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[167 Cal.Rptr.3d 625] Jonathan P. Milberg, Pasadena, 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 and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
[317 P.3d 1157] A jury convicted defendant Dewey Joe Duff of two counts of first degree murder with robbery and multiple-murder special circumstances, as well as various lesser crimes, for the 1998 killings of Roscoe Riley and Brandon Hagan. ( [167 Cal.Rptr.3d 626]Pen.Code, §§ 187, 189, 190.2, subd. (a)(3), (17).)  It thereafter returned a death verdict. On automatic appeal, we affirm the judgment in its entirety.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. GUILT PHASE TRIAL
It is undisputed that on February 23, 1998, Duff shot and killed Riley and Hagan. The principal issue during the guilt phase was why: Whether, as the People argued, Duff acted with premeditation to settle a grudge against Riley, or whether, as Duff argued, he acted in self-defense after Riley and Hagan pointed three guns at him and opened fire.
1. Prosecution Evidence
On the afternoon of February 23, 1998, bartender Diana Flint and customer Filomeno Lujan witnessed shootings in the parking lot outside Taylor's
Corner Bar in Sacramento. Flint saw a man enter the bar, use the restroom, and leave. Minutes later, Flint heard a gunshot and through a window saw the man standing next to the rear passenger side of a car in the parking lot, shooting into the car. The car's doors were closed. The man then walked around the car, pushed something out of the driver's seat, and drove off. Hearing shots, Lujan ran first to a window and then outside and saw two people, later determined to be Roscoe Riley and Brandon Hagan, slumped over in the front seats; he saw a third man with a gun take another gun from the motionless driver, climb into the driver's seat, and drive off. Moments later, as the car was driving away, Flint and Lujan both heard a further shot. Flint called 911.
That night, police seeking a suspect on an unrelated warrant spotted Duff fleeing on foot near where he lived. Thinking he might be the suspect they were seeking, officers pursued him and eventually, after a brief struggle, arrested him. An officer recognized Duff and, knowing that he had until recently lived across the street with his mother, obtained consent from Duff's mother to search her house. When .22-caliber bullets were found, Duff was held on charges of being a felon in position of ammunition. When arrested, Duff had in his possession two of Riley's rings. A search of the area where Duff was arrested produced a .357-caliber revolver with blood in its chambers and a matching gun holster.
Police received a tip concerning a car with bodies in it parked in a muddy field behind the house of Sheri Sanchez and Walter Payne, friends with whom Duff sometimes lived. Police found the car with Riley's and Hagan's bodies inside and had the car towed to a crime laboratory for inspection.
After discovering Riley's and Hagan's bodies, police questioned Duff about the shootings. [317 P.3d 1158] In a taped interview played for the jury, he confessed to killing both men. He explained that he had set up a deal with Riley to trade guns for drugs; they were on their way from Sacramento to Rio Linda to secure the drugs when Duff asked for a restroom stop. Duff had met Hagan, who was accompanying Riley, only once before. When Duff returned to the car, Riley pointed one gun and Hagan two guns at him, and they demanded his guns and money. Duff said he did not want trouble and was getting out of the car, someone fired a shot, and as Duff was getting out he returned fire with a .38. He then ran to the driver's side, pushed Riley aside, and drove off. One of the men [167 Cal.Rptr.3d 627] was still alive, so Duff shot him again as he was driving away. Duff took jewelry, a .357, and other guns from the men.
Forensic examination of the bodies and car revealed that Riley had been shot four times and Hagan twice. Each had been shot with both a .357 and a
All bullets recovered were .38-caliber but could be fired from either a .38 or a .357. There were no bullet holes in the back of the car or any other evidence that would suggest a gun had been fired from the front seat toward the rear. Riley was wearing an elastic strap that could have been part of a gun holster. Hagan had dice in his lap, as if the men had been playing a game when they were shot. Expert reconstruction of the scene suggested both Riley and Hagan had been shot from behind with the .38 and from the side with the .357.
