Superior Court of Kern County, No. SC071427a Roger D. Randall Judge
Richard I. Targow, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Harry Joseph Colombo, William K. Kim, Eric Christoffersen, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion): Richard I. Targow Amanda D. Cary Deputy Attorney General.
Following a mistrial,  a jury convicted defendant Willie Leo Harris of the first degree murder (§§ 187, subd. (a), 189), robbery (§§ 211, 212.5, subd. (a)), and rape (§ 261, subd. (a)(2)) of Alicia Manning; unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)); and arson (§ 451, subd. (d)). The jury found true special circumstance allegations of robbery murder and rape murder (§ 190.2, former subd. (a)(17)(I), (III)), and further found that defendant had used a deadly or dangerous weapon (§ 12022, subd. (b)(1)). The jury returned a verdict of death. The trial court denied defendant’s automatic application to modify the penalty verdict (§ 190.4, subd. (e)), and sentenced him to death on the murder count and imposed a determinate sentence on the remaining counts and enhancements.
Appeal to this court is automatic. (§ 1239, subd. (b).) We affirm the judgment.
On May 20, 1997, defendant entered Alicia Manning’s apartment and raped and killed her. He then stole Manning’s car and set it on fire. Defendant told the police he had had consensual sex with Manning on the night of her murder, but denied killing her. At trial, defendant argued Manning’s boyfriend killed her.
A. Guilt Phase
1. Prosecution Evidence
a. Alicia Manning
In 1997, Alicia Manning was a college senior living in a Bakersfield apartment with her friend and fellow student, Thea Bucholz. Manning had been seriously dating her boyfriend, Charles Hill, for a year, and had known him for over three years. Hill, who was not in school and did not have a job or a working vehicle, lived in Tulare, a town approximately an hour’s drive from Bakersfield. At trial, two unsent letters written by Manning shortly before her death were introduced into evidence: one was addressed to “Charles sweetheart, ” and described her love for him; the other was addressed to a friend and discussed her postgraduation plans with Hill.
In April 1997, Bucholz met defendant through a mutual friend. Defendant and Bucholz became fast friends, and socialized often. Defendant sought a romantic relationship with Bucholz, which she refused, but they remained friends. Defendant, who was unemployed and did not have a car, lived with his girlfriend, Zenobia Findley, and her brother in an apartment less than a mile away from Bucholz and Manning’s apartment.
About a week after Bucholz met defendant, she introduced him to Manning. Manning was in the apartment during three of defendant’s visits. Throughout April and May, defendant frequently called the apartment when Bucholz was not home. Manning told Bucholz that defendant’s calls were interfering with her studying, and she asked Bucholz to request that he stop calling the apartment.
During this time, Findley suspected defendant had become romantically involved with Bucholz and called the women’s apartment. Manning answered the phone and during the ensuing conversation Findley threatened her. Manning reported the call to police.
Around May 16, Manning and Hill discussed ending their relationship because she felt he spent too much time with his friends, and she also feared he might have given her a sexually transmitted disease. Carolyn Krone, an associate director of the student health center at Manning’s university, later told Manning that testing indicated that she did not have a sexually transmitted disease.
On May 19, Manning confronted defendant and Bucholz about Findley’s threatening phone call and told them she had called the police. Manning was furious and told defendant and Bucholz to tell Findley to stop calling the apartment.
That evening, Manning, Hill, and Hill’s father went out to dinner. Hill drove Manning back to her apartment in her car, but did not park in the space closest to her apartment. Manning and Hill had intended to have sex but did not because he was feeling ill. Hill was picked up by his father at Manning’s apartment around 10:00 p.m., and Bucholz returned soon thereafter. The women stayed up talking, and Manning told Bucholz that she had concerns whether Hill was “the right guy for her.” No one else visited the apartment that night.
On May 20, around 3:00 p.m., Manning came home from class and Bucholz soon left to go to her class. Defendant telephonically paged Bucholz around 6:15 p.m. When Bucholz called defendant back, he asked if they could meet up later. Bucholz told him to page her around 9:30 p.m., but he never did.
At some point that afternoon, Hill visited the house of a nearby friend, Pat McCarthy, in Tulare. Hill socialized with McCarthy until around 1:00 a.m., and then walked home. Hill spoke with Manning on the telephone around 5:30 p.m. McCarthy could not say if Hill had been at his house the entire time, but he did not remember Hill being gone for more than 20 minutes at any point. According to Hill, 10 to 15 other people came and went from McCarthy’s house that day; McCarthy, however, did not recall anyone other than Hill at his house.
Findley ran into defendant near their apartment sometime after 8:30 p.m., gave him some beer she had purchased, and left around 9:20 p.m. to go to a friend’s house.
Around 10:00 p.m., James Ave, one of Manning’s neighbors who worked as an athletic trainer at her university, noticed her car was parked in the space closest to her apartment, and that the interior dome light was on. Another neighbor, whose apartment shared an exterior staircase and landing with Manning’s, heard someone go up and down the staircase about three times, but did not otherwise hear anything unusual. Around 10:10 p.m., this neighbor left his apartment and saw someone leaving Manning’s apartment. The neighbor also saw a television and portable stereo in Manning’s car.
Around 10:50 p.m., Findley called her apartment; defendant answered and asked her why she had not yet returned. When she arrived at her apartment around 11:00 p.m., defendant was there. There was nothing unusual about defendant’s demeanor or appearance.
Around 11:00 p.m., firefighters responded to a reported vehicle fire less than a third of a mile away from defendant’s apartment. By the time the firefighters arrived at the vehicle, later determined to be Manning’s, the fire had been put out. An arson investigator concluded the fire had been intentionally set by using rubbing alcohol as an accelerant. No usable latent fingerprints were found inside the vehicle. A fingerprint obtained from the outside of the vehicle did not match defendant’s.
Around midnight, Bakersfield Police Officer Mike Golleher went to Manning’s apartment and knocked on the door, but received no answer. Another officer attempted to call the apartment, but the line was busy.
Around 1:30 a.m. on May 21, Bucholz returned to the apartment. She noticed the front door was unlocked and the blinds covering a sliding glass door were open, which was unusual. The television was not in its usual place, and there were items scattered around the living room. Bucholz later determined that the television, a malfunctioning videocassette recorder, and a portable stereo were missing from the apartment.
Bucholz attempted to enter the bedroom, but the door was partially blocked by a fan. Bucholz turned on the light and saw Manning, nude from the waist down, lying facedown on her bed in a pool of blood. Bucholz called out Manning’s name, but she did not respond.
