Rehearing granted, Depublished by, 03/11/2015
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Superior Court of Shasta County, No. 95F7785, Bradley L. Boeckman, Judge.
James M. Fahey and Cliff Gardner, under appointments by the Supreme Court, Catherine White and Lazuli Whitt for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell, Stephanie A. Mitchell and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
Michael J. Hersek, State Public Defender, Barry P. Helft, Chief Deputy State Public Defender, and Nina Rivkind, Deputy State Public Defender, for the Office of the State Public Defender as Amicus Curiae.
Opinion by Cantil-Sakauye, C. J., with Chin, J., Corrigan, and Baxter, JJ.,[*] concurring. Concurring and Dissenting Opinion by Werdegar, J., Liu, J., with Zelon, J.,, concurring and dissenting.
[340 P.3d 302] [182 Cal.Rptr.3d 61]
CANTIL-SAKAUYE, C. J.--
Defendant Gary Lee Grimes was convicted by a jury of one count of murder with burglary and robbery special circumstances and one count each of robbery, burglary, conspiracy to commit robbery, conspiracy to commit burglary, and unlawful driving or taking of a vehicle. (Pen. Code, § § 182, subd. (a), 187, subd. (a), 190.2, subd. (a)(17), 211, 459; Veh. Code, § 10851, subd. (a).)  In connection with the murder, robbery, burglary, and conspiracy counts, the jury found true allegations that defendant inflicted great bodily injury upon the victim, an elderly person (§ 1203.09, subd. (a)), and that the offenses were committed while defendant was on parole (§ 1203.085, subd. (b)). In a bifurcated proceeding, the trial court found true allegations that defendant had served four prior prison terms (§ 667.5, subd. (b)) and had been convicted of a serious or violent felony within the meaning of the " Three Strikes" law (§ 1170.12). The jury returned a verdict of death. The trial court sentenced defendant to death for the murder and imposed a term of six years for the driving or taking of a motor vehicle and four one-year terms for the four prior prison term allegations; sentences on the remaining counts were imposed and stayed.
The judgment is modified to vacate the true finding on one of the four prior prison term allegations, and is otherwise affirmed.
A. Guilt phase
1. The offenses
In October of 1995, defendant, then 33 years old, was staying with a friend, Sheila Abbott (Sheila), in her trailer. Also staying in the trailer were Sheila's son, Shane Fernalld, her daughter Misty Abbott (Misty), and Misty's boyfriend, Patrick James Wilson, then 19 years old. On the morning of October 18, John Morris, a 20-year-old friend of the family, arrived at Sheila's trailer. At approximately noon, Morris, Wilson, and defendant obtained some medical gloves and bandanas from the trailer. They tried on the bandanas, placing them over their mouths, before putting them in their pockets. The three left in Morris's red sports car. They drove to the house shared by Betty Bone, who was then 98 years old, and her daughter. They ransacked the house and took property, including a .38-caliber handgun, a " boom box," some jewelry, a rifle, a telephone in a Styrofoam box, and a brown truck.
Bone was killed. Her body showed evidence of blunt force trauma to the head, ligature strangulation, and stab wounds. There was a telephone cord and a bandana around her neck. There was bruising on her tongue and lip that was likely caused by a gag. Her injuries were consistent with her having been knocked unconscious, strangled, and then stabbed repeatedly. Bleeding due [340 P.3d 303] to the stabbing was the cause of death, with strangulation as a contributory cause.
Defendant, Wilson, and Morris returned to Sheila's trailer, with Morris and Wilson in Morris's car and defendant driving the brown truck that had been taken from Bone's residence. They unloaded items from the truck. Defendant showed a bag of jewelry to Sheila, and asked her whether it was real; she told him it was costume jewelry. Defendant drove the truck to Shasta Lake, with Morris and Misty following [182 Cal.Rptr.3d 62] in Morris's car. Defendant drove the truck into the lake. The three left the lake in Morris's car to go back to Sheila's trailer.
Later that afternoon defendant, Morris, and Misty were driving in defendant's brown Camaro when they approached a roadblock that had been set up by the sheriff's department. Before reaching the roadblock, defendant and Morris threw their guns out of the car and into the bushes. The weapons, which included the handgun taken from Bone's residence along with another handgun, were later recovered by law enforcement. When they went through the roadblock, defendant identified himself to an officer as " Gary Woods" and gave the officer a false Social Security number. He was wearing a pair of
white fingerless gloves, similar to the type of gloves that Bone's daughter kept in the brown truck.
They returned to Sheila's trailer and then left for Sacramento. Misty and her baby went in Morris's car and defendant drove in his car with Misty's brother, Shane Fernalld. They spent the night in Sacramento with Morris's aunt. In her apartment, they left a bag of jewelry and the box containing a telephone that had been taken from Bone's house. The next day, Fernalld left defendant at the Sheraton apartment complex.
2. Defendant's arrest and statements to police
Morris was arrested on October 21, 1995, three days after the crime, and killed himself in his jail cell the next afternoon. Wilson was arrested the following day. Also that day, a deputy sheriff recovered two knives that had been buried near Sheila Abbott's property. One was a long kitchen knife and the other was a pocket knife. DNA from both knives was consistent with a mixture of Bone's DNA and Wilson's DNA; none of the DNA on the knives could have come from defendant. Defendant was arrested on the following day, as he pulled his car into the parking area of the Sheraton apartment complex. As he got out of the car, a loaded .22-caliber handgun fell out of the driver's side door. Defendant called Sheila Abbott from jail, and she told him that Morris had killed himself.
