Order 10/2/13 (unmodified opn. attached)
San Diego County Super. Ct. No. CR 136371 Laura P. Hammes, Judge.
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Joseph E. Chabot and Nina Wilder, Deputy State Public Defenders, and Lisa Anne D’Orazio for Defendant and Appellant.
Bill Lockyer and Kamala D. Harris, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Joseph E. Chabot Deputy State Public Defender Karl T. Terp Deputy Attorney General.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
The opinion herein, filed August 26, 2013, and appearing at 57 Cal.4th 899, is modified as follows:
1. On page 942 of 57 Cal.4th, the following paragraph is deleted:
“As previously noted, we agree with respondent that a challenge to the Kelly third prong goes to the weight, not the admissibility, of the evidence. (People v. Brown, supra, 91 Cal.App.4th at p. 647.) We thus reject at the outset any suggestion the trial court erred by admitting the evidence.”
2. Also on page 942, the first sentence following the deleted paragraph is deleted. The deleted sentence reads: “We also reject the argument that Dr. Blake’s rebuttal evidence failed to satisfy Kelly’s third prong.” Substitute this new sentence reading: “We reject this argument.”
This modification does not affect the judgment.
The petition for rehearing is denied.
A jury in San Diego County Superior Court convicted defendant Bryan Maurice Jones in 1994 of the first degree murders of JoAnn Sweets and Sophia Glover (Pen. Code, §§ 187, 189; all further statutory references are to this code unless otherwise indicated), attempting to murder Maria R. and Karen M. (§§ 664/187), and committing forcible rape, sodomy and oral copulation against Karen M. (§§ 261, subd. (a)(2), 286, subd. (c), 288a, subd. (c)). The jury further sustained an allegation that defendant used a deadly weapon when attempting to murder Maria R. (§ 12022, subd. (b).) Finally, the jury sustained three special circumstance allegations rendering defendant eligible for the death penalty: that he murdered both Sweets and Glover during the commission or attempted commission of the crime of sodomy (§ 190.2, subd. (a)(17)), and that he committed multiple murders (§ 190.2, subd. (a)(3)). Although defendant was also charged with murdering two additional victims, one with special circumstances, the jury failed to return a verdict on those counts, and they were not retried. On April 6, 1994, following a penalty trial, the jury set the punishment at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in all respects.
I. GUILT PHASE
In 1985 and 1986, defendant lived with his mother, Ann Jones, in an apartment on 51st Street in San Diego. Ann Jones worked 24 hours a day, five days a week, as an in-home nurse tending to the needs of an elderly woman named Tillie Wilsie, who lived on Mississippi Street, also in San Diego. Defendant would often spend weekends at the Wilsie home, including time when his mother was not present. He had a key to the Wilsie home.
At the time of the crimes, defendant was six feet five inches tall, weighed approximately 300 pounds, and was familiar with the martial art of karate. He occasionally borrowed his sister’s car, a 1980 Datsun “280Z” with faded blue two-tone paint.
1. Maria R.
Maria R. testified that on August 15, 1985, she was homeless and living on the street. She used heroin two or three times a week but was not high that day. She struck up a conversation with defendant, and he offered her $20 for sex. She did not usually engage in prostitution but would occasionally do so. She agreed, and they took the bus to defendant’s apartment on 51st Street. Maria R. had sex with defendant in the apartment, he paid her, and she took a shower. When she emerged from the shower, defendant had a rope in his hand. He forcibly placed the rope around her neck, jumped on her back and started choking her with his hands and the rope. She blacked out; when she awoke, defendant attacked her again, and she again blacked out. When she awoke a second time, defendant told her she would have to orally copulate him if she wanted him to let her go. She complied because she “wanted [her] life” and had no choice. Defendant released her after first taking back his $20.
Although Maria R. had had problems with the police before, she reported the crime to them. She accompanied police to the apartment building where she had been assaulted and hid while they brought defendant outside. Defendant was taken into custody but after his release a few days later, she returned to the apartment with some people from a church, who apparently tried to dissuade defendant from attacking her again.
The jury found defendant guilty of attempting to murder Maria R. using a deadly weapon, i.e., a rope. (§§ 664/187, 12022, subd. (b).)
2. Tara Simpson
Two weeks later, on August 29, 1985, police and firefighters responded to a report of a fire in a dumpster in the alley behind defendant’s apartment on 51st Street. The fire had been set intentionally using an accelerant. After dousing the fire, responders found in the dumpster the body of Tara Simpson, an 18-year old African-American prostitute, burned almost beyond recognition. Although the severity of the burning made forensic examination difficult, an autopsy revealed a traumatic injury to her nose that was not caused by the fire, an incised injury like a knife wound in her abdomen, and evidence of asphyxia (small petechial hemorrhages on the surface of the heart), but no trauma to her throat or airway. Swabs revealed the presence of acid phosphatase in her mouth, vagina and rectum, suggesting seminal fluid. There being no aspirated soot in her lungs, she had died before being burned, probably of alcohol and cocaine poisoning. Although defendant was charged with murdering Simpson, the jury hung eight to four in favor of guilt.
