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Superior Court of Los Angeles County, No. PA012903, Ronald S. Coen, Judge.
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Alison Pease and Mary McComb, Deputy State Public Defenders, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant General, Keith H. Borjon, Joseph P. Lee and Stacey S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Corrigan, J., with Cantil-Sakauye, C. J., Werdegar, Chin, and Kruger, JJ., concurring.
[189 Cal.Rptr.3d 711] [352 P.3d 296]
During a month-long crime spree in Los Angeles County, defendant Richard Leon committed a string of armed robberies, murdered two store clerks, and was eventually arrested after a high-speed chase. A jury convicted him of two counts of murder, 16 counts of robbery, three counts of assault with a deadly weapon,  and two counts relating to the chase.  It found defendant personally used a firearm during all offenses except the evasion charges and one robbery.  It found true the special circumstances of robbery murder and multiple murder  and fixed the penalty at death. We affirm the conviction but reverse the penalty determination due to the erroneous exclusion of three prospective jurors.
A. Guilt Phase
Defendant committed some crimes with one or two accomplices. Witnesses typically described him as White and his partners as Black.
a. January 14: Chan's Shell Service Station Robbery
Around 7:00 p.m. on January 14, 1993, defendant walked into a Hollywood service station, held the manager at gunpoint, and demanded that he open the register. Manager David Su complied. Defendant emptied the register, ordered Su to the ground, and threatened to kill him if he moved. Another employee, Roberto Zaldivar, emerged from the bathroom and saw Su lying on the floor. Defendant ordered Zaldivar back into the bathroom, where
he stayed for about two minutes. When he emerged defendant was gone. The crime was recorded on videotape and shown to the jury.
Su described the robber as a " skinny" White man, approximately six feet tall, 150 to 155 pounds, in his mid-30s, with a mustache and dark hair in a ponytail. A week or two after the robbery, Su picked defendant's photo from a group of six photographs (photo array). Su also selected defendant at a live lineup and identified him at trial.
b. January 19: Ben's Jewelry Robbery
Around 1:00 or 2:00 p.m. on January 19, 1993, a Black man entered Ben's Jewelry in Beverly Hills and began looking at the cases. Marina Pekel showed the man some jewelry while Yossi Dina and Shant Broutian worked in their rear offices. About five minutes later defendant, described as a White man with long hair and a long coat, walked into the store. He pulled a revolver and ran [352 P.3d 297] toward the back of the store. Broutian grabbed his own gun and turned to face defendant. After a brief confrontation, Broutian surrendered his weapon. Defendant ordered Broutian and Pekel to lie on the showroom floor. Hearing the commotion, Dina retrieved a semiautomatic pistol from his desk but looked up to find the Black man pointing a [189 Cal.Rptr.3d 712] gun in his face. The man put the gun barrel in Dina's mouth, asked for a key to the showcase, and ordered Dina to lie on the floor next to Pekel and Broutian. At this point, a younger Black man joined the robbers.
Two customers came in during the robbery. Clifford Young was immediately accosted by one of the Black robbers, who held a gun to his head while defendant demanded his money. They took Young's cash and pushed him into a rear bathroom. Defendant also forced Gregory Lansing to the back of the store. He held one gun to Lansing's head and another to his chest. At defendant's demand, Lansing surrendered his money.
The customers and employees were moved to the rear bathroom, where their hands and feet were bound with duct tape. Pekel was tied up after she emptied merchandise from the showcases into a trash bag defendant held. One robber demanded the safe key, which Dina relinquished. The victims were told to remain quiet or they would be killed. After the robbers left, Broutian freed himself and the others. They found the showcases and safe open. Jewelry valued at nearly $ 800,000 had been taken.
All the victims but Young viewed a photo array with defendant in position No. 5.  Broutian and Lansing selected photographs No. 3 and No. 5. Lansing
specifically recalled the acne scars in photograph No. 5. Pekel circled only No. 5. Dina also selected No. 5 and testified that he was " 100 percent" certain of the identification.