Defendant was interviewed by detectives, and a tape recording of the interview was played for the jury. Defendant admitted that he was involved in the burglary and robbery, but denied any involvement in the murder, claiming that Morris had killed Bone while defendant was in the back of the house. Defendant stated that it had been Morris's idea to break into a house because he needed money to pay for his automobile insurance. Defendant said that he, Morris, and Wilson each had a bandana that Sheila had given them, and they had latex gloves that were obtained from her first-aid kit. Morris drove defendant and Wilson to Bone's neighborhood, an area in which defendant had formerly lived. In the car, defendant handed Morris a gun, which was wrapped in a bandana, and Morris put it in his pants. According to defendant, they were watching a house in the neighborhood and saw a woman outside; Morris said they could kill her and take their time going through the house, but defendant told Morris that he was " not into killin' people."
Defendant told the detectives that when they arrived at the Bone house, Morris and Wilson knocked on the door of the house and initially no one answered; Morris commented that no one was there and defendant concluded they would just be committing a burglary. Then Morris stated there was someone in the house. Defendant walked back to the car and saw Bone
answer the door. Wilson asked for a [182 Cal.Rptr.3d 63] girl named Debbie and Bone replied " no, my daughter's name is Barbara." Wilson pushed the door open, hitting Bone and knocking her to the ground. Defendant walked through the open door. At some point he saw Bone lying on the floor with [340 P.3d 304] Morris on tip of her; Bone pleaded with him to let her go. Defendant told the detectives that he said to Morris, " don't hurt no women, don't hurt nobody." He said he went into the back of the house because he " couldn't deal with it." When he came back out of the bedroom he saw Morris strangling Bone, who was tied up with a phone cord. According to defendant, Morris said, " I can't leave no witnesses." Morris also said, " that fucking bitch won't die." Defendant saw Morris rummaging through the kitchen looking for a knife. He saw or heard Morris stabbing Bone forcefully and repeatedly. Morris gave Wilson a paper sack containing the knives that were later recovered and told him to get rid of them.
According to defendant, Morris ordered him to take Bone's truck. They loaded the items from the house into the truck and took them back to Sheila's trailer. Wilson and Morris siphoned the gas out of the truck. Defendant drove the truck to Shasta Lake, following Morris and Misty. Morris instructed defendant to break out the windows of the truck and drive it into the lake. Defendant told the detectives that the gun he had when he was arrested in Sacramento did not come from the house and that he had obtained it that same day. He stated that Wilson had found a gun in the house and Morris had found a rifle. Defendant denied knowing the location of the guns taken from the house and asserted that Morris was supposed to dispose of them.
3. Testimony regarding out-of-court statements
At trial, Misty Abbott testified that during the ride to Shasta Lake, Morris told her that he had killed a woman; specifically, he had tried to strangle her but because she did not die he took a knife from the kitchen and stabbed her. She testified that during the ride back to her mother's trailer, after they dumped the truck into the lake, defendant and Morris fired their guns out the windows of the car. When she was interviewed by Wilson's private investigator, she also said that Morris and defendant were laughing about the murder and calling each other " down white boys." Misty's brother, Shane Fernalld, testified that while he and defendant were driving to Sacramento, defendant told Fernalld either " she deserved it" or " she didn't deserve it" ; he was not sure which. Before trial, however, he told several law enforcement officers that defendant's statement was " she deserved it" or " the old bitch deserved it." Morris's grandfather testified that Morris called him from jail, sounding very upset, and told him that his friends had turned against him and were
going to testify that he had killed Bone, but that he had not done it.  This call occurred an hour or two before Morris committed suicide by hanging himself in his jail cell.
Jonathan Howe, a prisoner who had been housed with defendant in the county jail, testified that defendant told him defendant had ordered Wilson and Morris to tie up Bone and kill her. According to Howe, defendant also told him that he could not be linked to the murder with DNA evidence because he had never touched the body. Defendant told him [182 Cal.Rptr.3d 64] either that he had enjoyed watching Bone be killed or he enjoyed the fact that she died. Howe testified under an agreement that permitted him to plead guilty to pending charges for a sentence of, at most, 24 months, consecutive to a term he was already serving. Prior to coming forward he had been offered a plea bargain with a 24-month consecutive sentence. Under the new plea agreement, he could receive a sentence of less than 24 months; his sentencing was postponed until after trial in the present case, at which time the judge presiding over defendant's trial would decide his sentence.
4. Defense evidence
Defense counsel conceded that defendant was guilty of burglary, robbery, and murder, but contested the special circumstance allegations on the grounds that defendant was not the actual killer and did not act with an intent to kill or a reckless indifference for life.
[340 P.3d 305] The defense put into evidence admissions made by Wilson to law enforcement officers that were consistent with defendant's statements to the police regarding Wilson's role: Wilson admitted that he was involved with the burglary and that he had pushed Bone inside the house; when she fell back she was knocked out and he watched her for several minutes; he found a .38-caliber revolver in a toolbox in a closet in Bone's house; he cleaned the knives used to kill Bone by spitting on them and wiping them off with a cloth; he siphoned gas out of the truck before defendant drove it to the lake.
Evidence was also presented that the day after Morris was arrested, he called Sheila Abbott's trailer and asked her daughter Ginger Abbott if she could provide him with an alibi. Ginger refused.
The jury convicted defendant on all counts.
B. Penalty phase
The prosecution introduced evidence that after driving the truck into the lake, defendant, Morris, and Misty Abbott bought some methamphetamine and injected it. Defendant had 10 prior felony convictions. The prosecution presented evidence regarding four incidents involving violent criminal conduct. In 1985, defendant, along with accomplice Anna Cline, tied up victim James Leonard and stole $ 300 from him. Defendant brandished a pipe that was wrapped in a towel to simulate a gun. Afterward, defendant and Cline used the money to purchase drugs. A day after that robbery, defendant was observed by a police officer shooting a sawed-off shotgun in an orchard. In 1991, a police officer encountered defendant in a restaurant with a loaded .25-caliber semiautomatic handgun in his waistband. In 1993, during a fight with his girlfriend, defendant held her down in his car by her throat, threatening to choke her if she left him. When he stopped the car in a parking lot, she escaped, he ran after her, and they struggled until police arrived.