3. Trina Carpenter
Five and one-half months later, on February 11, 1986, firefighters responded to another dumpster fire in the same alley, about one block away from where they found Simpson’s body. It also was started with an accelerant. After dousing the fire, they found inside the dumpster the body of Trina Carpenter, a 22-year old African-American prostitute. Her body bore evidence of bruising and other injuries around her neck, and tests showed she had cocaine and/or cocaine metabolites in her body when she died. An autopsy concluded she died from asphyxia caused by strangulation.
Carpenter’s body had been placed in a duffel bag before being put in the dumpster and set alight. The bag contained two cotton balls, one in her hand and one inside the duffel bag. The cotton balls bore evidence of spermatozoa and epithelial cells. In addition, vaginal swabs indicated the presence of spermatozoa as well as a high concentration of acid phosphatase, indicating the presence of seminal fluid. Swabs from Carpenter’s mouth and rectum were negative for evidence of sexual activity. Genetic testing of the cotton balls found sperm contributed by more than one man to be present, but the predominant contributor was someone of defendant’s genotype. A population frequency analysis shows this genotype appears in approximately 15 percent of the African-American population.
On the evening Carpenter was killed, a witness heard a “very loud thunk” emanating from the alley where Carpenter’s body was eventually found. The witness looked out her window and saw an older car with blue oxidized paint near the dumpster where Carpenter’s body was later found. When firefighters arrived, the car was gone. Although defendant was charged with Carpenter’s murder, the jury hung 11 to one in favor of guilt.
4. JoAnn Sweets
Two and one-half months later, on May 9, 1986, police found the body of JoAnn Sweets. She was in a dumpster behind defendant’s apartment, just one block from where police had found Carpenter’s body and steps from where Maria R. was assaulted. She was unclothed except for a bra and blouse. Sweets, a 34-year old African-American woman, had been killed by manual strangulation and had severe injuries to her face and neck. She also had a broken neck, clavicle and rib. Cocaine was detected in her body. Her body was wrapped in a bed sheet and a mattress pad and then placed in two plastic garbage bags sealed with tape. Everything in the dumpster was covered by an afghan blanket.
Defendant’s sister, L.A., told police she was almost 100 percent sure her mother had crocheted the blanket, although she backtracked somewhat at trial. Carpet fibers found on Sweets’s blouse, the mattress pad and the afghan blanket matched the carpet in defendant’s apartment on 51st Street. Using a process called vacuum metal deposition, police also discovered defendant’s fingerprints and one of his palm prints on the plastic garbage bags. They also found his fingerprint on the dumpster.
Oral and vaginal swabs of Sweets’s body tested negative for spermatozoa. Some sperm was detected on rectal swabs, but not enough to test. The bed sheet in which Sweets was wrapped was stained with semen, and a genetic test determined that more than one man had produced the stains. Defendant’s genotype was represented in the stains, and epithelial cells found on the unstained portion of the sheet were also consistent with defendant’s genotype.
The jury convicted defendant of the first degree murder of Sweets and sustained a special circumstance allegation that he killed her while engaged in the commission or the attempted commission of a forcible sodomy. (§§ 187, 189, 190.2, subd. (a)(17).)
5. Sophia Glover
On August 15, 1986, about three months after police found JoAnn Sweets’s body, police discovered the lifeless body of Sophia Glover rolled in a blanket and placed on the grassy area between the sidewalk and the street, about a block from the Wilsie home on Mississippi Street. Glover, a 37-year-old African-American woman, was living on the streets at the time she was killed and may have been a prostitute. Her body bore severe trauma to the head, neck and chest, and she had cocaine in her system when she died. An autopsy determined she died of asphyxia due to manual strangulation. One of Wilsie’s neighbors found Glover’s clothes neatly folded and stacked in a nearby alley.
A small amount of spermatozoa was found on a vaginal swab taken from Glover’s body, and both spermatozoa and acid phosphatase, indicative of seminal fluid, were found on an anal swab. The amount of genetic material on the vaginal swab was deemed insufficient for testing, but the spermatozoa on the anal swab was consistent with defendant’s genotype and subject to the same population statistics, i.e., 15 percent of the African-American population has that genotype.
The jury convicted defendant of the first degree murder of Glover and sustained a special circumstance allegation that he did so while engaged in the commission or attempted commission of a forcible sodomy. (§§ 187, 189, 190.2, subd. (a)(17).)
6. Bertha R.
Evidence of defendant’s crimes against Bertha R. was admitted as tending to prove his identity, motive, and intent in the charged crimes. Bertha, an African-American woman, testified that on October 16, 1986, about two months after Glover was killed, she was in a telephone booth on El Cajon Boulevard looking up the address of a check-cashing store so she could cash a check. Bertha was employed as a cook and was not a prostitute, although El Cajon Boulevard was a street where many prostitutes worked. Defendant pulled up in a blue Datsun 280Z, engaged her in conversation, told her he knew the location of the check-cashing place, and offered her a ride. Bertha thought he seemed nice so she agreed, and he drove her to the store. The computers were down at the check-cashing store, however, so defendant suggested she hang out with him and she agreed. He drove her to a home she later identified as the Wilsie home on Mississippi Street. Once inside, they smoked a marijuana cigarette.
