THE PEOPLE, Plaintiff and Respondent, v. FERMIN RODRIGUEZ LEDESMA, Defendant and Appellant, 39 Cal. 4th 641

Opinion GEORGE, C. J. After a retrial following reversal of defendant’s conviction and death sentence, defendant was convicted of first degree murder, kidnapping, and two counts of robbery, and true findings were returned on allegations that he personally used a firearm in the commission of these offenses. (Pen.

Code, §§ 187, 207, 211, 12022.5, 1203.06.) Two special circumstances were found true—the intentional killing of a witness, and murder in the commission of a robbery. (Former § 190.2, subd. (c)(2), (3)(i) & (ii).) After the penalty phase of the trial, the jury returned a verdict of death and the trial court denied defendant’s motion to modify the death verdict. (§ 190.4, subd. (e).) This appeal is automatic. (§ 1239, subd. (b).) We reverse one of the robbery counts and the robbery special circumstance, but in all other respects affirm defendant’s conviction and death sentence. I.

Facts The trial, which took place in 1989, was defendant’s second trial for offenses arising out of the robbery and murder of Gabriel Flores in 1978. Defendant first was convicted of these crimes and sentenced to death in 1980. In addition to his automatic appeal in that matter, defendant filed a habeas corpus petition in this court alleging that his trial attorney had provided constitutionally ineffective assistance. We appointed a referee to take evidence and make findings of fact and conclusions of law regarding that claim.

The referee concluded, and this court agreed, that trial counsel had provided defendant with inadequate legal assistance on the basis of numerous inadequacies in his representation, including counsel’s failure to conduct adequate investigation and research, in particular with regard to the defense of diminished capacity. (People v. Ledesma (1987) 43 Cal.3d 171, 223, 224 [233 Cal.Rptr. 404, 729 P.2d 839] (hereafter Ledesma 1).) Accordingly, we vacated the judgment and remanded defendant’s case to the superior court. At the retrial, the prosecution presented evidence that on August 26, 1978, Mr.

Flores was working at a Hudson gas station in the City of San Jose. That afternoon, he called his manager at home and reported that he had just been robbed and had obtained the license number of the motorcycle used by the robbers. Police officers went to the gas station and interviewed Mr. Flores. He described the robbers as two Mexican males, and explained that one of them stayed on the motorcycle and the other brandished a white gun and asked for his money. One of the robbers took some cash and went through some drawers, and the two men then left. About $30 was missing from the gas station. Mr.

Flores provided the police officers with the license plate number of the motorcycle. Police officers received a radio broadcast indicating that the motorcycle was registered to defendant, and they promptly went to the address listed on the motorcycle registration. They were told that defendant no longer lived there, and were directed to his current residence. When the officers arrived at defendant’s apartment, he was not at home. Two visitors let them in, one of whom was Millie Dominguez.

While they were there, the telephone rang and a police officer answered it, speaking in Spanish and identifying herself as Millie Dominguez. The caller identified himself as Fermín Ledesma and said that he was “hot,” that the police were looking for him, and that she should lock the apartment and the doors of his car and take a walk. The police were unsuccessful in locating defendant at that time. Three days after the robbery, the police showed Mr. Flores a six-image photographic lineup. He identified a picture of defendant as looking like the person who held the gun during the robbery.

The police then obtained a warrant for defendant’s arrest. On September 1, 1978, police officers proceeded to defendant’s apartment. They did not find him there, but defendant’s friend Jesse Perez was in the apartment. Because Jesse resembled the description of the second robber, the police took him into custody for questioning. During the interview, Jesse was told that a warrant had been issued for defendant’s arrest, that Jesse was also a suspect, and that a photographic lineup with Jesse’s picture would be shown to the victim. He was released after the interview. A few days later, on September 5, 1978, Mr.