The defense case in mitigation focused on two themes: defendant's cognitive impairments and his positive contributions to his friends and family members. A neuropsychologist, John Wick, testified about the results of psychological testing. Defendant's mental functioning was tested in 12 areas; his scores were in the mentally retarded range in seven areas, low dull-normal in two areas, and normal in three areas. Defendant's overall IQ score was 73, which is borderline retarded, and he generally tested in the range of third to fourth grade in reading, spelling, and arithmetic. Wick concluded that defendant [182 Cal.Rptr.3d 65] had organic brain damage and that his low intellect could impair his judgment, cause impulsivity, make decisionmaking difficult, and make it difficult to learn both academic subjects and acceptable social behaviors.
Psychiatrist Albert Globus, who interviewed defendant and reviewed the test results, agreed that defendant was mentally retarded. Dr. Globus thought that defendant suffered from organic brain damage at birth (possibly due to beatings his mother suffered while pregnant), based on the test results and on his low birth weight, trouble breast feeding, loss of weight during his first week of life, incontinence up to the age of eight, and a speech impediment. At age 12, he suffered a serious head injury which may have exacerbated his brain disorder. Although defendant could determine right from wrong, Dr. Globus concluded that he would have difficulty applying that knowledge to his decisionmaking and would likely rely on others to make decisions for him. People like defendant will often function better in a structured setting like prison because most decisions are made for them.
At age nine, defendant was referred to a psychiatrist, who prescribed Ritalin and Librium. At age 11, he was placed in special education classes for emotionally disturbed children. Defendant's special education teacher, a teacher's aide, and a resource specialist for the special education program described defendant, at that time, as nonaggressive, well behaved, a follower, and someone in need of love and attention. At age 15, he began running away from home and was placed in foster care and then juvenile hall. He was committed to Napa State Hospital at age 17 for nine months. His records [340 P.3d 306] from the hospital indicate he was mildly mentally retarded and had latent schizophrenia.
Defendant's sister, Darlene, testified that when defendant was a young boy he was incontinent and their mother would make him wear a dress and stand out in the yard as punishment. Defendant lacked self-esteem and confidence; she described him as a follower who would do what others told him to do.
Defendant's mother, Patricia Grimes, testified that she loved her son. Defendant's father beat her while she was pregnant and left her before defendant was born. After the birth, she was in the hospital for more than three months with postpartum depression and defendant lived with her parents. She recalled that at a young age, he told her he heard voices and he would wake in the night screaming. Defendant's mother also testified that the day before he was arrested, he was crying and remorseful, and said he was very sorry that the victim had died.
Defendant's ex-wife, Cindy Grimes, who was married to defendant in 1990 for a brief period, testified that she loved him and he had treated her and her teenage son well. Defendant also helped take care of her father, who was disabled. Her son, Michael, testified that defendant treated both of them very well, and had influenced him to get his GED and stay out of trouble with the law. Cindy's mother and the manager of their apartment complex confirmed that defendant was helpful and kind to Cindy's family and to others who lived in their apartment complex. A fellow prison inmate, Michael Huntsman, testified that defendant came to his aid when he was assaulted by a group of inmates.
In 1995, defendant attempted to assist the mother of his fiancé e, Shannon Yarnell, in a domestic violence incident involving Shannon's stepfather. The incident ended in tragedy, however, when Shannon's stepfather rammed his truck into the car in [182 Cal.Rptr.3d 66] which Shannon was riding, killing Shannon.
A. Excusal for cause of Prospective Juror A.J.
Defendant contends that the death sentence must be reversed because the trial court erred in excusing for cause Prospective Juror A.J. The trial court concluded that A.J. would have difficulty following the law on felony murder in a case in which the defendant did not actually kill or intend to kill. As explained in more detail below, Prospective Juror A.J. indicated in his questionnaire that if his conscience conflicted with the law, he would follow his conscience. Although he stated during voir dire that if he were sworn as a juror he would follow the law, he also made clear that the law making a defendant liable for felony murder and a special circumstance would present an extreme conflict for him if the defendant did not intend to kill, and that he would prefer not to be in that situation. We conclude that the trial court did not err in granting the prosecution's challenge for cause.
On his questionnaire, Prospective Juror A.J. responded to a query about how he would deal with a situation in which the law differed from his beliefs or opinions by stating, " If it were a moral issue I would opt for my conscience. Otherwise I would do my duty in accordance with the law." In response to another question, he affirmed that he could set aside his personal feelings regarding what the law should be and follow the law as explained by the court.
The court began voir dire by noting these responses and explaining that, as a juror, A.J. would have to agree to put aside his views and follow the law. Asked if he could make that agreement, A.J. responded, " I think so." Asked if he had some particular concern about a moral belief that might conflict with the law, he responded that he did not know what might occur. The court noted that when asked on the questionnaire whether, concerning the issue of penalty, he would limit himself to considering only those factors enumerated by the court, he had written, " If I must, yes." A.J. explained that when answering that question he had been thinking that there might be a conflict between the law and his moral judgment.
The court explained that no one knew exactly what the evidence at trial might be, and [340 P.3d 307] that jurors are asked to take an oath that if a conflict arises between their personal views and the law, they would set aside their views and follow the law. The court stated it needed to know whether, if there was a conflict, A.J. would follow his conscience and not follow the law. A.J. responded, " At this time, I don't know whether that situation would arise; therefore I would say, having to answer your question, I would say that I would set aside in order to follow my duty as a juror." A.J. affirmed that he could " be an impartial juror who will faithfully apply the law in this case."