Bucholz went to call 9-1-1, but the telephone was not in its usual place in the dining room. She found the telephone with its receiver off the hook on the floor of the dining room, and dialed 9-1-1. Soon thereafter, Officer Golleher entered the apartment and determined that Manning was dead.
Defendant paged Bucholz around 4:00 a.m., which was an unusual time for him to page her. She told him it was not a good time to talk, but they spoke later that morning and she told him the police would probably be contacting him because she had given them his name. Defendant became “kind of quiet” after Bucholz said this. Bucholz asked defendant where he had been that night, and he said he was with Findley watching movies and eating pizza. Bucholz thought defendant did not sound like himself.
Around 5:00 a.m., police officers went to Hill’s house and told him that Manning had been murdered. Hill started to cry and left the room. The police returned that evening, and saw no visible injuries on Hill’s hands, arms, head, or neck.
Crime scene technicians collected physical evidence and took photographs at the women’s apartment. There was no evidence of a break-in at any of the apartment’s points of entry. There were no usable fingerprints inside the apartment, on the outside doorknob, or on the exterior staircase’s hand railing.
Near where the telephone was usually kept was a note that read, “Will called at 6:15 p.m., 9:00 p.m., and at 9:30 p.m.” On a microcassette tape located next to the answering machine was a message from defendant to the effect of “If someone calls looking for [Bucholz’s] pager’s number, don’t give it to her, it’s my girlfriend, she’s trippin’.”
On the living room floor was a steak knife partially covered by a bloody T-shirt. The blood pattern indicated the T-shirt had been used to wipe the knife’s blade. The blood on the knife and T-shirt was consistent with Manning’s. Blood on a hand towel found in the living room was also consistent with Manning’s.
Near Manning’s body was a pair of shorts, which tested negative for blood and semen. Also in the bedroom was a pair of white panties. There was a bloody sanitary napkin inside the panties, and there was blood on the edge of the panties. The panties and napkin tested negative for semen. Neither the panties nor the shorts were torn.
Underneath the shorts were a bloodstained note pad, two broken bottlenecks, and a shard of glass. Several other shards of glass were found near Manning’s head and under her body. A large drinking glass missing its base was found in a pile of clothes near Manning, and the broken base was also found near her. Blood consistent with Manning’s was on some of the shards. Also on the bedroom floor was a bloody knife with a two-pronged tip and a bent serrated blade.
Blood had pooled around Manning’s head, and there was spattered blood on the walls. There were also blood smears on Manning’s buttocks, one of her thighs, and her feet.
Manning’s body lay on a blanket, and a semen stain was found on it near her vagina. Semen was also located on the side of a comforter facing away from Manning’s body.
Oral, vaginal, and anal swabs were collected from Manning’s body. A sample of urine that had pooled between Manning’s legs was also collected. The vaginal swabs and urine sample tested positive for the presence of semen. The anal swabs also tested positive for semen but contained relatively few sperm, and it was possible that semen had drained from Manning’s vagina into her anus.
Head and pubic hair samples were also collected from Manning’s body, but all recovered hairs were consistent with her own. Her nails were scraped, but the scrapings were not analyzed. Manning’s left fist contained head hair that was consistent with her own and inconsistent with defendant’s, but it was not further analyzed.
On May 22, police officers contacted defendant at his apartment. Defendant told them he was at his apartment on the night of Manning’s murder. Defendant said he was last in the women’s apartment with Bucholz on the morning of the day before Manning’s murder, and specifically denied being in their apartment on the night of the murder. He admitted he had called the apartment several times that night. Defendant voluntarily removed his shirt, revealing no visible injuries.
On May 30, Detective Richard Herman of the Bakersfield Police Department drove defendant to a laboratory so his blood could be drawn for DNA analysis. Defendant repeatedly asked Detective Herman about the physical evidence found at the crime scene, and specifically asked if the police had found blood belonging to the suspect. Defendant became extremely nervous when Detective Herman informed him that DNA evidence had been collected from the crime scene. On the drive home, Detective Herman asked defendant if he had ever had sex with Manning. Defendant hesitated, and then said they had had sex twice: once in April in Manning’s bedroom, and again in the living room the night before she was murdered. Defendant stated both encounters were consensual. Detective Herman asked defendant why he had previously denied having a relationship with Manning, and he said he did not “want to be involved.”
On June 11, detectives interviewed defendant. After being advised of and waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436, defendant told the detectives he had had sex with Manning only on the night before she was murdered. Defendant said he had worn a condom, but took it off before ejaculating. He initially denied having sex with Manning in April, but then said he had. When asked whether the semen collected from Manning would match his DNA, defendant said he thought it would.
A detective told defendant the DNA analysis would be able to determine when the semen had been deposited. Defendant then said Manning invited him to come to her apartment on the night she was murdered. Defendant said he waited for Findley to come home from work, left his apartment after she left, and then went to Manning’s apartment. Defendant said he had sex with Manning in her bedroom. Defendant said he had worn a condom, took it off before ejaculating, and then flushed it down the toilet. Defendant said the sex was consensual, and denied killing Manning. When asked why his story kept changing, defendant said, “I’m conniving just like you’re conniving, but I didn’t kill the bitch.”
Around July 1, police investigators spoke to defendant’s friend, Anthony Denweed, and Denweed’s girlfriend, Arlene Holiday. Holiday told the police that defendant tried to sell Denweed a television after Manning’s murder, but at trial she testified she told the investigator that defendant attempted to sell the television before the murder. Denweed denied that defendant had ever tried to sell him a television, and denied telling Holiday about such a sale.
In 1999, a police investigator spoke to an acquaintance of defendant’s, Debra Cain, who, at the time of Manning’s murder, lived across the street from defendant. Cain told the investigator that defendant tried to sell her a malfunctioning videocassette recorder in May or June of 1997, but at trial she testified the attempted sale occurred before Manning’s murder.