Flores disappeared. At approximately 3:00 that afternoon he had started work at the same gas station that had been robbed about one week earlier. Later that evening, the police found the gas station open but with no attendant on the premises. Three days later, on September 8, 1978, Mr. Flores’s body was found in a ravine in the City of Gilroy. There were four gunshot wounds to his body from .22-caliber bullets, and two stab wounds to the chest. Mr. Flores had been wearing light tan boots when he arrived at work on the day he disappeared, but when his body was found it lacked any footwear.

He had no paper money in his pockets, only a small number of coins. According to the gas station manager, Mr. Flores normally carried about $30 in cash when he was working, so that he could make change for customers. Three or four days after Mr. Flores disappeared, the manager noticed that a tapestry that had been hanging in the gas station was missing. Defendant was not immediately arrested because, shortly after the killing, he moved to Salt Lake City, Utah. In March of 1979, a deputy sheriff who was attempting to locate defendant in San Jose pulled over a car in which defendant was a passenger.

When the deputy asked defendant his name, he replied “you have the right guy,” and he was arrested for the robbery and murder of Mr. Flores. No physical evidence connected defendant to the gas station robbery or the murder, but a number of witnesses testified that defendant had admitted committing the crimes. At trial, Santiago Ontiveros, a friend of defendant’s, denied remembering anything defendant told him about the robbery, but in a taped interview he had told the police that defendant had said he committed the robbery with Jesse Perez.

Sylvia Lopez Ontiveros, who had been married to Santiago Ontiveros, also denied at trial remembering that defendant had said anything to her about the crimes. Her contrary preliminary hearing testimony was read into the record. She testified at the preliminary hearing that during a telephone call, defendant told her he had killed a person who had identified him in a robbery. According to that testimony, defendant told her that if he eliminated the witness, there would be no one to testify against him. When he went to the gas station, the victim did not recognize him, but was killed anyway.

Defendant told Sylvia Ontiveros that he was going to leave town and change his identity. A statement made by Sylvia Ontiveros to the police was consistent with her preliminary hearing testimony. Jona Cardona, who had been George Perez’s girlfriend at the time of the crimes, testified that she overheard a conversation in which defendant said that he and Jesse had robbed a gas station and that the person they robbed had identified defendant from a photograph and knew his motorcycle license number. According to Cardona, defendant said he was going to obtain revenge on the man who worked at the gas station.

Later, after she learned the man had been killed, she overheard another conversation in which defendant and George Perez discussed how the man had died: Defendant and three others—George, Jesse, and someone known as “Crazy Joe”—went to the gas station and asked the man to put some oil in the back of their truck. They pushed him into the truck, drove him into the mountains, and shot and stabbed him. In another conversation recounted by Cardona, the other individuals teased Jesse because he would not stab the man and because he stole the man’s boots.

After defendant had been arrested, Cardona made an anonymous telephone call to the police to report what she had heard, because she believed that defendant was receiving all the blame even though others were involved. A tape recording of that telephone call was played at the trial. Cardona’s sister, Shirley Chavez, testified that she had overheard a conversation between defendant, George Perez, and “Crazy Joe.” According to Chavez, in this conversation defendant did most of the talking. He said that he and Jesse had robbed a gas station.

Later defendant, Jesse, George, and Joe went back and kidnapped the victim because he had selected defendant’s picture from a lineup. Defendant shot him. He asked the others to stab the victim so that he would not be the only person involved. They dumped the body in an orchard. Jesse kept the victim’s boots. As noted above, shortly after the murder, defendant moved to Salt Lake City. Two men who met defendant while he was in Utah testified that defendant had admitted committing a robbery and murder.

Michael Shay testified that in 1979 defendant told him he was wanted for a gas station robbery and a murder in California. Defendant told Shay he had warned the victim not to “narc” on him. He returned to the gas station, asked the attendant to put a case of oil into his vehicle, and then shoved him into the vehicle. According to Shay, defendant said he drove the victim to the mountains and shot him in the head and chest. Similarly, Floyd Cowdell testified that defendant told him he had committed a robbery at a gas station and had gone back to kill the witness, and that he was wanted for murder.

