THE PEOPLE, Plaintiff and Respondent, v. MARIO LEWIS GRAY, Defendant and Appellant, 37 Cal. 4th 168

Opinion WERDEGAR, J. A jury in Los Angeles County Superior Court convicted Mario Lewis Gray in 1989 of first degree murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated), burglary (§ 459), robbery (§ 211), forcible rape (§ 261, subd. (a)), and forcible sodomy (§ 286, subd. (c)), all perpetrated against the person or home of victim Ruby Reed.

The jury also sustained four special circumstance allegations in connection with these crimes: that defendant murdered Reed while engaged in the commission of burglary, attempted robbery, forcible rape, and forcible sodomy. (§ 190.2, former subd. (a)(17)(i), (iii), (iv) & (vii), now redesignated subd. (a)(17)(A), (C), (D) & (G).) In addition, the jury convicted defendant of six unrelated first degree burglaries. (§ 459.) On February 1, 1990, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. Guilt Phase A. Facts 1. April 23, 1987: Five Burglaries Michael Barry lived with his wife in a trailer park on Lycoming Street in the City of Walnut. On the morning of April 23, 1987, around 5:30 or 6:00 a.m., he awoke and noticed the window on the door in the laundry room had been forced open and the door was ajar. He turned on the light and found his wife’s purse emptied on the floor. Her wallet was missing about $20. Credit cards had been removed from the wallet but not taken. Joan Darling lived alone in the same trailer park as Barry.

She awoke around 4:00 a.m. the morning of April 23, 1987, because she heard a tapping sound. She went to investigate but found nothing and went back to sleep. She awoke again around 6:00 a.m. and noticed her purse had been emptied out and $40 in cash had been taken. Her credit cards and a ring were not taken. Someone had pried open the window of her back door. The intruder had left a used cigarette and a flashlight in her home. Barbara Hostetler lived with her husband and son in the same trailer park as Barry and Darling. She did not notice anything amiss when she left for work at 5:30 a.m. on April 23, 1987.

Her son left 10 minutes after her. Around 7:00 a.m., her husband called her and she returned home, whereupon she noticed someone had opened the closet in the guest room and had moved things around on the desk. Her husband’s billfold was open, and papers were strewn about. The screen on the window in her son’s room had been removed. Her husband testified he awoke around 6:00 a.m. when his dog began growling as if someone were in the home. When he went to investigate, he saw no one but found the sliding door wide open. His wife would not have left that door open. He also found a window screen had been removed.

His billfold had been emptied of $4 or $5, and some change was also missing, although the thief left his credit cards. Dwight Hostetler, Barbara’s son, testified he did not remove the screen from the window and that it had been in place when he left for work early that morning. Police later discovered defendant’s fingerprints on the removed window screen. Kathryn Patchin lived in the same trailer park as Barry, Darling, and the Hostetlers. She awoke around 5:30 a.m. on April 23, 1987, because her pet cockatiel began speaking.

Patchin, believing her daughter had come home from work early, called out and went into the next room. She noticed the door to the utility room, which had been open when she went to sleep, was now closed. When she went to open it, she heard a sound as if someone were falling on her washing machine. She opened the door just as someone else was closing the door to the outside. She did not see the intruder. Her credit cards were strewn on top of the washing machine, although none were missing. Her purse was open and her attaché case unzipped. She was missing around $30.

Letitia Larson lived on Lycoming Street with her parents, husband, and son in a home across the street from the trailer park. On April 23, 1987, she got up around 6:30 a.m. and noticed her husband’s gym bag had been emptied out and the bag taken. A camera on the table had not been taken. A window in the laundry room was open, the wood around the window chipped, and the screen tom. The window had been closed before she went to sleep. The night before, her father, Eugenio Lozano, had ensured the doors and windows were locked. 2.

April 25, 1987: The Crimes Against Ruby Reed Eighty-seven-year-old Ruby Reed lived alone in a trailer park in El Monte, which was adjacent to the RTD bus terminal. Her daughter, Margaret Pemberton, lived in the same trailer park. Pemberton visited her mother every day and last saw her around 6:00 p.m. on April 24, 1987. Residents in nearby trailers later reported suspicious circumstances occurring during the early morning hours of April 25. One testified her dog began making odd growling noises. Another testified someone had stolen some cigarettes and a cigarette lighter she had left on an outdoor patio table.

Others reported hearing noises, including a woman screaming for help. Pemberton returned to her mother’s trailer around 11:00 a.m. on April 25. No one answered when she rang the bell. Pemberton walked to the back and found the back door ajar and a window screen pried loose. On entering through the back door, she found her mother, covered in bedding, lying on the bedroom floor. Police and emergency personnel were called, but the victim was pronounced dead at the scene. Her hands and feet had been bound with nylon stockings, and strips of towels were tied around her head and mouth, attached to her face with tape.

Her nightgown had been pulled to the top of her body, and her underwear was around one leg. Her false teeth were on the floor. Money was missing from her home, which had been ransacked, with jewelry boxes and shoe boxes opened and scattered about. Cigarette ashes were left in the home, although Reed did not smoke. Candy wrappers were strewn about the home, whereas Pemberton testified her mother would have placed the wrappers in a wastepaper basket. Dr. Solomon Riley, a deputy medical examiner, testified that Reed had suffered blunt trauma to her face, both sides of her head, her neck, and her chest.

Her jaw was broken on both sides of her head, and she had two broken ribs on her left side and one broken rib on her right side. These injuries were consistent with her having been kicked, punched, or thrown into a blunt object. She had severe bruising around her eyes, suggesting she had been hit around the eyes. She had injuries to her scalp and bleeding on her brain. Her neck had been compressed for four or five minutes, causing facial swelling and, eventually, death by asphyxiation. Dr.

Riley suggested the assailant had pressed his elbow, knee, or forearm on the victim’s neck, or had possibly placed a two- by-four piece of wood on her neck and then pressed on it, breaking the hyoid bone at the base of her tongue in the process. In a laundry basket at the crime scene, police found two key pieces of evidence; (1) a room receipt from the Frontier Hotel in downtown Los Angeles dated April 24, 1987, bearing the names of “Lewis Gray” and “Gregory Gray” and signed by one “Lewis Gray”; and (2) an RTD bus transfer. The fingerprint on the hotel receipt belonged to defendant.

Further investigation showed that defendant—apparently attempting to conceal his identity—had checked out of the Frontier Hotel at 8:01 a.m. on April 25 (the morning of Reed’s murder), signing the receipt as “Lewis Gray,” but evidently unwilling actually to leave the hotel, he had three minutes earlier (at 7:58 a.m.) checked into the same hotel under the name of “Mario Davis.” Later in the morning of April 25, after he killed Reed, defendant took a further step to create a new identity for himself.

Evidence showed that on that morning he took a bus to the University of Southern California Medical Center and, at 11:20 a.m., sought and received from the hospital an identification card in the name of “Mario Davis.” An expert testified the handwriting on the hotel check-out receipt (Lewis Gray) and the check-in receipt (Mario Davis), and defendant’s handwriting exemplars were all written by the same person.

Investigation of the bus transfer found in Reed’s home showed it had been issued from a bus on line 70, which originated in downtown Los Angeles, where the Frontier Hotel was located, and terminated at the bus station in El Monte. The transfer was valid only on local El Monte buses. As punched by the bus driver, the transfer was valid until 4:20 a.m. on April 25, 1987, meaning it was probably punched around 3:20 a.m. that day. A No. 70 bus driven by driver Aemberti had arrived at the El Monte bus station around 3:15 a.m. on April 25, 1987.

The specific punch Aemberti was using that day matched the punchmarks on the bus transfer found at the crime scene. Local buses in El Monte ran along Garvey Avenue, near the home of Cozette Gray, one of defendant’s sisters. Cozette Gray’s home was only 1.7 miles from Reed’s home. Elizabeth Komblum, the prosecution’s serologist, testified she had tested swabs from the sexual assault kit and detected the presence of spermatozoa in Reed’s vagina, rectum, and external genitalia. She also found semen present on the victim’s underwear.

