The PEOPLE, Plaintiff and Respondent, v. Gerald PARKER, Defendant and Appellant., 218 Cal. Rptr. 3d 315

Werdegar, J. Gerald Parker, nicknamed the "Bedroom Basher" by the media in the late 1970s for a string of unsolved home-invasion rape murders in Orange County, was convicted by a jury of the first degree murders of Sandra Fry, Kimberly Rawlins, Marolyn Carleton, Chantal Green, Debora Kennedy, and Debra Senior (Pen. Code §§ 187, subd. (a), 189 ) with the special circumstances of multiple murder and murder during the attempted commission or commission of the crimes of rape and burglary (§ 190.2, subd. (a)(3), (17)(C), (G)).

The jury returned a verdict of death, and the court imposed judgment accordingly. (§ 190.4, subd. (e).) This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. FACTS A. The Guilt Phase In 1978 and 1979, defendant was a staff sergeant in the United States Marine Corps stationed in Orange County, California. During this time, six women in three different Orange County cities-Anaheim, Costa Mesa, and Tustin-were sexually assaulted and brutally beaten in their apartments.

Five died from massive injuries to their heads caused by being struck with a blunt object with such force their skulls were fractured. One pregnant victim survived, but her fetus died as a result of the attack. These crimes went unsolved until 1996, when deoxyribonucleic acid (DNA) testing connected the homicides to each other and to defendant, who was then in prison on an unrelated parole violation. When interrogated and confronted with the DNA and fingerprint evidence during interviews the police tape-recorded with his knowledge, defendant admitted burglarizing all six homes.

At trial, he did not contest his identity as the assailant of all six women, but claimed he lacked the requisite specific intent to commit the crimes due to voluntary intoxication. 1. The prosecution case

a) The victims

(1) Sandra Fry On December 1, 1978, Georgena Stevenson returned home about 11:00 p.m. to the two-bedroom apartment she shared with 17-year-old Sandra Fry in Anaheim. Stevenson found Fry in her bedroom lying unresponsive across the bed and nude from the waist down. Her blouse was pulled up, exposing her bra, and there were obvious signs of trauma to her head, including blood around her mouth, nose, and hair. Fry was not breathing, although she was warm to the touch. Paramedics transported her to the hospital, where she was pronounced dead.

Richard Fukumoto, M.D., the Chief Pathologist for the Orange County Coroner's Office, testified Fry died from subdural and subarachnoid hemorrhaging caused by cerebral lacerations and skull fractures from an unknown number of blows to her head by a blunt instrument, such as a baseball bat, two-by-four, or metal pipe. Dr. Fukumoto explained a "tremendous amount of force" is required to fracture the skull, and such an injury quickly causes loss of consciousness.

Fry also had a laceration on her lip, bruises and contusions over the bridge of her nose consistent with being struck in the face, bruises on her neck consistent with being choked, and bruising to her upper chest consistent with blunt force trauma. The injuries to her face and neck were consistent with a struggle. There were also signs of a struggle inside the apartment. The point of entry into the apartment was a window above the bed in Stevenson's bedroom. A latent fingerprint lifted from this window was later matched to defendant's left index finger.

Subsequent testing of the semen swabbed from Fry's body yielded a DNA profile that matched defendant's. When he was interrogated in 1996, defendant described an attack matching Fry's case that occurred in Anaheim one evening in December 1978. Defendant was driving around when he noticed an apartment complex near Buena Park. Parking on a narrow road behind the complex, he climbed a fence and entered through the back where the garages were located. He passed three or four apartments before he reached one where he could see a woman sitting at the table in the kitchen with her back to the living room window.

He watched her for about a minute before going to the back of the apartment and entering through an open bedroom window. After watching the woman for several more minutes, defendant approached her from behind, intending to rape her. Before she became aware of his presence he hit her in the head two or three times with a two-by-four, rendering her unconscious. He dragged her into her bedroom and laid her on the bed with her legs spread apart. He pulled his pants and underwear down before removing her pants, tearing off her underwear, and ejaculating on her.

Before he left, defendant noticed the woman was having difficulty breathing. He did not take anything from the apartment and exited through the same window he had entered.

(2) Kimberly Rawlins On March 31, 1979, Roberta Birrittella and Donna Chavez went out on dates about 7:30 p.m., leaving Birrittella's roommate, 21-year-old Kimberly Rawlins, alone in their one-bedroom apartment in Costa Mesa. Chavez and her date returned about 11:30 p.m. to retrieve Chavez's identification. They spoke with Rawlins for a short time before leaving again sometime after midnight. Rawlins asked them to leave the door unlocked on their way out because she was going to take a shower and go to sleep and Birrittella did not have a key to the apartment. Birrittella returned home about 4:45 a.m. on April 1.

The front door of the apartment was ajar and all the lights inside were off except the one in the bathroom. Hearing what sounded like a heavy sigh or forced breath, Birrittella went into the bedroom and found an unresponsive Rawlins wearing only an open bathrobe and lying half on and half off her bed. Rawlins's face was badly beaten; both her eyes were blackened and there was froth in her nostrils and swelling above both ears. Believing Rawlins to be dead and thinking the person responsible could still be inside their apartment, Birrittella fled to a neighbor's to call the police.

Law enforcement officers who responded to the scene detected a faint pulse and began performing CPR on Rawlins. Paramedics arrived and continued CPR efforts, but soon after pronounced her dead. Peter Yatar, M.D., performed Rawlins's autopsy. He testified Rawlins died from brain contusions with subdural hematoma as the result of multiple skull fractures-a nine-inch fracture extending from her left ear across the top of her skull, a three-inch fracture to her right temporal lobe, and a two and a half-inch fracture just over her right eye-consistent with applying "a great amount of force" with a blunt instrument.

These injuries would have rendered Rawlins unconscious immediately. Dr. Yatar explained 400 to 600 pounds of force per square inch would be required to cause similar skull fractures on a cadaver, and even greater force would have been necessary to cause Rawlins's nine-inch fracture. Rawlins also had hemorrhages around both eyes, almost identical bruises on both sides of her head, and a small laceration on her lower lip that could have been caused by blunt force or as the result of falling on the floor. She also had two broken fingernails and small abrasions on two fingertips.

Subsequent testing of the semen found on the string of the tampon Rawlins had been wearing revealed a DNA profile that matched defendant's. It also matched the DNA profiles of the semen swabbed from Debora Kennedy and Debra Senior (see post ). When he was interrogated, defendant described an attack he committed one night in Costa Mesa that matched Rawlins's case. He was outside an apartment window listening to three people inside talking. The man and one of the women left, leaving the other woman alone in the apartment. Defendant then drove around for about an hour before coming back.

He entered the apartment through the unlocked front door with the intent "to go in and rape" the woman. The lights in the apartment were off. The woman was in the bedroom "sleeping in the nude." Defendant recalled she was short and petite and that he struck her two or three times with the two-by-four he was carrying. He could not recall whether he was able to achieve an erection. He said he left the apartment the same way he entered, throwing the two-by-four onto the garage roof.

(3) Marolyn Carleton On September 14, 1979, 31-year-old Marolyn Carleton and her nine-year-old son, Joseph, then known as Joey, were living in an apartment in Costa Mesa. About 11:45 p.m., the complex's manager, who lived next door, walked by and noticed Carleton's patio sliding glass door and drapes were open but the screen door was closed. The light was on in the dining area and the manager could see Carleton, who appeared to be asleep on the floor. Shortly before 3:00 a.m. on September 15, a law enforcement officer was dispatched to Carleton's apartment.

The patio's sliding glass and screen doors were now open but the drapes were closed. Joey met the officer outside, saying his mother had been hurt; he directed the officer inside, where the apartment was dark except for a hallway light. Carleton was found lying on the master bedroom floor, partially propped up against the bed and nightstand. She had a very weak pulse, was struggling to breathe, and appeared to be unconscious. Her face and hair were covered with blood and there was a large wound on the top of her skull.

