THE PEOPLE, Plaintiff and Respondent, v. MARK LINDSEY SCHMECK, Defendant and Appellant, 37 Cal. 4th 240

Opinion GEORGE, C. J. A jury found defendant Mark Lindsey Schmeck guilty of the first degree murder of Lorin Gwynne Germaine (Pen. Code, §§ 187, subd. (a), 189) and of second degree robbery (§ 211). The jury also found true the allegations that defendant killed the victim while engaged in the commission or attempted commission of a robbery (former § 190.2, subd. (a)(17)(i), now § 190.2, subd. (a)(17)(A)), and personally used a firearm in committing the murder and the robbery (§ 12022.5 as amended by Stats. 1988, ch. 1249, § 3, p. 4161). The jury set the punishment at death.

The case is before us on defendant’s automatic appeal. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) For the reasons that follow, we affirm the judgment. I. FACTS A. Guilt phase The prosecution proceeded on the theory that defendant sought out a motor home to steal, and then robbed and murdered Lorin Germaine in the course of stealing his motor home. The defense theory was that Jamie Gronley (defendant’s girlfriend), Donald Willis, and perhaps William Duffy committed the murder and robbery, and that following the murder, defendant unwittingly had merely attempted to sell the motor home. 1.

Prosecution evidence On the morning of May 30, 1986, Lorin Germaine left his Fremont residence to meet a prospective buyer for his motor home. On June 5, 1986, Germaine’s body, with four or five bullet wounds in his head, was discovered on a road near Sunol. In May 1986, Lorin and his wife Rebecca Germaine placed an advertisement in Auto Trader magazine to sell their 1978 22-foot Dodge Brougham motor home, which had mileage of 38,000, for $14,000.

Approximately 8:30 p.m. on Monday, May 26, Rebecca answered a telephone call from a man who said he had seen the advertisement in that magazine and was interested in buying the motor home. Rebecca handed the telephone to Lorin. On Tuesday, May 27, at approximately 6:00 a.m., Rebecca received a telephone call from the same man about the motor home, and again handed the telephone to Lorin. Afterwards, Lorin told Rebecca that during his lunch hour Lorin was going for a test drive in the motor home with the man who had telephoned.

Prior to May 30, Rebecca recalled that the caller’s name was Mark, but her two children believed his name was Mike. On the evening of May 27, Lorin told the family’s babysitter, Carey Gilchrist, that the prospective buyer had mentioned that an aunt had died and left him $85,000, which was being managed by his sister.

Later the same evening, Lorin told Rebecca that during the test drive the prospective buyer had commented that Lorin “looked really familiar and he asked him if he had a younger brother, that [the prospective buyer] thought that he knew [Lorin’s] younger brother.” Rebecca testified that in fact Lorin had a younger brother who looked “[e]xactly like him.” Dennis Trede, a friend of the Germaine family, later testified that in April, 1986, defendant and Trede had been in the same holding cell in the municipal courthouse.

Lorin’s younger brother, John Germaine, appeared at the courthouse to visit Trede, and defendant made a comment about John Germaine to Trede. On Wednesday, May 28, Rebecca emptied the motor home of all of their personal belongings, vacuumed the carpet, and washed the interior and exterior. On Thursday, May 29, Rebecca and Lorin went to the Department of Motor Vehicles (DMV) and obtained the necessary documents to transfer title to the motor home.

At trial, Rebecca identified the release of liability form that she and her husband completed, but she did not recognize the printing of the name for the buyer, Martin R. Freitas, whom the form identified as the ostensible purchaser of the vehicle. At approximately 6:00 a.m. on Friday, May 30, Rebecca answered another telephone call from the same man about the motor home, and she handed the phone to Lorin. This individual telephoned approximately one hour later, and Rebecca again handed the telephone to Lorin. Lorin drove their children to school.

He returned to their home, spoke to Rebecca for a few minutes, and retrieved the DMV documents and keys to the motor home. Lorin also had a trifold wallet containing approximately $40 in cash and other items, including his Kaiser medical identification card. At approximately 8:30 a.m., Lorin departed in the motor home to meet the buyer at A Street and Grand in Hayward to finalize the transaction. During May, defendant made several statements that related to obtaining and selling a motor home.

In that month, defendant sanded and painted the kitchen and dining area at the residence of Hernia (Wanda) Wilson and Melba Valdez. Wilson saw defendant making telephone calls with an Auto Trader magazine in his hand. Between May 16 and May 27, defendant asked Wilson and Valdez whether they knew anyone who wanted to buy a mobilehome for approximately $7,000, and offered to pay them $200 if they located a buyer. After his release from jail on May 16 and prior to May 30, defendant told Jamie Gronley, his girlfriend, that he wanted to acquire a motor home.

Between those dates, defendant also told his friend William Duffy that defendant had a plan to make money, in which he would “pretend [to] buy a motor home out of a newspaper and he would put the gun to the owner’s head and insist that the owner sign over the pink slip to him or he would blow him away.” On May 27, defendant told an acquaintance, John Maartense, he was going to obtain a motor home.

When Maartense inquired how defendant would purchase a motor home without having a job, defendant replied, “I have my ways.” At approximately 2:00 p.m. on May 27, a person identifying himself as Mark Schmeck telephoned Nohr’s R. V. Center in Dublin. Phillip Sipes answered the telephone. The caller asked whether Nohr’s was purchasing motor homes at that time, and whether they could make a quick deal. The caller stated that he was selling a 1978 22-foot Brougham motor home having approximately 39,000 miles.

Sipes informed the caller that the Kelly Blue Book value of that vehicle was approximately $8,000 at wholesale, and $11,000 at retail, and that once Sipes inspected the vehicle, he could make a deal the same day. Sipes testified that his May 27 telephone log contained the following notation: “ ’78 22-foot Brougham 39,000 miles, Mark Schmeck.” Evidence was introduced concerning defendant’s activities on May 30, the day of Lorin Germaine’s disappearance.

Between approximately 10:30 a.m. and 11:30 a.m., defendant appeared at the parking lot of an apartment complex where Jamie Gronley was assisting her acquaintance, Edward Tanner, move. Defendant spoke to Gronley for approximately five to 10 minutes and appeared to be upset. Defendant told Gronley that he was attempting to sell a motor home, but first had to take it to be cleaned at a car wash. On the same day between 10:30 a.m. and 11:00 a.m., a person identifying himself as Mr. Schmeck telephoned Phillip Sipes at Nohr’s R. V. Center, reporting that he was running a bit late and would be in later.

Sipes’s telephone log of May 30 contained the notation: “Mark—Be In Around 1:00 Brougham.” At approximately 1:00 p.m., a person telephoned Sipes and identified himself as Mark, and stated he was running late because he had run out of gasoline, but would be there in another hour or so. Between 2:00 p.m. and 2:30 p.m. on May 30, Sipes noticed a 1978 22-foot Brougham in the Nohr’s RV Center parking lot. A man identified at trial as defendant asked to see Phillip Sipes, identifying himself as Mark Schmeck.

Sipes recognized defendant’s voice as that of the man who had telephoned him on May 27 and earlier that day, May 30. Defendant was shirtless but soon donned a jacket. Sipes looked inside the motor home and noticed that a

section had been cut out of the carpet. Defendant stated he had cut out that part of the carpet because it was in poor condition. Defendant acted very “hyper, jumping around, wiping the walls down.” Although defendant said he would “take any kind of offer” for the motor home, Sipes was not interested in it at any price. Sipes suggested defendant try Lee Peterson’s Motor Home Sales.

At approximately 3:00 p.m., a man identified at trial as defendant told a salesman at Lee Peterson’s Motor Home Sales that he had a motor home to sell “cheap.” Defendant stated the motor home had a book value of $8,000, but he would take $2,000 for it right then. Paul Weber, who was at the dealership purchasing propane, overheard this conversation. Weber followed defendant, who said his name was Martin Freitas, and asked him about buying the motor home. Defendant asked Weber whether he had cash in the bank, and allowed him to inspect the motor home.

In Weber’s truck, they drove to two different automatic teller machines, and Weber gave defendant $300 in cash. Weber agreed to pay defendant a balance of $1,200. Defendant gave Weber the motor home and several documents, including the pink slip, a bill of sale, a certificate of nonoperation, and a registration renewal form. Later on May 30, Weber made efforts to determine whether defendant was the legitimate owner of the motor home.