Based on chemical and enzymatic markers found in the semen, two in 10,000 White males could have been the donor, whereas approximately one in 100 African-American males could have been the donor. Defendant, who is African-American, was a member of the group of possible donors. Gerald Burke, a criminalist with the sheriff’s department, testified that two of three pubic hairs found in the victim’s anal region were consistent with defendant’s pubic hair and inconsistent with the victim’s hair.

Aaron Cansadillas testified he was a close friend of defendant’s sister Cozette Gray and had visited her house often in April 1987. It was there he met defendant. Cansadillas told police that one morning in April 1987, when he was at Cozette’s house, defendant arrived and said he had broken into a home, that “there was a lady in there,” and he had to “shut her up.” Cansadillas recanted this statement at trial and was impeached with his prior statement, in which he also reported that defendant did not seem upset about the events. 3.

April 28, 1987: A Final Burglary and Defendant’s Capture Kim Meldrum lived in an apartment in Covina. On April 28, 1987, three days after the crimes against Reed, Meldrum left for work in the early morning, locking the door behind her. When she returned, she discovered someone had been in her apartment. Her bank statement and cancelled checks were scattered around the floor and a screwdriver that did not belong to her was on her stovetop. The screen for her front window had been removed and was on the ground, leaning on the wall. Kim Edwards lived across the courtyard from Meldrum.

She awoke when she heard a gate slam at 4:15 a.m. She went to investigate and saw defendant walking in the apartment complex. He stopped in front of Meldrum’s apartment and rang the doorbell several times. Receiving no answer, he began prying the screen off her front window and then forced the window open. Edwards called the police, who came and surrounded the apartment. Defendant tried to escape through the rear of the apartment but retreated back into it when he saw a police officer.

He eventually surrendered to police and gave his name as “Mario Davis.” When questioned on April 29, defendant denied knowing anything about the murder or the Frontier Hotel receipt, and he professed not to remember where he was on the night of April 24-25. 4. The 1983 Crimes Against J.S. and S.B. Defendant’s 1983 crimes against J.S. and S.B. were admitted to show the identity and intent of the perpetrator of the crimes against Reed.

J.S., 64 years old at the time of defendant’s capital trial, testified that on February 6, 1983, she was sleeping in her apartment with her eight-year-old granddaughter, S.B., when she heard someone open a drawer in her bedroom and smelled cigarette smoke. She awoke to find defendant in her room. He instructed her not to make any noise, gesturing in a way that led her to believe he had a weapon. He took her to the next room, where he tore a towel into three strips which he used to bind her. Once she was immobilized, defendant kicked her and she fell down.

He tore up another towel and tied a strip around her head, covering her eyes. He then demanded she give him gold, money, and her wallet. He took $370 from her purse. He also took some rings, but they were recovered in an alley where defendant had apparently discarded them. He ransacked her closet, removing and opening shoe boxes, leaving them strewn about on the floor. While J.S. was helpless on the floor, she heard defendant turn on the television and call someone on her telephone. He left the apartment through a window but soon returned. During this ordeal, defendant would kick J.S. and beat her with his fists.

At some point, he removed his clothing and rubbed his penis on her neck. He also pushed her nightgown up to her belly. He then sat, naked, on her legs. The noise from these activities awakened S.B. Defendant grabbed her and began to beat her as well. He then took S.B. back into the bedroom and directed her to orally copulate him. When she refused, he threatened to hurt her grandmother. S.B. then orally copulated him for a few seconds before they heard a sound in the next room.

While defendant was in the bedroom with her granddaughter, J.S., her hands still tied behind her back, clambered up on the sofa and attempted to escape through the window defendant had opened from the outside. He emerged from the bedroom and tried to prevent the escape, grabbing her by the mouth. She bit him and he let her go, causing her to fall into the alley, breaking her leg. Defendant then fled with his clothes, leaving behind a raincoat and some screwdrivers, keys, and cigarettes. The ordeal lasted about three hours. Police later found candy wrappers strewn around the apartment.

Police found defendant’s right palm print on a light bulb at the crime scene. Defendant eventually pleaded guilty to burglary and was sentenced to six years in prison. B. Pretrial Issues 1. Alleged Wheeler Error Defendant contends the prosecutor violated his state and federal constitutional rights by using peremptory challenges to excuse two prospective jurors because they were African-American. (People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler); Batson v.

Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson).) “ ‘In [Wheeler] ... we held that the use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under

article I,

section 16, of the California Constitution. Subsequently, in [Batson,] ... the United States Supreme Court held that such a practice violates, inter alia, the defendant’s right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution.’ ” (People v. Catlin (2001) 26 Cal.4th 81, 116 [109 Cal.Rptr.2d 31, 26 P.3d 357].) As we explain, we find no Wheeler/Batson error. a. Juror R.H. As is usual in capital cases, the pool of prospective jurors was reduced in number by excusing jurors for hardship; the remaining jurors then filled out a lengthy written questionnaire.

These remaining jurors were then subjected to an oral voir dire examination by the court and the attorneys concerning their impartiality and their views on the death penalty. Following voir dire, the parties exercised challenges for cause and excused jurors were replaced. Once the panel was passed for cause, the parties began exercising peremptory challenges in alternating turns, beginning with the prosecution. In this final round, when the prosecutor exercised his third peremptory challenge asking that Juror R.H. be excused, defense counsel made a Wheeler motion.

In support of his motion, defense counsel first noted that defendant is African-American, the murder victim, Ruby Reed, was White, and the panel of approximately 100 prospective jurors had eight African-Americans. Counsel explained: “[E]xcusing [Juror R.H.] then obviously causes one less Black juror to be on the panel.” Counsel continued, explaining that, from a prosecutorial perspective, nothing about Juror R.H. was objectionable.

The juror was bom and raised in British Guyana, was older (75 years old), a Republican, Catholic, had worked with the Department of Defense, and held moderate views on the death penalty. “[He] did not say in his [responses concerning the] death penalty whether he was for or against [it], but his questioning in front of the court was he was for the death penalty and he grew up where the death penalty existed which I believe is British Guyana. I believe his wife’s son is captain of police.” There being no apparent reason to challenge Juror R.H., counsel argued he had been challenged because of his race.

Although the trial court made clear it had not yet ruled on whether or not defendant had made a prima facie showing of group bias, the prosecutor suggested the juror’s Catholic background was relevant to his decision, noted that the panel still had an African-American juror, suggested that something in the death-qualifying process led him to believe Juror R.H. was less than suitable, and observed that Juror R.H. was just the third juror he had excused with a peremptory challenge, his first two peremptory challenges having been exercised against a middle-aged man from Hawaii and a middle-aged White woman.

In rebuttal, defense counsel reiterated that Juror R.H. did not appear to be against the death penalty and seemed to be a conservative person. The trial court stated it had not considered the prosecutor’s reasons in determining whether defendant had made a prima facie showing of group bias and then denied the Wheeler motion, explaining that it did “not appear to the court the threshold has been reached of [an] invidious pattern of exclusion of a particular class.” The 12 regular jurors eventually were chosen; included on the panel was an African-American woman. b. Juror B.J.

Once the panel of 12 prospective jurors was accepted by both sides, selection of alternate jurors began. During the selection of the alternate jurors, the prosecutor exercised his first three peremptory challenges against an apparently Latina woman and two White jurors.

When the prosecutor then challenged Juror B.J., defense counsel made his second Wheeler motion, explaining Juror B.J. “is the [fourth] Black prospective juror to be called and the second to be excused by the prosecution.” The court confirmed this count, noting that two African-American jurors had been called as regular jurors and two as alternates, and that the prosecutor had exercised a peremptory challenge against one of the African-American regular jurors, Juror R.H.