Duff's friend Cynthia Fernando, who was staying with Duff at the Sanchez/Payne house, testified that Duff had sold Riley a .357 for $100 or its equivalent in methamphetamine and was very angry because Riley never paid him and had ignored and " disrespected" him. In the month or two preceding the shootings, Duff repeatedly discussed setting up Riley by agreeing to meet him to do a drug deal but then robbing him of drugs and jewelry and killing him. In the days before the murders, Fernando saw Duff with multiple guns, including a .38, and saw him taking shooting practice.
One day when Duff was at another friend's house, he spoke to Fernando on the phone and asked her to come over. When she arrived, Duff had showered and was trying on clean clothes; his clothes were folded in a box he intended to bury. She saw him wipe blood off a .357. Duff said he had killed two people, including one who was not supposed to be there. He never mentioned that either man had pulled a gun or that he had acted in self-defense. The bodies were in a car in back of the Sanchez/Payne house.
Fernando and Duff soon met up with his friend Ronald Greathouse, and Duff gave Greathouse a few items. Duff gave Fernando the methamphetamine he had taken from the victims. She also saw other items from the car, including jewelry, a cell phone, and numerous guns, including Duff's .38 and the .357 Duff had sold Riley. Duff kept the .357 and Fernando took the jewelry and other guns, including the .38, with directions that the .38 go to Duff's half brother. That night, as they were walking toward Duff's mother's house with the guns and with items from the robbery in a shopping cart, Duff spotted police officers and took off without a word. The next day, Fernando gave the .38 and another gun to Duff's half brother.
Ronald Greathouse testified that, in the weeks before the murders, Duff had asked for help robbing a man named Roscoe and Roscoe's friend and shooting one of them in the buttocks. Duff was going to set up a deal for drugs and jewelry and then rob Roscoe because he was " lame and easy to
do." Duff had a .38-caliber gun with him. Weeks after that first conversation, Duff gave Greathouse a ring and five spent .357- or .38-caliber shell casings and had Greathouse sell the ring, splitting the profits, and dispose of the shells so no one would find them.
Lloyd Dunham, a friend of Duff's half brother, testified that Duff was angry with Riley because Duff had set up a guns-for-drugs deal for Riley but had not received anything. Duff had asked Dunham for help in setting up a fake drug buy from [167 Cal.Rptr.3d 628] Riley with [317 P.3d 1159] the intent of then robbing Riley of his drugs, money, and jewelry.
Duff's nephew, Lloyd Duff, told police that the week before the murders Duff said he planned to set someone up, rob them, and " leave no witnesses."
2. Defense Evidence
Duff did not testify, relying on his taped confession to convey his version of events. The defense called only one witness, Detective Toni Winfield, to impeach Fernando with statements she had made to Detective Winfield before trial, including that Duff had led her to believe the second victim was a woman and that she had not seen him wipe blood off the .357.
B. PENALTY PHASE TRIAL
1. Prosecution Evidence
In addition to the circumstances of the crime, the People relied principally on Duff's history of prior violent criminal acts, including eight felony convictions and other malfeasance not leading to a conviction. (§ 190.3, factors (b), (c).) In the 20 years preceding the murders, Duff had been convicted of false imprisonment, assault of a police officer, assault with a semi-automatic rifle, possessing methamphetamine (twice), theft, vehicle theft, and possessing a dagger.
The false imprisonment victim testified that when she was 16, Duff grabbed her from behind and dragged her toward an alley. She struggled and screamed; when someone heard the screams, Duff released her and she fled.
A woman testified to an uncharged incident in which Duff exposed himself and masturbated toward her while she was sitting in the passenger seat of a car at a drive-in restaurant, grabbed the breasts of two other women walking by, then stuck his erect penis through the driver's side window at the witness's female companion.