Weber subsequently met with Rebecca Germaine and accompanied her and her friends to the Alameda County Sheriff’s Department, San Leandro Office, where Weber assisted in the preparation of a composite drawing of defendant. On Saturday, May 31, Dennis Trede saw the composite drawing, and he ultimately recognized the person depicted as defendant. Weber assisted the police in apprehending defendant. When defendant telephoned Weber several times, asking him to deliver the balance of $1,200 to “Stephanie Freitas,” Weber refused and stated that he only would deal with defendant personally.

One of the conversations, recorded on Weber’s father’s answering machine, was played for the jury. Ultimately Weber and defendant agreed to meet at 2:00 p.m. on June 1. The police equipped Weber with a “wire” in order to record sound, and instructed him to signal officers by removing his glasses. When defendant appeared, Weber gave the signal, and defendant was arrested on suspicion of vehicle theft. Defendant made several statements connecting him to the commission of the crime. Following his arrest on June 1, defendant was interviewed by the police.

Defendant was breathing hard, moving around a lot, and “seemed hyper, nervous.” Defendant initially denied any involvement with the stolen motor home, noting that he expected to inherit $85,000 in the coming months. When confronted by the circumstance that he had been identified as having been inside the motor home, defendant stated, “I’m gonna talk.” Defendant maintained that on May 29 or 30, a person named “Don,” whose last name defendant did not know, had approached defendant about getting rid of a motor home that Don had inherited.

Initially, defendant told the police that he merely looked at, but did not drive, the motor home. When the police mentioned that three persons had identified defendant as having been inside the motor home, defendant stated, “[Ojkay, now I’m gonna tell you everything.” Defendant admitted driving the vehicle on May 30 and stated that Don had offered to pay defendant $200 to sell it. Don wanted a “quarter pound” (an apparent reference to drugs by weight), which was worth approximately “three or four thousand dollars,” for the motor home.

Defendant stated he took the motor home to Nohr’s RV Center and Lee Peterson’s Motor Home Sales, and eventually someone named Paul offered to buy the vehicle. Between 4:00 and 6:00 p.m. on May 30, defendant told Jamie Gronley he had shot and killed a man in order to obtain his motor home. The killing took place inside the motor home on C Street in Hayward behind the BART station, in an industrial area. Defendant stated that he used the bathroom, and when he returned he shot Mr. Germaine in the head. Germaine grabbed his head, turned, looked at defendant, and asked him what he was doing.

Whenever Germaine moved or attempted to say something, defendant shot him again. Defendant shot Germaine five times in the head. As defendant told Gronley about the murder, he began to cry. Defendant had a trifold wallet that, as he told Gronley, belonged to the victim. Defendant changed his clothes, and he and Gronley went to the laundromat. That weekend, defendant told Gronley that if he were arrested for murder, he would implicate his enemy “Don,” who resembled defendant in height, hair color, mustache, and beard. Following his arrest, defendant asked Gronley to marry him so that she would not have to testify.

Defendant also asked her to write statements incriminating Don, because defendant knew his mail was being read. Subsequently, Gronley wrote to defendant, “Remember babe, they can’t convict you of something you didn’t do. I know you didn’t kill him. Just pray they find Don.” At trial, Gronley testified that Don was not involved in the murder. On the evening of June 4, defendant telephoned Gronley at Detton’s Bar and asked her to move Germaine’s body. Defendant stated that if she followed Foothill Road until it became another road, then she would locate the body between a hairpin turn and an impassable bridge.

The description was consistent with an area near Gronley’s grandmother’s residence that defendant had visited previously. Gronley became hysterical, and William Duffy, who was present with Gronley, contacted the police. On June 5, Gronley and Duffy accompanied the police to Foothill Road near Sunol. Germaine’s body, which had an odor of rotting flesh, was discovered on a ledge below the roadway. Gronley testified that she had contacted the police on June 3 and had confessed that she had killed Germaine. During the police interview, Gronley was unable to describe Germaine and had never seen the motor home.

She stated that two bullets had penetrated the windshield, a fact not reported by any witness who had inspected the motor home during defendant’s sales efforts on May 30. Gronley reported that the body was located near a construction site on Acosta Boulevard in San Ramon. Following the interview, Gronley received a negative response to her inquiry whether the officers believed her. Gronley testified that she had confessed because she was in love with defendant and somehow felt responsible for Germaine’s death.

Following his arrest, defendant made two telephone calls to Beverley Dupio, a friend of Gronley’s with whom defendant was acquainted.

In the first conversation, defendant told Dupio that “he made a mistake of killing this man but he didn’t think he deserved 15 years for it.” In the second conversation, defendant sought Dupio’s assistance in arranging for defendant and Jamie Gronley to get “married so she can’t testify against him.” Defendant also telephoned Wanda Wilson and requested that, should anyone call her and ask “if [defendant] used a lot of drugs to say yes.” Certain physical evidence also connected defendant to the murder.

At the time of his arrest on June 1, defendant wore a black jacket, which had a bloodstain possessing genetic markers that were consistent with Germaine’s blood but inconsistent with defendant’s. Blood consistent with the victim’s was found on the carpet and the inside shower door of the motor home. Defendant’s fingerprints were found on a plastic cup inside the motor home and on the DMV registration renewal form.

During several searches of William Duffy’s apartment, where defendant and Gronley stayed the night following the victim’s disappearance, the police found a .22-caliber revolver, identified as belonging to defendant, behind a drawer. On the evening of May 30, Gronley observed defendant wiping down the gun and attempting to stuff something into the barrel, stating that would change the markings on “something like” the bullet shells. Ballistics evidence confirmed that two bullets removed from the victim’s head were fired from that gun.

A third bullet removed from the victim had markings consistent with having been fired from that gun, but had insufficient detail to make a match. On the evening she observed defendant with the gun, Gronley found approximately five empty shells, which she placed into beer cans. Subsequently, the police found two spent .22-caliber cartridges in an empty beer can outside in the apartment trash.

In attic areas of William Duffy’s apartment building, the police found a DMV release of liability form bearing the names Martin Freitas, Lorin Germaine, and Rebecca Germaine, a bag with six .22-caliber rounds of live ammunition, a portion of the victim’s Kaiser identification card, and defendant’s black baseball cap, which he had been seen wearing on Friday, May 30. In an effort to disprove the defense theory of the case, the prosecution introduced evidence to establish the whereabouts of Donald Willis and Jamie Gronley on May 30.

Willis testified that on that date, he went to his sister Janice Suacci’s residence in Santa Rosa, and did not at any time between May 30 and June 2 leave Santa Rosa and go to Hayward. His sister testified that she saw Willis sometime after 5:00 p.m. on May 30. Edward Tanner, his brother George, and Gronley testified that Gronley spent the morning of May 30 helping Edward Tanner move out. At approximately 12:30 p.m., Edward Tanner dropped off Gronley at William Duffy’s apartment. Duffy and Gronley testified that they spent the afternoon together.

A fingerprint expert testified that he compared the identifiable but unmatched latent prints found on the documents related to the motor home with the fingerprints of Donald Willis and concluded that none matched. 2. Defense evidence Detective Muniz found a second gun in the attic crawl space outside William Duffy’s apartment. The weapon was a very old, single-shot, .50-caliber, ball-and-cap type, and Muniz did not turn it in for ballistics or fingerprint testing. During Muniz’s interview with Wanda Wilson, she said that defendant had left her residence after 12:30 p.m. on May 27.

On May 30, Officer Jim Pontes of the Fremont Police Department took a missing person’s report from Rebecca Germaine, who described the possible suspect as a White male, about 28 years of age, six feet tall, 170 pounds, of medium complexion, without facial hair, with long dark hair tied in a bun and a ponytail extending from the bun. Rebecca stated that the suspect’s name was Mike or something similar, and that he was going to pay for the motor home with money from a $15,000 trust fund. Rebecca personally did not observe the suspect, but had obtained the description from one of her husband’s coworkers.

Monica Hall, defendant’s aunt, testified that on April 4 she summoned the police to a residence she owned, where defendant and Gronley were living without her permission. Hall subsequently found paperwork inside the residence with handwriting that appeared to be Gronley’s, apparently containing directions to an area near the location where Mr. Germaine’s body was found. Hall believed that in April 1986, defendant wore his hair straight down, and she never had seen him with a bun or a ponytail.