Defense counsel opined that Juror B.J. held moderate views concerning the death penalty, believed that the penalty should be used more frequently and for people who intentionally kill another, and stated that she would judge the case on the evidence presented.

The trial court denied the Wheeler motion, citing legal authorities suggesting that a movant fails to establish a prima facie showing of group bias “especially where another member of a noncomprisable [sic: cognizable?] group was left on the jury and the trial court found challenges were reasonable.” Eight alternate jurors were eventually chosen, including one African-American. Two of the alternate jurors ultimately served. (See People v. Roldan (2005) 35 Cal.4th 646, 703 [27 Cal.Rptr.3d 360, 110 P.3d 289] [unnecessary to address Wheeler issue for alternate jurors if no alternates served on the jury].) c.

Discussion The United States Supreme Court recently reiterated the applicable legal standards. “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’ ” (Johnson v.

California (2005) 545 U.S. 162 [162 L.Ed.2d 129, 125 S.Ct. 2410], fn. omitted; see People v. Cornwell (2005) 37 Cal.4th 50, 67-68 [33 Cal.Rptr.3d 1, 117 P.3d 622] (Cornwell).) In order to make a prima facie showing, “a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.” (People v.

Boyette (2002) 29 Cal.4th 381, 422 [127 Cal.Rptr.2d 544, 58 P.3d 391].) The high court recently explained that “a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson v. California, supra, 545 U.S. at p. 170 [125 S.Ct. at p. 2417].) “An ‘inference’ is generally understood to be a ‘conclusion reached by considering other facts and deducing a logical consequence from them.’ ” (Id. at p. 168, fn. 4 [125 S.Ct. at p. 2416, fn. 4].) We explained in People v.

Howard (1992) 1 Cal.4th 1132, 1155 [5 Cal.Rptr.2d 268, 824 P.2d 1315], that when a trial court denies a Wheeler motion finding the objector failed to make a prima facie case of group bias, the reviewing court should consider the entire record of voir dire of the challenged jurors. (See People v. Davenport (1995) 11 Cal.4th 1171, 1201 [47 Cal.Rptr.2d 800, 906 P.2d 1068].) That view is consistent with the high court’s recent reiteration of the applicable rules, which require the defendant to attempt to demonstrate a prima facie case of discrimination based on the “totality of the relevant facts.” (Johnson v.

California, supra, 545 U.S. at p. 168 [125 S.Ct. at p. 2416].) Applying these rules, we conclude the trial court properly found defendant failed to make a prima facie case of racial bias motivating the prosecutor’s challenges to Jurors R.H. and BJ. At the outset, defendant contends the trial court applied the wrong standard. Wheeler states that, in order to make a prima facie case, an objector must show “a strong likelihood” of bias (Wheeler, supra, 22 Cal.3d at p. 280), and the trial court, from the objector’s evidence, must “determine whether a reasonable inference [of bias] arises” (id. at p. 281).

This court subsequently held that “Wheeler's terms ‘strong likelihood’ and ‘reasonable inference’ state the same standard” (People v. Johnson (2003) 30 Cal.4th 1302, 1313 [1 Cal.Rptr.3d 1, 71 P.3d 270]) and that “to state a prima facie case, the objector must show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias” (id. at p. 1318, italics added).

The high court recently rejected that holding, explaining that “California’s ‘more likely than not’ standard is an inappropriate yardstick by which to measure the sufficiency of a prima facie case” (Johnson v. California, supra, 545 U.S. at p. 168). Instead, an objector need only present facts that give “ ‘rise to an inference of discriminatory purpose.’ ” (Ibid.) The trial court here failed to state what standard it was applying. As in Cornwell, however, “[r]egardless of the standard employed by the trial court, ... we have reviewed the record and, like the United States Supreme Court in Johnson [v.

California], supra, . . . [we] are able 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 the basis of race.” (Cornwell, supra, 37 Cal.4th at p. 73.) We conclude the record does not support such an inference. That Prospective Jurors R.H. and B.J., both African-Americans, belonged to a cognizable class is not disputed on appeal (People v. Clair (1992) 2 Cal.4th 629, 652 [7 Cal.Rptr.2d 564, 828 P.2d 705]), nor does either party dispute that the issue was timely raised and the record is as complete as was feasible.

Defendant relies on certain facts that, he claims, raise an inference of discriminatory intent. He first contends “[t]he almost total absence of Black jurors suggests that [Jurors R.H. and B.J.] were improperly excluded.” Defendant overstates the case. The prosecutor excluded one African-American juror from the regular jury, but left another on, and struck one African-American from the panel of alternates, but left another on. As defendant concedes, the regular jury was composed of nine White jurors, one African-American juror, and two Latino jurors.

The panel of eight alternate jurors was composed of six White jurors, one African-American, and one Latino juror. After examining “the totality of the relevant facts” (Johnson v. California, supra, 545 U.S. at p. 168 [125 S.Ct. at p. 2416]), we conclude the exclusion of two African-American jurors and the retention of two failed to raise an inference of racial discrimination. (People v. Box (2000) 23 Cal.4th 1153, 1188-1189 [99 Cal.Rptr.2d 69, 5 P.3d 130] [that all excluded jurors were African-American is not necessarily dispositive in establishing a prima facie case]; People v.

Davenport, supra, 11 Cal.4th at p. 1201 [showing that “three of the six challenged prospective jurors had Hispanic surnames” was “insufficient”].) Defendant also argues the prosecutor’s decision to excuse two of the six African-Americans in the venire of itself suggests bias. When the prosecutor challenged Juror R.H., of course, that juror was only one of three peremptory challenges the prosecutor had thus far exercised. The trial court did not know whether the prosecutor would remove additional racial minorities from the jury.

Moreover, as noted, ante, although the prosecutor eventually challenged and had removed from the panel a total of two African-Americans, two more remained. We conclude the removal of two African-American jurors in these circumstances failed to raise a reasonable inference of racial discrimination. (See People v.

Snow (1987) 44 Cal.3d 216, 225 [242 Cal.Rptr. 477, 746 P.2d 452] [that the prosecutor accepted a jury containing minorities “may be an indication of the prosecutor’s good faith in exercising his peremptories, and may be an appropriate factor for the trial judge to consider in ruling on a Wheeler objection, [although] it is not a conclusive factor”].) Although the trial court, in ruling on defense counsel’s first Wheeler motion, stated it had not considered the prosecutor’s explanation of his challenge to Juror R.H., defendant argues the prosecutor’s volunteered reasons were unsupportable and, by inference, masked a forbidden motive.

Defendant observes that although the prosecutor suggested Juror KH.’s age (75), Catholic upbringing, and the fact he was not bom in the United States were all relevant factors, he failed to challenge other jurors having similar characteristics. Defendant also argues the prosecutor’s reliance on the fact Juror R.H. was raised in a different country and culture was pretextual because he did not rigorously question the juror on this topic.

Finally, defendant contends that, although the prosecutor seemed concerned that Juror B.J.’s child care obligations might render her a less than desirable juror, the prosecutor objected to granting a hardship excusal to certain White jurors who had similar child care issues. In raising this argument, defendant would have this court compare Jurors R.H. and BJ. with other jurors—those who served and those whom the prosecutor excused—to determine whether the prosecutor’s reasons were applied consistently to jurors of all races.

The United States Supreme Court recently held that an appellate court should scrutinize a prosecutor’s reasons for exercising his or her peremptory challenges and determine whether those reasons were applied equally to other jurors, in order to assess the credibility of the prosecutor’s expressed motivations. (See Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196, 125 S.Ct. 2317] (Miller-El).) In Miller-El, the trial court found the defendant had made a prima facie case of discrimination, thus requiring the prosecutor to state the reasons for his challenges to specific jurors.

After hearing from the prosecutor, the trial court proclaimed his stated reasons were “ ‘completely credible [and] sufficient’ ” and denied the motion. (Miller-El, supra, 545 U.S. at p. 236 [125 S.Ct. at p. 2323].) After conducting a comparative juror analysis, the high court reversed. Miller-El thus involved a case in the third stage of a Wheeler/Batson motion, that is, after the trial court has found a prima facie showing of group bias, the burden has shifted to the prosecution, and the prosecutor has stated his or her reasons for the challenges in question.