At trial, Broutian testified that defendant resembled the man who had held a gun to his face. Lansing identified defendant as the man who had held the two guns on him. Dina identified defendant at a live lineup, the preliminary hearing, and trial.
c. January 30: H& R Pawnshop Robbery
Around 1:00 p.m. on January 30, 1993, two men, one Black and one White, entered the H& R Pawnshop in North Hollywood and tried to sell a necklace. Owner Ruben Avsharian offered to buy it, but the men rejected his price and left. Three hours later they returned, accompanied by another Black man. When Avsharian declined to offer more for the necklace, each man produced a gun. The White man jumped over a counter, pointed a .38-caliber pistol at employee Hunan Ganazyan's temple, and told him to lie down. Avsharian and employees Ambertsum Sarkisyan and Vardkes Aslanyan were ordered to get on the floor. Then the robbers began shooting. They fired between 10 and 15 shots and shattered a large jewelry showcase. A bullet hit Avsharian's wrist, and Sarkisyan was shot in the thigh. After a few minutes, the robbers demanded to be let outside. Someone buzzed open the security door, and they left.
Many pieces of jewelry were taken. An empty holster, capable of holding a .38-caliber handgun, was found near the shattered showcase. Police recovered multiple bullet casings and slugs at the scene. Defendant's left palm print was lifted from a glass display case.
Avsharian, Ganazyan, and Aslanyan picked defendant's photograph from a photo array. Ganazyan and Aslanyan identified defendant at a live lineup. Avsharian did not. At trial, all three victims testified defendant was one of the robbers.
d. February 2: Sun Valley Shell Robbery Murder
Around 7:30 p.m. on February 2, 1993, Raffi Rassam pulled into a Shell station in [189 Cal.Rptr.3d 713] Sun Valley. He noticed a white car and a Jeep Cherokee with side paneling parked behind the store. Someone sat in the Jeep with the engine running. Rassam parked at a pump, walked into the store, and handed the cashier $ 14 for gas. The cashier's name [352 P.3d 298] was Norair Akhverdian, but Rassam knew him as " Nick." Rassam tried to fill his gas tank, but the pump had not been turned on. He walked back toward the store but stopped when he heard
change falling. Akhverdian was behind the cash register, facing a man across the counter and looking " very scared." The man jumped over the counter and shot Akhverdian. The assailant then walked quickly past Rassam toward the Jeep. He had a ponytail and an acne-scarred complexion. Rassam called the police.
Melikset Kirakosyan was working in a back hallway when he heard a gunshot and Akhverdian yelling. He found Akhverdian lying on the floor behind the register, unconscious but breathing. He called 911.
The cash drawer lay upside down on the floor, devoid of currency. Police recovered a .380-caliber shell casing and expended bullet. These were later matched to a Walther handgun recovered from defendant's car. Videotape from the store's security camera showed an individual jump the counter holding a dark item. Akhverdian's arms were lowered in front of his body when he was shot. He died of a single gunshot wound to the heart.
Rassam picked defendant's photograph and one other from a group of six. At a live lineup, Rassam identified defendant as the shooter. He also identified defendant at trial, stating he was " confident 110 percent."
e. February 10: Jack's Liquor Robbery Murder
Around 3:45 p.m. on February 10, 1993, Yepraksia Kazanchian was working at a hamburger shop on Hollywood Boulevard when she heard gunfire. Kazanchian ran to the front of the shop and saw a customer pointing toward Jack's Liquor. Kazanchian saw a beige or white car with wood paneling stopped on the street 25 to 30 feet from Jack's. The car immediately drove away.
Anthony Schilling and Gordon Keller heard two gunshots while working on a rooftop near Jack's Liquor. Schilling saw a man with long brown hair in a ponytail standing in front of the liquor store. The man turned and walked down Hollywood Boulevard. An African-American man jogged up and began walking with him. Keller also saw the pair walking together.
Hratch Hannessian was working next door to Jack's when he heard two or three shots fired in quick succession. Seconds later, a man emerged. He had brown hair in a ponytail that hung to just above his waist. He tucked a gun into the waistband of his pants then walked slowly toward Hollywood Boulevard and around a corner. Hannessian ran into the liquor store and found the clerk, Varouj Armenian, lying in a pool of blood. Hannessian called 911, then attempted first aid. Armenian, who had been shot twice in the head, died at the scene.