The officer who had been assaulted testified that Duff slipped a handcuff and hit him. In the ensuing struggle, the officer tore ligaments in his hand and hit his head on a telephone pole.
Another woman testified that Duff, shirtless, entered her home with a loaded sawed-off rifle. She, her husband, and six children escaped the house and called police, who caught Duff. Earlier that same night, Duff had approached three teenagers, cocked the rifle, and pointed it at them.
In a partially uncharged incident, a woman testified that late one night, while she was at a closed gas station going through mail she had stolen, Duff approached her and struck up a conversation. When she started to leave, he hit her in the head from behind. When she tried to run, he grabbed her by the hair, held a knife to her throat, forced her to orally copulate him, and then raped her. When police responded to a call regarding the rape, Duff drove off but crashed; he was found in possession of a bayonet-style dagger. The woman admitted that she had originally lied about some aspects of the incident, including by claiming that Duff had forced her to take methamphetamine and that she was returning from bingo, not out stealing mail. Pursuant to a plea bargain, rape charges were dropped, but Duff pleaded guilty to possession of a dagger.
In another incident, Duff shot at his friend Ronald Greathouse, grazing his head. The night before the murders, he beat Cynthia Fernando extensively, knocking her to the ground at least four times, kicking her, picking her up to beat her again, and breaking her ribs.
The prosecution concluded with brief victim impact evidence from Marie Correa, [167 Cal.Rptr.3d 629] the mother of two daughters by Riley, and Makala Tiller, a friend of Hagan's.
2. Defense Evidence
Duff introduced evidence that he had been raised in a dysfunctional home. Duff's mother had given birth to six living children and had had six or seven additional miscarriages or stillbirths. She was married at least four and possibly as many as eight times, though never to Duff's father, whose identity was unknown. Duff fell on his head when he was three and was " slower" thereafter. Duff's mother was an alcoholic, and there was domestic violence in the home, some of it directed toward Duff, from both his mother [317 P.3d 1160] and stepfathers. Duff's mother used her children to help her lure men to her home and then rob them. Duff's mother and family members were involved in distributing drugs.
Duff was married for 10 years and had three daughters.
Defense experts testified that Duff had low intelligence (an overall I.Q. of 87 and individual I.Q.'s in various areas of between 62 and 99), a learning disability, and mild brain damage that caused learning and attention difficulties.
C. PROCEDURAL HISTORY
Duff was charged with two counts of first degree murder with two special circumstances for each count, murder during the commission of robbery and multiple murder. (§§ 187, 189, 190.2, subd. (a)(3), (17).) He was also charged with robbery (§ 211), possession by a felon of a handgun and reloadable ammunition (former § 12021, subd. (a) [now § 29800]; former § 12316, subd. (b)(1) [now § 30305, subd. (a) ] ), firearm-use enhancements (§ 12022.53), and a prior serious felony conviction qualifying as a strike (§§ 245, subd. (b), 667, subds. (a)-(i), 667.5, subd. (b), 1170.12). Before trial, the court dismissed the reloadable ammunition count on the prosecution's motion.
A jury convicted Duff on both first degree murder counts and found the special circumstances true. It also convicted Duff of all remaining lesser offenses and found the firearm-use enhancements true. Duff admitted the strike. At the penalty phase, the jury returned a verdict of death.
A. JURY SELECTION ISSUES
1. Excusals Pursuant to Stipulation
In the course of voir dire, the trial court permitted counsel for both sides to prescreen juror questionnaires and arrive at stipulations as to particular jurors they mutually agreed were unsuitable. Under this procedure, Duff and the prosecution stipulated to the exclusion of numerous prospective jurors, including jury pool members C.L., S.K., and D.L., and the trial court accepted these stipulations. Duff now contends the trial court committed error by excusing these three jurors under Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776( Witherspoon ) and Wainwright v. Witt (1985) 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841( Witt ) without adequate voir dire into their views on the death penalty.