Miller-El holds that at this third stage, after the prosecutor has proffered his or her reasons, an appellate court should compare those reasons with the prosecutor’s actions with respect to other jurors to determine whether the reasons given were pretextual. “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” (Miller-El, supra, 545 U.S. at p. 241 [125 S.Ct. at p. 2325].) Miller-El thus did not consider whether an appellate court must conduct a comparative juror analysis in the first instance, when the objector has failed to make a prima facie showing of discrimination, or whether an appellate court must conduct a comparative juror analysis for the first time on appeal, when the objector failed to do so at trial.

As we explain, even if we were to compare the challenged jurors with jurors who were not excused, we would not find a prima facie showing of group bias existed. (See Cornwell, supra, 37 Cal.4th at pp. 71-72; People v. Ward (2005) 36 Cal.4th 186, 203 [30 Cal.Rptr.3d 464, 114 P.3d 717].) At the outset, we reiterate that we rely on and defer to our trial courts to distinguish bona fide reasons from the shams that hide improper motives (People v. Boyette, supra, 29 Cal.4th at p. 422), and that a party may decide to excuse a prospective juror for a variety of reasons, finding no single characteristic dispositive.

Here, the prosecutor did not excuse an unusually high percentage of African-Americans from the venire, nor a particularly high number of African-Americans as compared to jurors of other races. At the time the prosecutor excused Juror R.H., he had already excused Juror C.H., who apparently was Japanese-American, and Juror J.R., who was White, and he had passed on challenging Juror D.W., an African-American woman who eventually served on the jury. By the time the prosecutor used a peremptory challenge to excuse Juror B.J., he had excused a number of non-African-American prospective jurors.

Unlike in Miller-El, supra, 545 U.S. at page 241 [125 S.Ct. at p. 2325], therefore, here the “bare statistics” of the prosecutor’s use of his peremptory challenges do not suggest a racial animus. Although defendant argues the prosecutor’s concern about Juror R.H.’s age was pretextual, we note it was defense counsel, not the prosecutor, who mentioned Juror R.H.’s age, speculating that this factor was important to the prosecutor’s decision to challenge Juror R.H. But even if the prosecutor did rely on Juror R.H.’s age, the claim of pretext fails.

The two non-African-American jurors of comparable age the prosecutor failed to challenge (Juror J.H., 75 years old, and Juror L.P., 71 years old) could both have been seen as pro-prosecution despite their age. Juror J.H. had previously served as a juror in a trial in which the defendant was charged with a double-murder; J.H. reported that jury had reached a verdict. Juror L.P. had previously testified in a criminal case and reported that she had been treated “kindly” by both the trial judge and the prosecutor.

Moreover, Juror L.P. stated in her juror questionnaire that her support for the death penalty was “strong,” that she agreed “very strongly” with the idea of retributive justice (“an eye for an eye”), and that “too many murderers [were] lightly sentenced.” The prosecutor may well have believed that, despite their age, both jurors would look favorably on his case. In short, the prosecutor’s alleged disparate treatment of older African-American and non-African-American jurors does not suggest a prohibited racial motivation.

Defendant also contends the prosecutor’s reliance on Juror R.H.’s Catholicism was pretextual, noting that five other non-African-American Catholic jurors were not similarly challenged. Assuming without deciding we can consider the prosecutor’s volunteered reasons when the trial court did not, we find the prosecutor did not clearly rely on Juror R.H.’s Catholicism.

Although the prosecutor began his voluntary explanation of his decision to strike Juror R.H. by mentioning Catholicism, when he resumed his recitation after an interruption, he did not return to the juror’s Catholicism, but instead stated he struck him because he was bom into a different culture in British Guyana. Even were we to assume that the prosecutor did rely on Juror R.H.’s Catholicism, a side-by-side comparison of Juror R.H. with the other Catholic jurors who were not excused, reveals clear reasons why the prosecutor may have preferred not to strike the other jurors.

Juror G.E.’s husband was a California Highway Patrol officer; the prosecutor may have believed she would thus be a favorable juror for the People. Based on his juror questionnaire, Juror J.P. had a fear his wife and children would be the victims of sexually based crimes; because defendant was charged with just such crimes, the prosecutor may have believed Juror J.P. would be a sympathetic juror.

Juror D.G. reported her support for the death penalty was “strong,” whereas Juror R.H. reported his support was just “moderate.” Finally, Juror D.P. had previously served as a juror in a murder trial that reached a verdict, suggesting this juror might look favorably on the prosecutor’s case. (By contrast, the prosecutor excused Juror C.S., who reported she had been a juror in a trial involving a charge of attempted murder that had resulted in a hung jury.) Defendant also contends the prosecutor’s asserted concern that Juror R.H. was bom in British Guyana was pretextual because the prosecutor failed to exercise a peremptory challenge against Juror D.G. (who was bom in Mexico), Juror H.F. (who was bom in Germany), and Juror J.P. (who was bom in Puerto Rico).

The record discloses reasons the prosecutor may have decided to retain the other foreign-bom jurors despite their foreign birth. Juror D.G. reported in her questionnaire that her support for the death penalty was “strong.” Juror J.P., as noted, ante, had expressed a fear that his loved ones would become victims of sex crimes. Juror H.F. similarly reported that he feared his 21-year-old daughter would one day be raped. On this record, the prosecutor’s reliance on Juror R.H.’s foreign birth does not appear pretextual.

Nor, contrary to defendant’s argument, did the prosecutor engage in mere desultory or cursory voir dire questioning of Jurors R.H. and B.J. (See People v. Farnam (2002) 28 Cal.4th 107, 137 [121 Cal.Rptr.2d 106, 47 P.3d 988]; Wheeler, supra, 22 Cal.3d at pp. 280-281.) The prosecutor’s questioning of Juror R.H. was similar to that of other prospective jurors.

Although defendant asserts the prosecutor asked Juror BJ. only one question, this characterization ignores the prosecutor’s lengthy questioning of the juror earlier in the voir dire process concerning her request for a hardship exemption due to her child care obligations, including the care of an autistic grandchild, and an even longer inquiry into her views on the death penalty, i.e., her Hovey voir dire. (See Hovey v.

Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301].) Defendant’s claim the prosecutor engaged in only cursory questioning of Jurors R.H. and BJ. is thus not supported by the record. Finally, defendant contends the prosecutor could have had no reason to excuse Juror BJ. except for the fact she had significant child care obligations. This reason, defendant argues, was pretextual because the prosecutor was unsympathetic to the hardship claims of other, non-African-American, jurors.

Because the prosecutor was not called upon to provide reasons for his challenge to Juror B.J., defendant’s argument is mere speculation. In any event, an examination of the record indicates the prosecutor may well have exercised a peremptory challenge against Juror BJ. because she reported that someone close to her had been arrested and sent to jail for stealing a car. The prosecutor challenged other jurors who had had such experiences with law enforcement. Juror J.T. reported he had, in the past, been arrested for petty theft and felt he had been treated unfairly; the prosecutor excused him.

Similarly, Juror C.S. reported an apparent family relation was then facing charges of assault and battery; the prosecutor excused her.

Thus, the record contains plausible and credible reasons supporting the prosecutor’s action. (See Miller-El, supra, 545 U.S. at p. 248 [125 S.Ct. at p. 2329] [addressing the “plausibility” of the prosecutor’s reasons]; id. at p. 248 [125 S.Ct. at p. 2339] [noting the prosecutor’s explanations were “incredible”].) We conclude the trial court correctly found that defendant failed to make a prima facie case that the prosecutor was motivated by group bias when he exercised peremptory challenges against Jurors R.H. and BJ. 2.

