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People v. Hardy

Supreme Court of California

May 31, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
WARREN JUSTIN HARDY, Defendant and Appellant. v.

          Superior Court Los Angeles County Super. Ct. No. NA039436-02 John David Lord Judge.

          Susan K. Shaler, under appointment by the Supreme Court, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Lance E. Winters, Assistant Attorney General, Keith H. Borjon, Joseph P. Lee and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

          Chin, J.

         A jury convicted defendant, Warren Justin Hardy, of the first degree murder of Penny Sigler with the special circumstances of murder committed during the commission of robbery, kidnapping for rape, rape, and sexual penetration by a foreign object, and the infliction of torture. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(17), (18).)[1] The jury also found that defendant was an aider and abettor and either had the intent to kill or was a major participant who acted with reckless indifference to human life, but it did not find that he was the actual killer. In addition, the jury convicted defendant of robbery, kidnapping for rape, rape, rape in concert, sexual penetration by a foreign object, sexual penetration by a foreign object in concert, and torture of Sigler. (§§ 206, 209, subd. (b)(1), 211, 261, subd. (a)(2), 264.1, 289, subd. (a)(1).) In connection with the rape and sexual penetration convictions, the jury found true that defendant kidnapped and tortured Sigler. (§ 667.61, subds. (a), (d).) The jury found not true or did not reach a verdict on allegations that he personally used a deadly and dangerous weapon in connection with the charges. Defendant admitted a prior robbery conviction.

         After a penalty trial, the jury returned a verdict of death. The trial court denied the automatic motion to modify the verdict and imposed a judgment of death. This appeal is automatic.

         We affirm the judgment.

         I. The Facts

         The evidence showed that defendant and two other men, Jamelle Armstrong (defendant's half-brother) and Kevin Pearson, killed Penny Sigler during a robbery and sexual assault. The crimes took place on the night of December 28-29, 1998, by a freeway embankment in Long Beach.[2]

         A. Guilt Phase

         Sometime after 10:00 p.m., December 28, 1998, Sigler left her Long Beach home with six dollars' worth of food stamps her roommate gave her to buy soda and candy. Sigler's nude body was discovered the next day on an embankment of Interstate 405 near the intersection of Long Beach Boulevard and Wardlow Road, less than a mile from her home. Her body was near the bottom of the embankment, separated from the streets by a drainage ditch, and, above the ditch, a nylon mesh fence supported by wooden stakes. Near Sigler's body was a shoe, a broken stake, and other debris, and blood was in the surrounding area.

         Sigler suffered extensive injuries. The medical examiner counted 114 injuries, including at least 10 skull fractures that appeared to have been inflicted before death. Other injuries included blunt force injuries to her face, neck, back, chest, abdomen, arms, and thighs, a partially torn right ear, bruising and bleeding of the neck, broken neck bones, a broken rib, a chipped tooth, and bite marks on her breast and knee. Sigler also had bruising and lacerations on her internal and external genitalia, perineum, and anus. Some of the injuries, such as the chipped tooth and the lacerations and bruises to Sigler's genitalia and anus, were consistent with having been caused by a wooden stake. A wood splinter was recovered from her vagina. Deoxyribonucleic acid (DNA) from one of the bite marks matched defendant. The medical examiner concluded that blunt force trauma was the major cause of death, but he also found signs of asphyxiation.

         Police recovered the cover of a food stamp booklet near Sigler's body. Through the booklet's serial number, detectives traced the food stamps to a nearby grocery store. The store's manager recognized defendant as a regular customer, and remembered that around the time of the murder defendant had purchased food using food stamps. Detectives executed a search warrant of defendant's home, recovering a pair of shoes with a sole pattern consistent with marks found at the scene, a leather jacket with blood stains, and other articles of clothing. DNA on the jacket and other clothes in defendant's home matched that of Sigler.

         Detectives interviewed defendant the day of the search. He made three unrecorded statements and one recorded statement based on his third unrecorded statement. In his first two statements, defendant denied being involved in Sigler's death. After being told that Armstrong was also in custody, defendant became visibly upset and related a third version of events. Portions of the transcript and recording of this statement were provided to the jury.