As they sat on the sofa watching television, he asked her if he would “be too forward if he asked me to kiss [him].” She declined the kiss. They continued to watch television but he suddenly grabbed her neck very tightly from behind. He had a knife in the other hand and told her that if she did not do what he said, he would kill her. He then forced her to disrobe and attempted to sodomize her. When he was unsuccessful at achieving penetration, he raped her. As she got dressed, he went through her purse and took $65 in cash. After she was dressed, he said, “I have got to find someplace to put you.” He took her back to his car and they drove to Fiesta Island. Once there, he told her he knew where she lived and he would kill her family if she reported the crime. He then forced her to orally copulate him in the car. From there they drove around the San Diego area, but when she told him she was about to vomit he let her out of the car and she escaped.
Defendant was tried separately for these crimes, convicted of several felonies and sentenced in 1987 to 22 years in prison.
7. Karen M.
On October 20, 1986, just four days after assaulting Bertha R., Karen M., an admitted drug addict and prostitute, was on the street near 29th Street and Imperial Avenue when defendant pulled up in a blue/gray Datsun 280Z. He solicited her for an act of prostitution and she agreed. Although her preference was to have a “car date, ” defendant said he had a house and took her to the Wilsie house on Mississippi Street. Once there, she remarked that she had a bottle of Jack Daniel’s whiskey and offered him some, so he went into the kitchen to get a glass while she disrobed. When she asked about her payment, he placed her in a choke hold from behind, completely lifting her off the floor by her neck. He told her to do as he said or he would kill her. She was beginning to black out, so she agreed.
After defendant released her from the choke hold, he forced her to drink a large glass of whiskey, which made her sick. She told him she would do whatever he wanted and pleaded with him not to hurt her. She then orally copulated him; he attempted to sodomize her but was unsuccessful. Defendant attempted several more sex acts and continued to force the victim to drink whiskey. She eventually passed out and was discovered by Marjorie Wilsie, who had come to the house to clean up following her mother-in-law’s death two weeks earlier. The police responded to the scene and although Karen M. protested that she was guilty of nothing more than prostitution, she was arrested for burglary and sent to a detoxification center. She told police she had been raped, but they did not then believe her.
With regard to the crimes involving Karen M., the jury convicted defendant of attempted murder and three forcible sex crimes: rape, sodomy and oral copulation. (§§ 664/187, 261, subd. (a)(2), 286, subd. (c), 288a, subd. (c).) The jury also sustained a multiple-murder special-circumstance allegation. (§ 190.2, subd. (a)(3).)
B. Pretrial Issues
1. Dismissal of Prospective Juror Based Solely on His Written Responses on the Jury Questionnaire
Defendant contends his penalty judgment must be reversed because the trial court improperly excused Prospective Juror A.M. for cause based on his views on capital punishment, solely as expressed in his written responses on the jury questionnaire. As we explain, although we reject respondent’s contention that defendant forfeited this claim, the record nevertheless suggests that defense counsel acquiesced in the juror’s excusal. In any event, the record shows the court could properly exclude the identified juror for cause without undertaking a further in-person exploration of the juror’s views concerning capital punishment.
The record reveals the trial court was interested in streamlining the jury selection process and informed the parties that if, after reading the jury questionnaires, the court strongly believed a particular juror was biased and thus unsuitable to sit on the jury, it intended to excuse the juror without any oral voir dire. The prosecutor objected to this proposal and asked the court to follow “statutory procedure” in which the two sides alternate challenging jurors for cause, but the court overruled the objection, explaining its proposed procedure would save time. Defendant joined the prosecutor’s objection.
After the trial court questioned the suitability of one juror and excused him when neither party objected, the prosecutor suggested that counsel for both sides could simply list the jurors they believed could be excluded for cause based on the jurors’ questionnaire answers. Counsel could see if both sides listed some of the same jurors, and then the court could suggest others. The court agreed. Defense counsel then listed several prospective jurors they felt were excludable for cause and the parties discussed those jurors. Some were retained (at least temporarily, pending further inquiry) and some were excused for cause. The prosecutor then identified jurors he believed were excludable for cause. The first on the prosecution’s list was Prospective Juror A.M., about whose exclusion defendant now complains. The prosecutor explained why, based on A.M.’s questionnaire answers, he believed “the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Wainwright v. Witt (1985) 469 U.S. 412, 424.) The prosecutor noted that based on his answers, A.M. “quite candidly comes out and tells us he can’t kill anyone.” The trial court suggested it tended to agree and asked defense counsel to comment on the merits of the prosecutor’s assertion. Defense counsel replied: “With regard to—well, he indicates that he—we will submit it on this one, your honor.” (Italics added.) The court then excused Prospective Juror A.M. for cause.
We reject respondent’s contention that defendant forfeited the claim, for when this pretrial proceeding occurred in 1994, an objection was not necessary to preserve this type of error for appeal. (People v. Velasquez (1980) 26 Cal.3d 425, 443 [discussing Witherspoon error]; see People v. Bivert (2011) 52 Cal.4th 96, 112 [recognizing the Velasquez rule].) We recently reexamined the Velasquez “no forfeiture” rule and unanimously overruled it for cases tried in the future. (People v. McKinnon (2011) 52 Cal.4th 610, 637-643; id., at p. 699 (conc. & dis. opn. of Werdegar, J.) [expressly agreeing with the majority on this point].)