Alleged Witherspoon/Witt Error Defendant contends the trial court erred by excusing Jurors C.B. and L.T. due to their alleged views concerning the death penalty, thereby violating his right to an impartial jury under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. The high court has established the legal standard for excusing jurors due to their views on the death penalty, first in Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], and then in Wainwright v.

Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844], In Witt, the Supreme Court explained that a prospective juror may be excused in a capital case if “the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Id. at p. 424.) We apply the same standard under the state Constitution. (People v.

Jones (2003) 29 Cal.4th 1229, 1246 [131 Cal.Rptr.2d 468, 64 P.3d 762].) “There is no requirement that a prospective juror’s bias against the death penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient that the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law in the case before the juror.” (People v.

Jones, supra, 29 Cal.4th at pp. 1246-1247.) “Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court. [Citation.] The trial court must determine whether the prospective juror will be ‘unable to faithfully and impartially apply the law in the case.’ [Citation.] A juror will often give conflicting or confusing answers regarding his or her impartiality or capacity to serve, and the trial court must weigh the juror’s responses in deciding whether to remove the juror for cause.

The trial court’s resolution of these factual matters is binding on the appellate court if supported by substantial evidence. [Citation.] ‘[Wjhere equivocal or conflicting responses are elicited regarding a prospective juror’s ability to impose the death penalty, the trial court’s determination as to his true state of mind is binding on an appellate court.’ ” (People v. Weaver (2001) 26 Cal.4th 876, 910 [111 Cal.Rptr.2d 2, 29 P.3d 103].) As is often the case, Jurors C.B. and L.T. gave conflicting and equivocal responses when, during voir dire, they were asked about their views on capital punishment.

In her jury questionnaire, Juror C.B. reported that she had “strong” feelings about the death penalty because she did “not believe anyone but God has the right to decide that question.” When initially questioned by defense counsel, she agreed that she would “live up to [her] obligation as a juror . . . [and] base [her] decision on the law and the evidence.” When questioned by the trial judge and the parties, she initially stated that her views against the death penalty would “probably not” cause her to vote against the special circumstance allegation although convinced it was true.

When asked whether she “would . . . always vote for life without possibility of parole and never even consider [voting] for death,” she replied: “I don’t know.

I guess at this point I would say I don’t know because I have never been in this position before.” Following up, the court rephrased the question and asked her whether “you are always going to say life without possibility of parole and never vote for the death penalty?” She replied: “I don’t think so.” When questioned by the prosecutor, however, she reaffirmed that she had a “strong feeling” against the death penalty and first stated that she would have “a lot of trouble” voting for death, before agreeing that she “probably would” always vote for life over death.

The following colloquy then occurred: “[The Prosecutor]: . . . you in effect will be saying put this man to death, that’s what you’ll be saying, and what I need to find out is are your feelings about the death penalty such that you just could not make that kind of decision? “[Juror C.B.]: I’m going to say it is yes, yes. “[The Prosecutor]; So you feel that because of your moral feelings you could not vote to impose the death penalty? “[Juror C.B.]; Yes. “[The Prosecutor]: That’s a correct statement? “[Juror C.B.]: Yes.” She was rehabilitated somewhat by defense counsel, agreeing that she could not definitively make up her mind until she had heard the actual aggravating and mitigating evidence.

The trial court then excused her for cause. In light of her equivocal answers on voir dire, we defer to the trial court’s implicit determination regarding Juror C.B.’s state of mind and conclude substantial evidence supports the court’s ruling the juror’s views on the death penalty would “ ‘prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath.’ ” (Wainwright v. Witt, supra, 469 U.S. at p. 424.) We reach the same conclusion with regard to Juror L.T.; indeed, her responses on voir dire were less equivocal.

She reported on her questionnaire that she had strong feelings against the death penalty. When asked to explain, she wrote: “I don’t believe in taking a life.” Her strong anti-capital-punishment beliefs informed her responses to the trial court’s questions, affirming that she “could never bring [herself] to vote for the death penalty” and would always vote for life without possibility of parole. Although she also asserted that “it depends on the case, too.

I mean, what I hear might change my mind,” she averred that she would “never vote for the death penalty.” Although defense counsel rehabilitated her somewhat, the overall thrust of her voir dire was that she would never vote to execute someone. We find substantial evidence to support the trial court’s ruling to excuse her and conclude the court did not abuse its broad discretion. In sum, we find neither Juror C.B. nor Juror L.T. was improperly excused for cause, and no violation of defendant’s right to an impartial jury occurred. C. Trial Issues 1.

Failure to Specify the Degree of the Murder Defendant contends that because the jury failed to set the degree of the murder when it initially delivered its verdict, he was convicted of only second degree murder by operation of

section 1157. That

section provides in pertinent part: “Whenever a defendant is convicted of a crime . . . which is distinguished into degrees, the jury . . . must find the degree of the crime . . . of which he is guilty. Upon the failure of the jury ... to so determine, the degree of the crime ... of which the defendant is guilty, shall be deemed to be of the lesser degree.” Because

section 1157 precludes a finding of first degree murder, he argues, the felony-murder special-circumstance findings and the penalty judgment must be reversed. We disagree. As we explain, appellate review of this issue is precluded by the doctrine of law of the case. Moreover, assuming the issue were properly before us,

section 1157 is inapplicable under the circumstances of this case, as we explained in both People v. Bonillas (1989) 48 Cal.3d 757 [257 Cal.Rptr. 895, 771 P.2d 844] (Bonillas) and People v. Mendoza (2000) 23 Cal.4th 896 [98 Cal.Rptr.2d 431, 4 P.3d 265] (Mendoza). a. Facts Defendant was charged by information with the crime of murder undifferentiated by degree, as is usual in such cases. The case was tried on the theory that defendant had committed murder in the first degree because he killed the victim in the commission of a burglary, robbery, and rape.

Accordingly, the jury was instructed solely on the theory of first degree felony murder. The court delivered no instructions on the theory of premeditation and deliberation, second degree murder, manslaughter, or the degree of the murder. On Wednesday, February 22, 1989, at 3A5 p.m., the jury returned the following verdict: “We the jury in the above-entitled action find the defendant Mario Lewis Gray guilty of murder in violation of Penal Code

section 187(a), a felony, as alleged in Count I of the information.” The jury was polled and then instructed to return on Friday morning, i.e., in less than two days. The court admonished the jury “not to discuss the case with each other or anybody else.” The next morning, Thursday, February 23, 1989, both the trial court and the prosecutor raised the jury’s failure to expressly specify the degree of the murder in the verdict form.

The prosecutor suggested that when the jury reconvened the following day, the court either poll the jurors to determine whether they had found the degree of the murder or ask them to resume deliberations to determine the degree. The court granted defense counsel’s request for a recess to research the law on this issue. When the parties reassembled without the jury later that same day, defense counsel argued the jury’s verdict of murder without setting the degree meant defendant was convicted of second degree murder by operation of

section 1157. The trial court announced that it intended to ask the jury to renew its deliberations and render a verdict on the degree of the murder. Court reconvened on the morning of Friday, February 24, 1989. The trial court gave the jury amended verdict forms and asked it to “return to the jury room, deliberate, and render your verdict as to Count 1 using the revised verdict forms.” After additional deliberation, the jury returned a verdict of first degree murder. The court then declared a recess, ostensibly for one week, to enable defendant to seek writ relief from the Court of Appeal.

The appellate court stayed the trial proceedings and then granted writ relief in defendant’s favor, finding he had been convicted of second degree murder by operation of

section 1157. Respondent then petitioned this court for review. We granted and transferred the case back to the Court of Appeal with directions to vacate its opinion and reconsider the case in light of Bonillas, supra, 48 Cal.Sd 757. After reconsidering the issue, the Court of Appeal issued an opinion denying relief. We denied defendant’s petition for review. The parties then returned to the trial court and proceeded to commence the long-delayed penalty phase of the trial. b. Law of the Case As noted, the Court of Appeal decided 11 years ago that, despite the jury’s initial omission when rendering its verdict,

section 1157 did not compel the conclusion that defendant was convicted of murder only in the second degree. Accordingly, defendant is precluded from relitigating the issue by the doctrine of law of the case. “ ‘The rule of “law of the case” generally precludes multiple appellate review of the same issue in a single case.