When defense counsel questioned him, counsel commented that A.J. had hesitated every time that he answered a question about his ability to follow the law. Counsel asked what personal feelings he might have that might interfere with his ability to follow the law. A.J. responded that he had never been a juror before. When defense counsel asked whether A.J.'s hesitation had anything to do with this being a capital case, A.J. responded, " No doubt that has something to do with it, also." He added, " I'm a person who is directed by my conscience. Now, if I promise, through an oath, to set that aside, I will certainly do my duty ... I don't know if the situation--the specific situation will [182 Cal.Rptr.3d 67] ... arise where I will be in conflict. But as I said, ... if I make an oath, say I will set that aside, that will be my primary responsibility."
During a break, the court expressed its " ongoing concern about this juror's potential conflict ... whether or not he can honestly make the commitment to follow the law regardless of a possible conflict." The court encouraged the prosecutor to question the prospective juror on this issue. The prosecutor asked A.J. about his views on the death penalty and A.J. stated that he " could apply it as a juror" and affirmed that he had no concerns about it in relation to his conscience or his moral beliefs.
The prosecutor later explained the felony-murder rule and provided a hypothetical in which two former employees of a grocery store burned the store down at night, hoping that no one would be working at that time. One supplied the gasoline and drove the two to the store, and the other lit the fire. The prosecutor asked whether A.J. could follow the law that both would be liable for murder. A.J. responded that he could not, because in the hypothetical there was " no intention to kill." A.J. promptly clarified, however, that if he had been sworn in as a juror to follow the law, he would do so " regardless of what my conscience says." He explained that he did not agree with the law in the hypothetical described by the prosecutor, but if sworn in as a juror he would " follow the law as explained to me by the court." When further pressed by the prosecutor about whether he could follow the law that the man who drove the car in the scenario would be liable for murder " even though he had no intention to kill and he was not the actual killer," A.J. stated that he would follow the law but " I prefer not to be in that situation. ... But if I place myself in that situation and I said to the court, yes, you swear me in, I will follow the law."
The prosecutor then explained that the person in the hypothetical who drove the car could be liable for a special circumstance " if the jury finds that he acted as a major participant and with a reckless indifference to human life." The prosecutor asked whether A.J. could follow the law making that person guilty of the special circumstance. His initial answer was " no." The trial court interrupted and explained that although the facts of the hypothetical were not those of the present case, he should assume that they might
equally put him in a situation in which the law was in conflict with his conscience. The court asked whether he could take the oath. A.J. responded, " I am telling you that if I was sworn to uphold the law as stated to me, I would do so." In response to another question, he reiterated that if he was a juror and " I had taken an oath to uphold the law as stated to me, I would do so." He added, however, referring to the discussion about the prosecutor's hypothetical, " I would very much prefer not to be in that situation because of the extreme conflict that would occur."
The prosecutor challenged A.J. for cause. Defense counsel disagreed, and opined that the prosecutor's hypothetical was misleading. [340 P.3d 308] The trial court excused Prospective Juror A.J. for cause. The court stated that it had " more than a definite impression" that the juror would be unable to apply the law if his views conflicted with it. The court noted that although the prosecutor's hypothetical did not reflect the circumstances of the present case, " a key circumstance which could conceivably be before this juror is somebody who is being considered for punishment by the jury who did not preplan and did not intend to murder and who was convicted under the felony-murder rule, [182 Cal.Rptr.3d 68] and I think this juror has an extreme conflict in that area, and I also have a definite impression that in spite of what he said, this juror would have difficulty and probably be unable in any case of a serious conflict between his personal views and the law to faithfully follow the law."
A capital defendant's Sixth and Fourteenth Amendment right to an impartial jury prohibits the exclusion of prospective jurors " simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." ( Witherspoon v. Illinois (1968) 391 U.S. 510, 522 [20 L.Ed.2d 776, 88 S.Ct. 1770].) A prospective juror may be excused from serving in a capital case, however, if his views on the death penalty would " 'prevent or substantially impair'" the performance of his duties as a juror. ( Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844] ( Witt ).) " 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, whether or not the circumstance that would be determinative for that juror has been alleged in the charging document." ( People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005 [30 Cal.Rptr.2d 818, 874 P.2d 248]; see People v. Livaditis (1992) 2 Cal.4th 759, 772 [9 Cal.Rptr.2d 72, 831 P.2d 297] [juror who was unwilling to impose the death penalty on a defendant who was young and had not previously killed was properly excused]; People v. Pinholster (1992) 1 Cal.4th 865, 916-918 [4 Cal.Rptr.2d 765, 824 P.2d 571] [trial court properly excused prospective jurors who could not consider the death penalty in a case involving an unplanned killing during a burglary but
could consider it in other situations, including if the murder were premeditated]; see also People v. Fields (1983) 35 Cal.3d 329, 357-358 [197 Cal.Rptr. 803, 673 P.2d 680] [court may exclude jurors who would automatically vote against the death penalty in the case before them, even if they were willing to consider the death penalty in other cases].) " '" [O]n appeal, we will uphold the trial court's ruling if it is fairly supported by the record, accepting as binding the trial court's determination as to the prospective juror's true state of mind when the prospective juror has made statements that are conflicting or ambiguous." '" ( People v. Jenkins (2000) 22 Cal.4th 900, 987 [95 Cal.Rptr.2d 377, 997 P.2d 1044].) 