Defendant said he kidnapped the attendant, took him into the hills, and shot and stabbed him. The defense contested the prosecution’s case in numerous respects. It challenged on a variety of grounds the credibility of each prosecution witness who testified concerning defendant’s admissions, including the witnesses’ drug use at the time of the crimes, bad character, motives to lie and to curry favor with the police, and prior inconsistent statements.

The defense also offered evidence that the murder may have been committed by one Joe Guerra, the “Crazy Joe” mentioned in some of the witnesses’ testimony as a participant in the crimes. Jona Cardona identified a picture of Guerra as looking like the person she had referred to as “Crazy Joe.” The police had interviewed Guerra in connection with the present case. In that interview, Guerra denied involvement in this offense but admitted setting up hits for the Mexican Mafia.

His former girlfriend testified that he once asked her what she would think if he told her he had killed the person at the Hudson gas station in 1978, but she told him she did not want to hear about it. The defense, in support of two alternative theories, presented lay and expert testimony regarding defendant’s personality and mental condition.

The first theory was that, to the extent defendant may have made statements admitting these crimes, he either was telling lies to make himself seem more important to his peers, or, because of his extensive drug use, he did not really remember whether he had committed the crimes and was using information he received from other persons to fill the gaps in his memory. Second, defendant claimed diminished capacity.

Defense experts opined that defendant was incapable of premeditating or forming the intent to kill at the time the crimes occurred, because of his extensive phencyclidine (PCP) use combined with his low intelligence and the effects of brain damage caused by beatings he received as a child and exposure to toxic chemicals. In support of these mental defect defenses, several witnesses testified concerning defendant’s heavy use of PCP in 1978.

Witnesses also testified that he was more of a follower than a leader and that he had a propensity to exaggerate or tell lies to make himself seem more successful and important to his peers. Prosecution witness Floyd Cowdell testified that when defendant told him about the crimes, he appeared to be trying to act “macho.” When defendant was a child, he was frequently beaten by his father and his older brother. He was teased as a child because he was slower than other children and had buck teeth and a large cyst over his eye. An expert on drug addiction, Dr. H.

Westley Clark, testified for the defense that PCP alters perceptions and can cause psychosis, delusions, and hallucinations. As Dr. Clark explained, a person under the influence of PCP could appear to function normally but have a memory gap, which is similar to what occurs in an alcohol blackout. Persons who have memory gaps tend to deduce what happened or fill the gap with information suggested by another person, and come to believe that they actually remember the prior event. Dr.

Clark opined that the memory of a chronic PCP user generally would be unreliable and that a person under the influence of PCP could not deliberate, although he or she might be able to form the intent to kill. A psychologist, Dr. Anne Evans, testified concerning the results of psychological tests she performed on defendant. His intelligence quotient was in the low average range, but he scored much lower on the verbal test than on other aspects of the tests. The tests she administered suggested the possibility of brain damage.

When defendant was young, he was teased by his peers because of the cyst over his eye and his buck teeth, and because he was skinny and slow. According to Dr. Evans, defendant attempted to compensate for Ms feelings of inadequacy by bragging. Dr. Evans asserted that if defendant claimed he was involved with the killing, it is possible he could have convinced himself that was true after hearing other individuals say tMs was so, or that he was trying to build Mmself up. Defendant told her he thought he knew who had committed the crime but could not tell her who it was.

He also said he could not remember but believed he was not responsible, while acknowledging it seemed possible that he was. Dr. Evans opined that, in 1978, defendant could not have premeditated, and lacked the capacity to deliberately intend to kill or to form malice—both because of Ms mental defects and because PCP interferes with impulse control and with the ability to deliberate and think clearly, sometimes to the point of causing psychosis. Dr. Eric Morganthaler, a licensed clinical psychologist who performed neuropsychological tests on defendant, found him to be fine in some areas but impaired in others.