         According to this statement, as supplemented by later statements to the detectives, defendant was at a friend's home the night of Sigler's death where he, Armstrong, Pearson, and others were drinking. Defendant, Armstrong, Pearson, and two others left around 11:00 p.m. The two others took the “Metro” southbound, while defendant, Armstrong, and Pearson took it northbound to Long Beach. As the three were walking to a bus station along Long Beach Boulevard, they noticed Sigler across the street and, unprovoked, heard her yell at them, “Fuck you, niggers.” The three crossed the street to confront Sigler; for defendant, something “clicked” when he heard the slur.

         Once they reached Sigler, everyone began yelling at one another. In the process, Sigler grabbed at defendant, and he bit her on her breast in self-defense. Sigler then slapped him in the face. Pearson told defendant and Armstrong to bring Sigler over the fence that ran along the freeway embankment; defendant could not recall how they managed to do so. Pearson then ordered Sigler to lie down, and ordered defendant to remove her shoes. Defendant left to throw away Sigler's shoes as Pearson removed Sigler's pants, but in the process tripped and dropped one of the shoes. When he returned, defendant saw Pearson on top of Sigler, and then Pearson ordered Sigler to orally copulate him. Still angry from earlier, defendant punched Sigler in the jaw twice. Sigler reached out her hand to him and asked for his help, but he did nothing. Armstrong then appeared carrying a wooden stick, which he gave to Pearson. Pearson hit Sigler in the face with the stick, then stomped on her with his boots.

         Defendant gathered the clothing and one shoe into a plastic bag he found nearby and climbed back over the fence with Armstrong and Pearson. Looking back at Sigler's body, he saw a stick protruding from Sigler's vagina. He returned to Sigler's body to remove the stick. Defendant gave inconsistent statements as to what happened to the stick: in one version, he threw it into the parking lot; in another, he threw it into a dumpster; and in a third, he gave it to Armstrong, who put it in a dumpster.

         The three boarded a bus, transferred to another bus, and went to defendant's home. Somewhere along the way, Pearson discarded the bag with Sigler's clothes. All three left their clothing at defendant's home. Defendant claimed Pearson threatened to kill him if he talked.

         The defense cross-examined prosecution witnesses but did not present any witnesses of its own. Defendant stipulated that he had a prior attempted robbery conviction.

         B. Penalty Phase

         1. Prosecution evidence

         Cory Garro testified regarding the facts behind the prior attempted robbery conviction. One night in December 1996, as Garro and his wife were walking to their hotel in Long Beach, three men accosted them. One of the men (not defendant) pressed a gun to Garro's chest. The men demanded Garro hand over his wallet; while one man removed Garro's wallet, another tried to take his wife's purse. She screamed, causing the men to flee. Defendant later told police that he and two other men had attempted to rob Garro and his wife. One of the other men held the gun.

         On April 11, 1996, police responded to a call from defendant's residence in Long Beach. There, they found defendant's young son bleeding from a two-inch puncture wound on the back of his leg. Defendant repeatedly told his son to say that the injury had been an accident. Defendant gave conflicting accounts of what had happened, but ultimately he told a police detective that he had a knife in his front pocket with the blade pointing upward. When defendant went to say good bye to his son, he lifted him up and set him on his lap, causing the knife to stab him. He had forgotten about the knife. Police found a bloodstained knife with a five-inch blade in a kitchen drawer.

         Monty Gmur, whose house defendant had visited before Sigler's death, testified that defendant, Armstrong, Pearson and another man had been working in Gmur's music studio the evening of the murder. At some point, defendant left and returned with alcohol, which he drank with the other men. Defendant and the others were at Gmur's house for three to four hours; Gmur was in another part of the house much of this time. Gmur believed that defendant and the others had been drinking, as they showed signs of intoxication and the alcohol bottles were empty.

         Teddy Keptra, Sigler's son, testified about the impact of her murder on him. He had been 16 years old when his mother died, and subsequently dropped out of high school and had difficulty holding a job. He missed his mother and thought of her daily.

         2. Defense evidence

         Friends, relatives, and mental health experts testified regarding defendant's childhood, upbringing, and character.

         Defendant's mother, Pamela Armstrong, testified that she and defendant's father had been together for three years until Pamela discovered that the father was having a baby with another woman. She gave birth to defendant in an attempt to get his father back, but the father abandoned her and defendant. Defendant was born with numerous birthmarks, as well as with an eye that turned to the side. Defendant had corrective surgery for the eye as a child. His vision problems caused him to be clumsy and have difficulties at school, problems that the surgery alleviated but did not eliminate.