We have held that a prospective juror's statements that he or she would have a " 'hard time'" voting for death or would find it " 'very difficult'" to do so " indicate a degree of equivocation on the juror's part which, taken into account with the juror's hesitancy, vocal inflection, and demeanor, can justify a trial court's" excusal of the juror under the Witt standard. ( People v. Roldan (2005) 35 Cal.4th 646, 697 [27 Cal.Rptr.3d 360, 110 P.3d 289].) Here, substantial evidence supports the trial court's conclusion that A.J. would have difficulty following the law if faced with deciding the punishment for a defendant convicted of felony murder who did not intend to kill. Beginning with the questionnaire, A.J. consistently expressed concern about his ability to follow the law if it conflicted with his moral views. Voir dire revealed that his personal views were [182 Cal.Rptr.3d 69] in " extreme conflict" with the law making a felony murderer guilty of first degree murder and eligible for the death penalty even if he did not intend to kill. Although A.J. insisted [340 P.3d 309] that he would follow his oath as a juror if sworn, he stated that he preferred not being placed in the position of having to do so. The trial court noted that it had the " definite impression" that A.J. would be conflicted despite his promise to follow the law. Under these circumstances, we defer to the trial court's conclusion that he would be unable to follow the law if it seriously conflicted with his views.
B. Excusal for cause of Prospective Juror J.W.
Defendant similarly argues that his death sentence must be reversed because Prospective Juror J.W. was erroneously excused for cause. The trial court excused J.W., over objection by defense counsel, because it concluded he would not be able to fairly consider the death penalty in a case in which the defendant did not intend to kill. Defendant contends the trial court erred because the juror's answers indicated that his views were consistent with the law. We disagree.
In his questionnaire, J.W. responded to the question about what he would do if the law differed from his beliefs or opinions by writing, " The law has to be." Although he indicated he did not always agree with the law, he wrote: " The law is not always right. But it is the law." He did not have strong feelings about the death penalty; he did not like it, " [b]ut it has to be." He wrote that he could follow the court's instructions regarding the factors to be considered in deciding between a sentence of death and life without the possibility of parole, and that he could set aside his personal feelings about what the law should be and follow the law as the court explained it.
The trial court began voir dire by questioning J.W. about his attitudes regarding the death penalty and life without the possibility of parole. J.W. affirmed that if the law and facts justified it, he would be capable of voting for either punishment. He felt that life imprisonment was the more severe punishment, but could accept that the law regarded death as the more severe punishment. He affirmed that if his personal views conflicted with the law, he could follow the law.
In response to questioning from the prosecutor, J.W. stated that he would favor life in prison over death for most people but he would apply the law. He was sure that he could " make ... a proper decision." The prosecutor explained the felony-murder rule, including the same hypothetical she had used previously with Prospective Juror A.J. regarding two accomplices who commit arson of a store at night (" thinking, hoping, praying nobody's there" ), resulting in the death of a clerk who was working late. J.W. agreed that both people in the hypothetical--the one who drove the car and the one who set the fire--were equally responsible for the death even though they did not intend the person to die, but stated that in that scenario, " I would go for life in prison without parole." He explained that had they known the clerk was there, however, " that would be a different circumstance and that might be a death sentence." He affirmed that he could follow the law that makes a person guilty of murder " even though they didn't have any intention to kill and they were not the actual killer."
The prosecutor then explained that a person could be eligible for the death penalty " even though they're not the actual killer and they had no intention to kill," if they " act as a major participant in an [182 Cal.Rptr.3d 70] underlying felony and they act with a reckless indifference to human life." When asked whether his personal beliefs would prevent him from being able to " seriously consider the death penalty in that situation," J.W. responded " I'm sure I could follow the law." The prosecutor then asked whether J.W. would have a " hard time giving serious consideration to the death penalty in that situation." J.W. stated that " if a person accidentally killed somebody, it would be hard to give them the death penalty. If a person deliberately killed somebody, then it's a different
scenario." When the prosecutor asked again whether J.W. could really set aside his moral principles, he responded, " I would do it. ... I know, that's a hard one. I would do it."
The prosecutor continued to pursue the point, asking, " In the situation where someone doesn't have any intention to kill, do you feel that you could seriously consider the death penalty?" J.W. responded, " If a person [340 P.3d 310] flat had no intention to kill ... it would be hard to give them the death penalty. I don't know that I would, but I don't know that I wouldn't." J.W. then attempted to explain his position with a hypothetical. " [I]f someone was robbing a bank and they had a gun and a guard pulled his gun out and he shot the guard, that's intentionally killing him. If somebody was robbing a bank and somebody had a heart attack--and I believe under the law, he's in for murder there. No, that--that wasn't an intentional killing. ... That would be the life in prison instead of the death penalty." The prosecutor then asked whether J.W. felt it necessary to have an intent to kill in order to receive the death penalty. J.W. responded, " Yes, I do. I may not have noticed that when I came in here, but now that we've talked." He affirmed that it would be hard for him to personally vote for the death penalty if there was no intention to kill, and then clarified, " If there was no intention [to] kill, then I don't think that a person should have the death penalty."
The prosecutor rephrased the question, asking whether J.W. could not impose the death penalty unless the defendant intentionally killed the victim, even if the defendant had been convicted of first degree murder and a special circumstance. J.W. then questioned whether a person could be convicted of first degree murder if the person had not intentionally killed, stating that he did not know the law. The trial court interjected, explaining that " somebody can be convicted of first degree special circumstance murder even though that person did not personally kill the victim and even though that person did not have an intent to kill." The court stated that it could not go into the specifics of this case, but " [w]e're talking in a hypothetical case [the prosecutor] gave you." " But the law says that persons can be convicted of a first degree special circumstance murder such that the jury would be called upon to decide which of those two punishments, death or life without parole, was appropriate in a case where the defendant did not have the intent to kill anybody. If a person was killed, for example, in the course of one of the special--specified felonies, it was a felony-murder rule, and all the other criteria that the attorneys have mentioned. That's the law." The court then asked whether J.W. could follow the law and whether he could honestly consider all the circumstances in aggravation and mitigation before he decided the penalty. J.W. responded, " no, my mind would not be made up that I would not vote for the death penalty."