The doctrine applies to this court even though the previous appeal was before a Court of Appeal. . . . “Where a decision upon appeal has been rendered by a District Court of Appeal and the case is returned upon a reversal, and a second appeal comes to this court directly or intermediately, for reasons of policy and convenience, this court generally will not inquire into the merits of said first decision, but will regard it as the law of the case.” [Citations.]’ ” (In re Rosenkrantz (2002) 29 Cal.4th 616, 668 [128 Cal.Rptr.2d 104, 59 P.3d 174].) “The principal reason for the doctrine is judicial economy. ‘Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding.’ ” (People v.

Stanley (1995) 10 Cal.4th 764, 786 [42 Cal.Rptr.2d 543, 897 P.2d 481] (Stanley); see also People v. Shuey (1975) 13 Cal.3d 835, 841-842 [120 Cal.Rptr. 83, 533 P.2d 211].) The law of the case doctrine applies in criminal cases (Stanley, supra, at p. 786) and to capital cases before this court even where the prior decision was made by an intermediate appellate court (id. at p. 787; People v. Martinez (2003) 31 Cal.4th 673, 683 [3 Cal.Rptr.3d 648, 74 P.3d 748]).

We will apply the law of the case doctrine where the point of law involved was necessary to the prior decision and was “ ‘actually presented and determined by the court.’ ” (People v. Shuey, supra, 13 Cal.3d at p. 842.) The doctrine will not be applied, however, when such application leads to an unjust result.

Because the law of the case doctrine “is merely one of procedure and does not go to the jurisdiction of the court [citations], the doctrine will not be adhered to where its application will result in an unjust decision, e.g., where there has been a ‘manifest misapplication of existing principles resulting in substantial injustice’ [citation], or the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations [citation].

The unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination.” (Stanley, supra, 10 Cal.4th at p. 787.) Defendant does not dispute that the question whether

section 1157 applies to the facts of his case was presented to, and decided by, the Court of Appeal, or that resolution of the issue was necessary to that court’s decision. He argues, however, that we should apply the “unjust result” exception to the law of the case doctrine because (1) the Court of Appeal decision contained “egregious errors,” and (2) it would be unjust to affirm, in the name of judicial economy, a sentence of death containing serious flaws. Defendant’s argument that the Court of Appeal committed “egregious errors” when it decided the issue is a spare one with no elaboration.

Thus, that the court “adopted as the rationale of its majority opinion the very argument that it had recognized as insufficient only five months earlier” is easily explained by the fact that this court vacated the appellate court’s initial opinion and directed it to reconsider the issue in light of Bonillas, supra, 48 Cal.3d 757. Defendant does not explain how the Court of Appeal “[fundamentally misconstrued Penal Code sections 1161 and 1164,” but the court’s reasoning appears congruent with our own in Bonillas.

Although defendant accuses the Court of Appeal of “ignor[ing] adverse precedent that it could not distinguish, even through mischaracterization,” defendant does not identify such allegedly adverse precedent. We remind litigants that an opening brief must support each legal point with “argument and, if possible, by citation of authority.” (Cal. Rules of Court, rule 14(a)(1)(B); see Stanley, supra, 10 Cal.4th at p. 793.) Defendant also argues that applying the law of the case doctrine here would be unjust because his very life should not be subordinated to the institutional interest of judicial economy.

This contention is simply a repackaging of the argument that the doctrine should not apply in capital cases. As noted, we have rejected that position. (Stanley, supra, 10 Cal.4th at p. 787.) Assuming the “unjust result” exception does not apply here, defendant also contends that, because this is a capital case, application of the doctrine would deprive him of his state constitutional right to a direct appeal to this court (see Cal. Const., art.

VI, § 11 [“The Supreme Court has appellate jurisdiction when judgment of death has been pronounced”]), as well as deprive him of due process under the Fifth and Fourteenth Amendments to the United States Constitution.

We reject this argument because it also reiterates, in only slightly different fashion, the argument that the law of the case doctrine should not apply in capital cases. (Stanley, supra, 10 Cal.4th at p. 787.) Defendant further argues Stanley and the cases on which it relied are distinguishable because, unlike those cases, his life or death depends directly on whether the lower appellate court was correct, whereas in prior cases, the effect of the legal issue in question on the efficacy of the death penalty was only indirect. Stanley, however, relied on no such direct/indirect distinction.

The provision in the state Constitution for the automatic appeal to this court for capital cases presumably reflects the relative importance of such cases generally, not whether a particular defendant’s life hangs in the balance on the outcome of any specific legal issue. We reiterate that the existence of a death sentence is insufficient to avoid application of the law of the case doctrine, and defendant does not persuade us otherwise.

Failing to distinguish Stanley, supra, 10 Cal.4th 764, defendant argues we should reconsider that case “since the necessary consequence of that decision is to deprive [him] of his state and federal constitutional rights.” Although it is true that automatic review by the state’s highest court provides an important procedural safeguard in capital cases (see Gregg v. Georgia (1976) 428 U.S. 153, 198 [49 L.Ed.2d 859, 96 S.Ct 2909]), the rule we reiterate and adhere to today does not undermine the importance of automatic review.

This court was not locked out of the midtrial proceedings that sought to determine whether the degree of the murder should be reduced by

section 1157. Indeed, we reviewed the matter twice, once on a petition by the People, and again in response to a petition by defendant. Moreover, if application of the law of the case doctrine would lead to an unjust result here, we would decline to apply it. Under the circumstances, the rule set forth in Stanley, supra, 10 Cal.4th at page 787, does not result in the removal of this court’s review of capital cases in any meaningful sense. In sum, defendant’s attempt to relitigate this issue is barred by the law of the case doctrine. c.

Bonillas and Mendoza Even assuming for argument the law of the case doctrine does not apply, we find the trial court did not err in resubmitting the question of the degree of the murder to the jury because the trial court retained control over the jury and resubmitted the question almost immediately. We addressed this precise issue in Bonillas, supra, 48 Cal.3d 757, which posed almost identical facts.

We explained: “Where, as here, further proceedings are to take place, the jury has not been discharged, the jurors have been specifically instructed that they are still jurors in the case, they have been admonished not to discuss the case with anyone nor to permit anyone to discuss the case with them, and they have been directed not to read anything about the case, the jurors have not thrown off their character as jurors nor entered the outside world freed of the admonitions and obligations shielding their thought processes from outside influences.

Clearly, the jury here remained within the court’s control [citations], their verdict was incomplete, and the court was authorized to reconvene the jury to complete its verdict.” (Id. at p. 773.) Defendant attempts to distinguish Bonillas, but he raises the same arguments he made before the Court of Appeal in his pretrial writ proceeding.

Thus, he first argues Bonillas was premised on the fact the jury’s verdict contained an error because it was “incomplete.” Here, by contrast, the information did not charge him with first degree murder, nor did the instructions specifically require the jury to make a finding as to degree; hence, his jury’s initial verdict was “complete” under the instructions given and under the law. We agree with the Court of Appeal, which observed that although Bonillas used the terms “incomplete” and “irregular” somewhat loosely, it did not pronounce a rigid rule excepting from the operation of

section 1157 only those cases where the initial verdict is “incomplete” as measured by what the instructions asked the jury to decide. In any event, as the appellate court explained, on the facts of this case, the jury’s verdict was in fact incomplete because the instructions, read as a whole, fairly asked the jury to return a verdict as to degree. Thus, the jury was subject to reconvening under Bonillas.