Sally Hughes, Pacific Bell’s custodian of records for Northern California, testified that during the period of mid-May to mid-June 1986, only one collect telephone call (on June 7) was received at Detton’s Bar, from South Lake Tahoe. Between mid-May and mid-August 1986, there were no collect telephone calls from the men’s facility at the Santa Rita Jail to Beverly Dupio. During June and July 1986, eight collect telephone calls were made from the women’s holding unit or dormitory at Santa Rita jail to Dupio. 3.

Rebuttal evidence Between April and May 1986, Gronley received a number of telephone calls from defendant while he was incarcerated in the Santa Rita Jail. When Gronley asked defendant how he could telephone from the jail without calling collect, defendant said he used a satellite or calling card number.

Raymond Ruiz, a product manager at Pacific Bell, testified that starting in the fall of 1985 through the summer of 1986, the company received complaints from long distance carriers concerning telephone calls that were being made from a number of penal institutions such as Santa Rita Jail, and were being billed to the carrier. Ruiz testified it was possible to reach a long distance carrier from a public telephone in several ways, including the use of a personal identification number or a seven-digit number beginning with “950.” Pacific Bell made efforts to block such calls.

Mark Ferrara, a security investigations administrator at Pacific Bell, testified that the company had received complaints about fraudulent use of satellite codes by inmates. A telephone call that was made utilizing a satellite code would not appear as a collect call on the recipient’s telephone records. Deputy Sheriff James Donnelly testified that on June 4, 1986, the Santa Rita compound in which defendant was incarcerated had coinless telephones that were available to inmates at all times. B. Penalty phase 1.

Prosecution evidence Documentary evidence was introduced that in 1984 defendant had suffered a prior felony theft conviction in the State of Washington. 2. Defense evidence Several family members testified regarding defendant’s childhood and youth. Defendant’s father, Frank Schmeck, worked as an instrument technician at the Alameda Naval Air Station. Defendant was bom on February 3, 1957. Six months later, defendant’s mother, Jacqueline, left Frank, taking with her defendant and his older sister, Lonnie.

The children continued to have regular contact with Frank until defendant was approximately five years of age, when Frank remarried and moved to Washington. When defendant was about six or seven years of age, Jacqueline married Bill Freitas. Jacqueline was a hypochondriac and spent a great deal of time in bed during the day. Defendant and Lonnie were forced to make their own breakfast and lunch, and to do other chores around the house. When Lonnie was only in the second grade, she registered defendant for kindergarten.

When defendant was seven years of age, Jacqueline would disappear for up to two weeks at a time. Jacqueline treated defendant well, but was not kind to Lonnie. When defendant was approximately nine years of age, Jacqueline on several occasions threatened her children with a weapon, and she attempted to stab defendant with a knife and a fork. By the time Lonnie was a teenager, the immediate family ascertained that Jacqueline had a substance abuse problem, for which Jacqueline ultimately received treatment. When Jacqueline was shot to death in 1979, defendant was traumatized.

Defendant’s stepfather, Bill Freitas, was verbally and physically abusive to defendant, hitting him several times a month during a five- or six-year period. Defendant never struck back. When defendant was 16 years of age, he moved to Washington to live with his father, his father’s second wife, and their adopted son, Frankie. Although defendant initially skipped classes at school, he stopped doing so as the result of his father’s efforts. Defendant was not a discipline problem, and his father never struck him.

Defendant was a member of several varsity sports teams, and shortly before his graduation he began to work at a local McDonald’s restaurant. Defendant had a close relationship with his stepbrother, Frankie. Defendant opposed the use of drugs and alcohol, which influenced Frankie never to try using these substances. Defendant resided with his father until after defendant’s graduation from high school, when he found his own apartment nearby. Subsequently, defendant moved in with his sister Lonnie for approximately one year. Defendant worked at two jobs during this period.

Defendant married Michelle Sather in 1978, and they moved to Washington. The couple owned their own home, and defendant had his own automobile body-and-fender-work business. Several years later, defendant and Michelle divorced, and defendant had a son, Justin, with another woman, Mary Isenman. In 1985, defendant left Mary and started seeing a woman named Jamie (presumably Jamie Gronley). Defendant’s high school football coach, a fellow member of the football team, and defendant’s ex-wife all testified regarding defendant’s nonaggressive character.

Defendant’s stepbrother Frankie and defendant’s ex-wife described defendant’s thoughtfulness. When defendant’s sister Lonnie saw defendant in February 1986, defendant was gaunt and had a greenish-yellow pallor to his skin. Lonnie suspected he was using drugs. Dr. Stephen Pittel, a psychologist, testified generally about the effect of amphetamines, including methamphetamines.

A person who, during the afternoon, is hyperactive, sweating, rubbing his hands together, and talking to himself, would exhibit symptoms consistent with methamphetamine use, but probably those symptoms would not have been caused by use of that drug during the previous night. Sweating, hand rubbing, and hyperactivity could be caused by many things other than amphetamine use, however. A person who is nervous and excitable, and experiences sudden weight loss and has a greenish-gray pallor to his or her skin, would exhibit signs consistent with the chronic use of methamphetamine or some other stimulant.

A person who engages in chronic amphetamine use can become fearful and suspicious to the point of arming oneself. Dr. Pittel did not interview or test defendant. Dr. Pittel reviewed the preliminary hearing transcript in the present proceedings but, with the possible exception of one brief excerpt, did not review the trial transcript. Jerry Enomoto, a former Director of the Department of Corrections, testified that a person serving a sentence of life imprisonment without possibility of parole is permitted to work in prison, and that such work can have a rehabilitative effect. II. DISCUSSION A. Pretrial issues 1.

Asserted erroneous excusal of prospective jurors Defendant contends that his death sentence must be reversed because the trial court erroneously excused for cause four prospective jurors based upon their views concerning the death penalty, in violation of defendant’s rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. a. Factual background i. Prospective Juror R. V. During sequestered Hovey voir dire, the trial court asked Prospective Juror R.

V., “Do you know of any reason why you could not be a juror in this case?” The juror responded, “Well, I consider execution by the state a sort of barbaric ritual and would find it difficult to render a judgment that would say a particular person should be executed by the state. I consider that a tad hypocritical of the state trying to say that murder is wrong and turn around and kill a citizen.” Prospective Juror R. V. stated he would not have any trouble making a judgment of fact, such as would occur at the guilt phase of the trial.

He added, “[B]ut it[] seems that that final stage would be a determination of whether or not the moral quality of someone is such that this person deserves to be executed by the state and considering execution rather a sort of barbaric act it would . . . require a sort of extremely heinous moral quality on the part of the defendant to deserve such a barbaric treatment so .... If the final phase is simply [a] judgment of fact then there wouldn’t be any problems I don’t think.

If the final phase is a moral judgment that says the moral character of this person is such that this person deserves to be executed I would have to—have difficulty rendering a judgment like that.” The trial court then stated that, as it understood Prospective Juror R. V.’s statements, “you are not concerned that your views of the death penalty would [ajffect your ability to render a verdict in the first part of trial . . . but you are concerned because of your views as to how that might [ajffect your ability to serve in the second phase of the trial, is that true?

And your ability to serve on a jury in a case other than this type would not be [ajffected but this one might be?” Prospective Juror R. V. responded: “This is true.” In response to questioning by defense counsel, Prospective Juror R. V. posed the question, “[Wjhen you are putting this on the scale of values how do you draw the line as far as determining whether or not someone should be executed or put away for life?” After a lengthy response by counsel regarding the weighing of aggravating and mitigating circumstances, and discussion between counsel and the court, Prospective Juror R.

V. stated: “Presently I see that if someone is permanently removed from society and no longer a danger to citizens I don’t see any reason for going through with further acts of barb[arjism, that is an execution. So I don’t see the circumstances under which I could make the judgment that so and so should be executed.” Defense counsel subsequently asked, “[Tjhere is no set of circumstances either about the crime or about the defendant or about the both of them under this general factual outline that the court has given of this case under which you could vote for the death penalty?” Prospective Juror R.