The short nightgown she was wearing had been pulled up above her waist and her underwear was down around her right leg between her knee and ankle. Paramedics transported Carleton to the hospital, where she died the next day. Dr. Fukumoto testified Carleton died from subarachnoid and subdural hemorrhage and cerebral contusions as a result of blunt force trauma. She had a "massive" scalp laceration above the left earlobe that extended back to the base of the skull. Beneath this was a depressed skull fracture that was "quite extensive" and had lacerated the brain tissue.

A "large amount of force" from a blunt instrument was required to inflict these injuries. Carleton also had areas of bleeding around her left eye and in her right anterior shin, medial calf, and thigh, but no defensive-type wounds. A rape kit taken from Carleton after her admission to the hospital yielded insufficient biological evidence for any type of testing or analysis. During his interrogation, defendant was asked if he remembered attacking a woman where "her little boy was home." Defendant replied, "Oh yeah. Geez, how did I forget that one? ...

I didn't know the little boy was in there, until it was too late...." Defendant described scaling a back wall and entering Carleton's apartment through an unlocked sliding glass door. Carleton was asleep in her bed with a nightlight on. She was wearing a nightgown but no underwear. Defendant hit her in the head three or four times with the intention of knocking her unconscious so he could rape her.

He did not recall what he used but said "in most cases, it was [two-by-fours] ... these things were laying all over the place at that time...." He attempted to sexually assault her but could not recall if he got an erection or ejaculated. Defendant said when he exited the bedroom, he "bumped into" the boy in the dark hallway and the boy asked, "[W]hat's wrong with mommy." Defendant did not say anything, moved the boy aside, and left the apartment the same way he entered.

(4) Chantal Green On September 30, 1979, 20-year-old D. Green was nine months pregnant and living in an apartment in Tustin with her husband who was in the Marines. At 2:15 a.m., a law enforcement officer responded to a call from the apartment and was met outside by the husband, who appeared to be in a state of shock and said his wife had been injured. D. was in the bedroom, unconscious and lying on the bed nude with her legs spread apart. She was having difficulty breathing and was bleeding from a two-inch hole in the middle of her forehead, as well as from her ear and nose.

There was blood on the bed and floor, and blood spatter on the wall behind the bed. The wound to her head was so deep it exposed brain tissue and was so pronounced the officer initially believed she had been shot. D. was transported to the hospital. Several hours later her unborn fetus, Chantal, ceased to have vital signs and was delivered stillborn. Dr. Fukumoto performed Chantal's autopsy and testified regarding her cause of death as well as D.'s injuries. The wound to D.'s head had been caused by blunt force consistent with being hit by a mallet or the end of a baseball bat.

This would have rendered her unconscious immediately and caused severe underlying damage to her brain. Shock from this traumatic injury caused D.'s body to shift the oxygenated blood to her heart, lungs and brain, resulting in her uterus receiving less oxygenated blood. Chantal died from intrauterine anoxia caused by the marked decrease in the oxygenation of her mother's blood. D. spent 10 days in a coma and remained in the hospital for about three weeks. When she regained consciousness, she had total amnesia and could not remember anyone.

She had to learn to talk and spell all over again, a process that took years. D. eventually regained her memory but at the time of defendant's trial, some 17 years later, she still had problems communicating, particularly if someone talked fast or the subject matter was technical. D.'s husband was convicted of the second degree murder of Chantal and of attempting to murder his wife and assaulting her with force likely to cause great bodily injury. He was committed to prison in November 1980 for a term of 15 years to life.

Subsequent testing of the sperm on the vaginal swab from D.'s rape kit taken revealed a DNA profile that matched defendant's. In June 1996, D.'s husband was released from custody after an Orange County Superior Court judge set aside his convictions and dismissed the case against him. When interrogated, defendant admitted he was the one who attacked D. He said he was drunk and it was around midnight when he drove up and parked his black van close to her apartment complex. While walking around the complex, he overheard D. and her husband arguing, heard a car start up, and then saw the husband drive away.

Defendant left for about an hour, drank some more alcohol, then came back and entered the apartment through the unlocked front door. He saw memorabilia in the living room indicating the husband was in the Marines. D., who was noticeably pregnant, was lying on the bed in the bedroom. Defendant rushed toward her and hit her in the head with a board he had picked up outside the apartment. After knocking her unconscious, he raped her and ejaculated inside her.

Defendant denied taking anything from the apartment, asserting that "[i]n no case ... was a robbery involved ... these were all cases of rape and then out of the house."

(5) Debora Kennedy On October 6, 1979, Yvette Levay and a friend left for Las Vegas about 9:00 p.m. Levay's sister, 24-year-old Debora Kennedy, stayed home alone in their apartment in Tustin. When Levay returned to the apartment the next day about 6:00 p.m., the front door was open and Kennedy was lying in an exaggerated spread-eagle position on a blood-soaked mattress on the floor of her bedroom. She had massive blunt force trauma to her face and showed no signs of life. Her body was covered with a knitted shawl and there was blood spatter on a nearby credenza.

She was unclothed except for a robe and there was a mucous-like substance between her legs in the vaginal area. Dr. Fukumoto testified Kennedy died from cerebral laceration with subdural and subarachnoid hemorrhaging caused by blunt force trauma to the head with resulting skull fractures. The extensive fracturing of her skull started above the right earlobe (the point of impact) and radiated down to the base and the opposite side of the skull.

This injury would have required at least five blows from a blunt instrument-such as a baseball bat, two-by-four, pipe, or the flat end of a hammer-delivered with a large amount of force. Kennedy also sustained multiple injuries to both sides of her face and periorbital hemorrhage to her eyes, but no defensive wounds. There were no signs of forced entry to, or struggle inside, the apartment, but a window in a back rear bedroom had been opened and its screen removed. Subsequent testing of the sperm swabbed from Kennedy's body revealed a DNA profile that matched defendant's.

When he was interrogated, defendant described the attack on Kennedy as occurring late at night or during the early morning hours. He said he took a mallet he found in the back of a pickup truck parked close by and entered Kennedy's apartment through a window that was cracked open. When he entered the living room Kennedy was asleep on the floor leaning against the couch with the television on. She had a blanket over her but defendant claimed she was not wearing any clothes. He hit her on the head with the mallet, raped her, and ejaculated inside her.

He recalled Kennedy was "kind of heavy" and said there was "no particular reason" for selecting her single-story apartment.

(6) Debra Senior On October 20, 1979, Debra Chamberlain and 17-year-old Debra Senior went together to a party in Fountain Valley, California. About 10:30 p.m., Senior left in Chamberlain's car to return home alone to their apartment in Costa Mesa. Chamberlain later got a ride home with a friend, arriving about 2:30 a.m. The lights in the apartment were on and the stereo was playing. Chamberlain found Senior lying on the floor of her bedroom near the foot of the bed, unclothed except for a pair of socks. She had suffered severe head trauma and her hair was matted with blood.

Blood spatter extended from her left shoulder, elbow, and forearm onto the foot of the bed. A torn blouse and unsnapped bra had been pulled up around her shoulders. Buttons from the blouse were found on the floor next to her body. A green towel had been partially wrapped around her neck. Torn underwear was lying on a pair of shoes near the bed and the contents of a purse were on the floor near her feet. Dr. Fukumoto testified Senior died as a result of a hemorrhage from a cerebral laceration and contusions caused by blunt force trauma with skull fractures.

A skull fracture associated with two elongated lacerations on the right side of her head radiated downward to the base and around to the left side of her skull. Fragments from the fracture had lacerated her brain. A pipe, two-by-four, or baseball bat could have inflicted these injuries, which would have required more than one blow with a "large amount of force" and would have rendered Senior unconscious almost immediately. Blood spatter at the crime scene was consistent with Senior's not having moved after being struck on the right side of the head while lying on the bed.

Autopsy photographs showed the head injuries suffered by Senior and Kennedy were both slightly curved lacerations, leading Dr. Fukumoto to suspect the same blunt instrument had been used in both cases. The point of entry into the apartment was a bathroom window; there were partial shoe prints on top of a gas meter outside the window and on a bar of soap on the floor of the bathtub directly under the window. One of the handprints lifted from the windowsill matched defendant's left palm. Subsequent testing of the sperm swabbed from Senior's body revealed a DNA profile that matched defendant's.