Moreover, even if the verdict was complete under the jury instructions, it was still incomplete and irregular under the law, justifying the trial court’s decision to reconvene the jury for further deliberations, so long as the jury had not been discharged and had been admonished not to discuss the case or read any news accounts of the case. Even were we to conclude Bonillas could be validly distinguished, adherence to the rule announced recently in Mendoza, supra, 23 Cal.4th 896, requires that we reject defendant’s arguments. In that case, we clarified the proper

interpretation of

section 1157 in felony-murder cases, explaining that where the prosecution’s sole theory in a murder case is felony murder, a defendant subject to such a verdict is “not ‘convicted of a crime . . . which is distinguished into degrees’ within the plain and commonsense meaning of

section 1157.” (Mendoza, supra, at p. 908.) Accordingly,

section 1157 cannot operate in such a case to reduce the degree of the crime to the lesser degree. Defendant was prosecuted on the theory that Ruby Reed died while he was engaged in the commission of several felonies. In closing argument, the prosecutor, in arguing defendant was guilty of first degree murder, relied only on a theory of felony murder, and the court instructed the jury on that theory alone. No instruction was given on premeditation or deliberation. Accordingly, as in Mendoza, supra, 23 Cal.4th at page 908, defendant was not convicted of a crime “ ‘distinguished into degrees’ therefore,

section 1157 cannot apply to reduce the degree of the crime. We reject defendant’s two counterarguments. First, he contends Mendoza’s

interpretation of

section 1157 violates his constitutional rights because it permits imposition of a harsher sentence based on a fact not found by the jury beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348].) But Apprendi and its progeny (see Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531]) have little to do with this issue.

Defendant was sentenced to death, the statutory maximum penalty for first degree murder (§ 190, subd. (a)), based on the jury’s finding beyond a reasonable doubt that he was guilty of first degree murder with special circumstances. Defendant’s Apprendi argument presupposes that resubmitting the issue of degree to the jury, which occurred in this case, was somehow improper. Because it was not, Apprendi’s jury requirement was satisfied, and thus Apprendi does not undermine Mendoza in any way.

Second, defendant contends the retroactive application of Mendoza to his case violates due process of law under the Fourteenth Amendment to the United States Constitution. We addressed this issue in Mendoza itself, concluding that full retroactivity does not violate due process because “our holding ‘neither expands criminal liability nor enhances punishment for conduct previously committed.’ ” (Mendoza, supra, 23 Cal.4th at p. 925.) d.

Instruction on the Revised Verdict Form Before the jury resumed its deliberations on the question of degree, the trial court charged the jury with this instruction: “The verdict forms originally given you concerning Count 1 should have specified murder in the first degree instead of simply murder, [f] Revised forms of verdicts as to Count 1 will now be given you specifying murder in the first degree, [f] Please return to the jury room, deliberate, and render your verdict as to Count 1 using the revised verdict forms.” Defendant contends the instruction was erroneous because it “effectively directed] a verdict for first degree murder” in violation of his Sixth Amendment right to a jury trial, as well as his due process right to a fair trial.

We disagree. Although to direct a verdict in a criminal case is constitutionally impermissible no matter how strong the evidence (see People v. Figueroa (1986) 41 Cal.3d 714, 725-726 [224 Cal.Rptr. 719, 715 P.2d 680]), the trial court’s instruction did not violate this rule. The jury was given two verdict forms when it retired to renew its deliberations. The first form stated defendant was “guilty” of “MURDER IN THE FIRST DEGREE.” The jury returned this form, dated and signed by the jury foreperson. The jury was also given a form to find defendant not guilty of first degree murder.

The jury returned this form unsigned. Contrary to defendant’s argument, the court’s instruction did not direct the jury to return a guilty verdict or to find the murder was in the first degree. Instead, the jury was instructed to “deliberate, and render your verdict as to Count 1 using the revised verdict forms.” The word “forms” is plural, suggesting the jury should choose between the two verdict forms, one for guilty, one for not guilty. Accordingly, we reject the argument that the trial court’s instruction was the equivalent of a directed verdict.

To the extent defendant also argues his trial attorney was ineffective for failing to object to the instruction, we reject that argument as well, both because the instruction was unobjectionable and because counsel objected to the entire procedure of having the jury resume deliberations, an objection we take to include reinstructing the jury. In sum, we find no error in submitting to the jury the question of the degree of the murder two days after it initially returned its guilt phase verdict. We similarly find the trial court’s instruction to the jury when submitting the question of degree was not erroneous. 2.

Admission of Defendant’s Crimes Against J.S. and S.B. The prosecutor moved before trial to introduce testimony from J.S. and her granddaughter, S.B., concerning the crimes defendant committed against them in 1983 when he broke into their apartment late at night, tied up J.S., beat and kicked her, and sexually molested S.B. The trial court ruled the evidence was admissible on the issues of identity and intent. Defendant now contends the admission of evidence of his unadjudicated 1983 crimes (see ante, at p. 183, fn. 1) violated Evidence Code

section 1101, subdivision (b). We disagree. The rules governing the admissibility of evidence of other crimes are familiar and well settled. Evidence Code

section 1101, subdivision (

b) provides in pertinent part that evidence of other crimes is admissible “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. . .) other than his or her disposition to commit such

an act.” “ ‘Evidence of the defendant’s commission of a crime other than one for which the defendant is then being tried is not admissible to show bad character or predisposition to criminality but it may be admitted to prove some material fact at issue, such as motive or identity. (Evid.

Code, § 1101.) Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. [Citation.]’ [Citation.] In cases in which the prosecution seeks to prove the defendant’s identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility ‘depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity.’ ” (People v.

Medina (1995) 11 Cal.4th 694, 748 [47 Cal.Rptr.2d 165, 906 P.2d 2].) “A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 [27 Cal.Rptr.2d 646, 867 P.2d 757].) On appeal, we review a trial court’s ruling under Evidence Code

section 1101 for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637 [106 Cal.Rptr.2d 629, 22 P.3d 392].)” (People v. Roldan, supra, 35 Cal.4th at p. 705.) “As Evidence Code

section 1101, subdivision (

b) recognizes, that a defendant previously committed a similar crime can be circumstantial evidence tending to prove his identity [and] intent... in the present crime. Like other circumstantial evidence, admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence vel non of some other rule requiring exclusion. [Citation.] Defendant placed all issues in dispute by pleading not guilty.” (People v.

Roldan, supra, 35 Cal.4th at pp. 705-706.) Accordingly, the identity of the person who robbed, raped, sodomized, and killed Ruby Reed, and that person’s intent when committing those crimes, were material facts.

Defendant’s guilt of the crimes against J.S. and S.B. tends to prove these material facts. “For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ ” (People v.

Ewoldt, supra, 7 Cal.4th at p. 403.) “The highly unusual and distinctive nature of both the charged and uncharged offenses virtually eliminates the possibility that anyone other than the defendant committed the charged offense.” (People v. Balcom (1994) 7 Cal.4th 414, 425 [27 Cal.Rptr.2d 666, 867 P.2d 777].) As the prosecutor argued in his written points and authorities in support of his motion, defendant’s 1983 crimes against J.S. and S.B. were eerily similar to the present crimes against Ruby Reed.

In both crimes (1) the victim was attacked in her home, (2) the crime occurred in the late evening or early morning, (3) the victims included older women, (4) the assailant tied the victim’s hands behind her back, (5) the assailant tied the victim’s ankles together, (6) the assailant wrapped a towel around the victim’s head, (7) the assailant pulled up the victim’s nightgown, (8) the assailant beat the victim severely, (9) the assailant engaged in criminal sexual conduct, (10) the assailant left candy wrappers at the crime scene, (11) the assailant left personal property at the crime scene, (12) the assailant ransacked the bedroom, (13) the assailant took money, and (14) the assailant “made himself at home.” The prosecutor expanded on these similarities in oral argument at the hearing on the motion.

In both the 1983 crimes (against J.S. and S.B.) and the 1987 crimes (against Ruby Reed), the assailant smoked cigarettes and left ashes at the crime scene. On both occasions, the assailant also left candy wrappers around the premises. In the 1983 crimes, the victim heard her assailant using her telephone; in the 1987 crimes, cigarette ashes left by the telephone suggested the perpetrator had used the telephone.