         Pamela married Armstrong's father when defendant was one year old, and gave birth to Armstrong when defendant was four or five years old. Armstrong's father was abusive toward Pamela. Although he initially treated defendant well, he increasingly favored Armstrong over defendant as they grew older. Both Pamela and Armstrong's father drank and used drugs, and the physical abuse worsened. On occasion, the teenaged defendant would try to intervene by hitting Armstrong's father and telling him not to hurt his mother. Between his learning disabilities and his deteriorating relationship with his stepfather, defendant's grades worsened, and he eventually dropped out of school. Instead, he spent his time with gang members.

         Defendant's family pastor, Albert Scales, testified that defendant had been a well-behaved child at church, and that he had never seen him act in a mean-spirited manner. Scales counselled defendant's mother and stepfather, and was aware that there were drinking problems in the home, that defendant was not well cared for, and that his stepfather was violent towards his mother.

         Dr. Carl Osborn, a forensic psychologist, opined that defendant had never fit in at home or school. Defendant's stepfather was a heavy drinker and drug user who was abusive towards defendant's mother, who also drank heavily. Defendant became his mother's caretaker, yet his mother generally sided with his stepfather, leaving defendant feeling unwanted. His home environment was surrounded by violence; his mother and stepfather were violent, his stepfather was involved in gangs, his aunt had been raped and had been involved in a knife fight with his mother, and the neighborhood was the site of several shootings. Once, a man was gunned down in front defendant's house while defendant was watching. At school, defendant was small and had a birth defect that caused severe learning disabilities that were never identified or corrected. Other students consequently picked on him, and his academic performance was poor. In Dr. Osborn's view, defendant desperately sought support, a role model, and a place to fit in.

         By age 13, the two bright spots in defendant's life were that he showed some athletic talent and was involved in choir at church. But when he was 13, he had to choose between football and choir. Pastor Millard Jackson told him that if he chose choir, he could go to Disneyland. Because he hated spending time at home, he spent several nights with Jackson. Defendant claimed that Jackson molested him, specifically, that Jackson fondled defendant while he ejaculated. Defendant began a downward spiral after this, hiding behind alcohol and with his only sense of self-worth coming from his gang involvement.

         Dr. Osborn opined that defendant's alcoholism stemmed from a dysthymic disorder-defendant was initially unable to recall a time when he had been happy. Defendant continued to drink even while in jail, and the combination of dysthymia and alcohol led to explosive disinhibition, causing violent and impulsive tendencies to manifest themselves. Those tendencies were occasionally directed against defendant himself. His mother testified that at age 16, defendant ran away from home and reported having suicidal thoughts. Tiyarie Felix, the mother of defendant's children, testified that defendant demonstrated suicidal tendencies three times, once pulling a cord tight around his neck, once putting a gun to his head, and once throwing himself in front of a car. These tendencies, in Dr. Osborn's opinion, were consistent with defendant's dysthymia and alcoholism.

         Felix also testified about defendant's problems with alcohol. The two met when they were 18 years old, at which time Felix had two sons from a prior relationship. Felix then had two more sons with defendant. Defendant loved all four of her sons equally, and treated them well. But defendant could be abusive towards Felix when he drank. Despite recognizing that his violence was linked to his drinking, defendant continued to drink. Eventually, Felix asked him to move out. Felix also testified about the incident in which defendant's son was cut in the back of his leg. Immediately after the incident, her son told her it was an accident.

         Witnesses also testified that defendant was a follower, not a leader. James Johnson ran a community training program that defendant completed. Johnson testified that defendant lacked initiative, but was willing to learn and seemingly wanted a job to support his children. Following the program, defendant worked for Johnson for about a year installing toilets until Johnson's company went out of business. During that time, defendant worked well, but he still tended to be more of a follower than a leader. Felix and Scales supported this view. Dr. Osborn determined that defendant had an I.Q. of 83, putting him in the 13th percentile of the general population. Based on his intellectual abilities and background, Osborn believed that defendant lacked the “horsepower” to lead on the streets.