The urine sample, the vaginal and anal swabs, portions of the comforter, and fibers from the blanket were sent to Cellmark Diagnostics to be compared with blood samples obtained from defendant, Manning, Hill, and two of Hill’s friends. A deputy laboratory director of Cellmark testified about the results of the DNA testing performed. Based on the results of a polymerase chain reaction process, defendant was the only person who could not be excluded as the source of the sperm on the vaginal swabs. The sperm sample was consistent with defendant’s DNA to a statistical frequency of 1 in 410 million in the African-American population, 1 in 1.6 billion in the Caucasian population, and 1 in 1.5 billion in the Hispanic population. The presence of sperm on the vaginal swabs indicated semen had been deposited no more than 48 hours before collection. Defendant was also the only one of the five tested who could not be excluded as the source of the sperm on the blanket. The sample was consistent with defendant’s DNA to a statistical frequency of 1 in 1.6 million in the African-American population, 1 in 4.8 million in the Caucasian population, and 1 in 9.1 million in the Hispanic population. And defendant was also the only one who could not be excluded as the source of the sperm in the urine sample. The sample was consistent with defendant’s DNA to a statistical frequency of 1 in 1, 100 in the African-American population, 1 in 11, 000 in the Caucasian population, and 1 in 13, 000 in the Hispanic population.
Hill and his two friends were excluded as sources of the sperm on the anal swabs, but the amount of sperm was so low that defendant could neither be excluded nor included as the source. Hill was the only one who could not be excluded as the source of the sperm found on the comforter.
An autopsy revealed that Manning had died due to extreme blood loss that occurred in a matter of minutes. She had suffered blunt force trauma to four distinct areas along the left side of her head. The presence of glass shards under her scalp indicated these injuries were caused by a heavy glass object. These injuries could have rendered her unconscious or killed her.
Manning also had been stabbed at least 57 times in the neck, and there were additional stab or slice wounds on her right cheek, left arm, and the left side of her abdomen. There were also a few scrape marks on her left elbow and the left side of her chest and abdomen, and some cuts on her left hand were consistent with being defensive wounds. Some of the stab wounds on Manning’s neck appeared to have been caused by a knife consistent with the two-pronged knife found in her bedroom. Manning was likely alive but not necessarily conscious when the blunt force trauma and stab wounds were inflicted to her head and neck. The stabbings were consistent with a “rage killing, ” that is, a passionate murder, which more often than not involves people who “know each other.”
Manning did not suffer any vaginal trauma, which is not uncommon even when a sexual assault has occurred. She did suffer anal trauma consisting of three small contusions or bruises inflicted around the time of her death. These bruises were consistent with anal penetration by an object the size of an adult penis, and would have not been present unless there was such penetration.
b. Bree Torigiani
Bree Torigiani and her brother lived in a condominium in Bakersfield. Around 1:00 a.m. on June 11, 1997, Torigiani arrived home and noticed the kitchen window was open and the screen had been removed. Her videocassette recorder was missing, and the contents of a tin container were spread out over the living room floor. Torigiani heard someone inside the residence. She called out her brother’s name, and defendant ran down the hallway and out the front door carrying a suitcase that had been under Torigiani’s bed.
Torigiani called 9-1-1 and reported the burglary, and a police officer spotted defendant, still carrying Torigiani’s suitcase, near defendant’s apartment. Defendant dropped the suitcase and attempted to run away, but was apprehended. The officer searched defendant, and found several pieces of jewelry and a “Walkman-type radio, ” all of which belonged to Torigiani. The suitcase contained Torigiani’s videocassette recorder and her camera.
2. Defense Evidence
Teodula Ruiz lived in the same apartment complex as Manning. In the hours after Manning’s murder, the police asked Ruiz if she had seen anyone driving Manning’s car, and she said she had not. Later that day, Ruiz recalled having seen a Caucasian man park Manning’s car in the space closest to Manning’s apartment around 5:00 or 6:00 p.m. on the day of Manning’s murder. Ruiz saw no one else in the car. A few days later, a detective showed Ruiz a photographic lineup from which she identified Manning’s boyfriend Hill as the driver. Ruiz told the detective she was unsure if she saw the car on the night of Manning’s murder or on the night prior, but leaned towards the night of the murder. At trial, Ruiz testified she saw Manning’s car on the night of the murder.
Lori Hiler also lived in Manning’s apartment complex. Around 10:00 p.m. on the night of the murder in front of Manning’s apartment, Hiler saw someone who looked like Hill carrying a television set. Hiler also saw that the door to Manning’s car was slightly open and the dome light was on. A detective showed Hiler a photographic lineup from which she identified Hill as the person whom she had seen carrying the television set. Hiler later told the detective, however, she was not really sure Hill was the person she had seen, or if she just picked him because his picture had been in the newspaper. At trial, Hiler testified she was not sure who she saw.
Also on the night of Manning’s murder, Christopher Bourgoine heard a “poof” noise, looked around, and saw Manning’s car on fire. Bourgoine grabbed his fire extinguisher and put out the fire. Bourgoine testified that a man, who did not match defendant’s description, repeatedly asked him if he saw who set the fire. The man disappeared some time after the fire investigator had arrived. Bourgoine’s sister, who lived with him, also remembered this man.
Marvin Ament, a pediatric gastroenterologist, reviewed microscopic slides taken during Manning’s autopsy, the forensic pathologist’s testimony, and a portion of the transcript of defendant’s first trial. Dr. Ament did not see any anal injuries on the slides he examined, and he believed Manning had not been sodomized.
William Stanley, an obstetrician/gynecologist and infertility specialist who had performed 10 to 12 rape examinations about 10 years before the trial, reviewed the autopsy report, crime scene photographs, a portion of the transcript of defendant’s first trial, and a medical report. Dr. Stanley saw no evidence indicating Manning had nonconsensual sex. Dr. Stanley testified that medical studies indicated vaginal injuries occurred in 30 to 98 percent of rape cases, but he conceded that in some rape cases there were no injuries. On cross-examination, Dr. Stanley testified that medical studies indicated 80 percent of sexual assault victims suffer bodily injuries, such as bruises, scratches, scrapes, cut or stab wounds, or injuries caused by being bludgeoned.
3. Rebuttal Evidence
A detective testified he twice spoke on the telephone with Hill’s friend, McCarthy, who confirmed Hill was with him on the night of Manning’s murder. The detective told McCarthy he could get in trouble for supplying Hill with a false alibi, and McCarthy responded, “I don’t have to worry about that because [Hill] was here and did not leave and could not have been in Bakersfield on [the night of Manning’s murder].”
B. Penalty Phase
1. Prosecution Evidence
a. Victim impact evidence
Manning’s father testified about her aspirations, their family life, and how her death affected them. Manning was a loving, loyal, caring person who went out of her way to help others without expecting anything in return. She was close to her two younger brothers, and her absence caused a “tremendous void” in the family. Her death caused her mother to have nightmares and filled her father with anger.
b. Prior convictions
Defendant had been convicted of burglary in 1990 and possession of cocaine in 1988 and 1995.
c. Prior uncharged offense
On February 4, 1997, Beatrice Thompson was leaving a store when defendant approached her and demanded her purse. Thompson refused, so defendant snatched the purse with so much force its strap broke.