As noted, it also matched the DNA profiles of the semen swabbed from Rawlins and Kennedy. During defendant's interrogation, a detective described the area where Senior's apartment had been located, prompting defendant to recall, "I know, I gotcha ... this one was young ... 17, 18, something like that." He described parking a "considerable distance" from Senior's apartment and pretending to be a jogger in the neighborhood while he looked in windows. He saw Senior's apartment was empty and entered through a bathroom window. He had been there for about 20 minutes when Senior came home.

Hiding in the bathroom, he watched Senior make a drink in the kitchen, sit down on a couch in the living room, and eventually fall asleep. Defendant exited the bathroom and hit Senior in the head two or three times with a two-by-four, rendering her unconscious. He then carried her into one of the bedrooms, laid her on the floor, removed her underwear, raped her, and ejaculated inside her.

b) Defendant's interrogations and statements

(1) Avenal State Prison In June 1996, Costa Mesa Police Department Detective William Redmond obtained some of the DNA test results linking defendant to the above homicides. On June 14, Redmond, investigator Lynda Giesler, and Tustin Police Department investigator Thomas Tarpley drove to Avenal State Prison in Kings County to serve a search warrant on defendant and to interrogate him. About 10:30 a.m., Redmond, Giesler, and defendant were placed in one of the prison's interview rooms. After advising defendant of his Miranda rights (Miranda v.

Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ), Redmond explained that a blood sample taken when defendant was last released from prison had been run through a computer database and defendant's DNA "came up on a couple of Costa Mesa homicides back in 1979." Defendant said he had been through Costa Mesa but never lived there and did not recall the area well. From 1975 to 1978, he had been stationed at the Marine base in Tustin, where he was assigned to a helicopter squadron and typically worked the night shift from 4:30 p.m. until 8:00 a.m. on weekdays.

Toward the end of his career in the Marines, he was transferred from Tustin to El Toro, where he spent just a few months. Defendant described his lifestyle at this time as revolving around drinking and using drugs. He drank "anything I could get my hands on," smoked marijuana for a number of years, did PCP and as much LSD as he could, and used cocaine and heroin for about three months. His only close friend was another Marine, Albert Garcia, with whom he shared an apartment in 1975 and early 1976 and often socialized.

Defendant briefly described his family and upbringing, and said he had "always had problems" meeting women and never developed relationships with them. He claimed he did not keep track of Orange County news and did not recall hearing in 1979 about women in Costa Mesa being sexually assaulted and murdered. When Giesler reiterated that defendant's DNA matched that found on four victims, he responded, "I don't know what to tell you." Redmond clarified that the DNA was obtained from semen and the victims had been hit on the head and raped.

He asked if defendant had ever experienced violent tendencies on PCP or if it was possible he had "met a girl, saw a girl, followed a girl home, and then, whatever happened happened?" Defendant did not think he "could forget something like that." Giesler encouraged him to confess and "[g]et the monkey off your back," but defendant said "the day is not today" and "I think I should wait until later on.... I just need some time to ... to draw upon some strength.... To say what I have to say." He told Redmond and Giesler to come back after he was transferred to Orange County jail in 23 days.

Giesler agreed, but said another investigator from Tustin had come with them and wanted to talk to him. Redmond and Giesler left the interview room, at which time Tarpley entered. Tarpley readvised defendant of his Miranda rights and defendant agreed to talk to him "about why I'm here today." At 12:09 p.m., Tarpley began to interrogate defendant. He explained he was investigating a 1979 Tustin homicide and asked where defendant had been living at that time.

Defendant said he was staying at the Marine Corps Air Station in El Toro and recounted much of the background and personal history he had given to Redmond and Giesler. Tarpley showed defendant a picture of Debora Kennedy. Defendant said he had never seen Kennedy before and did not know why his semen would be in her, saying, "I find it hard to believe that it matched four and here's a fifth. I have no idea.... None whatsoever." Tarpley also described the Green case. Defendant recalled reading there had been an argument and the husband, who was a Marine, hit the victim in the head.

He asked if the husband was on death row. Tarpley said the husband had been convicted but that he did not know if he was on death row. Defendant admitted it was "possible" he had killed someone while under the influence of drugs because sometimes he "blacke[d] out" and would do and say things he did not remember. Tarpley urged defendant, "Today's the day that you take control and you say ... I'm going to do the right thing, and that's what we're here for.... And that's what I'm asking you to do.... Can you do that for me?" In response, defendant asked, "Is Costa Mesa still here?" Tarpley replied affirmatively.

Defendant asked to use the bathroom, stating, "then we can ... get this over with." Detective Redmond and investigator Giesler joined Tarpley in the interview room at 1:05 p.m. and defendant proceeded to confess to the homicides at issue.

He began with the case of "the Marine and his wife," saying: "I believe that there is a man on death row because of something that I did [and] out of all these murders and the crimes that I committed over the years, that was the one that bothered me the most...." Defendant had heard about the attack on the radio and read about it in the newspaper in 1980 or 1981, but claimed his memory was hazy due to drinking and drugs.

In general he used to get drunk at bars and then drive around looking for a prostitute or woman-"that's where this started, you know, looking through windows or hoping that you find a door open, that sort of thing...." Defendant described the attack on D. Green as detailed above.

He claimed he "couldn't even get an erection ... in most of these cases, because I was drunk and under the influence of drugs...." Tarpley asked, "[H]ow many women do you think ... you attacked?" Defendant was not sure; "I didn't know these people were actually dying, until I heard it ... on the radio." He could not recall his first attack, but denied attacking any women in other states where he had been stationed. Defendant also described the attacks on Debora Kennedy, Kimberly Rawlins, Marolyn Carleton, Debra Senior, and Sandra Fry as detailed above.

He reiterated he did not take anything from the apartments and never went through drawers or closets because he was not in the homes long enough. He never wore gloves and did not wash anything or wipe anything clean when he left. He read a couple of articles about the incidents while incarcerated and heard things on the radio, but had not known the full extent of what had happened until now. Sometimes the day after an attack he would recall he had gone "out," but other times he experienced "a total blackout" and would not recall what had happened until later.

Defendant never told anyone about the attacks, although he thought about them. Two or three years before, he had gone through a drug rehabilitation program and left thinking, "[T]hat's probably what I've been doing all these years is trying not to face ... what I'm facing now and I'm trying to stay away from it, because ... I don't know how to handle it...." Defendant could not recall any other cases and said he only remembered the last three or four he described by "shaking my memory." At the conclusion of the interrogation, defendant's blood was drawn pursuant to the search warrant.

(2) California State Prison Corcoran About 10:30 p.m. the same day, Anaheim Police Department Detective Richard Raulston and Sergeant Steven Rodig interrogated defendant, who meanwhile had been moved to California State Prison Corcoran, regarding Fry's case. Raulston inadvertently erased a portion of the tape recording while trying to duplicate it, so he returned to the prison on June 16, 1996. There, he readvised defendant of his Miranda rights, and defendant repeated much of what he had previously confessed regarding Fry's death, adding more details.

On June 18, 1996, Redmond and Giesler went with their supervisor and a technician to interrogate defendant on videotape. Defendant again was advised of his Miranda rights and again agreed to speak to investigators. He provided a lot of the same and some additional information regarding his background and the crimes. Defendant said he began using LSD and mescaline in junior high school in San Diego. After basic training, he was stationed in Adak, Alaska, where he first tried alcohol. He drank every day, including when he was on duty.

His drinking and drug use reached the point he was not reporting to work, and by mid-1979 he was about to be kicked out of the military. Regarding the crimes, defendant claimed his intent had been only to knock the women unconscious so he could rape them. It never occurred to him he was killing the women because once in a fight he had knocked his opponent out by hitting him in the head with a two-by-four and, although there had been a small amount of blood, this did not kill the man.

Defendant thought everyone's skull could withstand the same amount of force and hitting the women in the head only rendered them unconscious. He first thought about assaulting women shortly before the first assault. Later, when he was in prison, he thought the cases were so old the victims might have passed away or there might have been insufficient evidence to identify the assailant. 2. The defense case Defendant presented no evidence during the guilt phase and engaged in limited cross-examination of the prosecution's witnesses.