         Based on his sessions with defendant and review of the records, Dr. Osborn came to three conclusions regarding Sigler's death: The crimes would have been out of character for defendant had he been sober; defendant actively participated but was dominated by Pearson and Armstrong; and they were crimes of passion due to defendant's intoxication, because drinking caused defendant to become violent or suicidal.

         Dr. Gordon Plotkin, a medical doctor, testified that Sigler's autopsy toxicology report showed that she had ingested methamphetamines and alcohol before her death. Other records showed that she had been diagnosed with depression. Methamphetamines, alcohol, and depression in combination could cause a person to have poor impulsivity and suffer loss of judgment, and could cause that person to have increased aggression and possibly act violently.

         Dr. Plotkin also testified that defendant's reported alcohol abuse and drinking on the night of Sigler's death could have meant that he was so intoxicated that he did not remember what happened. His intoxication could have aggravated any violent tendencies and reduced impulse control. Because defendant remembered some details about the night, including mundane ones, Dr. Plotkin did not think defendant had blacked out.

         Robert Grace, a Los Angeles County deputy district attorney, testified regarding defendant's cooperation during a murder prosecution in 1997. Defendant had witnessed a shooting between rival Crips and Bloods gang members. He cooperated with the prosecution to identify suspects and did not recant or change his testimony. His testimony, which put his life in danger, was necessary to obtain convictions for conspiracy to commit murder against Crips gang members. Defendant himself was a member of the Bloods.

         3. Prosecution rebuttal

         Monty Gmur testified that at one point during the evening defendant and Pearson asked to use his music studio to “jump in” or initiate someone into a gang, but Gmur refused.

         The prosecution presented evidence about an incident on a bus the night of Sigler's death. The bus driver testified he picked up three young African-American men, whom he could not identify, near Wardlow Road and Long Beach Boulevard after midnight. One of them argued over the fare, and the three argued among themselves and a fourth African-American man about gangs. Defendant later told a detective he was involved and the dispute was over Crips, Bloods, and gang colors.

         Pastor Jackson, the pastor defendant claimed molested him, testified that, after Sigler's death, he spoke to defendant and defendant's mother about the allegation. Jackson had counselled defendant as a young teenager, and defendant had occasionally stayed at Jackson's house in the spare bedroom. Jackson denied molesting defendant.

         Sergeant Steve Newman of the Los Angeles County Sheriff's Department testified regarding gangs. He explained that “jumping in” was an initiation process in which a new gang member would be beaten for one to three minutes. Newman testified that a tattoo defendant bore indicated that he was a member of the Bloods. Although the Bloods might frown on a member testifying against the Crips, as defendant had done, it might be tolerated.

         II. Jury Selection Issues

         A. Excusal for Cause of Two Prospective Jurors

         Defendant contends the trial court improperly excused two prospective jurors for cause due to their views on the death penalty in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights.

         “A prospective juror in a capital case may be excluded for cause if his or her views on capital punishment ‘would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ' (Wainwright v. Witt (1985) 469 U.S. 412, 424.) Prospective jurors ‘may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings.' (Id. at p. 425.) Accordingly, ‘deference must be paid to the trial judge who sees and hears the juror' and must determine whether the ‘prospective juror would be unable to faithfully and impartially apply the law.' (Id. at p. 426.) We apply this standard to determine whether excusing a prospective juror in a capital case for cause based on the prospective juror's views on capital punishment violates the defendant's right to an impartial jury under article I, section 16 of the California Constitution. [Citations.]

         “ ‘ “On 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.” ' [Citation.] ‘ “In many cases, a prospective juror's responses to questions on voir dire will be halting, equivocal, or even conflicting. Given the juror's probable unfamiliarity with the complexity of the law, coupled with the stress and anxiety of being a prospective juror in a capital case, such equivocation should be expected. Under such circumstances, we defer to the trial court's evaluation of a prospective juror's state of mind, and such evaluation is binding on appellate courts.' ' ” (People v. Souza (2012) 54 Cal.4th 90, 122-123.)

         Defendant first argues the test established in Wainwright v. Witt, supra, 469 U.S. 412, should be modified. However, the United States Supreme Court established that test. If it is to be modified, it is up to that court to do so, not this court. (People v. Rices (2017) 4 Cal.5th 49, 79-80.)

         Defendant also argues the trial court erred under the Witt standard. We disagree. We discuss the two prospective jurors in question.