V. responded, “The reason I find it difficult to imagine right now is if someone is permanently removed from society and no longer a danger to any of his or her fellow citizens, what would be the rationale for executing the person? . . . I don’t see the rationale at the moment.” Prospective Juror R.

V. acknowledged, “The proponent could present arguments for execution that I haven’t heard or considered enough to convince me that so and so should be executed so presently I lack that rationale and in the course of the proceedings the prosecution could present the rationale for execution that could convince me.” Prospective Juror R. V. was then questioned by the prosecutor, who asked, “[I]s Hitler one of those types of people that you might consider voting for the death penalty if he were still alive?” Prospective Juror R.

V. responded, “Well, if I was convinced that there is some way he could be broken out of prison then I could vote for the death penalty for Hitler.” When asked whether he ever could imagine voting for the execution of a person who intentionally killed during a robbery, Prospective Juror R. V. said, “Right now I do not imagine myself voting for an execution. That does not mle out a very convincing presentation by the prosecution that would change my mind.” Prospective Juror R. V. agreed that he had “a strong bias against the death penalty law,” and stated that he voted against and disagreed with such laws.

When asked whether there was any practical situation in which he could see himself imposing the death penalty, R. V. stated that not only would he have to be convinced that defendant had committed a rather heinous crime and that there were very few possibilities of repentance and rehabilitation, but also “that in the last

section of the trial that I’m rendering a judgment of facts according to the law and not making a moral statement that the death penalty is good.” When the prosecutor challenged Prospective Juror R. V. for cause pursuant to Wainwright v.

Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt), the trial court sustained the challenge over defense objection, explicitly finding “from this juror’s demeanor and responses that this juror’s views would prevent or substantially impair his ability to be neutral and follow the court’s instruction.” After defense counsel reiterated his objection, the trial court added that “after viewing the questioning of [R.V.] as a whole, I was left. . . with the definite impression that he would be unable to faithfully and impartially apply the law . . . .” ii. Prospective Juror M. M.

In response to the trial court’s questioning, Prospective Juror M. M. stated, “I really strongly feel I’m not sure that I could under any circumstances vote for the death penalty.” The court inquired whether she was concerned “that if there were a penalty phase in the trial that you would not enter that phase in a neutral position as it were?” She responded, “Yes.” Defense counsel subsequently asked, “Are there certain types of cases, certain types of factual situations where you feel the death penalty would be appropriate?” Prospective Juror M. M. responded, “I don’t think so. I mean I have concerns.

I feel strongly against the death penalty. However, it gets a little gray, especially where there are crimes against women and children, so but morally I’m against the death penalty.” Defense counsel asked, “Do you feel . . . there are certain situations where you could feel it was appropriate?” Prospective Juror M. M. said, “I’m not sure. I’ve been trying to figure this out since last week and I’m not sure how ... it would come out. So I think that I feel very opposed to the death penalty. So I think that I would tend to go more in that direction.

I don’t know how to be any clearer than that.” When the prosecutor challenged Prospective Juror M. M. for cause under Witt, supra, 469 U.S. 412, defense counsel responded, “submitted.” The trial court sustained the challenge. iii. Prospective Juror M. W. In response to the court’s inquiry as to whether there was any reason she could not serve as a juror in the case, Prospective Juror M.

W. stated, “I don’t know that in the end if I could really vote for the death penalty. . . .” The court inquired, “[A]re you telling me . . . you are concerned that you would be unable regardless of the facts and circumstances presented in the second phase that you are concerned you would have difficulty regardless of what those facts and circumstances were considering or voting for the death penalty, am I understanding you correctly?” Prospective Juror M. W. responded, “Yeah.

Not so much what I would think in the guilt phase but actually having to decide the death penalty.” The court inquired, “You don’t think you could do that?” Prospective Juror M. W. responded, “I don’t think I could do it.” The court subsequently inquired: “But the point is whether you in fact could make a choice or exclude one of those choices because of your state of mind. That’s the question.” Prospective Juror M. W. responded, “This is so hard for me. I know it is California law and a lot of times things that I read in the paper I say of course I believe in the death penalty.

You know honestly I feel like I might have to exclude that as one of my choices.” Defense counsel, referring hypothetically to an “extreme case” in which “your conscience as an individual says there is no redeeming factor about this situation,” inquired: “[C]ould you bring yourself to say I don’t think that person should live any longer and you could sign [a]long with the other 11 people a verdict that says the death penalty?” Prospective Juror M. W. responded, “I don’t feel I could.

I wish I could say that I could do that but—” Defense counsel subsequently inquired: “I guess the bottom line after we have kicked this around what say you if the circumstances demanded it if the aggravating factors substantially outweighed the mitigating circumstances could you go into that situation and give it a fair shot as to both sentencing choices, that’s what it boils down to?” Prospective Juror M. W. replied, “I don’t think I could.” The prosecutor challenged Prospective Juror M.

W. for cause under Witt, supra, 469 U.S. 412, and defense counsel responded, “submitted.” The trial court sustained the challenge. iv. Prospective Juror H. L. Prospective Juror H. L. was asked by the trial court, “[D]o you see any reason why you could not serve on this jury?” The prospective juror responded, “Well, in my conscience I don’t believe in the death penalty in most cases. Under very rare circumstances would I ever consider the death penalty.” The court stated, “[L]et me ask you this.

Is it your state of mind, is it such that you could never vote for the death penalty regardless of what circumstances might be presented to you?” Prospective Juror H. L. replied, “Of a case of this kind definitely.” The following colloquy ensued: The court: “That is your state of mind?” H. L.: “Yes.” The court: “You could not in a case such as this vote for the death penalty regardless of what circumstances, aggravating and mitigating circumstances would be presented?” H. L.: “That is correct....

It would have to be another type of case where I could possibly consider it.” When the court inquired, “But that would not be a case where the charge is murder with the special circumstance that I have described here?,” Prospective Juror H. L. replied, “Yes.” Defense counsel asked Prospective Juror H.

L., “In your mind if it was this type of case very generally, this special circumstance being an intentional killing during the course of a robbery and there were very severe aggravating factors that shocked you . . . that you found were so abhorrent and fit into that circumstance, you could consider and be open to both penalties?” Prospective Juror H. L. responded, “I still would not consider the death penalty. That is not the circumstances I’m talking about. . . More like a mass murder or like crimes against humanity or political crimes.” The court then inquired, “What kinds of crimes?” Prospective Juror H.

L. replied, “Like the Eichmann type murders.” Defense counsel inquired, “So am I correct in understanding you that in this type of factual situation of a potential killing during the course of a robbery that you would not be open to both penalties under any circumstances?” Prospective Juror H. L. responded, “Under any circumstances, yes.” The prosecutor challenged Prospective Juror H. L. for cause under Witt, supra, 469 U.S. 412, and defense counsel responded, “submitted.” The court sustained the challenge. b. Analysis “The applicable law is settled.

The trial court may excuse for cause a prospective juror whose views on the death penalty would prevent or substantially impair the performance of that juror’s duties” in accordance with the court’s instructions and the juror’s oath. (People v. Smith (2003) 30 Cal.4th 581, 601 [134 Cal.Rptr.2d 1, 68 P.3d 302] (Smith); see Witt, supra, 469 U.S. at p. 424 [setting forth that standard as the applicable federal standard].) “The standard of review of the court’s ruling regarding the prospective juror’s views on the death penalty is essentially the same as the standard regarding other claims of bias.

If the prospective juror’s statements are conflicting or equivocal, the court’s determination of the actual state of mind is binding. If the statements are consistent, the court’s ruling will be upheld if supported by substantial evidence.” (People v. Horning (2004) 34 Cal.4th 871, 896-897 [22 Cal.Rptr.3d 305, 102 P.3d 228].) Here, with regard to the excusal of Prospective Jurors M. M., M. W., and H. L., defendant merely submitted the question to the trial court. Hence, as a practical matter, he “did not object to the court’s excusing the juror, but. . . also refused to stipulate to it.” (People v.