According to Dr. Morganthaler, defendant is able to function in the world but is slow in processing information and responding to it. His pattern of neurological defects suggests organic brain damage. Dr. Morganthaler explained that defendant’s history of head traumas, Ms cMomc drug use, and his exposure to toxic chemicals were possible sources of brain damage and that persons with brain damage are generally more susceptible to the effects of drugs. Dr.

Fred Rosenthal, a psychiatrist, testified that defendant appeared to have brain damage that produced lapses of judgment and an inability to think creatively and deal with complex material. According to Dr. Rosenthal, defendant had low self-esteem because of his chaotic childhood and the beatings he suffered during that period. Dr. Rosenthal explained that defendant resorted to drugs for relief from both psychic and physical pain and that defendant’s need to feel powerful and overcome feelings of worthlessness could lead him to exaggerate matters, such as admitting a killing he did not commit. According to Dr.

Rosenthal, even telling a doctor that he committed a murder could be a way of establishing power in the relationship, and a person who was intoxicated with PCP would lack the ability to deliberate or think clearly, or to form the mental states of express or implied malice. Finally, Dr. Rosenthal stated that a person with brain damage tends to be more sensitive to further injury and to drugs. Dr. Michael Radelet, a sociologist, testified concerning a study he had conducted of persons who had been convicted of murder but who were in fact innocent of that charge. Dr.

Radelet found that false confessions sometimes occur when the person does not actually remember the crime but confesses, believing himself responsible, and when the person knows he did not commit the crime but is boasting. Dr. Radelet stressed that drug use and a history of making false statements reduce the probability that a confession is true. On rebuttal, the prosecution presented the testimony of Dr. John Glathe, a psychiatrist who had been appointed by the court to examine defendant and advise defense counsel before defendant’s first trial. Dr.

Glathe testified that defendant told him he had committed the robbery at the gas station and that one week later he went back and kidnapped the victim, killing him by shooting and stabbing him. The prosecution also presented testimony from a psychiatrist, Dr. Lee Coleman, who challenged the reliability of the defense experts and disputed their conclusions. Dr.

Coleman opined that the various psychological tests and assessment tools employed by the defense experts were unreliable or irrelevant to the issues and that none of them were useful in determining, after the fact, the nature of a defendant’s state of mind at an earlier time. In Dr. Coleman’s opinion, although the use of drugs could incapacitate a person to the extent that he or she could not form the intent to commit a crime, a person so impaired by drugs would lose the ability to act before losing the ability to form the intent to act. In Dr.

Coleman’s view, the most reliable indicator of a person’s intent is “what they do, how they do it, and the context in which they do it,” and laypersons are just as successful, if not more so, as mental health professionals in determining a person’s intent. Dr. Coleman asserted that the presence of organic brain disorder reveals nothing about a person’s intent; in Dr. Coleman’s view, if the brain disorder interferes with intent, that same disorder also would be reflected in the person’s behavior. Furthermore, in Dr.

Coleman’s opinion, none of the evidence presented by the defense experts supported the conclusion that defendant had organic brain damage. The jury found defendant guilty on all charges and found true the various allegations, including the special circumstances. At the penalty phase, the prosecution presented evidence that when defendant was in Utah during February 1979, he committed two armed robberies of gas stations and an attempted robbery of a market. During the attempted robbery, defendant fled from the store when the owner produced a shotgun.

Floyd Cowdell testified that defendant told him that the store owner took a shot at him and he shot back. In mitigation, defense counsel presented testimony concerning defendant’s history and background that supplemented the information presented during the guilt phase, relating to the abuse suffered by defendant as a child. Mr. Schiraldi, a social worker, conducted a background investigation of defendant’s social history and described how defendant was beaten as a child and teased because of his appearance and mental slowness.