         1. The First Prospective Juror at Issue

         David D. wrote on the jury questionnaire that he “would initially be leaning towards the defense. I have developed a mistrust of prosecutors.” He “abhorre[d]” the death penalty. He was “strongly against it” and viewed it as “cruel and unusual.” He stated that the “death penalty is out of step in a modern society as ours, ” and that it was for the purpose of “revenge” or “political” reasons. He also felt that “the killing of any human being diminishes us all and goes against the laws of nature and man, ” and that “only the most barbaric countries on earth still impose it.”

         In response to the question whether he could vote for the death penalty, he responded “no.” In response to the question whether he could vote for life in prison, he responded “yes.” He wrote, “I'm not sure, ” to the question whether he would “automatically vote for life without the possibility of parole, in every case regardless of the evidence presented to you?” In response to the question whether he would “always vote against death, no matter what the evidence might be presented or argument made during a penalty trial, ” he answered “no.”

         During voir dire, David D.'s responses were somewhat equivocal. The court asked him whether he could keep an open mind in the penalty phase; he answered, “I believe I can.” When the prosecutor asked him whether he could impose the death penalty, he responded, “I'm not sure. I think I have to sit in that jury room and make that decision at the time of the deliberations.” Then he expressed the opinion that the death penalty is barbaric, but he believed he could impose it “if it was necessary to follow the law, and the law said this was the only answer to this case.” He could impose it only “if it was clear-cut that the law-the law made it very clear that the death penalty had to be imposed. I don't feel that I'm above the law. However, I hold these convictions very strongly. I think if I sat in the jury room and it became very clear there was only one answer, I believe I could impose the death penalty....”

         The trial court explained that “the law doesn't say that you have to impose the death penalty. I won't be telling you. You will be telling me. Basically, the court will be asking what is the appropriate penalty.” The prosecutor added, “The court is not going to tell you it's a clear-cut in this circumstance. You vote for death in this circumstance [or] you vote for life. It is subjective. Do you believe that you can impose death?” David D. responded, “I believe-I believe I could. It would be very difficult for me. I would have to have almost everyone on the jury trying to convince me that it would be essential or necessary to impose death.”

         Defendant's attorney explained to David D. that neither the court nor the law would ever require a death sentence and asked whether he could vote for the death penalty. The juror responded, “I'm trying to figure out. This is a huge question. Can I have a couple days to think about it?” He was told no. Later, he said, “If the law states one thing I would feel compelled to follow the law.” When the court reiterated that the law will never compel a death verdict, he said he could vote for the death penalty “if the other jurors were able to convince me to vote for the death penalty, I would do it, yes.”

         Later, when defense counsel asked whether he could “come to a conclusion, after hearing the evidence in the penalty phases, that this was a case which called for the death penalty, ” David D. responded, “I could, yes.”

         The prosecutor challenged David D. for cause. The court granted the challenge: “I sort of have a two-fold problem with this juror. One is based on his answers. At least initially, it certainly appeared that his views would prevent or substantially impair his performance as a juror, in accordance with the law. So it would seem at the outset, that he probably could not impose the death penalty no matter the circumstances. The second problem that I have, if he was a juror and the jury did impose death, I'm not sure that that verdict would be worth much because he told us repeatedly if it comes back with the death verdict that means 11 people voted for death and so did he. So I don't think he will be helpful or useful to us in this case. So I'm going to grant the People's challenge for cause.”

         The record supports this ruling. The court reasonably found that the juror's views in opposition of the death penalty would “prevent or substantially impair” his performance as a juror in defendant's case.

         Defendant argues that David D. stated numerous times that he could follow the law and vote for death. But he also made clear that he could impose the death penalty only if the law compelled him to do so, even when the attorneys and the court repeatedly explained to him that the law would never require a verdict of death. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 402 [trial court properly dismissed a potential juror based partially on her statement that she would vote for the death penalty only if the law required her to do so.]) Yet when the juror seemed to understand the law correctly, he was unsure if he could impose the death penalty, stating, “I believe - I could. It would be very difficult for me.”

         In addition, David D. stated several times that he would only vote for death if the other jurors were able to convince him that death was the appropriate outcome. When the court stated that a death verdict would not be “worth much, ” it appeared to mean that had David D. been on the jury, a death verdict would not have reflected a unanimous decision to impose death, but rather an 11-1 vote if David D. voted for death only because he felt pressured to do so.