2. Defense Evidence
Defendant was born January 9, 1969, the youngest of six children. Shortly after he was born, his father, a “hustler” and pimp, was killed by a woman with whom he was having an affair. Defendant’s mother, Jerlene Harris, stayed home to take care of her children, but eventually went back to work and got off welfare.
Defendant lived with his family until he moved in with his girlfriend Findley, but moved back home whenever he and Findley fought, which was often. Defendant had many girlfriends and argued with all of them, but was never physically violent toward any of them. Various family members and friends also testified about defendant’s nonviolent nature.
Defendant’s sister, Delora Harris, helped raise him. She recalled that she once went to check on him, and discovered the babysitter beating him. Defendant often came home from the babysitter very hungry even though Jerlene had prepared food for him. When Delora attended junior college in another city, defendant begged her not to go. Delora regularly returned to Bakersfield, and took him back with her to school.
Defendant’s siblings first introduced him to marijuana when he was five years old. A family member introduced defendant to crack cocaine when he was 16 or 17 years old.
Defendant was also close to Delora’s daughter, Dracena Smith. Smith recalled as a child jumping off the top bunk of bunk beds and cutting her head open. Defendant attempted to help her, but fainted at the sight of her blood. Smith dated one of defendant’s friends, who had introduced her to crack cocaine. When defendant found out, he counseled Smith on the dangers of using crack cocaine, so she stopped. Smith testified defendant always wanted to be loved, and if the woman he was dating was not available, he would seek attention from other women.
Defendant dated Avonda Jones in 1995, and they had a son together. Defendant remained close to his son after he and Jones broke up. Jones considered defendant to be a good person and a good father.
Cecil Whiting, a clinical psychologist, examined defendant and interviewed his family members. As a child, defendant had been diagnosed with attention deficit hyperactivity disorder, and he continued to have some characteristics of the disorder as an adult. According to Dr. Whiting, defendant did not have any significant problems with general cognition, thinking, or applying good judgment, nor with his emotional state, verbal abilities, or short-term memory. Dr. Whiting found that defendant’s long-term memory, ability to concentrate, and ability to hear and understand others were mildly impaired, and that he had some minor learning disabilities. Defendant had a fear of the dark and of blood. Dr. Whiting believed defendant’s talkative and friendly nature was a form of compensation for the psychological pain of his past and that his being raised by his mother and siblings led to his tendency to form relationships with dominating women. Dr. Whiting testified that in stressful situations defendant might use harsh language. In Dr. Whiting’s opinion, defendant’s personality and psychological characteristics were inconsistent with others convicted of similar crimes.
James Park, an administrator for the former California Department of Corrections, testified as an expert in prison classifications and operations. According to Park, when defendant previously was in prison, he had only a few discipline problems, and was neither a model prisoner nor a problem prisoner. Defendant had an above-average work record and attended Narcotics Anonymous. Defendant had some minor rules infractions, but was not physically violent. Park believed defendant would adequately adjust to prison life.
A. Pretrial Claims
1. Change of Venue
Before jury selection, defendant twice moved unsuccessfully for a change of venue, and he unsuccessfully renewed this motion after the jury had been selected. Defendant contends the trial court prejudicially erred by denying the motions. We disagree.
A defendant’s motion for change of venue must be granted when “there is a reasonable likelihood that a fair and impartial trial cannot be had in the county” where the charges were filed. (§ 1033, subd. (a).) “Reasonable likelihood” in this context means “ ‘means something less than “more probable than not, ” ’ and ‘something more than merely “possible.” ’ [Citation.]” (People v. Proctor (1992) 4 Cal.4th 499, 523 (Proctor).) In ruling on the motion, in which the defendant bears the burden of proof, the trial court considers the “ ‘ “(1) nature and gravity of the offense; (2) nature and extent of the media coverage; (3) size of the community; (4) community status of the defendant; and (5) prominence of the victim.” [Citations.]’ ” (People v. Famalaro (2011) 52 Cal.4th 1, 21 (Famalaro); see Proctor, supra, 4 Cal.4th at p. 523.)
On appeal, the defendant must show both error and prejudice, that is, “ ‘at the time of the motion it was reasonably likely that a fair trial could not be had in the county, and that it was reasonably likely that a fair trial was not had. [Citations.]’ [Citation]. Although we will sustain the trial court’s determination of the relevant facts if supported by substantial evidence, ‘ “[w]e independently review the court’s ultimate determination of the reasonable likelihood of an unfair trial.” ’ [Citation.]” (Famalaro, supra, 52 Cal.4th at p. 21.)
In his first motion, defendant contended prejudicial publicity had saturated Kern County and prevented him from receiving a fair trial. Defendant argued the extensive media coverage portrayed him in sensational and negative terms, and Manning in a sympathetic light. He also argued that because a majority of the Kern County residents lived in the greater Bakersfield area, most of them had been exposed to the media coverage. Defendant also claimed state legislators “halt[ed] the government” to remember Manning, which implied his case had political overtones.
At the hearing on his first motion, defendant presented testimony by Edward J. Bronson, a California State University, Chico, professor who testified as an expert in change of venue. He reviewed the local newspaper’s and television stations’ coverage. Dr. Bronson also surveyed county residents about their knowledge and opinions of defendant’s case. Based on this data, Dr. Bronson concluded there was a reasonable likelihood the pretrial publicity detrimentally influenced prospective jurors’ views of the case.
Dr. Bronson reviewed the media coverage of defendant’s case. From the date of Manning’s murder in May 1997 to mid-April 1999, the only local newspaper, The Bakersfield Californian, published 48 articles about the case. Forty-three of those articles were published before or during defendant’s first trial, which ended in a mistrial in December 1998. Local television stations aired 294 reports about Manning’s murder, most during defendant’s first trial.
Dr. Bronson believed the newspaper coverage of the crime was inflammatory and likely to prejudice the community from which the venire would be drawn, citing the articles’ use of language such as “[b]rutal, grisly, ghastly, viciousness, stuff of nightmares, horribly, shocked, traumatized, anger, terrible tragedy, [and] mystery.” Dr. Bronson also testified about the “salience” of the case, that is, the extent to which the case had “grab[bed]” the community. In Dr. Bronson’s opinion, the case “caught the community’s attention” due to the “viciousness” of the crime and Manning’s “apparent innocence.” Dr. Bronson testified the newspaper articles highlighted that defendant was African-American and Manning was Caucasian, which was a “particularly dangerous” form of pretrial “publicity” in a case in which the defendant claimed the victim consented to the sexual acts.