In opening and closing argument, the defense conceded identity, but relied on defendant's statements to argue he was guilty of only second degree murder as to each victim based on diminished capacity due to intoxication. B. The Penalty Phase At the penalty phase, the prosecution relied on the facts and circumstances of the murders, including the impact on the victims' families, and introduced evidence regarding several additional acts of violence. Defendant testified on his own behalf and presented the testimony of a friend from his time in the Marine Corps and the expert opinion of a forensic psychiatrist. 1.

The prosecution's case-in-aggravation

a) Other acts of violence (1) 1979 rape On July 19, 1979, Jane D. was living alone in a Costa Mesa apartment. She went to bed between 11:00 and 11:30 p.m., but was later awakened by noises in the hallway. When she went to investigate, a man grabbed her and told her to shut up, after which she lost consciousness. During this brief encounter, Jane did not notice any signs of his being intoxicated. A friend coming to see her the next morning found the apartment's front door open a few inches and Jane lying unconscious in bed on her back.

Her eyes were swollen and there were scratches on her face and bruising behind her ear. She looked like "a prize fighter after a fight." Her pillow was covered in blood, and blood was splattered on the bedroom wall and heater. Jane was taken to the hospital, where she remained in a coma for about four weeks. She suffered an "ear to ear" skull fracture and required a permanent tracheostomy as a result of having been strangled. At the time of defendant's trial she could not breathe well and could not swim or engage in heavy exercise.

As a result of permanent nerve damage, she also had problems chewing and difficulty forming words. DNA extracted from sperm from the vaginal swabs from Jane's rape kit matched defendant's profile. When he was interrogated in prison in June 1996 defendant confessed to assaulting Jane. He said he had been drinking that night and entered the apartment through an open dining room window. He found Jane sleeping in the nude and hit her in the head with a two-by-four, which he later discarded in a dumpster. He believed he was unable to obtain an erection and that he ejaculated without penetrating her.

Defendant admitted he entered the apartment to see if there was a female inside and, if so, to knock her unconscious and rape her. (2) 1980 robbery On February 2, 1980, defendant was visiting his brother, who lived in Pasadena, California. Around 10:00 p.m., Aida Demirjian arrived at the Pasadena apartment complex where she lived and was locking her car in the underground parking structure when defendant hit her two or three times in the head with an iron rod. She fell down and pretended to be unconscious, but defendant kept hitting her.

She got up and started to run and yell for help but he ran after her, grabbed her, and hit her again. Demirjian fell a second time and again pretended to be unconscious as defendant dragged her a few feet, ripped a necklace from her neck, and looked through her purse. When he subsequently lifted up her skirt, she got up and ran to the manager's apartment for help. Demirjian was hospitalized for several days and required surgery and physical therapy to repair a skull fracture and several broken fingers. A law enforcement officer was dispatched to the scene around 10:20 p.m.

About a half-block from Demirjian's complex, defendant crossed the street in front of the officer's marked police car. The knees of defendant's pants were scuffed and appeared stained. When the officer exited the car and approached defendant, he noticed blood on defendant's pants, shirt, and hands. Defendant was calm, cooperative, and compliant, and did not appear intoxicated when he was detained and taken into custody. Another officer found a bloody metal pipe on the floor of the parking structure, as well as a gold and pearl necklace.

A certified copy of defendant's October 1980 conviction, pursuant to his guilty plea, for robbery and infliction of great bodily injury during the commission of a robbery, was introduced as evidence. (3) 1980 rape On February 15, 1980, 13-year-old Paula S. attended her father's funeral. About 3:30 p.m., she was walking home from a drug store in Tustin when a black van drove past her and pulled over. Defendant got out and went around to the back of the van as though he were checking the tire. As Paula walked by the van, he grabbed her by the sweater, punched her in the face, threw her into the van, and drove off.

While driving, defendant kept looking at Paula through the rearview mirror, saying, "[S]tay down, stay down, or I'll kill you." He later stopped in the parking lot of a small shopping center, got in the back of the van, and raped her. Afterward, he asked Paula personal questions, such as what her name was and how old she was. When it was dark, he drove close to where she lived and dropped her off in an alley, saying, "If you tell anybody, I'll come back and I'll kill you." When she got home, Paula told her mother what had happened and the police were called.

Defendant confessed to the attack when interrogated a few days later. When interrogated in prison in June 1996, he also talked about "a rape he had been convicted of" and said it probably saved the girl's life that she was so young.

The prosecution introduced a certified copy of defendant's May 1980 conviction, pursuant to his guilty plea, for kidnapping and rape by threat. (4) 1984 assault On the night of February 13, 1984, David Feurtadot was sharing a room with defendant at the state prison in Tehachapi, California, and was asleep when defendant began hitting him in the back of the head with a curved piece of steel approximately two feet in length. Feurtadot chased defendant out of the room and into the hallway, but had to sit down because he was bleeding profusely; he almost passed out from the pain.

The three- to four-inch cut on his head required stitches and he stayed in the hospital facility for a week. Defendant never said why he attacked him, and Feurtadot did not know the reason. At the time of defendant's trial, Feurtadot still suffered headaches as a result of the incident. The prosecution introduced a certified copy of defendant's June 1984 conviction, pursuant to his guilty plea, for assault with a deadly weapon.

b) Victim impact evidence Judith Brown testified about the loss of her younger sister, Sandra Fry. Fry was one of 10 siblings. Brown described her as very compassionate and loving, the kind of person who would bring home stray animals. Fry had moved out of the family home just three days before she was murdered. Her death devastated the family; the last time they all got together was her funeral. Brown was pregnant at the time of Fry's murder and her son grew up fearful because Brown was so overprotective and afraid of losing him.

When he graduated from high school, she bought him a truck to take to the University of Nevada, Las Vegas, but he would not go. At the time of defendant's trial, Brown seldom left her house. Cheryl Rawlins testified about the loss of her younger sister, Kimberly Rawlins. Kimberly had just moved out of the apartment they shared when she was murdered. Cheryl described Kimberly as her best friend and a very happy and giving person who had wanted to have many children.

Their plan had been for Kimberly to help Cheryl through her first two years of college, and then Cheryl would help Kimberly with her first two years of college. The family initially could not afford a grave marker, and when one of their brothers went to the cemetery and could not find Kimberly's grave, he became distraught and began drinking heavily after having been sober for quite some time. At the time of defendant's trial, the family was unsure of this brother's whereabouts. Joseph Lee testified regarding the night he was nine years old and awakened by his mother, Marolyn Carleton, screaming his name.

He was at her bedroom door when it opened and a dark-skinned man pushed past him, ran down the hallway, and left the apartment. Inside the bedroom, Joseph turned on the light and found his mother lying on the floor propped against her nightstand, incoherent and bleeding. When he realized he could not stop the bleeding, he called the operator for assistance. Joseph described his mother as "everything a young boy like myself at the time would want in a mother. She cared, protected, guided, put me before herself, and loved me like only a mother could. [¶] She was everything to me.

She was my friend, my teacher, my life.... [¶] When she died that early morning, part of me died. That can never be replaced." Carleton's sister, Mary Lee, testified about losing Carleton to a "cruel and senseless act of violence." She read a poem by their mother, who had died of cancer the year before defendant's trial, about the loss of Carleton. Sandra Kennedy testified regarding the loss of her aunt, Debora Kennedy, who was just two years older than she and "like a sister." Sandra lived near Debora and they spent their summers together.

She described Debora as a very giving, sensitive, and creative person who had a lot of potential and would "give you the shirt off of her back." After Debora's murder, Sandra worried for a long time that someone had a vendetta against the family and was constantly "looking over her shoulder." Out of concern for Debora's grandmother, who suffered a stroke shortly after the murder, the family of eight siblings, although devastated, "chose not to talk about it a whole lot." Jackie Bissonnette testified regarding the close bond she had with her sister, Debra Senior, who had been the youngest of four children.