Cleveland (2004) 32 Cal.4th 704, 734 [11 Cal.Rptr.3d 236, 86 P.3d 302].) Although “this failure to object does not forfeit the right to raise the issue on appeal, ... it does suggest counsel concurred in the assessment that the juror was excusable.” (Id. at pp. 734-735; see Witt, supra, 469 U.S. at pp. 434-435 [in light of counsel’s failure to question the prospective juror or object to her excusal for cause, “it seems that ... no one in the courtroom questioned the fact that her beliefs prevented her from sitting”].) Moreover, with respect to all four of the prospective jurors in question, substantial evidence supports the trial court’s finding that, based upon their demeanor and responses, the views of these prospective jurors would prevent or substantially impair the performance of their duties.

All four prospective jurors indicated at various points during their voir dire that, in light of their views concerning the death penalty and the normative role assigned to the jury under California’s death penalty law, they were unable to state that they could consider imposing the death penalty in this case as a reasonable possibility. Thus, Prospective Juror R.

V. repeatedly indicated that although his views regarding the death penalty would not affect his ability to make a finding of fact, those views would affect his ability to make “a moral judgment that says the moral character of this person is such that this person deserves to be executed.” Prospective Jurors M. M., M. W., and H. L. all indicated that they could not state that they would be able to consider imposing the death penalty, either in any case or in the kind of case at issue here.

Under these circumstances, the trial court properly could find that each juror’s views regarding the death penalty would prevent or substantially impair the performance of his or her duties. (See, e.g., People v.

Ashmus (1991) 54 Cal.3d 932, 963 [2 Cal.Rptr.2d 112, 820 P.2d 214] [a prospective juror must be able to do more than simply consider imposing the death penalty at the penalty phase; he or she “must be able to . . . consider imposing the death penalty as a reasonable possibility ” ].) Defendant acknowledges that numerous decisions of this court have held that when a prospective juror’s statements are conflicting or equivocal, the trial court’s determination as to the juror’s actual state of mind is entitled to deference. (See, e.g., People v. Horning, supra, 34 Cal.4th at p. 896; People v.

Mincey (1992) 2 Cal.4th 408, 456-457 [6 Cal.Rptr.2d 822, 827 P.2d 388]; People v. Frierson (1991) 53 Cal.3d 730, 742-743 [280 Cal.Rptr. 440, 808 P.2d 1197].) Defendant contends, however, that this long and well-established line of authority is inconsistent with the United States Supreme Court decisions in Gray, supra, 481 U.S. 648, and Adams v. Texas (1980) 448 U.S. 38 [65 L.Ed.2d 581, 100 S.Ct. 2521] (Adams), and should be overruled.

Relying in substantial part upon the transcripts of the jury voir dire and the arguments advanced in the briefs that were filed in Gray and Adams, defendant contends that those cases “made clear that when a prospective capital case juror gives equivocal responses, the state has not carried its burden of proving that the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror.’ ” On this basis, defendant contends that the trial court improperly excused the four prospective jurors. We reject defendant’s contention.

In its decision in Witt, supra, 469 U.S. 412—decided several years after Adams—the high court clearly explained that despite “lack of clarity in the printed record . . . there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. . . . [T]his is why deference must be paid to the trial judge who sees and hears the juror.” (Witt, supra, 469 U.S. at pp. 425-426; see id. at p. 428 [a trial court’s finding concerning a prospective juror’s state of mind “is based upon determinations of demeanor and credibility that are peculiarly within a trial court’s province.

Such determinations [are] entitled to deference ... on direct review . . . .” (Fn. omitted.)].) Nothing in the high court’s subsequent decision in Gray, supra, 481 U.S. 648, purports to depart from or alter Witt’s holding with regard to the deference that properly must be accorded to a trial court’s finding concerning a prospective juror’s state of mind; indeed, the issue before the court in Gray did not involve the determination of the correct standard for excusing a prospective juror under Witt at all, but rather the standard of prejudice that applies when a prospective juror improperly has been excused for cause under Witt. (Gray, supra, 481 U.S. at pp. 659-668.) Accordingly, there is no basis for reconsidering this court’s uniform line of decisions on this point.

In sum, we conclude that the trial court did not err under the applicable federal constitutional standard in excluding the four prospective jurors for cause. 2. Asserted Caldwell error Defendant contends that because the prosecutor told a “fully qualified juror that a death sentence was only a ‘recommendation’ that defendant be executed in the future, and the trial court was forced to discharge this prospective juror as a consequence, reversal is required.” During the Hovey voir dire of Prospective Juror S.

W., the prosecutor made the following remark: “If the aggravating factors are substantially heavy in your mind in an ethical and moral value then you may impose the death penalty and it’s a vote, it’s a recommendation to the court the defendant should be executed at some time in the future.” The prosecutor then questioned Prospective Juror S. W. about her occupation. Several days later during the jury selection, defendant moved that the court excuse Prospective Juror S. W. Relying upon Caldwell v.

Mississippi (1985) 472 U.S. 320 [86 L.Ed.2d 231, 105 S.Ct. 2633] (Caldwell), defense counsel expressed concern that the prosecutor’s comment might cause Prospective Juror S. W., were she selected as a juror, to inform other jurors, “Well, it’s all right, we can vote for a certain penalty because it’s subject to the court’s review, if we made a mistake it can be taken care of.” Defense counsel noted that “since this is the only juror such a remark has been made to, ...

I would ask the court to excuse the juror,” and requested that the court “admonish the district attorney not to make a comment like that in the future, either in jury selection or in the final argument.” After affording the prosecutor an opportunity to review and present relevant authority, the trial court took the matter under submission and ultimately excused Prospective Juror S. W. for cause. Defendant contends that the prosecutor violated Caldwell by making the comment in question, and that “[b]ased on this Caldwell violation, the trial court was forced to discharge [Prospective Juror S.

W] from serving on the jury. . . . [B]ecause the prosecutor’s Caldwell violation resulted in the exclusion of an otherwise fully qualified juror, reversal is required,” and it is unnecessary to analyze whether the error caused prejudice. In raising this issue, defendant cites Witt, supra, 469 U.S. 412, and Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770] (Witherspoon), as well as Caldwell. Witherspoon and Witt address the issue of potential juror bias regarding the death penalty, as does Caldwell, but the decisions differ in certain critical respects.

Error arising under Witherspoon and Witt is “rooted in the constitutional right to an impartial jury” under the Sixth Amendment, and is reversible per se. (Gray, supra, 481 U.S. at p. 668.) The excusal of prospective jurors who improperly are determined to be biased against the death penalty may lead to a jury “ ‘uncommonly willing to condemn a man to die.’ ” (Adams, supra, 448 U.S. at pp. 43-44; see Gray, supra, 481 U.S. at p. 666.) By contrast, Caldwell error is based upon the Eighth Amendment, and focuses on the reliability of the death penalty verdict “as well as bias in favor of death sentences” when a jury improperly is told that responsibility for the penalty verdict lies elsewhere. (Caldwell, supra, 472 U.S. at p. 330; see id. at p. 333 [the risk that an invitation to the jury to rely upon appellate review “will generate a bias toward returning a death sentence is simply too great”]; Sawyer v.

Smith (1990) 497 U.S. 227, 244 [111 L.Ed.2d 193, 110 S.Ct. 2822] [“our concern in Caldwell was with the ‘unacceptable risk’ that misleading remarks could affect the reliability of the sentence”].) Caldwell error creates “the danger of a defendant’s being executed in the absence of any determination that death was the appropriate punishment.” (Caldwell, supra, 472 U.S. at p. 332.) Thus, unlike Witherspoon and Witt, Caldwell does not address error involving jurors who improperly are determined to be biased regarding the death penalty and then are excused; rather Caldwell requires that a reviewing court determine whether the jury was biased toward the death penalty because of “state-induced suggestions that the sentencing jury may shift its sense of responsibility.” (472 U.S. at p. 330.) In the present case, the prospective juror to whom the prosecutor’s questioned comment was made never was impaneled, but was excused at the request of defendant.

That circumstance precludes any claim on appeal that a juror biased in favor of the death penalty participated in determining the punishment imposed upon defendant, or that the penalty verdict was rendered unreliable because of the prosecutor’s comment during sequestered voir dire. (See Smith, supra, 30 Cal.4th at pp. 602-603 [the defendant did not suffer any prejudice from prosecutor’s comment on voir dire allegedly undermining the seriousness of a death penalty verdict, because the prospective juror did not sit on the jury].) The circumstance that the prosecutor’s action prompted defendant’s motion to excuse the prospective juror does not alter that conclusion.