Dr. Bronson also testified about the extensive coverage of defendant’s first trial having ended in a mistrial after the jury deadlocked 11 to 1, a fact that would be inadmissible at his second trial. Dr. Bronson believed the news coverage implied that the holdout juror — who was the only African-American juror — was rigid, irrational, and irresponsible. According to Dr. Bronson, the newspaper articles repeatedly quoted police sources expressing confidence that defendant “was the right guy” and stating that he had declined three requests to be interviewed, all of which created the appearance that he was guilty.
Dr. Bronson also designed a telephone public opinion survey that was administered to 400 Kern County residents in February 1999. Seventy-two percent of the survey participants knew of the case. Of those who recognized the case, 55 percent said defendant was definitely or probably guilty of murder, and 45 percent said he should receive the death penalty. Of those who recognized the case, 81 percent knew defendant’s and Manning’s races, 70 percent knew he was accused of raping and sodomizing her and that he claimed the sex was consensual, 64 percent knew he claimed that Hill killed Manning, 47 percent knew defendant’s first trial ended with the jury deadlocked 11 to 1, and 22 percent knew defendant had a criminal record. Dr. Bronson testified that the more a survey participant knew about the case, the more likely he or she believed defendant was guilty.
Acknowledging that the case was “as serious as a case can get” because defendant was facing the death penalty, and that the “substantial” media coverage referred to the brutal nature of the crime and its “sexual overlay, ” the trial court nevertheless denied the motion to change venue. It noted the media had prominently covered defendant’s claim that Hill killed Manning, and also had reported that a similar crime had been committed while defendant was in custody. The court noted that, in addition to presenting an alternative to the prosecutor’s theory of the case, the newspaper interviewed the holdout juror from defendant’s first trial, who explained he had not been convinced of the prosecutor’s case beyond a reasonable doubt; the court implicitly rejected defendant’s contention that the coverage depicted this juror’s vote as irrational. In the court’s view, the media coverage was “pretty evenhanded” overall.
The trial court declined to find the telephonic survey compelling, given its failure to adequately canvass some of the outlying towns from which the venire would be drawn. Moreover, the court noted the survey participants’ level of prejudgment was “not a tremendous increase” over the figure of “between 28 and 40 percent” of people who believe that any criminal defendant is “probably guilty.”
With respect to the community status of defendant and Manning, the trial court observed defendant was a lifelong resident of the county, while Manning had come from another state to attend college and intended to leave after graduation. The court acknowledged that the media coverage portrayed Manning in a very sympathetic light, but found defendant had not been “demonized.” The court found that in 1997 the California Assembly had adjourned in honor of Manning’s memory, but there were was no significant political overtones in the act.
The trial court concluded defendant had failed to show a reasonable likelihood that he would be unable to receive a fair trial in Kern County.
On May 25, 1999, defendant renewed his motion for change of venue. The sole contention supporting the renewed motion concerned an article published in that day’s edition of The Bakersfield Californian reporting that another inmate claimed defendant had “all but confessed” to killing Manning. In denying the second motion, the trial court found the information in the article was not significantly different from that in past articles, and also noted the article reported that defendant denied making such an admission.
On June 18, 1999, at the conclusion of voir dire before the swearing in of the jury, defendant again renewed his motion, arguing that the juror questionnaires indicated a large percentage of the venire had heard of the case. The trial court denied the third motion.
Although defendant moved for change of venue three times, the last two motions did not significantly alter the information presented to the trial court with the first motion. Therefore, our analysis of the court’s rulings is the same for all three motions.
Regarding the first factor in the legal analysis — the nature and gravity of the crimes — the trial court acknowledged the seriousness of the charged offenses. Even in a capital case, however, this factor standing alone does not compel change of venue. (See Famalaro, supra, 52 Cal.4th at pp. 21-22; People v. Ramirez (2006) 39 Cal.4th 398, 434 (Ramirez).) Defendant acknowledges the court discussed the gravity of the crimes, but contends it failed to evaluate the nature of the crimes. Not so. The court explicitly recognized the case involved both murder and rape charges. To the extent defendant contends the court failed to account for the cross-racial nature of the crimes, the record contradicts that claim. Moreover, we have said in another case that “[a]lthough some prejudice may have arisen from the racial difference between defendant and... the victims, ‘this element of possible prejudice presumably would follow the case to any other venue....’ [Citations.]” (People v. Lewis (2008) 43 Cal.4th 415, 448 (Lewis).) In any event, “the sensationalism inherent in all capital murder cases will not in and of itself necessitate a change of venue.” (People v. Adcox (1988) 47 Cal.3d 207, 231.)
As to the second factor — the nature and extent of the media coverage — the trial court found the local news coverage to be “substantial.” Heavy media coverage may weigh in favor of a change of venue, but does not necessarily compel it. (Ramirez, supra, 39 Cal.4th at p. 434 [affirming denial of change of venue in a serial murder case when the trial court described the media coverage as “ ‘saturation’ ”].) “ ‘When pretrial publicity is at issue, “primary reliance on the judgment of the trial court makes [especially] good sense” because the judge “sits in the locale where the publicity is said to have had its effect” and may base [the] evaluation on [the judge’s] “own perception of the depth and extent of news stories that might influence a juror.” ’ [Citation.]” (Famalaro, supra, 52 Cal.4th at p. 24.) We do not doubt the court’s finding that there was substantial pretrial publicity, given that 72 percent of the participants in defendant’s telephonic survey recognized his case. Moreover, of those who recognized the case, 55 percent said defendant was definitely or probably guilty of murder and 45 percent said he should receive the death penalty. But we have upheld a trial court’s denial of venue change motions in cases involving greater or comparable recognition and prejudice, as measured by such surveys. (See id. at p. 19 [83 percent surveyed had heard of the case, and of those, 70 percent said the defendant was definitely or probably guilty of murder, and 72 percent said he should receive the death penalty]; People v. Rountree (2013) 56 Cal.4th 823, 836 (Rountree) [81 percent surveyed recognized the case, and of those, 46 percent said the defendant was definitely or probably guilty]; People v. Leonard (2007) 40 Cal.4th 1370, 1396 [85 percent surveyed had heard of the case, and of those, 58 percent believed the defendant was probably or definitely guilty]; Ramirez, supra, 39 Cal.4th at p. 433 [94 percent surveyed had heard of the case, and of those, 52 percent believed the defendant was responsible for the charged crimes]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 45 [71 percent surveyed recognized the defendants’ case, and of those, over 80 percent said the defendants were definitely or probably guilty].)