Although we find no forfeiture on this record, we also find no error. Under Wainwright v. Witt, supra, 469 U.S. 412, “ ‘[a] prospective juror who would invariably vote either for or against the death penalty because of one or more circumstances likely to be present in the case being tried, without regard to the strength of aggravating and mitigating circumstances, is... subject to challenge for cause....’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 671.) “[N]ot all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” (Lockhart v. McCree (1986) 476 U.S. 162, 176.)
“ ‘[A] prospective juror in a capital case may be discharged for cause based solely on his or her answers to the written questionnaire if it is clear from the answers that he or she is unwilling to temporarily set aside his or her own beliefs and follow the law.’ ” (People v. Wilson (2008) 44 Cal.4th 758, 787, quoting People v. Avila (2006) 38 Cal.4th 491, 531.) The juror’s written answers need not, however, dispel “all possible or theoretical doubt” regarding the juror’s fitness to serve (People v. McKinnon, supra, 52 Cal.4th at p. 647), and on appeal we evaluate the question of a juror’s fitness to serve de novo (id., p. 648).
Prospective Juror A.M.’s jury questionnaire shows that although he was generally pro-prosecution, he held strong, religion-based views against capital punishment. Answering question 76, he wrote: “I have a real problem with the death penalty. Life comes [from] God. I don’t feel I could be [a] party to killing another person regardless of the justification.” Answering question 91, he wrote: “God gives life [and] only God should take life.” Asked in question 93(c) whether his opposition to the death penalty would “substantially impair” his ability to vote for the death penalty, he gave this terse response: “There are no appropriate circumstances to kill.”
Because those who oppose capital punishment may still serve on a capital jury, the key questions were questions 103 and 104, which concerned the guilt and penalty phases, respectively. Question 103 asked in pertinent part: “[S]hould you be selected to sit as a juror on this case, do you feel you are able and willing to completely put aside any thought or concern relating to penalty issues while you deliberate the question of guilt on these charges?” (Italics added.) Prospective Juror A.M. did not check the box for either “Yes” or “No, ” and instead wrote: “Possibly.” Question 104 asked: “Having heard the Court’s orientation and procedures for a death penalty trial, can you follow the instructions of the Court given to you in this case?” (Italics added.) Prospective Juror A.M. wrote: “[N]ot in the penalty part.” By these answers, A.M. made clear that he could not, and would not, consider the death penalty as a possible punishment in this case. Because his views would thus “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath’ ” (Wainwright v. Witt, supra, 469 U.S. at p. 424), the trial court properly excluded him without orally questioning him.
During jury selection, after the prosecution used peremptory challenges to excuse two African-American prospective jurors, Y.J. and C.G., defendant moved to quash the venire, citing People v. Wheeler (1978) 22 Cal.3d 258. The trial court found defendant had made a prima facie showing of group bias, whereupon the prosecutor stated his reasons for his challenges. The court proclaimed it was “completely satisfied” with those reasons and denied the motion. Defendant renewed his Wheeler motion when the prosecutor challenged and excused another prospective juror, N.S. As to N.S., the trial court found no prima facie showing had been made. Defendant renews these claims on appeal, arguing these three jurors were excused based on their race.
Under both People v. Wheeler, supra, 22 Cal.3d 258, and its federal constitutional counterpart, Batson v. Kentucky (1986) 476 U.S. 79, a party who believes his opponent is using peremptory challenges animated by a prohibited discriminatory purpose must first make a prima facie showing of such group bias. (People v. Lenix (2008) 44 Cal.4th 602, 612; Johnson v. California (2005) 545 U.S. 162, 168.) “In order to make a prima facie showing, ‘a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.’ ” (People v. Gray (2005) 37 Cal.4th 168');"> 37 Cal.4th 168, 186.) The objecting party must then produce evidence “ ‘sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ ” (Ibid., quoting Johnson v. California, supra, at p. 170.) This prima facie assessment is sometimes called “the first stage of a Batson inquiry.” (People v. Mills (2010) 48 Cal.4th 158, 174.)
If the defendant succeeds in establishing a prima facie case, the burden shifts to the prosecutor to justify the challenges. (People v. Lenix, supra, 44 Cal.4th at p. 612.) The court then evaluates the prosecutor’s responses to determine whether purposeful discrimination has been proven. At this so-called third stage of the Batson inquiry, the trial court often bases its decision on whether it finds the prosecutor’s race-neutral explanations for exercising a peremptory challenge are credible. “ ‘Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ ” (Lenix, at p. 613, quoting Miller-El v. Cockrell (2003) 537 U.S. 322, 339.)
“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, supra, 44 Cal.4th at p. 613.) We have explained that “ ‘the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor, ’ ” that “ ‘these determinations of credibility and demeanor lie “ ‘peculiarly within a trial judge’s province, ’ ” ’ ” and that, thus, “ ‘ “in the absence of exceptional circumstances, we would defer to [the trial court].” ’ ” (Id., at p. 614, quoting Snyder v. Louisiana (2008) 552 U.S. 472, 477.)