         The record supports the court's ruling excusing this juror due to his views on the death penalty.

         2. The Second Prospective Juror at Issue

         With respect to the death penalty, Kirk F. stated on the questionnaire that it was a “tough moral decision.” He stated that while when he was “younger [he] was for the death penalty, as [he] grew older [he was] more unsure.” He went on to state that he felt the death penalty is used “too seldom.” Nevertheless, he stated that while he supported the death penalty, he “may not be able to make the final decision for the penalty.” He wrote that “taking of another person's life, based on judgment, is difficult from my religious experiences and social awareness.” He also indicated that he could not set aside his religious beliefs, explaining that he would “try to set aside beliefs but [he could not] say for certain [he] will be able to.”

         When asked if he could, in the appropriate case, “reject[] life in prison without the possibility of parole and vot[e] for the death penalty, ” he said “no, ” but explained that he “would need to see the details and the level of involvement as compared to the others.” He also indicated that he would not automatically vote for either the death penalty or life without the possibility of parole.

         During voir dire, Kirk F. initially stated that he would “try to” keep an open mind and decide between the two penalties. He explained: “Of what I've seen of the case so far, I feel strongly more about the death penalty....” Nevertheless, when the court asked whether he would be able to keep an open mind because he “hadn't firmly fixed in [his] mind what the penalties would be... because [he] hadn't heard... the evidence, ” he replied that yes, he would be able to do so.

         His answers to questions the attorneys posed were more equivocal. When defendant's attorney asked whether he could vote for death if this was the appropriate case in which to do so, he replied, “Right.” But later he indicated that his religious upbringing might interfere with his ability to do so. “I don't know what will happen when I actually try to make the decision, whether I'll just look at what is there or my personal beliefs will-.” When defense counsel interrupted to ask what those beliefs were, he mentioned his Lutheran upbringing and said, “I guess it's kind of uncertain for me. I don't know, exactly, where I stand.” He said he had beliefs about “taking someone else's life or making that decision to take another person's life.”

         When Kirk F. indicated that his hesitancy to vote for the death penalty would be due to lingering doubt about the defendant's guilt, defendant's attorney told him that “this case isn't like that.... There is going to be physical evidence, DNA evidence, confessions... coming out of the mouth of my client as to what he did, and about his involvement. This is not going to be that kind of case where you go, oh, maybe the witness was lying and maybe really he wasn't there, or that kind of thing.... So try to think of it in removing any doubt about the actual guilt, now we're just talking strictly about the penalty. With that removed and just thinking about the penalty, would you be able to make a decision considering death or life?” Kirk F. replied, “Yes. If I was comfortable with that, yes.”

         On questioning by the prosecutor, Kirk F. said the Lutheran faith is against imposing the death penalty. He could not say for certain that he could set aside his personal beliefs.

         The court excused Kirk F., stating, “It would appear to me that the juror's views on capital punishment would prevent or substantially impair the performance of his duties if he was a juror, in accordance with the law. So we'll excuse that juror.”

         This record also supports this ruling. While his negative views toward the death penalty were less clear than those of David D., he was unable or unwilling to state unequivocally that he would be able to set aside his personal beliefs and vote for the death penalty in an appropriate case. He gave conflicting answers with respect to his feelings about the death penalty. While he believed it was not imposed enough, he could never say whether he personally could vote for death. He stated he was not religious, but also that he felt he could not set aside his Lutheran faith, which he believed was against the death penalty. All of this supported the court's finding of substantial impairment.

         B. Prosecutor's Use of Peremptory Challenges

         Defendant, who is African-American, contends the prosecutor improperly used peremptory challenges to excuse African-Americans due to their race in violation of Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258.

         1. Procedural Background

         The prosecutor exercised five peremptory challenges during selection of the original 12 jurors, one to excuse Frank G., the only African-American who was available during that part of jury selection. She exercised all four of her peremptory challenges while picking alternates, two to excuse Darin B. and Marion H., the first two African-Americans who became available during that part of jury selection. The prosecutor twice passed with Marion H. in the box, then challenged her after the defense exercised two additional challenges. After both sides exhausted their peremptory challenges for alternates, an African-American was seated as the fourth and final alternate.