The court then rephrased the question, asking whether there was " some absolute requirement, factually, regarding an intent to kill before you would ever vote for the death penalty, no matter what the other [182 Cal.Rptr.3d 71] evidence was?" J.W. responded, " Let me put it this way? If I--I thought that a person never intentionally killed somebody, I would have trouble voting for the death penalty, yes." The court again rephrased the question, asking whether he would " have trouble giving any serious consideration" to the penalty phase evidence, " you kind of have your mind made up already?" J.W. responded, " If he didn't deliberately kill somebody or she, then I would have trouble giving the death sentence. If they killed somebody, breaking the law or whatever, you know, and it was an accident or whatnot, no, then they go to jail for the rest of their life or whatever."
The prosecutor challenged J.W. for cause. Defense counsel responded that the questioning did not explain the requirement of major participation in the felony and an indifference to human life, and the juror did not really understand that law. Defense counsel observed that the prospective juror's hypothetical demonstrated that he was thinking about an accident, someone who had a heart attack during a bank robbery. Accordingly, defense counsel argued, the juror was confused and did not have the whole picture.
The court stated it was ready to rule, and granted the challenge to exclude for cause. The court stated that J.W. had " a predisposition to favor life without possibility of parole and to reject the death penalty such that ... he would basically be precluded or, at the very least, appreciably impeded from engaging in the weighing process that the law requires in the second phase." The court thought that " this juror, ultimately, after all examination, understood that under the law, somebody could be convicted of first degree [340 P.3d 311] murder and eligible for consideration for the death penalty without an intent to kill, felony-murder rule was explained, both sides had the opportunity to do that. And I think this juror made it as clear as he could that if there was not an intent to kill, or a deliberate killing, he wouldn't be able to vote for the death penalty or there was no reasonable possibility of that."
As noted above, even if a prospective juror could fairly consider imposing the death penalty in some types of cases, one " 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. Kirkpatrick, supra, 7 Cal.4th at p. 1005.) " '" [O]n appeal, we will uphold the trial court's ruling if it is fairly supported by the record, accepting as binding the trial court's determination as to the prospective juror's true state of mind when the prospective juror has made statements that are conflicting or ambiguous." '" ( People v. Jenkins, supra, 22 Cal.4th at
" If there is no inconsistency ... we will not set aside the court's determination if it is supported by substantial evidence and hence is not clearly erroneous." ( People v. Cooper (1991) 53 Cal.3d 771, 809 [281 Cal.Rptr. 90, 809 P.2d 865].)
J.W.'s statements regarding his ability to consider a death sentence for someone who did not intend to kill were conflicting. J.W. stated that he would have trouble voting for the death penalty if the person did not intend to kill. After the prosecutor explained the law that makes a person eligible for the death penalty " even though they're not the actual killer and they had no intention to kill," so long as the person acted " as a major participant in an underlying felony and ... with a reckless indifference to human life," J.W. stated [182 Cal.Rptr.3d 72] clearly that he would be able to follow the law. However, he then indicated that " If a person flat had no intention to kill ... it would be hard to give them the death penalty." J.W. affirmed that he felt it was necessary to have an intent to kill in order to receive the death penalty. When the judge rephrased the question, he stated that his mind would not be made up against the death penalty. Yet when the judge asked him whether there was " some absolute requirement" of an intent to kill before he could impose the death penalty, J.W. repeated, " If he didn't deliberately kill somebody or she, then I would have trouble giving the death sentence." Because Prospective Juror J.W.'s statements were conflicting and ambiguous, we must accept the trial court's determination regarding his true state of mind. (See People v. Jenkins, supra, 22 Cal.4th at p. 987.)
Defendant contends that J.W.'s answers were not conflicting and his views were consistent with the law. Only one of the questions he was asked specifically mentioned a defendant who did not intend to kill but who also exhibited a reckless disregard for life. In response to that question, he stated that he could follow the law. The other questions he was asked referred to a defendant who did not intend to kill, but said nothing about a reckless disregard for life. Thus, defendant argues, J.W.'s statements that he would have difficulty imposing a death sentence on a defendant who did not intend to kill do not indicate he would have the same difficulty with a defendant who acted with reckless disregard for life. This conclusion is further supported, defendant contends, by the circumstance that J.W. consistently explained that his difficulty was with imposing the death penalty for an " accidental" killing, demonstrating that he did not understand the questions concerning an unintentional killing to include a killing committed with " reckless disregard for life."
Defendant's interpretation of J.W.'s remarks is one reasonable interpretation of the record. It is not, however, the only reasonable interpretation of the record, and " the question is not whether a reviewing court might disagree
with the trial court's findings, but whether those findings are fairly supported by the record." ( Witt, supra, 469 U.S. at p. 434.) The trial court could fairly conclude, taking into account not [340 P.3d 312] only J.W.'s words but also his demeanor, that his references to accidental killings were just one example of the circumstances in which he would have difficulty imposing the death penalty. And because J.W. had been informed about the " reckless indifference to life" requirement, the trial court could fairly conclude that he understood the law and could interpret his continued statements that he would have a problem imposing the death penalty for an unintentional killing to encompass killings that were committed with a reckless disregard for life.