Defendant contends the publicity was “unbalanced in the extreme, ” and that the record does not support the trial court’s finding that it was “pretty evenhanded.” He complains that the coverage did not merely report on the facts of the case, but also employed inflammatory or inaccurate language, contained material inadmissible in court, and created a presumption of guilt. The bulk of the coverage, however, was framed in neutral terms, contained little inadmissible or prejudicial material, reported defendant’s theory that he did not kill Manning, and was not otherwise an attempt to convict him in the media. (See Famalaro, supra, 52 Cal.4th at pp. 22-23; People v. Prince (2007) 40 Cal.4th 1179, 1218-1219 (Prince).) Media coverage is not biased or inflammatory simply because it recounts the inherently disturbing circumstances of the case. (People v. Panah (2005) 35 Cal.4th 395, 448 (Panah).)
We acknowledge that continuous and extensive factual accounts may be potentially prejudicial. (See Williams v. Superior Court (1983) 34 Cal.3d 584, 590.) In Williams, petitioner and his brother were charged with the murder, rape, burglary, kidnapping, kidnapping for robbery, and robbery of a young Caucasian woman. (Id. at p. 587.) The petitioner’s brother was tried first, convicted on all counts, and sentenced to death. (Ibid.) The newspaper coverage during the petitioner’s proceedings, while accurate, was capable of eliciting a hostile response from the reader. We cited a newspaper article that quoted the prosecutor during the brother’s trial as having said “ ‘ “[the] defendant took upon himself to take Heather Mead’s virginity, her property and her life to satisfy his own lust and greed.” ’ ” (Id. at p. 591.) In addition, a newspaper article about the brother’s trial quoted the criminalist’s testimony that hairs found at the crime scene had “ ‘Negroid features, ’ ” and noted the petitioner and his brother were African-American. (Ibid.) We held that such factual recitations in Placer County, in which only 402 of a population of 117, 000 people were African-American, “could have a potentially devastating impact.” (Ibid.) Unlike defendant’s case, which involved coverage of the first trial’s ending after six weeks in a hung jury and mistrial on the capital charges, in Williams the media coverage described the petitioner’s brother’s yearlong trial, which had resulted in a conviction and death verdict. (Ibid.) The publicity in Williams was “extensive, ” “continual, ” “repetitive, ” “at times inflammatory, ” lasted over a period of two years, and described the evidence that was presented at the brother’s trial and would likely be introduced at the petitioner’s trial. (Id. at pp. 589-592.) The connection between the brothers’ cases had become so strong there was a danger that potential jurors would transfer the brother’s guilty verdict onto the petitioner. (Id. at p. 595.) In comparison, defendant was tried in a larger county that was less saturated by the media coverage, and was tried alone.
Most of the publicity about which defendant complains was disseminated between the time of Manning’s murder in May 1997 and his first trial, which ended in December 1998; defendant was not retried until June 1999. Dr. Bronson testified that people tend to remember information that was first received, which, in his opinion in this case, created the presumption that defendant was guilty. We have held, however, “[t]he passage of time ordinarily blunts the prejudicial impact of widespread publicity. [Citations.]” (Prince, supra, 40 Cal.4th at p. 1214; see Panah, supra, 35 Cal.4th at p. 448.) Dr. Bronson acknowledged that newspaper coverage was heaviest immediately after Manning’s murder and diminished over time, but noted that the opposite was true for television coverage because so many stories were aired during defendant’s first trial. In addition, as defendant argued in his second and third motions for change of venue, the coverage of his case continued until the start of the his second trial, and many prospective jurors were aware of his case. Based on this, defendant contends the extensive television coverage of his first trial not only reignited the public’s interest in his case, but also provided potential jurors with arguably prejudicial information, such as his first trial’s having ended in an 11-to-1 hung jury in favor of guilt. But, as the trial court noted, during defendant’s first trial there was “substantial coverage” of his theory that Hill killed Manning, and in a published interview the holdout juror from the first trial explained he felt the prosecution had not proved its case beyond a reasonable doubt. Even if media coverage kept defendant’s case in the public eye until the start of his second trial, defendant fails to demonstrate that it was so extensive and slanted against him as to prevent him from receiving a fair and impartial trial.
With respect to the third factor — the size of the community — this factor did not support a change of venue. In 1999, Kern County had a population of 648, 400, ranking it 14th out of California’s 58 counties in population size. We do not find persuasive defendant’s reliance on Steffen v. Municipal Court (1978) 80 Cal.App.3d 623, in which the Court of Appeal granted a petition for writ of mandate directing the trial court to grant the petitioners’ motion for change of venue filed in San Mateo County, which at the time had a population of 575, 000. In that case, the petitioners had been charged with misdemeanor solicitation of an act of prostitution at the theater where they worked. (Id. at p. 625.) In granting the petition, the Court of Appeal based its decision on the long-term negative publicity that caused the theater to develop a reputation as a place frequented by prostitutes; the size of the county did not figure in its analysis. (Id. at pp. 626 627.) Conversely, the Attorney General cites several capital cases in which motions for change of venue were denied in smaller counties. (See, e.g., People v. Vieira (2005) 35 Cal.4th 264, 280-283 [Stanislaus County, population 370, 000]; People v. Weaver (2001) 26 Cal.4th 876, 905 (Weaver) [Kern County, population exceeding 450, 000]; People v. Hayes (1999) 21 Cal.4th 1211, 1250 1251 [Santa Cruz County, population under 200, 000]; see also Rountree, supra, 56 Cal.4th at p. 839 [Kern County, population of 543, 477].)
Weaver is particularly instructive. There, we affirmed the denial of a change of venue from Kern County when it was less populous than during defendant’s trial. We described the county’s “moderate size” to be a “relatively neutral” factor, noting the key consideration was whether the size of the population diluted the effect of adverse publicity. (Weaver, supra, 26 Cal.4th at p. 905; see Rountree, supra, 56 Cal.4th at p. 839.) As we have explained, the media coverage in this case was not so extensive and negative as to require us to presume prejudice (see Lewis, supra, 43 Cal.4th at p. 450), and the size of the county supported the conclusion that an unbiased jury could likely be found.
