." As to what she saw as the purpose of the death penalty, she wrote: "No comment." As to her attitude toward the proposition that all intentional unlawful and non-self-defense killings should receive the death penalty, she circled "disagree somewhat," and wrote: "Not everyone, but hardcore murders." As to whether she believed that life in prison without the possibility of parole was a more severe punishment than the death penalty, she circled "Don't Know."
When questioned during voir dire what she meant by "hardcore murders," she replied: "You know, like cruel murders, where they [mutilate] bodies and . . . burn people up for no reason." Asked by the prosecutor whether these were the only types of murders as to which she personally would be able to impose the death penalty, she answered that she was not sure, but they were the first ones that came to mind when she thought of the death penalty. When asked further about what she meant by the term "hardcore murders," she answered: "I mean burning of bodies and mutilating body parts, I would probably think of that, but besides that I really can't say what other reasons I would consider the death penalty." (Italics added.)
The record supports the prosecutor's stated race-neutral reason for excusing H. R. (People v. Silva, supra, 25 Cal.4th at p. 386.) Even on a cold record, H. R.'s comments suggest some degree of ambivalence toward the imposition of the death penalty, especially her comments about what kind of "hardcore murders" came to mind as appropriate for the death penalty.
(ii) Prospective Juror T. C.
T. C.'s responses on the written questionnaire generally indicated willingness to impose the death penalty. However, she answered "yes" to the question whether she would, at the penalty phase, vote for life in prison without the possibility of parole regardless of the evidence. During voir dire, she said she had misunderstood this question, and that she would answer no. She answered "yes" to the question whether she believed that life in prison without the possibility of parole was a more severe penalty than the death penalty. During voir dire she also clarified that she actually believed the death penalty was more severe than life in prison without the possibility of parole.
T. C.'s voir dire answers reflect equivocation and hesitancy. Defense counsel asked her: "Some people may say the death penalty is a good thing but wouldn't want to be a juror in that situation where they actually vote for it. Are you in that particular situation?" T. C. answered: "No, I wouldn't want to vote for it -- I mean, I would vote for it, but if, like I was on the jury, I wouldn't want to put myself in that predicament to vote for a death penalty if I were a juror." This lead to the following exchange:
"Defense counsel: If you are on this jury you're in that predicament. Could you impose the death penalty.
"T. C.: I could but I wouldn't.
"Defense counsel: You wouldn't under any circumstances.
"Defense counsel: So if you are a juror in this case you wouldn't impose the death penalty under any circumstances?
"T. C.: Well, like I said, like I told her in certain situations but I can't say I would just vote for the death penalty. But in certain situations."
The prosecutor asked T. C. whether she thought she was the type of juror who could actually impose the death penalty if it was justified by everything she had heard. Her answer again reflects equivocation and hesitancy: "If I heard everything in the evidence and if I feel that I opposed it and then I changed my mind on it, I would overrule it, you know. Like say if I heard more evidence and I say I was wrong in thinking this and I heard a little more and I decide that the death penalty shouldn't be then I would overrule it."
The record supports the prosecutor's stated race-neutral reason for excusing T. C. (People v. Silva, supra, 25 Cal.4th at p. 386.)
(iii) Prospective Juror P. C.
In her jury questionnaire, in response to a question about her general feelings about the death penalty, P. C. wrote: "It's fair in some cases." As to whether California should have a death penalty, she wrote: "Have not decided as of yet." As to whether every intentional unlawful and non-self-defense killing should receive the death penalty, she circled "agree somewhat," and wrote as an explanation: "Every case has different circumstances."
In voir dire, when the prosecutor asked about her response that she had not decided as yet regarding the death penalty, she answered: "I haven't decided. I really don't know." Asked how she would vote on a ballot initiative determining whether California should have the death penalty, she answered: "I don't know if I would." Asked whether she would include the death penalty if she were the hypothetical ruler of an island who determined the laws, she answered: "I think I would, yeah." Asked whether, if the circumstances warranted it and after hearing all the evidence, she could see herself imposing the death penalty on another person, she answered: "I think I could."
The record supports the prosecutor's stated race-neutral reason for excusing P. C. (People v. Silva, supra, 25 Cal.4th at p. 386.) Even on a cold record, P. C.'s comments suggest some ambivalence and equivocation toward imposing the death penalty, such as her indecision about whether California should have a death penalty, and the qualification of her answers with the phrase "I think."
(iv) Prospective Juror R. P.
R. P.'s written questionnaire generally indicated a willingness to impose the death penalty. As to her general feelings regarding the death penalty, she wrote: "It is sometimes necessary." Some of her voir dire answers, however, suggest the equivocation and hesitancy described by the prosecutor in justifying the use of a peremptory challenge against her. The following exchange, which the prosecutor quoted in substantial part during the discussion of the second Batson/Wheeler motion, reflects this:
"Prosecutor: Do you think the death penalty serves a deterrent value in our society?
"R. P.: It's possible that it might. As I said it would depend on the case. It's not something that I could say yes or no on ...