C. Trial court's refusal to impanel separate juries for the guilt and penalty phases
Defendant contends the trial court erred in refusing to impanel separate juries for the guilt and penalty phases. In support of his motion for separate juries, defendant presented a transcript of the testimony of Professor Edward Bronson, of Chico State University, in another case. Professor Bronson testified that the process of death qualification is prejudicial to a defendant in two ways. First, the remaining jurors who are not eliminated tend to be less supportive of due process values than those who were eliminated. Second, the process of death qualification, by focusing on the death penalty and asking jurors to put themselves in the position of having [182 Cal.Rptr.3d 73] found defendant to be guilty, suggests to jurors that the defendant is guilty and that their duty is to find him guilty, and it may also desensitize them to their task. According to Professor Bronson, sequestered voir dire would " to some extent, minimize or mitigate those effects," but would not eliminate them. The trial court denied defendant's motion, concluding that much of the potential prejudice resulting from death qualification could be avoided if the court used individual, sequestered voir dire and if the court and counsel were careful to impress upon the potential jurors that defendant's guilt was not a foregone conclusion.
Section 190.4, subdivision (c), requires the same jury to decide guilt and penalty absent good cause. We review the trial court's decision for abuse of discretion. ( People v. Bivert (2011) 52 Cal.4th 96, 108 [127 Cal.Rptr.3d 261, 254 P.3d 300].) Dr. Bronson's testimony supported only the conclusion that death-qualified juries in general tend to be more likely to convict. " This court and the United States Supreme Court have repeatedly rejected the claim that separate juries are required because jurors who survive the jury selection process in death penalty cases are more likely to convict a defendant." ( People v. Davis (2009) 46 Cal.4th 539, 626 [94 Cal.Rptr.3d 322, 208 P.3d 78]; see Lockhart v. McCree (1986) 476 U.S. 162');"> 476 U.S. 162 [90 L.Ed.2d 137, 106 S.Ct. 1758]; Hovey v. Superior Court (1980) 28 Cal.3d 1, 68-69 [168 Cal.Rptr. 128, 616 P.2d 1301].) Nothing in Dr. Bronson's testimony or the studies he cited
provided any information significantly different from that which was considered in our previous decisions. Indeed, Dr. Bronson testified that studies undertaken after Lockhart and Hovey reached conclusions similar to those of the studies addressed in those cases and he was not able to cite any significant new developments in the research. Thus, Dr. Bronson's testimony provided no basis for the trial court to depart from the holdings in these prior cases. Defendant offered no evidence to establish good cause for a separate penalty jury based on the particular circumstances of this case. The trial court took steps to reduce any prejudice to defendant that might result from the jury selection process, including conducting individual, sequestered voir dire. We find no abuse of discretion.
D. Exclusion of Morris's alleged statements against interest
As noted above, witness Misty Abbott testified that Morris told her he killed the victim, first attempting to strangle her and then, because she did not die, taking a knife from the kitchen and stabbing her. This statement was admitted as a declaration against Morris's penal interest. (Evid. Code, § 1230.) The defense also sought to admit additional statements by Morris as declarations against interest: (1) testimony by Misty Abbott that Morris told her defendant did not take part in the killing and that after he " did the lady" defendant and Wilson " looked [340 P.3d 313] at [Morris] as if they were saying, what in the hell are you doing, dude" and (2) testimony by Albert Lawson that while he was incarcerated in the county jail, Morris told him that defendant and Wilson were " in the house but took no part in the actual killing." The trial court ruled that these statements were inadmissible hearsay because they did not qualify as declarations against interest under Evidence Code section 1230. Defendant contends that the trial court erred in excluding these statements and that the trial court's ruling violated his Fifth Amendment right to a fair trial, his Sixth Amendment right to present a defense, and the Eighth Amendment's requirement of reliable procedures in death penalty cases. ( Crane v. Kentucky [182 Cal.Rptr.3d 74] (1986) 476 U.S. 683 [90 L.Ed.2d 636, 106 S.Ct. 2142]; Chambers v. Mississippi (1973) 410 U.S. 284, 302 [35 L.Ed.2d 297, 93 S.Ct. 1038].)
1. Applicable legal principles
There is an exception to the rule excluding hearsay for a statement against interest--that is, one that " when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true."
(Evid. Code, § 1230.) This exception to the hearsay rule is " founded on the assumption that a person is unlikely to fabricate a statement against his own interest at the time it is made." ( Chambers v. Mississippi, supra, 410 U.S. at p. 299.) " The proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character." ( People v. Duarte (2000) 24 Cal.4th 603, 610-611 [101 Cal.Rptr.2d 701, 12 P.3d 1110] ( Duarte ).)
We review a trial court's ruling as to whether a statement is admissible as against a declarant's penal interest for abuse of discretion. ( People v. Lawley (2002) 27 Cal.4th 102, 153 [115 Cal.Rptr.2d 614, 38 P.3d 461] ( Lawley ).) " In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant." ( People v. Frierson (1991) 53 Cal.3d 730, 745 [280 Cal.Rptr. 440, 808 P.2d 1197] [trial court did not abuse its discretion in excluding statement of third party that he had killed the victim, where the statement was made 14 years after the murder and before defendant's retrial on special circumstances and penalty, the declarant knew there had been a prior verdict finding that defendant was the killer, and the trial " court could reasonably find [the declarant] wanted to aid his friend at little risk to himself ..." ].)