Although only 17 years old when she was murdered, Debra had already graduated from high school, was working full-time, and lived on her own. She had been planning to move back home in order to continue her education at Orange Coast College. Bissonnette recalled "her smile, her laugh, and her kindness" and said "Debbie's death left a void in my life that 19 years later is still there. Not a day goes by without Debbie being in my thoughts.

There's no special occasion, no happiness, without the void of Debbie's absence felt." She read a statement for their mother relating the belief Senior's father had died of a broken heart three years after her murder, and she read two poems written by Debra. 2. The defense case-in-mitigation Albert Garcia testified he met defendant in 1973 when they were both in the Marine Corps stationed in Adak, Alaska. They were roommates from 1974 to 1977 in Tustin and "partied" together on the weekends, drinking alcohol and sometimes smoking marijuana and PCP.

Garcia described defendant as intelligent, quiet, mellow, very respectable, and a model marine who was promoted to staff sergeant in five years. He said he never saw defendant get into a fight and thought defendant had good control over his temper. He did not believe defendant had an alcohol problem and he had never seen defendant behave violently after using alcohol or drugs. After they grew apart, Garcia was "surprised" when he learned defendant had been convicted of rape in 1980 and again when he heard about this case. Defendant testified on his own behalf.

He spoke of being prescribed psychotropic medications for the first time in 1984 while incarcerated. They made him "calm" so he was not "out of control or nervous" around people. There was an eight-year period after he was released from prison that he stopped taking the medications, but he had been taking them continuously since returning. He was not on medication when he attacked his cellmate, who he claimed was stealing from him.

On cross-examination, defendant admitted that while incarcerated and taking medications to control aggression and psychotic symptoms, he had on separate occasions said he was (1) "out of control" and had "no doubt I could murder someone," (2) staying in his cell because he felt like hurting people, and (3) fearful of losing control in court and becoming violent. After the latter two occasions, which occurred while he was awaiting trial in this case, his medications were changed and the violent feelings went away.

Defendant also expressed remorse for the crimes, saying, "I know that I have caused the families and the friends of the victims quite a bit of pain throughout the course of the last 19, 20 years, and I accept full responsibility for that. I am truly, truly sorry for the crimes that I have committed and the reasons why we are all here today in this courtroom. If there was anything that I could do to take away the pain and the sorrow of the families of the victims, I would.

And if my life is what it takes for them to feel that their family members have been vindicated, then that is what I believe should be done...." On cross-examination, however, after saying he had "always" felt sorry for what he had done, defendant admitted that after killing Fry he "went about business as usual." He said the crimes were for "sexual gratification" but claimed he did not get any from them.

He conceded that whatever remorse he felt at the time of an attack did not prevent him from attacking additional victims, and that he made the decision to "rape and kill" of his "own free will." Defendant denied he "liked killing women" but admitted he knew what he was doing and that it was wrong.

He agreed that if he had not been arrested after raping Paula S., he would have continued "raping and murdering." He also admitted he had been in and out of custody since 1987 and had been arrested in November 1988 in Garden Grove, California, for attempting to force a woman to orally copulate him while he was armed with a knife, for which he was reimprisoned. Lastly, Forensic Psychiatrist Paul Blair, M.D., testified regarding his conclusions following his examination of defendant's mental status. Dr.

Blair's assessment was based on two personal interviews, totaling about three hours, conducted in October 1998, on a review of defendant's interviews with police, and a review of the Orange County Jail psychiatric team's notes on defendant from June 1996 to October 1998. Dr. Blair's findings were consistent with the psychiatric team's diagnosis of organic mental syndrome, unspecified psychotic disorder, chronic alcohol abuse (in institutional remission), and major depression. According to Dr. Blair, defendant was cooperative throughout the evaluation.

He self-reported experiencing non command auditory hallucinations, specifically the voices of a male and a female psychiatrist. At times the female voice seemed to be his grandmother. Defendant "could not recognize what the voices were telling him," but said he did not commit the crimes because voices told him to. He also had the delusions that people he did not know were talking about him and that thoughts could be physically inserted into, as well as removed from, his head. Dr. Blair explained defendant's formal psychiatric history began 14 years earlier.

Defendant was treated at Vacaville State Prison without medication and then at the California Institution for Men in Chino with antipsychotic medication. During his pretrial confinement in the Orange County Jail, he had been on several antipsychotic medications to control aggression, confusion, disorganized thinking, anxiety, and depression, and to reduce if not eliminate psychosis.

Defendant self-reported his history of drug and alcohol use, claiming he regularly inhaled glue, paint, and paint thinner between the ages of seven and 15, began using marijuana at age 11, used PCP and "magic mushrooms," used LSD at least 1,000 times, and injected a combination of heroin and cocaine (known as "speedballs"). Dr. Blair explained all these drugs can affect the brain. Defendant also said he drank a case of beer and half a fifth of vodka every day for a 10- to 11-year period. He also claimed to have suffered five head injuries, three of which resulted in unconsciousness. Dr.

Blair opined defendant showed signs of institutionalization, a condition whereby a person becomes unable to function outside of the "highly regimented" structure of an institution. Dr. Blair agreed that if out of jail and not taking medication, defendant "would be a danger to himself and others," while it was "probably true" that "in prison, treated with the psychotropic drugs and under a controlled environment," he would not." 3. The prosecution's rebuttal Forensic Psychiatrist Park Dietz, M.D., testified on rebuttal for the prosecution.

Although he did not personally interview defendant, he reviewed about 8,000 pages of records, three videotapes, and an audio tape. In Dr. Dietz's opinion, defendant's mind was functioning "perfectly adequately" when he was interrogated by law enforcement officers, in that he was logical, coherent, rational, and understandable. Based on defendant's observable behavior, Dr. Dietz saw "no evidence at all" of a psychotic disorder or organic brain damage and opined defendant's mind worked "at least as well" at the time of the crimes. Dr.

Dietz did not disagree with the jail's psychiatric team's diagnosis, but he also thought defendant met the criteria for having antisocial personality disorder, including running away from home, stealing, and breaking and entering as a youth, as well as exhibiting aggressive behavior, substance abuse, reckless disregard for the safety of others and himself, a lack of remorse, deceitfulness and constantly engaging in irresponsible and criminal conduct as an adult. He explained that people with antisocial personality disorder do not respond to treatment or discipline, although many respond to structure.

"They tend to want to do anything they think will make them happy.... Nobody has found any way to change them yet." Retired Marine Lieutenant Colonel Larry Kuester, defendant's commanding officer from 1978 through 1979 while he was a staff sergeant assigned to a heavy transport helicopter squadron in Tustin, testified regarding defendant's job performance. Defendant was the material chief for the squadron, a "difficult job" that served a "very critical function" relating to the flight readiness of the squadron and required exceptional dedication to the task at hand.

He received "outstanding evaluations" from "very demanding" superiors and had the "tremendous honor" of being recommended for Warrant Officers School. Kuester saw defendant on a weekly basis and thought he was a good marine. He never knew defendant to be intoxicated or hung over or to have a drug or alcohol problem. He explained the Marine Corps had a "zero tolerance" policy on the use of drugs or alcohol while on duty, especially for aviation units where "lives were on the line" and minimum performance could not be tolerated even in training situations.

Kuester did not believe it would be possible for someone on drugs or alcohol to perform defendant's job, as it required an "exceptional amount of motivation." II. DISCUSSION A. Asserted Batson/Wheeler Error Defendant, who is African-American, contends the prosecutor in his case exercised racially discriminatory peremptory challenges against two African-American prospective jurors in violation of Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 and People v.

Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, and that the trial court erred in denying his objections to these challenges. We disagree. 1. Background After hardship screening, 136 prospective jurors remained for voir dire. Voir dire began on September 29, 1998, and 71 potential jurors were questioned before a jury was selected. During voir dire, 17 prospective jurors were excused for cause or for hardship, pursuant to stipulation, or without objection, leaving 54 prospective jurors subject to peremptory challenge.