On the evening before the murder, Armenian's wife had given him $ 2,000 to deposit in the bank. He put the money in a blue Security Pacific Bank bag, which he typically placed on the back of the store's counter. Police found $ 1,000 in Armenian's pocket, but the bank bag was missing. The money was never deposited. The cash register drawer was open and most of the money was gone. Crime scene investigators recovered two bullet casings, an intact bullet, and a bullet fragment. All had been fired from a .380-caliber semiautomatic handgun. Armenian's body revealed [189 Cal.Rptr.3d 714] no signs of a struggle. No other weapon was found in the store.
Hannessian's father was present when the son was shown photos. He urged Hannessian not to make an identification because it could bring harm to the family. Hannessian picked no photo in his father's presence. He did select defendant at a live lineup, however, and testified he was " 100 percent" certain of the identification. He also identified defendant at trial as the person he saw leaving Jack's Liquor immediately after the shooting.
f. February 11: Seven Star Motel Robbery
Shortly after 2:00 p.m. on February 11, 1993, defendant and a Black man loitered in the lobby of the Seven Star Motel in Hollywood. When the manager, Mei Chai, opened the door to her office, the two pushed their way inside. The Black man carried something covered with a towel. Chai thought it might be a gun. He held it against her back and pushed her into a corner. Defendant demanded money, opened a desk drawer, and [352 P.3d 299] took $ 200 to $ 300. He also took $ 70 from Chai's purse. The robbers fled.
Chai identified defendant from a photo array and at a live lineup. She also identified him at trial, noting he wore the same long hair he did on the day of the robbery. Chai had seen defendant at the motel a day or two before the robbery. She kept index cards of people who stayed at the motel and found a card with defendant's name on it.
g. February 17: Original Blooming Design Robbery
Between 11:00 a.m. and noon on February 17, 1993, three men wearing dark, oversized clothes and baseball caps walked into Original Blooming Design, a flower shop in Arleta. They asked the clerk, Homer Vela, if he had any " after Valentine specials." When Vela said no and turned away, one of the men grabbed him, put a gun to his temple, and told him not to look up. Vela described this man as at least six feet tall and slim, with " kind of fair skin." The other two men were Black or Hispanic. One was shorter and " kind of chunky" ; the other was almost six feet tall and fairly slim. The fair-skinned man jumped over the counter and tried to open the cash register. Failing, he
ordered Vela to open the register and took about $ 50 in bills. He demanded more money, but Vela had none. Eventually the men left, threatening to shoot Vela if he resisted.
Vela attended a live lineup but made no identification. At the preliminary hearing, he identified defendant as the tall, fair-skinned man who had held a gun to his head. Because Vela was unavailable to testify at trial, a transcript of his preliminary hearing testimony was read to the jury.
During the robbery, an employee at the locksmith service next door noticed a tan Jeep Wagoneer parked directly in front of his business. The car had been backed into a parking space and the motor was running. A large Black man sat in the driver's seat. He covered his face with his hand when the employee walked past. Minutes after the robbery, the Jeep was gone.
h. February 17: Rocky's Video Robbery
On February 17, 1993, 18-year-old Maria Medina was working at Rocky's Video with her 12-year-old nephew, Jose. The store was approximately two miles from the flower shop. Around 12:15 p.m., defendant and two Black men walked in and asked if the store carried a particular movie. Jose began to look it up on the computer. One of the Black men put a gun to [189 Cal.Rptr.3d 715] his temple and forced him to lie on the floor in a back office. The man took $ 2 from Jose's pocket. Meanwhile, defendant jumped over a counter and pointed a gun at Medina's stomach. She gave him $ 200 from the register. When asked for more, she gave him the money in her pocket. Defendant rifled through a drawer and took the rolls of change stored there. He led Medina to the office at gunpoint and ordered her to lie down next to Jose. When they emerged later, they found that Jose's portable stereo had been stolen.
The day after the robbery, Jose selected defendant's picture from a photo array. He also picked defendant at a live lineup and identified him at trial. Jose thought defendant had a memorable face. Medina also identified defendant from photos, at a live lineup, and in court.
i. February 17: Nice Price Store Robbery
The Nice Price discount store was located next door to Rocky's Video. Around 12:20 p.m. on February 17, 1993, a slightly " chubby" Black man entered followed by defendant, who had a ponytail and acne scars and carried a portable stereo. Defendant pointed a large gun at the clerk, Alma Najarro, and announced, " This is a robbery." At their order, Najarro gave them all the money in the register and in her purse. Najarro selected defendant from photos and identified him at trial.
February 17: Valley Market ...