Here no dispute exists that defendant made a prima facie case with regard to Jurors Y.J. and C.G. He objected and made his record. Respondent concedes both women were African-Americans and thus were members of a cognizable class. We then turn to the trial court’s evaluation of the prosecutor’s reasons for excusing the women. “The proper focus of a Batson/Wheeler inquiry... is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons.” (People v. Reynoso (2003) 31 Cal.4th 903, 924.) “ ‘[E]ven a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.” (People v.Lenix, supra, 44 Cal.4th at p. 613.)
With regard to Prospective Juror Y.J., the prosecutor stated numerous reasons why he excused her. He explained the prosecution had devised a numerical score for each prospective juror based on their desirability, and Y.J. rated very poorly. She had worked at the Job Corps, and because defendant had attended there, the prosecutor thought some mitigating evidence related to that organization might be introduced at the penalty phase. He did not “want to take the chance that [it] will and that [Y.J.] will have a link to this man because of her employment and his connection to the Job Corps.” In addition, Y.J. was twice divorced, and both her children were either separated or divorced. “That shows me some instability that I am not comfortable with.” Additionally, she expressed interest in being a counselor, “a helping person, someone to get everyone better. I see that as... contrary... towards what I will be asking them to do; that is, to kill this defendant.” She was a loner; she expressed the view that the police sometimes “shoot too quickly, ” suggesting some hostility to law enforcement; she was seeing a psychiatrist; her support for the death penalty was “weak” and “she says she dislikes making this very crucial decision.”
Defendant attacks each of these explanations separately as pretextual, but he did not raise these arguments below. Moreover, even assuming a suspicion of pretext could be raised as to one or two of these reasons, the persuasive power of all of them, taken together, convinces us that our usual deference to the trial court’s assessment of the prosecutor’s sincerity is appropriate. Here, the prosecutor’s expressed apprehension about the Job Corps connection between defendant and Y.J. seems a legitimate concern unrelated to race. In addition, other matters that can justify a peremptory challenge are a prospective juror’s “negative views of the police” (People v. Guerra (2006) 37 Cal.4th 1067');"> 37 Cal.4th 1067, 1102), “a juror’s experience in counseling or social services” (People v. Clark (2011) 52 Cal.4th 856, 907 [juror was a “licensed pastoral counselor”]; People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [work in youth services might suggest bias in a defendant’s favor]), and a juror’s experience with psychology (People v. DeHoyos (July 8, 2013, S034800) __ Cal.4th ___, ___ [p. 37] [juror’s “educational background, interest, and experience in the field of psychology was a race-neutral reason justifying his excusal”]; Clark, supra, at p. 907 [juror had taken college courses in psychology]). Finally, “[a] prospective juror’s reluctance to vote for a penalty verdict of death is a permissible, race-neutral reason for exercising a peremptory challenge.” (People v. Elliott (2012) 53 Cal.4th 535, 561.)
With regard to Prospective Juror C.G., the prosecutor stated that he had also rated her very low because she exhibited “liberal tendencies.” He based his views on her involvement with the restoration of wetlands in the Famosa Slough, along with her involvement with the “San Diego Environmental Project, [and the] Equal Employment Opportunity [Commission].” In addition, she did not read the newspaper, she was dissatisfied about a police response to a burglary, her questionnaire suggested she would apply a “shadow of a doubt” standard rather than a beyond a reasonable doubt standard, she had doubts about the persuasiveness of circumstantial evidence, and she was seeing a therapist for depression. Defendant criticizes some of these reasons (for example, the prosecutor may have exaggerated her negative views about police, and her views on reasonable doubt and circumstantial evidence were expressed before the court educated her on the law) and argues they were pretextual. We defer, however, to the trial court’s assessment of the prosecutor’s reasons as being subjectively genuine. (People v. Reynoso, supra, 31 Cal.4th at p. 924.)
For example, we need not debate whether the policies of certain organizations are liberal or not; the prosecutor’s subjective distrust of jurors affiliated with such organizations—if genuine—is sufficient to support the juror challenge. (People v. Ward (2005) 36 Cal.4th 186, 202, citing People v. Wheeler, supra, 22 Cal.3d at p. 275 [subjective mistrust of a juror’s objectivity is sufficient].) That the prosecutor was genuinely concerned about C.G.’s views on the People’s burden of proof and the power of circumstantial evidence is shown by his specific questioning of her on these topics. As with Prospective Juror Y.J., her psychological issues (she admitted she had been very depressed and had been seeing a therapist periodically) could legitimately raise red flags for the prosecutor. The trial court declared itself “very satisfied that the reasons stated are substantial and do not relate to color whatsoever. [¶] I will indicate that I noticed [Prospective Juror C.G.] almost looked like she was in tears when she was explaining the tragedies she has personally gone through over the last few years and it’s pretty heart-breaking.” We defer to this conclusion that the prosecutor’s reasons for excusing C.G. were not based on group bias.