The prosecutor exercised 19 peremptory challenges in selecting a jury, including two against African-American prospective jurors, and three peremptory challenges in selecting alternate jurors. The defense challenged 14 prospective jurors and two alternate jurors.

a) Prospective Juror No. 719 Prospective Juror No. 719, an African-American woman, was peremptorily challenged by the prosecution.

On her written questionnaire in response to the question, "What are your GENERAL FEELINGS regarding the death penalty?," she wrote, "I don't like it!" She answered affirmatively the question whether she held "religious beliefs which would impair your ability to serve as a juror on this type of case," and in the place that asked prospective jurors to explain their answers she wrote "Death." Prospective Juror No. 719 did not answer the questions asking if she would automatically refuse to vote for either the death penalty or life imprisonment without the possibility of parole without considering any of the aggravating and mitigating factors, or if she thought the death penalty was used too often, too seldom, or randomly.

On the first day of voir dire, Prospective Juror No. 719 asked to be excused due to hardship, specifically lower back pain caused by sitting. Her request was denied. During voir dire, Prospective Juror No. 719 indicated she was a 51-year-old widow, had graduated from high school, and had no prior jury service. She was unable to work due to disability and her "bad lower back" might preclude her from sitting for long periods of time.

After the defense passed for cause, the prosecutor questioned Prospective Juror No. 719 as follows: "Q. [W]ould it be correct to say that for religious reasons have you [sic ] a problem with the death penalty? "A. That is correct. "Q. Okay. [¶] And would it also be fair to say that because of those religious beliefs, your personal beliefs, you'd have difficult[y] imposing the death penalty? "A. That is correct. "Q. And if given the chance to vote for life without possibility of parole, versus death, you'd probably always select life without possibility of parole over death. [¶] Is that a correct statement? "A.

That is a correct statement." The prosecutor then challenged Prospective Juror No. 719 for cause, after which she was questioned further by the trial judge and counsel in chambers. The judge began by explaining he wanted to clarify some of her "last answers to see what [her] feelings were." The judge then asked, "Are you telling the court and the parties that under no circumstances would you ever vote for the death penalty?" Prospective Juror No. 719 answered, "I just don't believe in it.

I'm being honest." The judge asked whether her feelings "were so strong that no matter what evidence is presented, no matter what evidence is going to come in, you would never, under any circumstances, vote for the death penalty." Prospective Juror No. 719 replied, "I won't say that. [¶] It depends on the evidence also, I'd take that in consideration. But I just don't believe in it because we can't give life.... And I just don't believe in taking life." She confirmed this view was based on her religious beliefs.

The judge asked whether, if the other jurors convinced her that death was the appropriate penalty, she could see herself voting for death, and Prospective Juror No. 719 responded, "I can't give you that answer." She indicated she would be willing to listen to the evidence before making a decision. She also reiterated she had a lower-back problem and it was painful for her to walk a long distance or to sit for a long period.

The prosecutor asked Prospective Juror No. 719 whether "it would be very difficult for you to vote to put someone to death" because of her religious beliefs against the death penalty, to which she replied, "Oh, yes, definitely." When asked if she would be biased against voting for the death penalty because of her religious beliefs, Prospective Juror No. 719 disagreed: "I won't say that's a true statement because I have to look at the evidence. Depend[s] on the evidence." But she agreed that her feelings against the death penalty would make it "very difficult" for her to impose death.

Outside Prospective Juror No. 719's presence, the trial court indicated it was going to disallow the challenge for cause and asked defense counsel whether there was going to be a " Wheeler situation" if the prosecutor were to use a peremptory challenge on Prospective Juror No. 719.

Defense counsel initially responded there would not: "I think that she gave answers that would probably give [the prosecutor] reason to use his peremptory in a nonracial manner." After further argument from the prosecutor regarding the for-cause challenge, however, defense counsel reconsidered, stating "we may very well be getting into a Wheeler situation" because "[g]iven the limited reservoir pool of potential [B]lack jurors, kicking any one off puts us in Wheeler ." The court disagreed: "In view of the comments here, I'm not going to find any Wheeler error once [the prosecutor] excuses this juror....

And applying what I heard to be [defense counsel's] assessment of the juror's responses and the likelihood that a good prosecutor would challenge such a juror, I don't find any prima facie evidence of misconduct on the part of the prosecutor ... and I just wanted to make that record before we go back out there." The prosecutor later exercised his fourth peremptory challenge against Prospective Juror No. 719.

b) Prospective Juror No. 213 Prospective Juror No. 213, an African-American man, was also peremptorily challenged by the prosecution. On the first day of voir dire, he asked to be excused due to hardship, specifically time and date conflicts related to doctors' appointments, an important school departmental meeting, plans to be out of town, and his practice and game commitments as a head basketball coach. His request was denied. Prospective Juror No. 213's initial voir dire was done in chambers. He confirmed that the trial's predicted

schedule would likely conflict with three or four of his team's basketball games. The prosecutor inquired about practice, noting the court was usually in session until 4:30 p.m. and asking whether this would prevent Prospective Juror No. 213 from practicing with his team the entire time he served on the jury. Prospective Juror No. 213 said his team's practices had not yet been scheduled but they usually were from 2:00 to 3:30 p.m. If he were a juror he would have to

schedule practice for the evening and this would be "tough on the kids" because "they're freshmen, and the freshmen parents rather would have them home by six." After Prospective Juror No. 213 exited chambers, the defense advised the court "[w]e want him," while the prosecution indicated it was willing to stipulate to a hardship excusal.

The proceedings then moved to open court, where the prosecutor asked Prospective Juror No. 213 about his 1995 jury service as the foreman in a murder trial, his testifying as a defense character witness for a friend accused of murdering his father, and psychological counseling he had received in high school about a girlfriend. The prosecutor asked about the difficulty serving on the jury would pose in terms of the prospective juror's being the head coach of the freshman boys' basketball team at the high school where he worked.

Prospective Juror No. 213 confirmed their practices would have to be moved to the evening if he were picked for the jury. He said although he knew he would be a good juror, "my problem was it's just a matter of this trial is very, very important. The person's life is at stake. And that is very important. And I'm dealing with high school kids who everything they do is way more important than everything else in your life." He agreed with the prosecutor he felt "torn" between his responsibilities to his players and what his responsibilities would be as a juror.

The prosecutor lastly asked Prospective Juror No. 213 about his views on the death penalty. He said he "voted for it. It's a necessary thing that we must have to deter crime of a very, very violent nature." Prospective Juror No. 213 also agreed he had "mixed feelings" about the death penalty but nevertheless felt it was appropriate in some instances and he could impose it if warranted. The prosecutor then passed for cause but exercised his next peremptory challenge, the prosecution's 17th, to excuse Prospective Juror No. 213.

At the next break, the defense objected to the peremptory challenge of Prospective Juror No. 213, arguing there were only two or three African-American prospective jurors "in the whole room, and two of them have been excused by peremptory challenge by the People. I'm just making my record in that regard....

So, we're contending that that establishes a systematic exclusion of the African-American potential jurors." The trial court disagreed with this representation as to the racial composition of the jury pool, saying, "[T]hat's an interesting observation, but, the Court is not accepting that ... from my perspective there might be more.... [Y]ou folks keep saying there's only three out there.

And I don't know that that's the case." The court then denied the challenge as follows: "I don't find any basic finding that the district attorney is engaging in misconduct, that he systematically is excluding all [African]-Americans from serving as jurors on this case, or that he is systematically excluding any other minority group from serving on this particular case. [¶] [Prospective Juror No. 213] did submit a request to be excused for hardship, and ... [i]n our discussion in chambers he indicated his reticence about serving, although he did opine that if actually selected, he will find a way to make his job work consistent with the nature of the jury duty. [¶] But, just watching his expression, and I have to put two things on the record: Yesterday when we broke in the evening one of the first prospective jurors to come up to the bailiff to get a hardship form was [Prospective Juror No. 213].... [¶] So, when I came back out and advised him ... that he needed to go take the jury seat, there was an audible groan and facial expression consistent with that as he moved from the clerk's area over to the chair. [¶] And just watching his demeanor, his facial expressions when he was inquired about his availability, I thought he was indicating that it's going to be extremely difficult.