Evidence Code section 1230's exception to the hearsay rule is " inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant." ( People v. Leach (1975) 15 Cal.3d 419, 441 [124 Cal.Rptr. 752, 541 P.2d 296].) Even when the declarant admits culpability for a crime, those portions of the declarant's statements that do not incriminate the declarant are inadmissible. For example, in Lawley, supra, 27 Cal.4th at page 154, we concluded that portions of a declarant's hearsay statement that did not specifically incriminate the declarant were inadmissible. In that case, the defendant was convicted of murder based on evidence that he hired one Seaborn to kill the victim. We held that the trial court did not err in admitting Seaborn's hearsay statement that he was hired to and did kill the victim, while excluding his hearsay statements that he had been hired by the Aryan Brotherhood and that an innocent man was in jail for the crime. The latter two statements, we observed, did not specifically disserve Seaborn's interests.
[340 P.3d 314] Whether or not a statement is against penal interest can be determined only by considering the statement in context. [182 Cal.Rptr.3d 75] ( Lawley, supra, 27 Cal.4th at p. 153.) There are some circumstances in which a declarant's statement that fully or
partially exculpates the defendant while placing the greater part of the blame on the declarant have been held to be sufficiently against the declarant's interests to be admissible. In U.S. v. Paguio (9th Cir. 1997) 114 F.3d 928 ( Paguio ), the defendants were a husband and wife who were charged with making false statements on a loan application. ( Id. at p. 929.) The defendants' lawyer and his paralegal offered to testify concerning statements made by the husband's father, who was a fugitive at the time of trial. ( Id. at p. 931.) They would have testified that the husband's father stated that " 'he was the one who was involved with creating the false W-2's. He said his son had nothing to do with that.'" ( Id. at fn. 1.) The appellate court held that the trial court erred in excluding the evidence as not sufficiently against interest: " In context, the father's statement that his son had nothing to do with it was inculpatory of the father as well as exculpatory of the son. The father admitted not only participation but leadership, leading his son and daughter-in-law into the abyss. Because leading others into wrongdoing has always been seen as especially bad, there is a sentencing enhancement for it. [Citation.] Also, in context, the inculpating and exculpating statements were not practically separable." ( Id. at pp. 933-934; see U.S. v. Lopez (10th Cir. 1985) 777 F.2d 543, 554 [trial court erred in excluding hearsay statements of a passenger in a vehicle that he alone had placed cocaine into the vehicle and that the defendant was not aware of the drugs prior to transporting them].)
In Lawley, we distinguished Paguio in a footnote, noting that in Lawley, " the reference to some unidentified 'innocent man' being in jail for the murder did not further incriminate [the declarant]." ( Lawley, supra, 27 Cal.4th at p. 155, fn. 21.) The question, then, is whether portions of a declarant's statements exonerating the defendant further incriminate the declarant; that is, whether they are " specifically disserving to the interests of the declarant." ( People v. Leach, supra, 15 Cal.3d at p. 441.)
In excluding the proffered hearsay, the trial court reasoned that " if somebody is confessing to a murder and to personally being the one who stabbed someone, that it does not in any way significantly enhance the personal detriment to the confessor if he says nobody else had any part in it. ... [T]he fact that the others did or did not assist him isn't going to diminish his exposure, his public ridicule, et cetera." The trial court found People v. Gatlin (1989) 209 Cal.App.3d 31 [257 Cal.Rptr. 171] ( Gatlin ) to be controlling.
The trial court may have been incorrect in its categorical statement that a declarant who has admitted to murder does not enhance his personal culpability by claiming that he acted alone. It is plausible that under some circumstances, as defendant contends, such statements may subject the declarant to a risk of increased criminal liability by establishing aggravating circumstances of the crime under section 190.3, factor (a), which would make the declarant
more deserving of the death penalty. (See People v. Carpenter (1997) 15 Cal.4th 312, 414-415 [63 Cal.Rptr.2d 1, 935 P.2d 708] [that defendant acted alone could be considered by jury as a circumstance of the crime in determining penalty]; People v. Howard (1992) 1 Cal.4th 1132, 1195 [5 Cal.Rptr.2d 268, 824 P.2d 1315] [defendant's role as the actual killer and motivating force behind the crime was a factor aggravating his culpability].)
[182 Cal.Rptr.3d 76] Although the trial court relied on Gatlin, supra, 209 Cal.App.3d 31, that case is not on point. In Gatlin, the defendant was charged with burglary and sought to offer recordings of statements made by three codefendants. The codefendants claimed the defendant " had nothing to do with [it]." ( Id. at p. 44.) However, the codefendants made these statements while disclaiming their own involvement. ( Ibid. ) The Court of Appeal held that the exculpation of the defendant was " not specifically disserving" ( ibid. ) and [340 P.3d 315] that the defendant's argument ignored the declarants' " self-serving" ( id. at p. 43) denials of culpability. Thus, in Gatlin, the declarants' exoneration of the defendant clearly did not suggest that the declarants were more culpable. Here, in contrast, Morris's statements were made during a conversation in which he admitted that he personally murdered the victim by choking and stabbing her.
Nevertheless, " we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm." ( People v. Geier (2007) 41 Cal.4th 555, 582 [61 Cal.Rptr.3d 580, 161 P.3d 104].) Below, we apply these principles separately to the portion of the proffered statements by Morris describing defendant's reaction to the killing and those portions asserting that defendant did not take part in the killing.
2. Statement regarding defendant's reaction to the killing
We conclude that the trial court did not abuse its discretion in excluding the portion of Misty Abbott's proposed testimony that Morris told her that after he killed Bone, defendant and Wilson looked at him " as if they were saying, what in the hell are you doing, dude." It was defendant's burden to establish that Morris's statement describing defendant's reaction to the killing " when made, ... so far subjected [Morris] to the risk of civil or criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230; see Duarte, supra, 24 Cal.4th at pp. 610-611.)
Defendant contends this portion of Morris's statement qualifies as a statement against interest because it meant that defendant was surprised that Morris killed the victim and thus that Morris alone made the decision to kill, a ...