Moreover, defendant is not free to contend on appeal that the trial court erred in granting his motion to excuse the prospective juror for cause. It is clear that other measures short of excusal—for example, subsequent clarifying instruction by the trial court—were available to remedy any misunderstanding arising from the prosecutor’s single comment made during sequestered voir dire.

Comments that might lead to Caldwell error are capable of subsequent correction, and a reviewing court may consider other prosecutorial argument or the trial court’s instructions in determining whether any Caldwell claim is valid. (Caldwell, supra, 472 U.S. at p. 333 [“the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role” (italics added)]; id. at p. 339 [the “trial judge in this case not only failed to correct the prosecutor’s remarks, but in fact openly agreed with them”].) In the present case, defendant did not seek corrective action other than the excusal granted by the trial court.

No basis for reversal appears. 3. Asserted Wheeler error Defendant contends that reversible error arose under the Sixth and Fourteenth Amendments because the prosecutor’s stated reasons for exercising peremptory challenges against Jewish prospective jurors were mere pretexts, and that the trial court applied an incorrect standard in ruling on defendant’s Wheeler motion. In People v.

Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (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 v. Kentucky (1986) 476 U.S. 79, 84-89 [90 L.Ed.2d 69, 106 S.Ct. 1712] [(Batson)] ... the United States Supreme Court held that such a practice violates ... 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].) Religious groups are cognizable under Wheeler. (See, e.g., People v.

Gutierrez (2002) 28 Cal.4th 1083, 1122 [124 Cal.Rptr.2d 373, 52 P.3d 572]; Wheeler, supra, 22 Cal.3d at p. 276.) The United States Supreme Court has not similarly extended Batson, although some state and federal courts have done so. (See Miller-El v.

Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196, 125 S.Ct. 2317, 2342] (conc. opn. of Breyer, J.) [noting “[s]ome lower courts have extended Batson’s rule to religious affiliation as well”].) Assuming without deciding that Batson, like Wheeler, applies to peremptory challenges based upon bias against religious groups, we nevertheless conclude that defendant has failed to demonstrate purposeful discrimination against Jewish prospective jurors. (See Purkett v.

Elem (1995) 514 U.S. 765, 768 [131 L.Ed.2d 834, 115 S.Ct. 1769] [“the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike”]; Batson, supra, 476 U.S. at p. 93 [the burden is “on the defendant who alleges discriminatory selection of the venire ‘to prove the existence of purposeful discrimination’ ”].) The high court recently restated the Batson standard as follows: “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.]” (Johnson v.

California (2005) 545 U.S. 162 [162 L.Ed.2d 129, 125 S.Ct. 2410, 2416], fn. omitted (Johnson),) Third, once the prosecutor produces a neutral explanation for the challenges, the trial court must evaluate the “ ‘persuasiveness of the justification’ ” and “ ‘determine^ whether the opponent of the strike has carried his burden of proving purposeful discrimination.’ [Citation.]” (Id. at p. 171 [125 S.Ct. at p. 2418].) In Johnson, the high court also concluded that an element of the Wheeler standard for determining whether a prima facie case was established is inconsistent with that the standard announced in Batson. (Johnson, supra, 545 U.S. at p. 168 [125 S.Ct. at p. 2416].) In the present case, the trial court elicited the prosecutor’s reasons for the peremptory challenges, and thus the issue whether defendant established a prima facie case is moot. (Hernandez v.

New York (1991) 500 U.S. 352, 359 [114 L.Ed.2d 395, 111 S.Ct. 1859] (Hernandez); People v. Welch (1999) 20 Cal.4th 701, 745-746 [85 Cal.Rptr.2d 203, 976 P.2d 754] (Welch).) We proceed to the third step of the Batson analysis and, specifically, to defendant’s claim that the prosecutor’s justifications were pretextual. a. Asserted pretextual justifications for excusal Defendant asserts that the prosecutor’s stated reasons for excusing Prospective Jurors D. H. and M. B. were not supported by the record but instead were pretextual. On May 10, 1989, and July 5, 1989, Prospective Jurors D. H. and M.

B. were examined, respectively, on voir dire. In response to defense counsel’s questioning, Prospective Juror D. H. stated that he was “raised Jewish” and continued to participate in certain ceremonies of that religion. Also in response to questioning by defense counsel, Prospective Juror M. B. stated that he had attended the Hebrew University of Jerusalem for four months, that he practiced “certain things to do with Judaism,” and that religion was “personally very important.” On September 11, 1989, these and all other qualified prospective jurors returned to the court for the exercise of peremptory challenges.

At this time, Prospective Juror D. H. was questioned during sequestered voir dire regarding a letter he had written to the court regarding his aversion to cigarette smoke. Immediately following this voir dire, the prosecutor exercised a peremptory challenge against Prospective Juror D. H. Subsequently, the prosecutor challenged Prospective Juror M. B. After the latter peremptory challenge, defendant brought a Wheeler motion, alleging that the prosecutor “has used his challenges to strike most of the members of’ the group of Jewish prospective jurors. Defendant also cited Batson, supra, 476 U.S. 19.

The prosecutor noted that both Prospective Jurors D. H. and M. B. had given “terrible” answers when they were examined “some months ago. I made my decisions long ago. ... I didn’t even realize they were Jewish until [defense counsel] mentioned it this morning.” The trial court subsequently noted that the prosecutor had mentioned his reasons for excusing these prospective jurors and asked him to state the reasons again. The prosecutor responded that: “In my estimation neither of them would ever impose the death penalty against” defendant. The trial court stated, “All right.

I’d like you to be a bit more specific to them individually,” and requested that the prosecutor review his notes during the noon recess. At the afternoon hearing on the motion, the prosecutor noted that Prospective Juror D. H. had written a letter to the trial court stating that he was allergic to cigarette smoke and did not want to be in a place where persons smoked. The prosecutor “felt that because of that he might not be able to get along with others.” The prosecutor, citing the record of voir dire in May 1989, added that Prospective Juror D.

H. had stated that it was possible he had feelings that would prevent him from voting to execute a person. The prosecutor explained that the “overriding statement” by Prospective Juror D. H. that led to the peremptory challenge was that this juror might consider it a mitigating circumstance if a suspect committed a crime, was cornered by a police officer, and then shot the police officer. Again referring to the record of voir dire, the prosecutor stated that Prospective Juror M.

B. appeared to have difficulty understanding the weighing of aggravating and mitigating circumstances and the relationship between a special circumstance and the penalty. As the prosecutor pointed out, that prospective juror also “felt that the death penalty should be limited [to] heinous crimes,” such as those committed by Charles Manson or Richard Ramirez. Prospective Juror M. B. stated he believed he could not impose the death penalty for crimes “lesser” than those committed by Manson and Ramirez, but then said he thought he could.

The prosecutor also pointed to the prospective juror’s statement that a “past history of violence may weigh more heavily with respect to aggravating factors and mitigating circumstances.” The prosecutor noted that because “defendant doesn’t have a terribly heavy history of violence, I felt that Mr. [M. B.] would not be a good juror for me.” Prospective Juror M. B. also had indicated that an attempted home robbery he had experienced had not had a profound impact on him. The prosecutor stated: “So I felt with Mr. [M.

B.’s] attitude that he would not be a proper juror,” and “in neither of these gentleman’s cases did I consider their religion at all.” The prosecutor stated that he had made his “decisions on both of these guys the same day they were here as I did with everybody else.” The trial court considered defendant’s motion in light of the prosecutor’s explanations and found defendant had failed to persuade the court that the challenges were motivated by bias “alone.” Contrary to defendant’s claim, we conclude the record does not establish that the prosecutor’s justifications were pretextual.

Although the prosecutor stated he did not realize these prospective jurors were Jewish until defense counsel mentioned this, despite the circumstance the record of the voir dire reflects that both prospective jurors briefly discussed their affiliation with Judaism, the relevant voir dire examination of these prospective jurors had taken place a number of months prior to the occasion on which the prosecutor exercised the peremptory challenges, and the prosecutor had not reviewed the transcripts of the voir dire when he initially made the challenges.