Plus some of the other information that was disclosed to the deputy district attorney upon further inquiry. [¶] So, I think we have to be careful, when you make a challenge of this nature, that the court give a legitimate consideration. And I don't mean to make less of the challenge. If I thought that it was even close, I would make the deputy district attorney state on the record his feeling as to why he was excusing [Prospective Juror No. 213], but, there was ample reason to excuse both of those, other than dealing with race. [¶] And based on your offer of proof, I'm just denying the challenge." 2.

Analysis "Both the federal and state Constitutions prohibit any advocate's use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under

article I,

section 16 of the California Constitution." (People v. Lenix (2008) 44 Cal.4th 602, 612, 80 Cal.Rptr.3d 98, 187 P.3d 946.) "There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination." (People v. Bonilla (2007) 41 Cal.4th 313, 341, 60 Cal.Rptr.3d 209, 160 P.3d 84 (Bonilla ).) "A three-step procedure applies at trial when a defendant alleges discriminatory use of peremptory challenges.

First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. [Citation.] 'The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant].' " (People v.

Manibusan (2013) 58 Cal.4th 40, 75, 165 Cal.Rptr.3d 1, 314 P.3d 1.) In both peremptory challenges at issue here, the trial court found no prima facie case of discriminatory use and overruled defendant's motion without asking the prosecutor to state his reasons for the challenges. Because the trial predated the United States Supreme Court's decision in Johnson v.

California (2005) 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129, and exactly what standard the lower court used in finding no prima facie case is unclear, "we review the record independently to 'apply the high court's standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror' on a prohibited discriminatory basis." (People v.

Bell (2007) 40 Cal.4th 582, 597, 54 Cal.Rptr.3d 453, 151 P.3d 292 (Bell ).) "In deciding whether a prima facie case was stated, we consider the entire record before the trial court [citation], but certain types of evidence may be especially relevant: '[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group.

He may also demonstrate that the jurors in question share only this one characteristic-their membership in the group-and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all.

Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court's attention.' " ( Bonilla , supra , 41 Cal.4th at p. 342, 60 Cal.Rptr.3d 209, 160 P.3d 84.) In this case, the record does not support an inference of discriminatory intent on the part of the prosecutor in peremptorily challenging Prospective Jurors Nos. 719 and 213.

Even assuming the basis of defendant's argument is factually accurate-that Prospective Jurors Nos. 719 and 213 were the only two African-Americans in the 136-person jury pool, a fact neither conceded nor confirmed at trial-the bare circumstance that all African-American prospective jurors were struck from the pool would be insufficient in this case to support an inference that the two were challenged because of their race. " '[T]he small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible.

"[E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion." ' " (Bonilla , supra , 41 Cal.4th at p. 343, 60 Cal.Rptr.3d 209, 160 P.3d 84 ; see Bell , supra , 40 Cal.4th at p. 598, 54 Cal.Rptr.3d 453, 151 P.3d 292.) Nor does defendant show the prosecutor used a disproportionate number of his peremptories against the group.

The prosecutor exercised a total of 22 peremptory challenges, only two of which were exercised against African-American prospective jurors. (Cf. Bell , supra , 40 Cal.4th at p. 598, 54 Cal.Rptr.3d 453, 151 P.3d 292 [no disproportionate use of peremptories where only two of the prosecutor's 16 peremptory challenges were exercised against African-American women].) That the prosecutor used his 4th and 17th peremptory challenges against Prospective Juror Nos. 719 and 213 also distinguishes this case from Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, upon which defendant relies.

In Williams , the prosecutor used three of his first four peremptory challenges to dismiss African-American prospective jurors, a circumstance the court found supported a prima facie showing based on statistical disparity alone. (Id. at pp. 1107-1109.) The prosecutor's voir dire of the two prospective jurors at issue was by no means desultory or cursory. And although it is true "defendant himself is African-American that fact alone does not establish a prima facie case of discrimination." (People v.

Kelly (2007) 42 Cal.4th 763, 780, 68 Cal.Rptr.3d 531, 171 P.3d 548.) Lastly, we note the information elicited in voir dire showed race-neutral reasons for excusing both prospective jurors. (See People v.

Scott (2015) 61 Cal.4th 363, 384, 188 Cal.Rptr.3d 328, 349 P.3d 1028 ["A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and 'clearly established' in the record [citations] and that necessarily dispel any inference of bias."].) As defense counsel initially conceded with respect to Prospective Juror No. 719, the answers she gave regarding her views on the death penalty gave the prosecutor "reason to use his peremptory in a nonracial manner." And Prospective Juror No. 213's answers and demeanor indicated he was reluctant to serve on the jury.

The prosecutor specifically referenced this reluctance-"I take from it some things you said and the way you walked to the jury box, you're not thrilled"-and the trial court made express factual findings in this regard. In sum, defendant fails to demonstrate that the totality of relevant circumstances gives rise to an inference of discriminatory purpose in the prosecutor's exercise of peremptory challenges against these two prospective jurors.

As the trial court found no prima facie showing and the prosecutor did not state reasons for the excusals, we further decline defendant's request to conduct a comparative analysis of the prospective jurors' responses on the jury questionnaire for the first time on appeal. (See People v. Harris (2013) 57 Cal.4th 804, 836, 161 Cal.Rptr.3d 364, 306 P.3d 1195 ; People v. Dement (2011) 53 Cal.4th 1, 21, 133 Cal.Rptr.3d 496, 264 P.3d 292 ; Bell , supra , 40 Cal.4th at pp. 600-601, 54 Cal.Rptr.3d 453, 151 P.3d 292.) B.

Custodial Statement As summarized above, defendant was in prison in June 1996 on an unrelated matter when DNA testing connected him to the six murders. Law enforcement officers subsequently interrogated him five times about these crimes. All the interrogations were audio- or video-recorded. During these interrogations, defendant was repeatedly advised of his rights under Miranda v. Arizona , supra , 384 U.S. 436, 86 S.Ct. 1602 and, in all but the initial interrogation, explicitly agreed to talk to the officers and made various incriminating statements.

Before trial, defendant moved for an order excluding these statements from the guilt phase. After a multiday hearing, the court denied the motion without comment. On appeal, defendant claims his custodial statements were obtained in the absence of a valid waiver of his Miranda rights and after he repeatedly invoked his right to silence during the initial interrogation, and admission of the statements constituted prejudicial error. We are not persuaded.

"[A] defendant must be advised of his or her Miranda rights, and must make a valid waiver of these rights, before questioning begins or any statements resulting from interrogation can be admitted." (People v.

Rundle (2008) 43 Cal.4th 76, 114, 74 Cal.Rptr.3d 454, 180 P.3d 224 (Rundle ).) Such a waiver under Miranda must be "knowingly, intelligently, and voluntarily made." (Id. at p. 115, 74 Cal.Rptr.3d 454, 180 P.3d 224.) Because the crimes at issue were committed before Proposition 8's 1982 effective date, the prosecution had to establish the validity of defendant's Miranda waiver beyond a reasonable doubt. (See People v.

Sapp (2003) 31 Cal.4th 240, 267, 2 Cal.Rptr.3d 554, 73 P.3d 433 [for crime committed before June 9, 1982, Prop. 8's effective date, the prosecution must prove the voluntariness of a confession beyond a reasonable doubt; for crime committed on or after June 9, 1982, the preponderance standard applies]; People v.

Weaver (2001) 26 Cal.4th 876, 921, fn. 5, 111 Cal.Rptr.2d 2, 29 P.3d 103 ["the date of the crime, and not the date of the confession, is the controlling benchmark" for the proper burden of proof].) Although no such argument was made at trial, we conclude sufficient evidence exists from which the trial court could have found beyond a reasonable doubt that, once advised of his Miranda rights, defendant made a knowing and intelligent waiver of those rights. At the outset of the initial interrogation, Detective Redmond read defendant his Miranda rights and defendant confirmed he understood each right.