         After the alternates were selected, defendant objected that the prosecutor had exercised her challenges against African-Americans for reasons of group bias. He noted that the prosecutor had challenged all three African-Americans that she could have challenged. The prosecutor argued that defendant had not established a prima facie case, but before the court ruled on the matter, she volunteered to give her reasons for the challenges. After she gave her reasons as to all three jurors, the court asked defense counsel, “Did you want to respond?” Defense counsel answered, “No.”

         The court then denied the motion. “The court doesn't believe that there is sufficient showing to meet the prima facie finding. Even if the court had reached that point, the prosecution has explained race neutral reasons for excusing the jurors. And, naturally, the explanation doesn't have to be one that the court would do, if the court was still a lawyer. But the only one that was kind of out of the ordinary for the court, was as to the alternate, and I'm not even sure if there has ever been a case that addresses how Wheeler would apply to alternates. It's unlikely that we'll use any of the alternates in this case, and even more unlikely that we'll get to alternate No. 3. But, nonetheless, just because of the fact when I was a lawyer, just because I might not have done that, doesn't mean that the reason is not sufficient pursuant to Wheeler. So the Wheeler motion is denied.”

         2. Applicable Legal Principles

         “The United States and California Constitutions prohibit exercising peremptory challenges based on race. When a defendant alleges discriminatory use of peremptory challenges, the defendant must first make a prima facie showing of impermissible challenges. If the trial court finds a prima facie case, the prosecutor must then state nondiscriminatory reasons for the challenges. At that point, the trial court must determine whether the reasons are credible and whether the defendant has shown purposeful discrimination under all of the relevant circumstances. The defendant has the ultimate burden of persuasion.” (People v. Melendez (2016) 2 Cal.5th 1, 14.) “The ‘Constitution forbids striking even a single prospective juror for a discriminatory purpose.' ” (Foster v. Chatman (2016) 578 U.S. ___, ___ [136 S.Ct. 1737, 1747], quoting Snyder v. Louisiana (2008) 552 U.S. 472, 478.)

         “At the third step of the Batson/Wheeler analysis, the trial court evaluates the credibility of the prosecutor's neutral explanation. Credibility may be gauged by examining factors including but not limited to ‘ “ ‘the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.' ” ' [Citation.]” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1168.)

         Here, the court found no prima facie case, but only after the prosecutor had stated her reasons for the challenges. In this situation, “we infer an ‘implied prima facie finding' of discrimination and proceed directly to review of the ultimate question of purposeful discrimination.” (People v. Scott (2015) 61 Cal.4th 363, 387, fn. 1, quoting People v. Arias (1996) 13 Cal.4th 92, 135.) Accordingly, “we must determine whether the trial court correctly ruled that the defense did not demonstrate discriminatory purpose at the third stage. The prosecutor's justification does not have to support a challenge for cause, and even a trivial reason, if genuine and race neutral, is sufficient. The inquiry is focused on whether the proffered neutral reasons are subjectively genuine, not on how objectively reasonable they are. The reasons need only be sincere and nondiscriminatory. We review the trial court's determination with restraint, presume the prosecutor has exercised the challenges in a constitutional manner, and defer to the trial court's ability to distinguish genuine reasons from sham excuses.” (People v. Melendez, supra, 2 Cal.5th at pp. 14-15.)

         Reviewing the trial court's determination with restraint does not, however, mean abdication. “ ‘Although we generally “accord great deference to the trial court's ruling that a particular reason is genuine, ” we do so only when the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror.' [Citation.] ‘When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.' [Citation.] However, we also have stated that a trial court is not required ‘to make explicit and detailed findings for the record in every instance in which the court determines to credit a prosecutor's demeanor-based reasons for exercising a peremptory challenge.' ” (People v. Williams (2013) 56 Cal.4th 630, 653.)

         “Some neutral reasons for a challenge are sufficiently self-evident, if honestly held, such that they require little additional explication.... Moreover, a peremptory challenge may be based on a broad range of factors indicative of juror partiality, even those which are ‘ “apparently trivial” ' or ‘ “highly speculative.” ' [Citation.] Yet when it is not self-evident why an advocate would harbor a concern, the question of whether a neutral explanation is genuine and made in good faith becomes more pressing. That is particularly so when, as here, an advocate uses a considerable number of challenges to exclude a large proportion of members of a cognizable group.” (People v. Gutierrez, supra, 2 Cal.5th at p. 1171.)