Schiraldi reiterated that, as a result, defendant suffered from low self-esteem and turned to drugs at an early age. When defendant married and began residing with his wife, he was doing relatively well, working hard and relying less on drugs and alcohol. He discovered, however, that his wife was being unfaithful to him. The social worker explained that after defendant and his wife separated, he resided with an aunt and an uncle in Coalinga, where he worked regularly, helped around the house, and contributed financially to the household.

Still, the social worker testified, defendant was very depressed about having separated from his wife and his children, eventually returning to San Jose in the hope of reuniting with them. When this effort was unsuccessful, his drug use increased. Several witnesses testified that during the time defendant was incarcerated, he became more religious, accepted responsibility, and felt remorse for his crimes. Defendant expressed remorse to Dr. Rosenthal and said he was disturbed by the realization that defendant was involved in someone having been killed. Dr. Rosenthal was aware defendant had wanted to plead guilty.

A jury consultant who worked for the defense testified that defendant consistently desired to plead guilty and receive a life sentence. Defendant’s cousin corresponded with defendant while defendant was in prison, instructing him on the Bible. She testified that defendant wanted to make peace with God and be forgiven for his sins. The chaplain at the county jail testified that defendant took communion, had expressed remorse for his past lifestyle, had great concern for his daughters, and hoped he still could do something productive with his life.

Father Wood, a Jesuit priest who had discussed defendant with the jail chaplain and had met defendant once, testified that defendant admitted committing a crime and said he was sorry. Father Wood thought defendant felt remorse and wished to be allowed to live so that he would have the opportunity to repent. A psychologist who worked in the prison system testified that, if given a life sentence, defendant would have a chance to do useful work, improve his education, and participate in a religious program. II. Guilt Phase Issues A.

Grand Jury Indictment Defendant contends that under the Fifth, Eighth, and Fourteenth Amendments to the federal Constitution he could not be lawfully prosecuted for a capital offense or sentenced to death in the absence of a grand jury indictment. To the contrary, California’s practice of charging by information after a preliminary hearing does not violate the federal Constitution. (Rose v. Mitchell (1979) 443 U.S. 545, 577, fn. 7 [61 L.Ed.2d 739, 99 S.Ct. 2993]; Hurtado v.

California (1884) 110 U.S. 516, 538 [28 L.Ed. 232, 4 S.Ct. 111]; In re Terry (1971) 4 Cal.3d 911, 926 [95 Cal.Rptr. 31, 484 P.2d 1375].) Grand jury oversight of the prosecutor’s decision to seek the death penalty is not compelled by the Eighth Amendment. “[P]rosecutorial discretion to select those eligible cases in which the death penalty will actually be sought does not in and of itself evidence an arbitrary and capricious capital punishment system or offend principles of equal protection, due process, or cruel and/or unusual punishment.” (People v.

Keenan (1988) 46 Cal.3d 478, 505 [250 Cal.Rptr. 550, 758 P.2d 1081].) No authority supports defendant’s contention. B. Jury Selection 1. Number of peremptory challenges Defendant argues that the trial court erred in limiting him to 20 peremptory challenges. At the time of his first trial,

section 1070 permitted each side in a capital case to exercise 26 peremptory challenges.

Section 1070 was repealed effective January 1, 1989. (Stats. 1988, ch. 1245, § 30, p. 4155.) The same enactment added Code of Civil Procedure,

section 231, subdivision (a), which provides only 20 peremptory challenges to each side in a capital case. (Stats. 1988, ch. 1245, § 2, pp. 4140, 4152.) Defendant argues that former

section 1070 governed his case because (1) he was entitled to have his second trial conducted under procedures no less beneficial to him than the first trial, and (2) pretrial proceedings—including motions and discovery—began in his retrial before the effective date of Code of Civil Procedure

section 231. A new or amended statute applies prospectively only, unless the Legislature clearly expresses an intent that it operate retroactively. (Tapia v.