He was not formally asked to waive those rights, and he did not volunteer to do so. The following exchange then occurred: "Detective Redmond: Do you want to talk to us about ... anything that might have occurred back, '79, '80[?] "[Defendant]: '79, '80, why, why would I want to talk to you about something that occurred back then ? "Detective Redmond: Well, some things have come up and ... we need to talk to you about them, you can stop talking at any time. "[Defendant]: I can't ... imagine why I would want to talk with the Costa Mesa Police Department. "Detective Redmond: [A]re you familiar with DNA?

"[Defendant]: Yes, a little bit. "Detective Redmond: When you got out of prison the last time, did you have to give them a blood sample? "[Defendant]: Right. [¶] ... [¶] "Detective Redmond: [W]e are going to be just right up front with you ..., your DNA came up on a couple of Costa Mesa homicides back in 1979, and.... "[Defendant]: I never lived in Costa Mesa. "Detective Redmond: Ok. Have you ever been to Costa Mesa?

"[Defendant]: Well, I've gone through there, yes." (Italics added.) Redmond and investigator Giesler then proceeded to ask defendant questions about his life in Orange County in the late 1970s and 1980s and his family background. Defendant answered the questions, sometimes asked clarifying questions, and often volunteered additional information. Defendant argues his statements should have been excluded because he never expressly waived his right to silence and nothing about his actions demonstrates he intended to waive that right.

It is well settled that law enforcement officers are not required to obtain an express waiver of a suspect's Miranda rights prior to a custodial interview and that a valid waiver of such rights may be implied from the defendant's words and actions. (See Berghuis v. Thompkins (2010) 560 U.S. 370, 384, 130 S.Ct. 2250, 176 L.Ed.2d 1098 ["a waiver of Miranda rights may be implied through 'the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver' "]; People v.

Davis (1981) 29 Cal.3d 814, 824, 176 Cal.Rptr. 521, 633 P.2d 186 (Davis ) ["The absence of an express waiver does not in itself establish that the right has been invoked."].) "[T]he question of waiver must be determined on 'the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' " (North Carolina v. Butler (1979) 441 U.S. 369, 374-375, 99 S.Ct. 1755, 60 L.Ed.2d 286 ]; accord, People v.

Duren (1973) 9 Cal.3d 218, 238, 107 Cal.Rptr. 157, 507 P.2d 1365.) "In general, if a custodial suspect, having heard and understood a full explanation of his or her Miranda rights, then makes an uncompelled and uncoerced decision to talk, he or she has thereby knowingly, voluntarily, and intelligently waived them." (People v. Cunningham (2015) 61 Cal.4th 609, 642, 189 Cal.Rptr.3d 737, 352 P.3d 318 ; accord, People v. Johnson (1969) 70 Cal.2d 541, 558, 75 Cal.Rptr. 401, 450 P.2d 865.) Such is the case here.

After Detective Redmond read defendant his Miranda rights and defendant confirmed he understood them, he proceeded to actively participate in the conversation with the detectives-answering questions, asking for clarification, and generally contributing to a discussion he knew was being tape-recorded. There is no suggestion the detectives resorted to physical or psychological pressure to coerce defendant to talk to them.

Defendant, moreover, had extensive prior experience with the criminal justice system, having been arrested and pleaded guilty to felonies in three previous cases before being interrogated in this case. These circumstances are sufficient to permit an inference beyond a reasonable doubt that defendant understood he had a choice whether or not to talk to the detectives, with or without an attorney present, and knowingly and voluntarily chose not to exercise his right to remain silent. (See, e.g., People v. Cruz (2008) 44 Cal.4th 636, 668-669, 80 Cal.Rptr.3d 126, 187 P.3d 970 (Cruz ); People v.

Sully (1991) 53 Cal.3d 1195, 1233, 283 Cal.Rptr. 144, 812 P.2d 163 ; Davis , supra , 29 Cal.3d at pp. 823-826, 176 Cal.Rptr. 521, 633 P.2d 186.) Defendant attempts to avoid this outcome by arguing his response to the detective's asking if he wanted to talk-"[W]hy would I want to talk to you about something that occurred back [in 1979 or 1980]?"-was a rhetorical question commonly understood to mean "no," and that it was inconsistent with a present willingness to discuss the case and should have been viewed as an invocation of the right to silence.

To the extent the response was equivocal or ambiguous, he contends the detective's subsequent questioning went beyond the limited purpose of determining whether he intended to remain silent in an improper attempt to skirt the issue of invocation. We disagree. Taken in context, defendant's statement was reasonably understood as seeking to clarify why the Costa Mesa detective and investigator wished to speak with him, rather than as an invocation of the right to remain silent.

In the alternative, defendant contends that even if he impliedly waived his right to remain silent at the outset of the initial interrogation, the detectives were required to terminate their questioning when, later in the interrogation, he assertedly several times invoked the right to stop answering questions. (See, e.g., Rundle , supra , 43 Cal.4th at p. 114, 74 Cal.Rptr.3d 454, 180 P.3d 224 ["Even if a defendant voluntarily has waived his or her Miranda rights to remain silent and to have counsel present, the defendant later may revoke the waiver."].) Under California law applicable at the time the crimes were committed, once a suspect invoked his right to silence, police had to cease all questioning and could not subject the suspect to a new round of interrogation even if they repeated the Miranda warnings. (People v.

Fioritto (1968) 68 Cal.2d 714, 719-720, 68 Cal.Rptr. 817, 441 P.2d 625 [holding all further attempts at police interrogation should have ceased once the defendant indicated he intended to assert his Miranda rights]; see People v. Pettingill (1978) 21 Cal.3d 231, 242-245, 145 Cal.Rptr. 861, 578 P.2d 108 (Pettingill ) [reaffirming Fioritto and declining to follow Michigan v.

Mosley (1975) 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, which instead adopted a factual test turning on the circumstances of the renewed police interrogation in cases where the suspect had asserted his right to remain silent].) In support of this argument, defendant points to the italicized statements in the following exchange, which occurred toward the conclusion of the initial interrogation when the discussion turned to the DNA evidence connecting defendant to the murders: "Detective Giesler: I mean 17 years is long enough, I think it's time to talk about it, don't you? "[Defendant]: Oh yeah.

"Detective Giesler: Why don't you tell us what happened? "[Defendant]: The thing is, I will reserve the right to speak at another time , let's say I.... "Detective Giesler: I'm not going to do anything to violate your rights Gerald, I mean, we read you your rights and, I'm not going to step on your toes, but.... "Detective Redmond: I think this weight's been on [you] long enough. "Detective Giesler: You know, ... I waited 17 years. "[Defendant]: Yeah.

You and a whole lot of other people. [¶] ... [¶] "Detective Giesler: I'm speaking the truth to you [regarding the DNA evidence] and all I can ask in return is that you speak the truth to me. Get the monkey off your back. "Detective Redmond: I think you deserve that more than anybody. "[Defendant]: Yeah, the day is not today though . "Detective Giesler: Why is today not the day? "[Defendant]: I can't take it . [¶] ... [¶] "Detective Redmond: [G]et it off your chest, well, give somebody the reason why? Everybody's got a reason. "[Defendant]: Yeah, but there's also a reason for wanting to wait too .

"Detective Giesler: Can you explain that, can you explain that to me? "[Defendant]: Now, this is going to be a long drawn out process, the rest of my life is going right out the door, it probably went out the door years ago, I just didn't recognize it. [¶] ... [¶] "[Defendant]: [L]ike I say, once again, ... there's I think for me, there's a time, and a place for saying what I have to say, and, in reference to what happened, I, I there's nothing else that I can tell you . [¶] ... [¶] "Detective Giesler: Gerald, I can guarantee you, they're going to say, Lynda, did he say why? Can you tell me why?

Can you try to tell me why? Did you know any of these women? "[Defendant]: Like I say, I think I should wait until later on before .... [¶] ... [¶] "Detective Giesler: ... I don't understand what you're saying to me, are you saying, okay Lynda, when I get to Orange County, come and see me? [¶] ... [¶] Are you saying, Lynda, I don't want to talk to you? ... [¶] ... [¶] "[Defendant]: No, no, this, this, I, I just need some time to call upon myself, to bring, to draw up on some strength. [¶] ... [¶] To say what

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