The prosecutor also explained he had decided to excuse Prospective Juror D. H. on the same day the prospective juror was questioned on voir dire—May 10, 1989. As defendant observes, however, the prosecutor also specified that he relied upon the letter Prospective Juror D. H. wrote to the court requesting that he be excused if indoor cigarette smoking would be allowed—dated May 24, 1989. Considered in context, the prosecutor’s comments indicate that his decision on May 10 to excuse Prospective Juror D. H. was reinforced by the subsequent discovery that the prospective juror had written to the court.

The prosecutor exercised his challenge against Prospective Juror D. H. soon after the revelation of the letter’s existence. Regarding defendant’s current challenge to the accuracy of the prosecutor’s conclusions that the letter indicated D. H. might experience difficulty getting along with others, we note that the latter specifically stated cigarette smoke would render the prospective juror “impatient and unable to function.” The prosecutor’s other stated reasons for excusing Prospective Jurors D. H. and M.

B.—namely, the prosecutor’s perception that the prospective jurors’ views concerning imposition of the death penalty in certain circumstances were unfavorable to the prosecution and that Prospective Juror M. B. experienced difficulty understanding certain critical aspects of the law—are supported by the record of the prospective jurors’ statements during the voir dire. None of the proffered justifications appear to have been pretextual.

Although, on appeal, defendant emphasizes other statements by these prospective jurors that might have provided a prosecutor with a rationale for their retention as jurors, the question before the trial court was whether the prosecutor’s stated reasons were supported by the record and whether the court was persuaded they were not pretextual.

In denying the Wheeler motion, the trial court did not rely upon its memory of the voir dire occurring months earlier, but noted, rather, that it had “review[ed] the transcripts with regard to both of these jurors,” presumably to make certain that the prosecutor’s stated reasons were supported by the record. Defendant further contends that the pretextual nature of the prosecutor’s excusal of these prospective jurors is demonstrated by a comparison of the voir dire answers of Prospective Jurors D. H. and M. B. with those of several nonchallenged and seated jurors.

Defendant did not engage in a comparative juror analysis in the trial court. We disapproved of performing for the first time on appeal such a comparative analysis in People v. Johnson (1989) 47 Cal.3d 1194, 1221 [255 Cal.Rptr. 569, 767 P.2d 1047]. Even assuming without deciding that this aspect of People v. Johnson has been called into question by the decision in Miller-El v. Dretke, supra, 545 U.S. 241 [125 S.Ct. 2317], we conclude that the comparative juror analysis relied upon by defendant fails to demonstrate purposeful discrimination. In Miller-El v.

Dretke, supra, 545 U.S. 239 [125 S.Ct. 2317], in the context of a challenge based upon racial bias, the high court observed that if a prosecutor’s explanation for a challenged strike “applies just as well to an otherwise-similar nonblack [juror] who is permitted to serve, that is evidence tending to prove purposeful discrimination . . . .” (Id. at p. 239 [125 S.Ct. at p. 2325].) As noted, ante, the prosecutor remarked that the “overriding statement” made by Prospective Juror D. H. that led to the peremptory challenge was D.

H.’s observation that the juror might consider it a mitigating circumstance if a suspect who committed a crime was cornered by a police officer and shot the police officer. In addition, Prospective Juror D. H. had corresponded with the court regarding his aversion to cigarette smoke and desire to avoid locations in which persons might smoke, giving rise to questions whether the prospective juror could “get along with others.” Finally, the prospective juror revealed the possibility his feelings would prevent him from executing someone.

Defendant does not refer us to, and we have not discovered, any comment by a seated juror that was similar to D. H.’s comment that, following a crime, a perpetrator’s stressful confrontation preceding the shooting of a police officer would constitute mitigating evidence. Defendant does not point to any other occasion in which a seated juror communicated with the court to identify behavior of others rendering jury experience so unpleasant as to justify a request to be excused from service. Although defendant correctly observes that Jurors R. F. and G.

R. gave responses bearing some similarity to those of Prospective Juror D. H. concerning their feelings about the death penalty, these two jurors were not “otherwise [] similar” to Prospective Juror D. H. in any other respect contributing to the prosecutor’s challenge. The circumstance that the two jurors made a single comment having similarity does not establish that the prosecutor’s reasons were pretextual or that defendant established purposeful discrimination under the facts of the present case. We further conclude that a comparison of Prospective Juror M. B. to seated Jurors E. E., P. L., R. F., M. T, C.

V., G. R., and D. St. and Alternate Juror J. C. does not demonstrate that these jurors were substantially similar, nor that the prosecution’s stated justifications for his peremptory challenge were therefore pretextual. For example, the prosecutor justified his challenge of Prospective Juror M. B. in part based upon the juror’s statement that his experience with an attempted home robbery (which occurred while the prospective juror was at home) had not had a profound impact on him. Defendant does not refer us to, nor have we found, any similar comment made by any seated juror.

Indeed, because the special circumstance alleged in this case was murder in the course of a robbery committed in a motor home, it is understandable that a prosecutor would challenge a juror who was not deeply affected by an attempted robbery in his own home. (See Miller-El v.

Dretke, supra, 545 U.S. at p. 247 [125 S.Ct. at p. 2329] [noting the court’s prior decisions holding that the credibility of the prosecutor’s justifications “can be measured by ‘how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy’ ”].) In addition, the prosecutor stated he had excused Prospective Juror M.

B. because the juror had remarked that a “past history of violence may weigh more heavily with respect to aggravating factors and mitigating circumstances.” The prosecutor noted that defendant “doesn’t have a terribly heavy history of violence.” By contrast, none of the seated jurors referred to by defendant stated that a history of violence might weigh more heavily than other aggravating circumstances. Juror C.

V. simply responded, “Yeah,” when defense counsel, during a colloquy about the various factors that might be important in determining the appropriate penalty, inquired whether “it [would] make any difference to you if the defendant had never done a serious crime of violence before? Would that be important to you in deciding [the appropriate penalty]?” Similarly, Alternate Juror J.

C. was asked by defense counsel, “We can also present to you whether this is the first and only incident of violence in his life. [Is] [t]he past history . . . with regards to other crimes or other history of violence something that you would seriously consider?” She responded, “Yes.” She had previously been asked about the importance of premeditation, defendant’s childhood and family history, and defendant’s job accomplishments, and following a subsequent inquiry as to whether a history of drug problems would be important stated, “I feel they’re all important, yes.” Juror G.

R. was asked by defense counsel “[Wjould it be important to you that there [were] no other instances of violence in the person’s background before the factors alleged here?” Juror G. R. responded, “Yes.” Defense counsel asked, “So background facts about the defendant would be important in determining the penalty in addition to the facts about the crime?” Juror G. R. stated, “What would be presented, yes.” Finally, Juror D.

St. responded “Sure,” when asked by defense counsel whether she “might be interested if it got to the penalty phase in knowing more about the life of the defendant?” Defense counsel then inquired, “Apart from the crime . . . ?” Juror D. St. said, “Yes. . . . Habitual criminal, people who have done the same crime over and over again.” Defense counsel asked a question the juror did not understand, and then inquired, “You might find it important to know whether there was an absence of violence in the person’s past?” “Sure. Right.” “Or whether they had a record of violence?” “Right.” Moreover, Prospective Juror M.

B. expressed confusion as to the role played by a special circumstance in the penalty process and as to the weighing of aggravating and mitigating circumstances. By contrast, Juror E. E., whom defendant compares to Prospective Juror M. B., stated he would not want to know about defendant’s past, but “[o]nly what is said here.” Once it was explained that he would hear evidence and, implicitly, could consider defendant’s past, Juror E. E. said he would “want to know a little about his past.” Contrary to defendant’s assertion, Juror P.

L. was not “initially confused about the weighing process.” Rather, when the prosecutor asked, “Do you feel as though you as a human being could ever vote to execute another human being,” Juror P. L. said, “Could I do it personally?” The court explained that the prosecutor meant “[a]s a member of the jury,” and Juror P. L. replied, “Oh, I thought you meant just as an individual could I do this.” The prosecutor said, “No, as a juror, not as the executioner but as a juror.” Juror P. L. said “Yes.” Nor did Juror R.

F. appear to have difficulty understanding the weighing process, but rather appeared to indicate he personally would need “overwhelming evidence” to reach a death verdict. Juror M. T. initially may have had difficulty understanding the weighing process, but she clearly understood the prosecutor’s explanation, as is demonstrated by the portion of the voir dire upon which defendant relies. In any event, defendant does not assert that Juror M. T. was similar to Prospective Juror M. B. on any of the other three bases upon which the prosecutor relied.