Superior Court (1991) 53 Cal.3d 282, 287 [279 Cal.Rptr. 592, 807 P.2d 434].) “[A] law governing the conduct of trials is being applied ‘prospectively’ when it is applied to a trial occurring after the law’s effective date, regardless of when the underlying crime was committed.” (Id. at p. 289.) Application of a change in law that occurred after the crime took place is retroactive only if it changes the legal consequences of a defendant’s past conduct. (Id. at p. 298.) In Tapia, this court held that changes in the procedures for conducting voir dire that were made by Proposition 115 could be applied to the defendant’s case even though the crime with which he was charged took place before the effective date of the changes. (53 Cal.3d at p. 299.) Likewise, application in defendant’s trial of Code of Civil Procedure

section 231, subdivision (a)’s changes to the procedures for voir dire did not constitute a retroactive application of that statute. We reject defendant’s argument that application of Code of Civil Procedure

section 231 to his case is retroactive because the pretrial portions of his trial began before that statute went into effect. The operative date for determining prospective application of a statute is the “date of the conduct regulated by the statute.” (Tapia v. Superior Court, supra, 53 Cal.3d at p. 291; see People v.

Hayes (1989) 49 Cal.3d 1260, 1274 [265 Cal.Rptr. 132, 783 P.2d 719] [holding that a new statute specifying conditions under which the testimony of a witness who has undergone hypnosis may be admitted could not be applied in a retrial after the effective date of the statute when the witness had been interviewed under hypnosis before the effective date of the statute].) Code of Civil Procedure

section 231, subdivision (

a) governs the conduct of the jury selection portion of the trial. Therefore, application of the statute that was in effect at the time defendant’s jury was selected is a proper, prospective application of the statute. Defendant also argues that he should have been tried under the procedures applicable at his first trial, because he was entitled to be placed in no less advantageous a position had he not been denied his constitutional right to effective representation at his first trial.

In other words, he contends that the reduction in the number of peremptory challenges available to him constituted a form of prejudice caused by his first attorney’s ineffective assistance. Defendant’s contention that the application of Code of Civil Procedure

section 231 to his case can be attributed to his counsel’s ineffectiveness is questionable, but even if he were correct, he has failed to establish that he was prejudiced. If former

section 1070 had been applied at trial, the prosecution would have been entitled to the same number of peremptory challenges as the defense. There is no basis in this record upon which to conclude that it would have been to defendant’s advantage had both sides been given additional challenges. Defendant argues that even if he was not statutorily entitled to 26 peremptory changes, the trial court abused its discretion in denying him those additional challenges. Defendant contends that the court erroneously believed it lacked the power to grant additional challenges and therefore failed to exercise its discretion.

In denying defendant’s request for 26 peremptory challenges, the court cited People v. Whitmore (1967) 251 Cal.App.2d 359 [59 Cal.Rptr. 411] and People v. Carter (1961) 56 Cal.2d 549 [15 Cal.Rptr. 645, 364 P.2d 477], two cases that appear to support the proposition that the trial court may not grant more peremptory challenges than are permitted by statute. (But see People v.

Bittaker (1989) 48 Cal.3d 1046,1088 [259 Cal.Rptr. 630, 774 P.2d 659] [when a defendant claims the court erroneously denied a challenge for cause and expresses dissatisfaction with the jury, granting an additional peremptory challenge may be an appropriate remedy].) Even if we assume the trial court was mistaken about the scope of its authority, we find no abuse of discretion here, because defendant has not provided any justification—either to this court—or to the trial court for the trial court to have exercised its discretion to grant defendant 26, rather than 20, peremptory challenges.

Furthermore, to support a claim that he is constitutionally entitled to more peremptory challenges than are provided by statute, a defendant must establish “at the very least that in the absence of such additional challenges he is reasonably likely to receive an unfair trial before a partial jury.” (People v. Bonin (1988) 46 Cal.3d 659, 679 [250 Cal.Rptr. 687, 758 P.2d 1217].) Defendant has not made such a showing. 2. Death penalty voir dire Defendant makes a number of challenges to the adequacy of the procedures employed during the voir dire of jurors concerning their views regarding the death penalty.