Defendant further argues the prosecutor excused Prospective Juror N.S. based on her race. Unlike with the excusals of Prospective Jurors C.G. and Y.J., the trial court declined to find defendant had satisfied his burden of demonstrating a prima facie case with regard to N.S.; therefore, this is a Batson first-stage issue and we have no explanation by the prosecutor to evaluate. In addition, the record reveals the trial court was uncertain what standard to apply in determining whether defendant had carried his prima facie burden. Under such circumstances, deference to the trial court’s ruling is inappropriate and we instead review the record independently. (People v. Hartsch (2010) 49 Cal.4th 472, 487; People v. Bonilla (2007) 41 Cal.4th 313, 342.)
Assessing the record independently, we find ample evidence to support the trial court’s ruling that defendant failed to establish a prima face case of group bias with regard to Prospective Juror N.S. The prospective juror revealed in her questionnaire that she had been married to a man who had been convicted of murder. “[A] prosecutor may reasonably surmise that a close relative’s adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution.” (People v. Farnam (2002) 28 Cal.4th 107, 138.) Accordingly, our independent review of the record reveals adequate support for the trial court’s decision not to find a prima facie case of group bias with regard to Prospective Juror N.S.
3. Speedy Trial
The People alleged defendant assaulted Maria R. on August 15, 1985. Although the victim’s complaint led to defendant’s arrest shortly thereafter, he was not then prosecuted, probably because the victim did not appear in the district attorney’s office for an interview, and she later called the police department to say she did not intend to pursue the matter. The police nevertheless knew the facts of the Maria R. incident, as they were mentioned in the 1987 sentencing documents for the Bertha R. case. Although the statute of limitations for any potential sex crimes committed against Maria R. expired after six years, or around mid-August 1991, defendant was eventually charged with attempting to murder Maria R. in a complaint filed on January 7, 1993. An information charging that attempted murder, along with the murders of Simpson, Carpenter, Sweets and Glover, and the sexual assault and attempt to murder Karen M., was filed on January 14, 1993, and then amended twice in January 1994.
Defendant moved to dismiss all charges on state and federal due process and speedy trial grounds. The trial court denied the motion, finding the delay had not prejudiced defendant. Although the court noted that defendant could raise the issue again following trial, when the extent of any possible prejudice would be more apparent, the court reiterated its ruling when defendant raised the issue again in a motion for a new trial. Now on appeal, defendant renews his state and federal due process and speedy trial claims, but raises only the delay in charging him with attempting to murder Maria R. (That was the oldest of the crimes charged, with a delay of nearly seven years.)
We recently set forth the law applicable to this claim: “A defendant’s state and federal constitutional speedy trial rights (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1) do not attach before the defendant is arrested or a charging document has been filed. (People v. Nelson (2008) 43 Cal.4th 1242, 1250.) Nonetheless, a defendant is not without recourse if a delay in filing charges is prejudicial and unjustified. The statute of limitations is usually considered the primary guarantee against overly stale criminal charges (People v. Archerd (1970) 3 Cal.3d 615, 639), but the right of due process provides additional protection, safeguarding a criminal defendant’s interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence (Nelson, at p. 1250).
“A defendant seeking relief for undue delay in filing charges must first demonstrate resulting prejudice, such as by showing the loss of a material witness or other missing evidence, or fading memory caused by the lapse of time. (People v. Archerd, supra, 3 Cal.3d at pp. 639-640.) Prejudice to a defendant from precharging delay is not presumed. (People v. Nelson, supra, 43 Cal.4th at p. 1250; People v. Catlin (2001) 26 Cal.4th 81, 107.) In addition, although ‘under California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process.... If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation.’ (Nelson, at pp. 1255-1256.) If the defendant establishes prejudice, the prosecution may offer justification for the delay; the court considering a motion to dismiss then balances the harm to the defendant against the justification for the delay. (Nelson, at p. 1250.) But if the defendant fails to meet his or her burden of showing prejudice, there is no need to determine whether the delay was justified. (Serna v. Superior Court (1985) 40 Cal.3d 239, 249; Scherling v. Superior Court (1978) 22 Cal.3d 493, 506.)” (People v. Abel (2012) 53 Cal.4th 891, 908-909, fn. omitted.) Although defendant frames his claim as one under both the federal and state Constitutions, “[b]ecause the law under the California Constitution is at least as favorable to defendant as federal law, we apply California law to defendant’s claim.” (Abel, at p. 909, fn. 1.)
“We review for abuse of discretion a trial court’s ruling on a motion to dismiss for prejudicial prearrest delay [citation], and defer to any underlying factual findings if substantial evidence supports them [citation].” (People v. Cowan (2010) 50 Cal.4th 401, 431.) In evaluating the correctness of a trial court’s denial of a defendant’s speedy trial motion, we consider all evidence that was before the court at the time the trial court ruled on the motion. (Ibid.) Thus, evidence presented at trial may be used to support or reject defendant’s posttrial assertion of his speedy trial rights.