We do not believe the single similarity demonstrates the prosecutor gave pretextual justifications for his challenge. Defendant is correct that somewhat similarly to Prospective Juror M. B., both Juror R. F. and Alternate Juror J. C. stated that they believed the death penalty was appropriate for “heinous” crimes. They were not, however, similar to Prospective Juror M. B. on any other basis. Again, this one similarity does not demonstrate that pretextual reasons were given.

In sum, the record supports the prosecutor’s stated reasons, and a comparison of the two challenged prospective jurors with the seated jurors does not demonstrate such a degree of similarity as to establish the existence of pretext. We further note that a prospective juror’s religious affiliation, if it is not stated on a jury questionnaire or revealed during voir dire, is not ascertained as readily as is his or her race or gender. (See Davis v.

Minnesota (1994) 511 U.S. 1115 [128 L.Ed.2d 679, 114 S.Ct. 2120] (cone. opn. of Ginsburg, J.) [denial of petn. for cert., noting the Minnesota high court’s observation that religious affiliation “ ‘is not as self-evident as race or gender’ ” and that ordinarily “ ‘inquiry . . . into a juror’s religious affiliation and beliefs is irrelevant and prejudicial’ ”].) In the present case, the record does not reflect that the prosecutor consistently examined prospective jurors to ascertain whether they were Jewish. (See Batson, supra, 476 U.S. at p. 97 [“the prosecutor’s questions and statements during voir dire examination” may “refute an inference of discriminatory purpose”].) Rather, Prospective Jurors D.

H. and M. B. both discussed their affiliation with Judaism in response to defense questioning. Indeed, on his jury questionnaire, Prospective Juror M. B. stated that he was not a member of any “religious” organization, although he did note elsewhere that he had lived in Israel for nearly a year. Likewise, Prospective Juror D. H., who completed a different version of the jury questionnaire, stated he belonged to no “societies, unions, professional associations, civic clubs, or other organizations” that could be characterized as religious.

Because religious affiliation may not emerge in the absence of specific questioning, there may have been additional persons of the Jewish faith who served on defendant’s jury—notwithstanding the many juror questionnaires from which it appeared prospective jurors lacked religious affiliation. For example, Jurors G. R., P. L., and D. St. and Alternate Jurors R. B. and J. C. either responded in the negative when asked on the jury questionnaire whether they belonged to any “religious” or other organizations, or listed organizations that could not reasonably be characterized as religious.

Using a different form of the questionnaire, Jurors M. T., C. V, T. E, E. E., R. E, D. St., and K. M. and Alternate Jurors M. S. and D. L. also stated that they belonged to no “societies, unions, professional associations, civic clubs, or other organizations” that reasonably could be characterized as religious. Yet on voir dire, Juror E. E. nevertheless identified himself as a “bom Catholic” and “now a bom again Christian”; Juror P. L. identified herself as a Baptist who attended church; Juror D. St. had a Lutheran background; and Juror M. T. stated she was Catholic and went to church every Sunday.

Further, the religious affiliation of seven jurors (Jurors G. R., C. V., D. N., D. St., T. E, R. E, and K. M.), or greater than one-half the number of jurors, and all four alternate jurors (Alternates J. C., D. L., M. S., and R. B.), never was elicited or otherwise identified. Thus, it is virtually impossible on this record to state the number of Jewish persons who served on the jury, or who were in the jury pool. (Cf. Miller-El v.

Dretke, supra, 545 U.S. at p. 240 [125 S.Ct. at p. 2325] [noting the prosecution challenged 10 out of 11 African-American prospective jurors not removed for cause].) As observed, ante, even when jurors did not list religious organizations on their questionnaires, on several occasions voir dire revealed that they were in fact religious.

Thus, although the prosecutor exercised peremptory challenges against two prospective jurors who, during voir dire, identified affiliations with Judaism in response to questioning by defense counsel, the circumstance that neither the prosecutor nor defense counsel ever inquired into the religious affiliation of the majority of the seated jurors and alternates, and that the prosecutor had no other reasonable means of ascertaining their religious affiliation, undercuts any suggestion of purposeful discrimination against Prospective Jurors D. H. and M. B. because of their Jewish faith.

Finally, as we do in any case of alleged bias, we defer to the trial court’s determination as to credibility. (Hernandez, supra, 500 U.S. at p. 365 [best evidence of whether race-neutral explanation should be believed is often “the demeanor of the attorney who exercises the challenge,” and “evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province’ ”]; Batson, supra, 476 U.S. at p. 98, fn. 21 [“Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference”].) We therefore conclude, with respect to both Prospective Jurors M.

B. and D. H., that defendant has not demonstrated that the prosecutor engaged in purposeful discrimination against prospective Jewish jurors, and that the defense motion below was properly denied by the trial court. b. Asserted incorrect standard Defendant contends that the trial court applied an incorrect standard to decide the Wheeler motion. He asserts that the trial court determined that group bias played a

part in the prosecutor’s peremptory challenges, but nonetheless denied defendant’s Wheeler motion because group bias was not the “sole” reason motivating the prosecutor.

In advancing this argument, defendant relies upon the circumstance that the trial court, in rejecting defendant’s Wheeler motion, stated: “Now after an analysis of the proffered reasons with regard to the exercise of these two peremptory challenges, the court will find at this time that the peremptory challenges in question were not predicated on group bias alone and accordingly the motion will be denied.” In Wheeler, this court stated that “the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates 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.” (Wheeler, supra, 22 Cal.3d at pp. 276-277, italics added; see id. at p. 281 [“If the court finds that a prima facie case has been made, the burden shifts to the other party to show if he can that the peremptory challenges in question were not predicated on group bias alone” (fn. omitted)]; id. at p. 287 [“all claims in California courts that peremptory challenges are being used to strike jurors solely on the ground of group bias are to be governed by

article I,

section 16, of the California Constitution and the procedure outlined above”]; see also Batson, supra, 476 U.S. at p. 89 [“the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant” (italics added)]; see also People v. Willis (2002) 27 Cal.4th 811, 816 [118 Cal.Rptr.2d 301, 43 P.3d 130]; People v. Ayala (2000) 24 Cal.4th 243, 260 [99 Cal.Rptr.2d 532, 6 P.3d 193]; People v.

Turner (1994) 8 Cal.4th 137, 164 [32 Cal.Rptr.2d 762, 878 P.2d 521] (Turner).) In light of the language in Wheeler, it is not surprising that the trial court repeated this wording in ruling on defendant’s Wheeler motion. (See People v.

Reynoso (2003) 31 Cal.4th 903, 927, fn. 8 [3 Cal.Rptr.3d 769, 74 P.3d 852] [because this court has employed the phrase “ ‘systematic exclusion,’ ” “it hardly seems fair or appropriate to fault this trial judge for using the term . . . much less to conclude that a wrong standard was applied in ruling on the motion”].) Relying upon a number of decisions of the United States Supreme Court that have arisen in other contexts, defendant contends that when a trial court finds that a prosecutor’s exercise of a peremptory challenge is based in part on an impermissible class bias, the court may not properly deny a Wheeler or Batson objection on the ground that the improper motivation was not the “sole” or “only” motivation for the challenge. (Cf.

Arlington Heights v. Metropolitan Housing Development Corp. (1977) 429 U.S. 252, 265 [50 L.Ed.2d 450, 97 S.Ct. 555] [in seeking to establish that zoning decision was motivated by racial bias in violation of the equal protection clause, challenger need not establish “that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body . . . made a decision motivated by a single concern, or even that a particular purpose was the ‘dominant’ or ‘primary’ one” (fn. omitted)]; Price Waterhouse v.

Hopkins (1989) 490 U.S. 228, 241, 258 [104 L.Ed.2d 268, 109 S.Ct. 1775] [in action under tit. VII of the federal Civil Rights Act of 1964, plaintiff need not prove that unlawful discrimination was the sole factor motivating an employment decision in order to establish a violation of the act]; see also Desert Palace, Inc. v. Costa (2003) 539 U.S. 90, 101-102 [156 L.Ed.2d 84, 123 S.Ct. 2148] [considering use o

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