Prospective jurors initially filled out a lengthy questionnaire addressed solely to their views concerning the death penalty. Each was then questioned individually concerning his or her ability to make a penalty decision, in accordance with then applicable procedures established in Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301]. Those jurors who were not excused during the Hovey voir dire then completed a second questionnaire, which addressed their general qualifications, and participated in the general voir dire.

In a few instances, discussion of some jurors’ views regarding the death penalty also took place during the general voir dire. Defendant contends that the jury selection process was arbitrary and unfair, in violation of the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and

article I, sections 7 and 15 of the California Constitution, in numerous respects. As explained below, we find no error. The trial court’s denial of defense counsel’s request to provide the jurors with a single, consolidated questionnaire on both death penalty and general issues did not deprive counsel of the use of general information critical to an adequate Hovey voir dire. Those jurors who were not disqualified during the Hovey voir dire were required to complete the subsequent general questionnaire. As in People v.

Clark (1990) 50 Cal.3d 583, 597 [268 Cal.Rptr. 399, 789 P.2d 127], “[defendant was not precluded from attempting to show in the subsequent general voir dire that a juror harbored any specific bias that would cause him to vote for the death penalty without regard to mitigating evidence, and thus should be excused for cause.” (See also People v. Medina (1995) 11 Cal.4th 694, 746 [47 Cal.Rptr.2d 165, 906 P.2d 2].) Defendant’s contention that the Hovey voir dire was inadequate because the trial court conducted it without a full understanding of the applicable death penalty law is without merit.

As noted above, these proceedings were governed by the version of the death penalty law that was adopted by the Legislature in 1977, rather than the version of the law adopted by initiative in November of 1978, shortly after the charged offenses were committed.

Defendant contends the trial court was under the mistaken impression that jurors would be instructed to “weigh” aggravating and mitigating factors (as required by the 1978 death penalty law) in addition to being instructed to “consider, take into account, and be guided by” the factors (as required by both the 1977 and 1978 laws). (See § 190.3; former § 190.3, added by Stats. 1977, ch. 316, § 11, pp. 1258-1260.) Under both laws, the jury must consider the aggravating and mitigating factors and has the “responsibility to decide what penalty is appropriate under all the relevant circumstances.” (People v.

Brown (1985) 40 Cal.3d 512, 544 [230 Cal.Rptr. 834, 726 P.2d 516].) The weighing requirement simply makes clear that jurors are to limit their consideration to the factors listed in the statute. (Ibid.; People v. Boyd (1985) 38 Cal.3d 762, 773 [215 Cal.Rptr. 1, 700 P.2d 782].) It is inconceivable that the difference between the two laws could have made a significant difference in any juror’s ability to follow the law and impartially consider both possible punishments.

We cannot conceive of how defendant could have been prejudiced by the circumstance that, during voir dire, the jurors were told by the trial judge and defense counsel that the words “life without possibility of parole” mean exactly what they say, but were told later, during deliberations, to ignore the possibility that a person serving a term of life without possibility of parole might someday be released.

Instructing jurors to take literally the words “life without possibility of parole” served to impress upon them the seriousness of their decision and to overcome the common misperception that all life prisoners may eventually be paroled. (See People v. Thompson (1988) 45 Cal.3d 86, 129-130 [246 Cal.Rptr. 245, 753 P.2d 37].) Furthermore, defense counsel himself informed jurors during voir dire that life without parole meant exactly that, and the prosecutor’s objection to that statement was overruled by the trial court.

The court did not err in permitting some jurors to be questioned about their views concerning the death penalty during the general voir dire. This practice is not improper. (See People v. Davenport (1995) 11 Cal.4th 1171, 1204 [47 Cal.Rptr.2d 800, 906 P.2d 1068].) Defendant contends that the questioning of some jurors about their views on the death penalty in the presence of the others tainted them, but fails to establish any specific prejudice. Defendant similarly fails to establish that the jury was “tainted” by Juror Carol S., who mistakenly had been dismissed and later was called back for general voir dire.