We begin with the question of prejudice because it is dispositive. Defendant’s case for prejudice hinges on his claim the delay in charging interfered with his ability to present exculpatory evidence of Maria R.’s alleged apology for falsely accusing him. (Post, pt. I.C.4.) Arguing in favor of the speedy trial motion before trial, defense counsel asserted defendant’s ability to contest the Maria R. charges had been hampered because her memory had faded over the years: “When questioned at the preliminary hearing, [Maria R.] acknowledged having gone back to the defendant’s house after this incident with some preacher, but denied even remembering who the individual was or how she got there or really what was discussed at that time. [¶] These kinds of things, when they were left to be investigated until two, three, four years later and as much as five years later, certainly the lapse of time affects the ability of the defense to present any kind of response to the charges.”
The trial court found no prejudice. While admitting the delay may have caused some memories to fade, the court noted that in a large case with many witnesses, some delay, and thus the possibility that some memories may fade, is inevitable. But considering defendant’s showing, the court noted, “Most of what has been offered to the court is purely speculative.” “[W]hat’s being proffered to the court is this person might have been able to help the defendant, but you can’t put your finger on it. [¶] And I recognize that’s the dilemma the defense faces, but the law looks at that and says not good enough, and so I can’t find that it’s good enough.” The court also observed that because some of the witnesses were drug users, some memory loss on their part could be expected even if the case had been brought promptly. Finally, the court suggested it did not view the defense’s assertions of lost evidence favorably because many of defense counsel’s other claims of lost evidence—unrelated to the crimes against Maria R.—proved to be false.
We find no abuse of discretion. (People v. Cowan, supra, 50 Cal.4th at p. 431.) Although defendant contends he lost two “important” witnesses (presumably the two people who came to his mother’s home and delivered Maria R.’s alleged apology for falsely accusing him) and that the memories of two more witnesses (Maria R. and defendant’s mother) had faded as a result of the delay, we agree with the trial court’s assessment that this evidence of prejudice is speculative. Maria R. was a habitual drug user, and the trial court reasonably concluded her memory would not have been the best in any case. Although defendant’s pretrial motion briefly mentioned his mother, Ann Jones, and claimed her lack of memory of the alleged apology incident was due to the delay, defense counsel’s voluminous declaration in support of the pretrial motion makes scant mention of either Maria R.’s or Ann Jones’s faded memory. Regarding counsel’s asserted inability to find the couple who allegedly came to Jones’s door, neither defendant’s pretrial motion nor counsel’s supporting declaration mentions this point. A defense investigator’s extensive declaration, submitted in support of the pretrial motion, briefly mentions the alleged apology incident but it does not say he attempted to locate either of the two persons who came to the Jones home, let alone that he was unsuccessful.
Regarding defendant’s posttrial speedy trial motion, we conclude the trial testimony supports the trial court’s conclusion that any potential prejudice flowing from the delay was speculative. Although Ann Jones testified at trial and suggested she could not say with assurance the woman who came to the door (and allegedly apologized) was Maria R., the trial court reasonably discounted this evidence because Maria R.’s testimony describing the crime against her “was strikingly similar to Karen [M.’s] and Bertha [R.’s]. She had no motive to lie, and her immediate report to the police about the rope was very significant because the rope was found in the apartment. [¶] So it was... an extremely strong case.” The court found similarly speculative defendant’s claim that his asserted inability to locate the two people who allegedly visited Ann Jones’s home was traceable to the passage of time. Although defense counsel argued he had acted reasonably and diligently in looking for the man described as a preacher,  the trial court found “that it would be completely speculative as to whether that minister could have been located, even had this case proceeded within a few months of the crime itself.”
“Under the abuse of discretion standard, ‘a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1004.) We cannot say on this record that the trial court acted in such a manner in denying defendant’s pretrial and posttrial speedy trial motions. Because we conclude the trial court acted within its broad discretion in finding defendant was not prejudiced by the delay in charging him with attempting to murder Maria R., we need not address defendant’s further argument challenging the prosecutor’s multiple justifications for the delay or the trial court’s acceptance of those reasons.
Defendant was charged jointly with murdering four women (Tara Simpson, Trina Carpenter, JoAnn Sweets, Sophia Glover) and attempting to murder Maria R. and Karen M. He moved before trial to sever the murder counts from the attempted murder counts, citing section 954 and his right to due process under both the state and federal Constitutions. After discussing the various factors for and against joinder, the trial court denied the severance motion, explaining: “Overall, in looking at this, first I have to say that the charges are initially properly joined under [section] 954 because they are offenses of the same class and they are connected together by common elements of substantial importance, and I believe that severance is not warranted because I do not believe that this appears to be an unjustified negative impact by a joinder against the defendant. The probative value is extremely high, and the negative impact is not unfair, in my estimation, in looking at this overall.”
Section 954 governs the issue of joinder of counts and it provides in pertinent part: “An accusatory pleading may charge two or more different offenses connected together in their commission, ... or two or more different offenses of the same class of crimes or offenses, under separate counts, ... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.” (Italics added.) As defendant concedes, murder and attempted murder are of the same class of crimes within the meaning of section 954. (People v. Jenkins (2000) 22 Cal.4th 900, 947.) The statutory requirements for joinder thus being satisfied, defendant “ ‘can predicate error in denying the motion only on a clear showing of potential prejudice. [Citation.] We review the trial court’s ruling on the severance motion for abuse of discretion.’ [Citations.]” (People v. Vines (2011) 51 Cal.4th 830, 855.)