In the 1983 crimes, the assailant watched television while the victim lay on the floor, bound and helpless; in the 1987 crime, candy wrappers and ashes found near the chair in which one would sit to watch television suggested the perpetrator had watched television. In both crimes, shoe boxes were removed from a bedroom closet, opened, and then thrown on the floor. In 1983, the assailant pulled victim J.S. by her mouth; in 1987, the victim’s false teeth were found near her body.

We might add that in both crimes the assailant bound the victim with materials procured at the scene; in neither did he bring rope with him. In light of the distinctiveness and similarity of the characteristics the two sets of crimes shared, the trial court did not abuse its discretion in ruling the jury could legitimately infer from evidence of the 1983 crimes that the same person had committed the 1987 crimes.

On the issue of intent, defendant argues J.S.’s testimony was inadmissible because defendant’s 1983 crimes did not involve a homicide and thus were not probative on whether he harbored the intent to kill when he attacked Reed four years later. This contention has two answers. First, J.S. testified that when she first realized defendant was in her room, defendant told her not to make any noise or he would kill S.B. Similarly, S.B. testified defendant coerced her to orally copulate him by threatening to harm her grandmother.

This proclaimed readiness to kill during a burglary was probative of defendant’s intent in 1987 when he committed a similar break-in. Indeed, the prosecutor made this precise point in closing argument. Second, that no murder occurred during the 1983 crimes may have been because J.S. attempted to escape and defendant lost control of the victims, convincing him to flee and avoid capture. That J.S. and S.B. survived their ordeal does not strongly distinguish defendant’s 1983 crimes from those committed in 1987 against Reed that resulted in her death.

We therefore reject defendant’s assertion that the evidence of the 1983 crimes gave the jury no basis from which to infer what he might have intended when he committed a similar crime in 1987. To the extent defendant contends his crimes against J.S. should not have been admitted because they were not probative of his intent to rape and sodomize Reed, we reject this claim as well, because, assuming error, it was harmless under any standard.

Even should the trial court have excluded the evidence on the issue of intent to commit rape and sodomy, its admission could not have been prejudicial because the evidence was already properly admitted on the issues of identity and intent to kill. Moreover, defendant’s intent to commit rape and sodomy was shown by ample circumstantial evidence. We reach the same conclusion with respect to the issue of intent to commit robbery and burglary.

Defendant argues that S.B.’s testimony “was completely irrelevant to either identity or intent for any charged crime” because her grandmother had already testified and reported the basic details of the crime, and that S.B.’s testimony “added only the highly inflammatory detail that [defendant] asked a young girl to orally copulate him.” This complaint does not so much challenge the ruling under Evidence Code

section 1101, as assert that the evidence was subject to exclusion under Evidence Code

section 352 because it was cumulative and more prejudicial than probative. The court denied defendant’s

section 352 motion to exclude S.B.’s testimony, and we find no abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 955 [135 Cal.Rptr.2d 272, 70 P.3d 277] [applying abuse of discretion standard].) S.B. confirmed her grandmother’s account of the crime in important respects, including how the attack turned sexual once the victims were at defendant’s mercy, defendant’s willingness to hurt her grandmother, and that defendant left personal items in the apartment. Moreover, S.B.’s testimony was brief, taking up just four pages of transcript. 3.

Alleged Ineffective Assistance of Counsel: Defense Expert Consultants Defendant next contends his trial attorney was constitutionally ineffective because he failed to object to testimony and argument suggesting his defense experts’ forensic testing had confirmed the prosecution experts’ findings and to the prosecutor’s reliance on that same evidence in closing argument. The testimony and argument were inadmissible and subject to an objection, he claims, because they constituted improper comment on the exercise of a recognized privilege in violation of Evidence Code

section 913. In addition, he claims such comment was inadmissible as violative of his state and federal constitutional rights to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution (and state corollaries) by interfering with his attorney-client relationship and as violative of his federal constitutional right to due process under the Fifth and Fourteenth Amendments because it tended to interfere with his ability to prepare and present a defense.

We conclude counsel was not ineffective because he in fact objected to the complained-of testimony on attorney-client privilege grounds, and his failure to object on other grounds was, if deficient, harmless because it is not reasonably probable defendant would have enjoyed a different result had counsel objected. a. Facts When the prosecution’s forensic expert witnesses on fingerprint identification, hair analysis, and serology testified, the prosecutor asked each of them, largely without objection, whether the evidence they tested was made available to defense experts.

In each instance, the answer was affirmative. For example, Deputy Sheriff McRoberts testified he processed the Frontier Hotel receipt for fingerprints. The prosecutor asked him: “Have you shown any of the evidence to an individual that’s been retained by [defendant] in this case?” The prosecutor also asked him: “And you provided all of those fingerprints to the individual that has been retained by [defendant]?” McRoberts answered in the affirmative to both questions.

During the testimony of the prosecution’s serologist, Elizabeth Komblum, the following colloquy occurred: “Q. [The Prosecutor:] You did indicate that certain of the items [tested], you keep them in a permanent state; is that correct? “A. [The Witness:] That’s correct. “Q. And they’re still available to be examined by anybody that the defense would want to have look at them; is that correct?” “A. Yes, it is. “Q. And then that individual or individuals, after they actually examine those particular exhibits could come in and either say you are crazy or you’re right or you’re wrong or whatever they wanted to say? “A.

That’s correct. “Q. Now, in this particular case, these exhibits were released to a defense lab; is that correct? “A. Yes.” At this point, defense counsel objected on the grounds of relevancy and attorney-client privilege. The trial court immediately overruled the relevancy objection. After the prosecutor explained that he was not seeking to elicit any evidence as to the results defense testing might have obtained, the trial court also denied the objection based on privilege.

In closing argument, the prosecutor argued the evidence defendant’s fingerprint was left at the crime scene on the hotel receipt was “uncontradicted” and that, regarding the hair and blood evidence, both prosecution expert witnesses (Burke and Komblum) “testified that the defense actually tested these things for themselves, [f] You didn’t hear defense experts coming in here and saying Burke was wrong or that Komblum was wrong or that Hannah Woods was wrong when she made this fingerprint [identification].” Later, concerning Komblum, the prosecutor said: “[T]he defense can attack her all they want—-but she said all items were made available to a defense lab, and if the defense went through the trouble of putting on Dr.

Ryan [a defense expert,] you know very well that if the results the defense had from their lab were in one iota different or unreliable, if there was a different result than what Liz Komblum got, we would have heard what the defense lab did in this case. You know it and I know it. We didn’t hear from them. [][] One rational conclusion. They got the same results as Liz Komblum.” Defense counsel did not object. b.

Discussion The standard for showing ineffective assistance of counsel is well settled. “In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 104 S.Ct. 2052]; People v.

Ledesma (1987) 43 Cal.3d 171, 217 [233 Cal.Rptr. 404, 729 P.2d 839].) A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. (Strickland v.

Washington, supra, at p. 687; In re Andrews (2002) 28 Cal.4th 1234, 1253 [124 Cal.Rptr.2d 473, 52 P.3d 656].) If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [62 Cal.Rptr.2d 437, 933 P.2d 1134].) Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.” (People v.

Carter (2003) 30 Cal.4th 1166, 1211 [135 Cal.Rptr.2d 553, 70 P.3d 981].) “Failure to object rarely constitutes constitutionally ineffective legal representation.” (People v. Boyette, supra, 29 Cal.4th at p. 424.) Defendant relies on four theories for his claim that his defense counsel should have objected to testimony and argument that suggested defense experts had confirmed the findings of the prosecution experts. First, he claims the evidence was inadmissible (and the argument improper) because it constituted comment on the invocation of his attorney-client privilege in violation of Evidence Code

section 913, subdivision (a). That statute provides: “If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom

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