This contention is misguided. The trial court did not dismiss these prospective jurors on Witherspoon - Witt grounds; it [167 Cal.Rptr.3d 630] did not dismiss them on any particular ground or make findings as to the basis for their dismissal, but instead accepted the parties' stipulation that the jurors be dismissed. Nothing in the record suggests these jurors' views of the death penalty played any role in their dismissal. Indeed, the court anticipated there would be stipulations wholly unrelated to Witherspoon - Witt concerns; while explaining that the plan for voir dire was to focus questioning on the death penalty, the court noted: " I would not be at all surprised if counsel collaborate on stipulating to excuse people who have issues that preclude them from being fair to both sides in this case that have nothing to do with the penalty discussion."
A court may allow counsel to prescreen juror questionnaires and stipulate to juror dismissals. ( People v. Booker (2011) 51 Cal.4th 141, 159-161, 119 Cal.Rptr.3d 722, 245 P.3d 366; People v. Benavides (2005) 35 Cal.4th 69, 88-89, 24 Cal.Rptr.3d 507, 105 P.3d 1099; People v. Ervin (2000) 22 Cal.4th 48, 72-73, 91 Cal.Rptr.2d 623, 990 P.2d 506.) When prospective jurors are formally dismissed pursuant to stipulation rather than cause, the trial court makes no findings, and we have nothing we can review. ( Booker, at p. 161, 119 Cal.Rptr.3d 722, 245 P.3d 366.) [317 P.3d 1161] Consequently, a stipulation to the excusal of jurors forfeits any subsequent objection to their omission from the jury pool. ( Id. at p. 159, 119 Cal.Rptr.3d 722, 245 P.3d 366; Benavides, at pp. 87-88, 24 Cal.Rptr.3d 507, 105 P.3d 1099; Ervin, at p. 73, 91 Cal.Rptr.2d 623, 990 P.2d 506.)
Duff argues that because the court made no findings, we do not know why each juror was objectionable. Next, he concludes that in the absence of findings, we must assume Witherspoon - Witt concerns underlay each dismissal, and he argues such concerns are not borne out by the jurors' questionnaires. While it is true that the trial court made no findings, the conclusion does not follow. As the trial court recognized, any number of reasons unrelated to a prospective juror's views on the death penalty might lead both sides to conclude the juror is unsuitable or otherwise subject to excusal. (See Code Civ. Proc., §§ 204, subd. (b), 225, subd. (b)(1), 228, 229.)  The absence of a record, attributable to Duff's stipulation to each dismissal, precludes us from speculating and entertaining Duff's claim on appeal.
2. Excusal for Cause: Witherspoon-Witt
In the course of voir dire, the trial court granted over Duff's objection the prosecution's motion to excuse Prospective Juror S.L. for cause on Witherspoon - Witt grounds. Duff renews his objection on appeal, arguing the
excusal of S.L. violated his rights under Witherspoon, supra, 391 U.S. 510, 88 S.Ct. 1770, Witt, supra, 469 U.S. 412, 105 S.Ct. 844, and their progeny. In an essentially related argument, he contends that his equal protection rights were violated because Juror S.L. was excused on account of her religious beliefs.
" Under both the state and federal Constitutions, a criminal defendant is guaranteed the right to be tried by an impartial jury. (Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.) A prospective juror may be excused for cause only if his or her views in favor of or against capital punishment ‘ would " prevent or substantially impair the performance of his [or her] duties as a juror in accordance with [the court's] instructions and [the juror's [167 Cal.Rptr.3d 631] oath]." ’ ( Witt, supra, 469 U.S. at p. 424 [105 S.Ct. 844]; see Uttecht v. Brown (2007) 551 U.S. 1, 9 [127 S.Ct. 2218, 167 L.Ed.2d 1014].) Although opposition to the death penalty does not necessarily afford a basis for excusing a juror for cause ( People v. Martinez (2009) 47 Cal.4th 399, 425 [97 Cal.Rptr.3d 732, 213 P.3d 77] ), the prosecutor may properly challenge those prospective jurors whose opposition to the death penalty ‘ would not allow them to view the proceedings impartially, and who therefore might frustrate administration of [the] death penalty scheme.’ ( Witt, supra, at p. 416 [105 S.Ct. 844].)" ( People v. Clark (2011) 52 Cal.4th 856, 895, 131 Cal.Rptr.3d 225, 261 P.3d 243.)