The fourth factor — community status of the defendant, meaning whether the defendant was known to the public before the crime — did not weigh heavily either for or against a change of venue. (Ramirez, supra, 39 Cal.4th at p. 434; see Famalaro, supra, 52 Cal.4th at p. 23.) Although defendant was a lifelong resident of the community, there was no evidence that he or his family were known to the public before his arrest.
We are mindful that defendant was an African-American in a predominately Caucasian community and that, after the murder had been committed, his criminal record was published. (See Famalaro, supra, 52 Cal.4th at p. 23; People v. Williams, supra, 48 Cal.3d at p. 1129 [“[T]he social, racial and sexual overtones [of the case] were precisely the kind which could ‘most effectively prejudice’ defendant.”].) Although defendant’s photograph was published several times in the newspaper, and one article did refer to his race, the coverage did not emphasize his race or refer to him in a racially inflammatory manner. (See Prince, supra, 40 Cal.4th at p. 1214.)
Moreover, any possible racial prejudice presumably would follow the case to any other venue. (See Prince, supra, 40 Cal.4th at p. 1214.) Defendant contends such reasoning eliminates possible racial prejudice as a factor when determining whether to change venue. Other than Dr. Bronson’s concerns about the racial overtones of the case, however, there is no evidence in the record that race relations in Kern County were significantly different from those in other counties.
Finally, the fifth factor — prominence of the victim, meaning whether the victim was known to the public before the crime — did not support a change of venue. (Ramirez, supra, 39 Cal.4th at p. 434; see Famalaro, supra, 52 Cal.4th at pp. 23-24.) Manning was not known to the public before her murder, and she did not have long or extensive ties to the community. Rather, she came from another state to Bakersfield to attend college there, and she intended to move away after her anticipated impending graduation. Manning came to the public’s attention only because she was a murder victim.
Nonetheless, as the trial court noted, the California State Assembly had adjourned in honor of Manning’s memory. A newspaper article also reported that, due to her father’s military service, Manning qualified to be buried in Arlington National Cemetery and was interred there. Even were we to assume this evidence implied Manning or her family occupied positions of prominence, nothing in the record suggests these factors influenced the jury pool. (See Panah, supra, 35 Cal.4th at p. 449; cf. People v. Williams, supra, 48 Cal.3d at pp. 1126-1131 [substantial number of prospective jurors knew the victim, her family, potential witnesses, or someone associated with the prosecution].)
Defendant contends the local newspaper’s extensive coverage of Manning’s murder humanized her and made her seem part of everybody’s family. But as we have said in other cases, any features of the case that gave the victim prominence in the wake of the crimes would inevitably have become apparent no matter in which venue defendant was tried. (See, e.g., Prince, supra, 40 Cal.4th at p. 1214.)
In addition, defendant contends the trial court improperly prevented Dr. Bronson from opining whether pretrial publicity had so affected public attitudes toward the case that defendant would be unable to avail himself of the presumption of innocence that the law guarantees him. In response to defense counsel’s inquiry regarding the impact of the pretrial publicity on the venire, Dr. Bronson stated, “[T]here is a reasonable likelihood that the defendant could not have a jury panel that was unaffected by the pretrial publicity and could afford him the presumption of innocence to which he’s entitled.” The prosecutor objected to the answer on the ground it gave a legal conclusion. The trial court sustained the objection as to the latter portion of Dr. Bronson’s answer and struck the phrase “and could afford him the presumption of innocence to which he’s entitled.” Defense counsel later asked Dr. Bronson if he had an opinion whether defendant “would be able to begin his trial here in Kern County with the burden of proof properly in place?” The trial court sustained the prosecutor’s objection that the question called for a legal conclusion.
Defendant is correct that, in determining whether there is a reasonable likelihood that a defendant can receive a fair and impartial trial in the venue, the trial court may rely on evidence such as “qualified public opinion surveys or opinion testimony offered by individuals, or on the court’s own evaluation of the nature, frequency, and timing of the material involved.” (Maine v. Superior Court (1968) 68 Cal.2d 375, 383, italics added.) We primarily rely, however, on the trial court’s judgment for these matters (Famalaro, supra, 52 Cal.4th at p. 24), especially when determining the ultimate issue of the venue’s fairness and impartiality. (See ante, at p. 21.) Even assuming the trial court erred in excluding Dr. Bronson’s proffered testimony, based on our consideration of the evidence in total (including Dr. Bronson’s testimony), we agree with the trial court’s conclusion that defendant failed to demonstrate there was a reasonable likelihood that he could not receive a fair and impartial trial in the venue. (See Famalaro, supra, 52 Cal.4th at p. 24.)
Defendant also fails to demonstrate a reasonable likelihood that he was prejudiced, that is, that he did not in fact receive a fair and impartial trial. (See Proctor, supra, 4 Cal.4th at p. 523.) With respect to this second part of the showing, we examine the voir dire of the jurors to determine whether the pretrial publicity had a prejudicial effect on the jury. (Id. at p. 524.) Among the 12 seated jurors at defendant’s trial, two knew nothing about his case and the remaining 10 recognized the case but remembered few specifics. That most of the seated jurors had some prior knowledge of the case does not compel a change of venue. (See Famalaro, supra, 52 Cal.4th at p. 31 [“ ‘The relevant question is not whether the community remembered the case, but whether the jurors... had such fixed opinions that they could not judge impartially the guilt of the defendant.’ [Citation.]”]; Rountree, supra, 56 Cal.4th at p. 840 [eight of the 12 jurors had heard something about the case].) On appeal, defendant does not challenge any of the responses of the seated jurors, all of whom testified under oath they could put aside outside influences and fairly try the case. To the extent defendant contends we cannot believe jurors who are aware of the case but claim not to have prejudged it, we have previously rejected this argument (Prince, supra, 40 Cal.4th at p. 1215), and do so again here. Although such assertions do not automatically establish jurors’ impartiality, our independent review of the record discloses no evidence that any of the seated jurors harbored a bias that was not detected during voir dire. Moreover, as the Attorney General notes, the jury did not convict defendant of sodomy and burglary, which tends to show that it was not prejudiced against him, but rather was able to fairly evaluate the evidence before it.
Accordingly, the trial court properly denied defendant’s motions for change of venue.
2. Jury Selection
a. Manner of conducting voir dire
Defendant contends the trial court violated his right to a fair trial by limiting race-related questions in the juror questionnaire and in individualized voir dire. As we will explain, neither of these contentions has merit.