         “At this stage, a defendant may engage in ‘comparative juror analysis'; that is, may compare the responses of the challenged jurors with those of similar unchallenged jurors who were not members of the challenged jurors' racial group. Such analysis is not necessarily dispositive, but it is one form of relevant circumstantial evidence. When comparative juror arguments are made for the first time on appeal, ... the prosecutor was not asked to explain, and therefore generally did not explain, the reasons for not challenging other jurors. In that situation, the reviewing court must keep in mind that exploring the question at trial might have shown that the jurors were not really comparable. Accordingly, we consider such evidence in light of the deference due to the trial court's ultimate finding of no discriminatory purpose.” (People v. Melendez, supra, 2 Cal.5th at p. 15.) “The individuals compared need not be identical in every respect aside from ethnicity: ‘A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters.' ” (People v. Gutierrez, supra, 2 Cal.5th at p. 1173, quoting Miller-El v. Dretke (2005) 545 U.S. 231, 247, fn. 6.) “[B]ut they must be materially similar in the respects significant to the prosecutor's stated basis for the challenge.” (People v. DeHoyos (2013) 57 Cal.4th 79, 107.)

         In this case, two of the three prospective jurors at issue could only have been selected as alternates. The trial court stated that it would call the alternates onto the main panel, if needed, in the order they were seated. During the trial, only one alternate was called to serve on the main panel. Neither of the prospective jurors at issue would have been in the first seat, and thus neither would have served as an actual juror. Accordingly, any error as to those two jurors would have been harmless. (People v. Mills (2010) 48 Cal.4th 158, 182.) But that does not mean the prosecutor's reasons for challenging them are irrelevant. Those reasons, if unsupported, weak, or implausible, may “be considered part of an overall and deliberate plan to remove all African-Americans from the jury in violation of [the defendant's] constitutional rights.” (Ibid.)

         For this reason, although we will focus on the validity of the prosecutor's excusal of Frank G., we will also examine the prosecutor's excusal of the two other jurors for whatever light it may shed on the validity of her reasons for excusing Frank G.

         3. Application to This Case

         For two reasons, the prosecutor's use of peremptory challenges warrants close scrutiny. First, although the numbers are small, she excused every African-American prospective juror she could have excused-one while selecting the main panel and two while selecting the alternates. An African-American was ultimately selected as an alternate, but that occurred only after both parties had exhausted their peremptory challenges. Second, this case had definite racial overtones. Defendant is African-American; the victim was White. Defendant told the police that she had yelled a racial slur at him and his cohorts, triggering the incident.

         These circumstances are not dispositive. “[A] prosecutor, like any party, may exercise a peremptory challenge against anyone, including members of cognizable groups. All that is prohibited is challenging a person because the person is a member of that group.” (People v. Cleveland (2004) 32 Cal.4th 704, 733.) But the circumstances are troubling. The fact the prosecutor excused all possible African-Americans is a “probative circumstance[], although [it is] not dispositive, especially considering the small numbers involved.” (People v. Jones (2011) 51 Cal.4th 346, 362; see People v. Gutierrez, supra, 2 Cal.5th at p. 1171.) The racial overtones, although again alone not dispositive, “raise[] heightened concerns about whether the prosecutor's challenge was racially motivated.” (People v. O'Malley (2016) 62 Cal.4th 944, 980.)

         We will examine the prosecutor's excusal of the prospective jurors at issue with these and all other relevant circumstances in mind.

         Defendant and the dissent (dis. opn., post, at pp. 5-6) argue that we should not defer to the trial court's finding because the court did not make “ ‘a sincere and reasoned attempt to evaluate' ” the prosecutor's reasons. (People v. Williams, supra, 56 Cal.4th at p. 653.) The court essentially made a “ ‘global finding' ” that the reasons were sufficient. (Ibid.) But, as we will discuss, the reasons were generally supported by the record, inherently plausible, and self-evident. Some, at least, were strong and have a firm basis in accepted trial strategy. When the trial court invited defense counsel to comment, counsel declined, thus offering nothing to challenge the credibility of the prosecutor's reasons. “Under the circumstances, the court was not required to do more than what it did.” (People v. ...


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