On appeal, we consider whether the trial court's ruling is fairly supported by the record. ( People v. McKinzie (2012) 54 Cal.4th 1302');"> 54 Cal.4th 1302, 1328, 144 Cal.Rptr.3d 427, 281 P.3d 412; People v. Pearson (2012) 53 Cal.4th 306, 327, 135 Cal.Rptr.3d 262, 266 P.3d 966.) " When the prospective juror's answers on voir dire are conflicting or equivocal, the trial court's findings as to the prospective juror's state of mind are binding on appellate courts if supported by substantial evidence." ( People v. Duenas (2012) 55 Cal.4th 1, 10, 144 Cal.Rptr.3d 820, 281 P.3d 887.) " ‘ Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors.’ " ( McKinzie, at p. 1329, 144 Cal.Rptr.3d 427, 281 P.3d 412, quoting Uttecht v. Brown, supra, 551 U.S. at p. 9, 127 S.Ct. 2218.)
Juror S.L.'s questionnaire revealed someone profoundly conflicted as to whether she could ever personally vote to impose the death penalty. She checked that she could give honest consideration to both life and death and circled that she was only " Somewhat Opposed" to the death penalty. But [317 P.3d 1162] she also wrote, " I am Catholic and I do not believe I could send someone to their death" and " I'm just not sure if I could live with myself if I had to send someone to their death." Numerous other answers elaborated on the internal tension she felt. (E.g., " I feel [the] death penalty is a deterrent, I understand why it is necessary. But I also believe that only God has the right to take away life. It is a conflict in my life that I have not yet been able to
resolve. I err on the side of God." ; " I understand why it works as a deterrent so I can't oppose it (as I know I should). But I cannot condone it as it is not what I believe God would want us to do." ) Answering whether her views would always cause her to vote against the death penalty, she checked " Yes," then crossed that out, checked " No," and explained: " I would follow the law, I would not intentionally break the law, but I am not sure I could live with it."
She clarified that the tension she experienced was personal, and not because she felt obligated to follow her church's or anyone else's views; although religion was for her " 100% of my life" and the death penalty was " against the Catholic beliefs," she felt " this way because of what I have read about God in the Bible, not because the Church says so." In that vein, she noted, " My husband is strongly in favor [of the death penalty] but I follow my own path, God holds me accountable for my acts. I must decide what is correct for myself."
Presented with a questionnaire that left it ultimately unclear whether the prospective juror would be able to be guided by the court's instructions as opposed to her personal views, the trial court and counsel appropriately conducted a lengthy voir dire to ascertain the precise nature of the juror's sentiments. (Cf. [167 Cal.Rptr.3d 632] People v. Riccardi (2012) 54 Cal.4th 758, 782, 144 Cal.Rptr.3d 84, 281 P.3d 1 [court committed reversible error by failing to conduct voir dire before excusing on Witherspoon - Witt grounds a juror with ambiguous questionnaire answers].) As the court explored her views, S.L. repeatedly avowed that while she would try to do what the law asked of her notwithstanding her religious beliefs, she was unsure whether she " could separate— completely separate those beliefs from me and my decision making because that's what has influenced all of my decisions all of my life." (See also, e.g., " I don't know that [my religious beliefs] would not influence me. It's been my whole life. I mean my— my belief— it's my whole life. So I don't know that it would not influence me. [¶] I wouldn't try— I would try not to ...