“ ‘Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.’ [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1315.)
Defendant presents three reasons he claims show the joinder of claims prejudiced him. First, he argues evidence supporting the four murder counts would not have been cross-admissible in a separate trial of the two attempted murder counts. But “ ‘cross-admissibility is not the sine qua non of joint trials.’ ” (People v. Geier (2007) 41 Cal.4th 555, 575.) Section 954.1 makes this clear, directing that, “[i]n cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading..., evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.”
In any event, the trial court considered the cross-admissibility issue, noting “the overwhelming marked distinctiveness of the m.o. [modus operandi] in all the cases.” We agree. Evidence that a person has committed other crimes is not rendered inadmissible by Evidence Code section 1101, subdivision (a) if relevant to prove such facts as “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident” (id., subd. (b)), and we understand the trial court’s reference to proving an offender’s “m.o.” (i.e., modus operandi) to mean proof of intent, plan or identity. (See People v. Maury (2003) 30 Cal.4th 342, 393 [“the similarities of the offenses... were sufficient to establish a common modus operandi, raising a strong inference [of identity]”]; People v. Kraft (2000) 23 Cal.4th 978, 1062 [commonality and distinctiveness of certain features of the various crimes suggested the killer’s modus operandi, and were relevant to prove his identity]).
Evidence of other crimes can be admitted to prove the offender acted according to a certain plan, or acted with a particular motive, if a degree of similarity exists between the past and present crimes so as to permit a reasonable inference that the offender must have entertained the same intent in both instances. But to use evidence of prior crimes to prove the identity of the offender in the present crime requires the highest degree of similarity between the past and present crimes. “For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ ” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)
We cannot say the trial court abused its discretion by finding a common modus operandi sufficient to deny severance. In this case, in the space of a few months,  someone began attacking lone women, often prostitutes, along or near El Cajon Boulevard in San Diego, a street known to be populated by women engaging in prostitution. With one exception,  the victims were all African-American. Defendant attacked Maria R. at his 51st Street apartment and attacked Karen M. at the Mississippi Street home where his mother worked. The bodies of all four murder victims were found in close proximity to one of those two residences. All victims were sexually molested. Three of the murder victims were found in dumpsters; the body of the fourth victim (Glover) was rolled in a blanket and discarded on the area between the sidewalk and the street, like garbage. Maria R. and Karen M. were attacked after consenting to have sex for money; as the four murder victims were all prostitutes, it is likely they were lured to their deaths by a perpetrator using the same ruse. All victims were either choked or strangled; none was shot. Under these circumstances, that the crimes would have been cross-admissible in separate trials to establish a common and distinctive modus operandi is likely. “To be admissible to demonstrate a distinctive modus operandi, the evidence must disclose common marks or identifiers, that, considered singly or in combination, support a strong inference that the defendant committed the crimes.” (People v. Maury, supra, 30 Cal.4th at p. 392.)
Defendant next contends joinder permitted the prosecution to bolster the allegedly weaker murder counts (JoAnn Sweets, Sophia Glover) with the stronger attempted murder counts, both by inflaming the jury and by allowing it to aggregate evidence of identity. The trial court explicitly considered this point but rejected it after carefully considering the argument. We find no abuse of discretion. At the threshold, we question the premise, that is, that the evidence was so weak as to some counts and so strong as to others that the stronger counts would fill in the gaps in the evidence for the weaker counts. Although both Maria R. and Karen M. identified defendant as their assailant, the evidence of those counts was not necessarily exceptionally strong, as both victims were subject to impeachment on the grounds they were prostitutes and drug addicts. Maria R., moreover, had dropped the initial prosecution. Further, the evidence of defendant’s involvement in the Sweets murder, although circumstantial, was quite strong. Police discovered seminal fluid at the scene consistent with his genotype, his fingerprints were on the garbage bag containing the victim’s body, and carpet fibers on the victim matched those in his apartment. Only as to Glover was the evidence somewhat weak, but as the trial court reasoned, clear evidence of a consistent modus operandi justified joinder.
Nor is there merit to defendant’s claim that joinder allowed the jury to aggregate the evidence. That the jury was able to consider each case on its individual merits is shown by its failure to reach a unanimous verdict on the counts involving Simpson and Carpenter. Where the jury returns a guilty verdict of a lesser crime, or, as here, fails to convict at all on some charges, we are confident the jury was capable of, and did, differentiate among defendant’s crimes. (People v. Ruiz (1988) 44 Cal.3d 589, 607.)
Finally, citing Williams v. Superior Court (1984) 36 Cal.3d 441 in support, defendant argues the trial court “failed to acknowledge its duty of heightened scrutiny as compelled by the presence of the capital charges.” We indeed stated in Williams that “the court must analyze the severance issue with a higher degree of scrutiny and care than is normally applied in a noncapital case.” (Id., at p. 454.) But we have since qualified Williams, explaining that “the subsequent enactment of section 790, subdivision (b)—which, as noted, specifically provides for joinder of capital cases such as these—makes it clear that such a heightened analysis is no longer called for.” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1229, fn. 19.) In any event, because the Maria R. and Karen ...