(1) Adequacy of questioning on potential racial bias
As noted, defendant’s first trial ended in a mistrial, with a holdout juror who was the lone African-American. In preparation for the second trial, defendant submitted to the trial court a proposed juror questionnaire that contained 14 questions regarding racial bias. The trial court rejected five of defendant’s proposed questions on racial bias and permitted nine to remain.
A defendant is entitled to question prospective jurors on the issue of possible racial bias. (People v. Taylor (2010) 48 Cal.4th 574, 608 (Taylor).) A trial court, however, has wide discretion in deciding what questions should be asked on voir dire to determine potential jurors’ biases. (Ibid.) “It abuses that discretion if its failure to ask questions renders the defendant’s trial ‘ “fundamentally unfair” ’ or ‘ “ ‘if the questioning is not reasonably sufficient to test the jury for bias or partiality.’ ” ’ ” (Ibid.; see Code Civ. Proc., § 223.)
The trial court here permitted nine questions on racial bias. For the five questions it did reject, the court explained those questions duplicated other questions, sought information on a “collateral” issue, or were phrased in a biased or nonneutral manner. In light of the nine questions the court did permit, we cannot say it abused its discretion in rejecting these five questions for these reasons. In addition, the court instructed counsel to submit a list of questions for further examination by the court for each prospective juror. Thus, defendant had the opportunity to further explore any potential juror’s possible racial bias.
To the extent defendant contends the trial court erred by not allowing a juror from his first trial to testify about that jury’s deliberations, and even if we assume such evidence would be admissible (see Evid. Code, § 1150), such testimony would not have been helpful in determining possible racial bias in the second trial’s venire. Thus, on the record before us, we conclude the court’s inquiry into possible racial bias was sufficient.
(2) Denial of motion for individual sequestered voir dire
Defendant contends the trial court erred in denying his motion to allow counsel to conduct voir dire of each prospective juror individually and separately from the other prospective jurors. He argued individual voir dire was necessary because the cross-racial nature of the case was likely to evoke racial biases. The court denied the request to conduct sequestered voir dire on any issue, stating it did not believe race was “a huge issue in this case.” We review the denial of a defendant’s motion for individual sequestered voir dire for abuse of discretion. (Famalaro, supra, 52 Cal.4th at p. 34.)
Individual sequestered voir dire is not constitutionally required, even in a capital case. (See Taylor, supra, 48 Cal.4th at p. 606.) Moreover, section 223 of the Code of Civil Procedure states, in pertinent part, that “[v]oir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors....” Group voir dire may be impracticable when it is shown to result in actual, rather than merely potential, bias. (Taylor, supra, 48 Cal.4th at p. 606.) Defendant does not suggest that either the trial court’s comments or the responses of other prospective jurors influenced any prospective juror. Rather, he contends the nature of group voir dire coerced the prospective jurors into giving “socially acceptable answers, ” and not giving honest answers about their actual biases. Although prospective jurors may have been influenced by others’ responses, and by having to respond in front of others, this is, at most, potential rather than actual bias. (Lewis, supra, 43 Cal.4th at pp. 494 495.) Moreover, prospective jurors individually completed the written questionnaires, and the court indicated it would question prospective jurors individually about their views on the death penalty; it added, however, that any “sensitive” matter could also be discussed “in confidence.” Thus, defendant could have asked to examine a prospective juror’s possible racial biases privately. Defendant did not make such a request. Accordingly, on the record before us, we conclude the court did not abuse its discretion in denying defendant’s request for individual sequestered voir dire.
b. Batson/Wheeler challenge
Defendant contends the prosecutor improperly exercised peremptory challenges against two African-American prospective jurors, H.C. and K.P., on the basis of race. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162 (Johnson).)
The applicable law is settled. “Under Wheeler, ‘ “[a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias — that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’ — violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution. [Citations.]” ’ [Citation.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment. [Citations.]
“In ruling on a motion challenging the exercise of peremptory strikes, the trial court follows a three-step procedure. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ ([Johnson, supra, 545 U.S. at p. 168], fn. omitted.)” (People v. Streeter (2012) 54 Cal.4th 205, 221 (Streeter).) The United States Supreme Court did not intend a movant’s burden at the first, prima facie, stage “to be so onerous that a defendant would have to persuade the judge — on the basis of all the facts, some of which are impossible for the defendant to know with certainty — that the challenge was more likely than not the product of purposeful discrimination. Instead, 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, supra, 645 U.S. at p. 170.)
Three of the 69 prospective jurors in the jury pool were African-American. Without objection, the prosecutor exercised his sixth peremptory challenge to excuse H.C., who was African-American. After the prosecutor used his 12th peremptory challenge to excuse K.P., another African-American, defendant made a Wheeler motion, citing the prosecutor’s excusal of H.C. and K.P. In support of his motion, defendant claimed African-Americans were underrepresented in the venire, noted the holdout juror from his first trial was African-American, and argued the prosecutor excused H.C. and K.P. because he feared they would vote not guilty.
Without expressly stating the standard it was employing, the trial court denied the motion, finding defendant had failed to make a prima facie showing. The prosecutor declined the trial court’s invitation to state his reasons for excusing H.C. and K.P., but noted that roughly five percent of the population in Kern County was African-American. The prosecutor also stated that the trial court and the attorneys were “all aware” that the holdout juror from defendant’s first trial was African-American, but noted this juror had voted to convict defendant of the Torigiani burglary. One African-American woman ultimately served on defendant’s jury.
Although the trial court did not articulate the standard it was using, we will assume it used the wrong one, that is, whether defendant established a “strong likelihood” that a juror was peremptorily challenged on the basis of race. (Streeter, supra, 54 Cal.4th at p. 222 [articulating the standard under Wheeler, supra, 22 Cal.3d at p. 280].) After defendant’s trial, the high court disapproved of that standard for the purposes of establishing a prima facie showing. (Johnson, supra, 545 U.S. at pp. 166-168.) Instead, a defendant has the burden of showing that the circumstances of the case raise an inference that the prosecutor excluded a prospective juror based on race. (Batson, supra, 476 U.S. at p. 96.) Regardless of which standard the trial court used, we independently review the record and apply the standard required by the high court. (People v. Bell (2007) 40 Cal.4th 582, 597 (Bell).)
Although a prima facie showing may be made from any evidence in the record, we have noted “certain types of evidence that will be relevant for this purpose. Thus the party may show that [opposing counsel] has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of... peremptories against the group. [The moving party] may also demonstrate that the jurors in question share only this one characteristic — their membership in the group — and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of [opposing counsel] to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if [the defendant] is, and ...