Carol S. discussed her views on the death penalty in the presence of the other members of the panel and ultimately was excused because she would be unable to return a death verdict under any circumstances. Defendant’s contention that other jurors who were present during the voir dire of Carol S. learned what answers to give in order to have themselves removed from the jury is pure speculation. Defendant contends that sealing the juror questionnaires violated his, and the public’s, right to a public trial.

The instructions that accompanied the juror questionnaires informed the jurors that these documents would be used only by the court and lawyers and that they would be kept in confidence under seal after the jury was selected. Defendant’s claim is forfeited by his failure to make any objection at trial to the handling of the questionnaires. (See People v. Edwards (1991) 54 Cal.3d 787, 813 [1 Cal.Rptr.2d 696, 819 P.2d 436] [a defendant may waive right to public trial by acquiescing in an order of exclusion]; People v.

Thompson (1990) 50 Cal.3d 134, 157 [266 Cal.Rptr. 309, 785 P.2d 857] [right to public trial may be waived by failure to assert it in a timely fashion].) Defendant also contends that the trial court erred in permitting jurors to take home the questionnaires in order to complete them. This claim is forfeited by defendant’s failure to object on this ground at trial. In any event, defendant cites no authority to support this contention.

Jurors were informed in writing that their answers to the questionnaire would have the effect of an answer given under oath and were directed by the judge to “fill out the questionnaire by yourself and not discuss it with anyone.” Defendant points to nothing in the record indicating that any juror failed to abide by these instructions. We cannot discern how the procedure followed could have affected the impartiality of the jury. (See People v. Stewart (2004) 33 Cal.4th 425, 456 [15 Cal.Rptr.3d 656, 93 P.3d 271] [rejecting claim that Code Civ.

Proc. § 223 required prospective jurors to complete the questionnaire in the presence of the other prospective jurors].) 3. Challenges to Juror Peter W. Defendant makes a number of contentions related to the trial court’s refusal to excuse Juror Peter W. or to grant defendant an additional peremptory challenge in order to excuse him. At the time Peter W. underwent general voir dire, defendant had used 19 of his 20 peremptory challenges. Peter W. worked for the county department of corrections. During voir dire, the prosecutor asked him whether he knew defendant.

Peter W. replied that he was employed in the main jail, and that he believed defendant “stayed in the old building.” The prosecutor then questioned him further concerning whether he had seen defendant at the jail. Defense counsel moved for a mistrial on the ground that the prosecutor improperly had informed the jurors that defendant was in custody.

The court denied the motion for mistrial but, upon defendant’s request, the court ordered the prosecutor not to delve any further into the juror’s occupation “as it relates to the defendant.” Defense counsel asked for one additional peremptory challenge, “because there is contamination prejudice.” The trial court denied that request as well. Defense counsel then challenged Peter W. for cause on the ground that the juror knew that defendant was in custody.

Defense counsel questioned the juror further concerning whether the nature of his job might affect his ability to serve, and the juror indicated that it would not. During this questioning, Peter W. reconfirmed his earlier statements that he would be very cautious in making a decision that could result in a severe punishment.

Defense counsel then explained to the judge that counsel faced a dilemma: he could either employ his last peremptory challenge to remove a juror who had a leaning against the death penalty, or retain him even though he was contaminated as a result of his knowledge that defendant was currently in custody. Defense counsel offered to stipulate to excuse the juror for cause. The prosecutor agreed to the stipulation for tactical reasons, but stated he did not believe the trial court had erred in its rulings.

The trial court refused to accept the stipulation, stating that the juror was qualified and that there was no impediment to his service. Defense counsel employed his final peremptory challenge to excuse another juror, and Peter W. served on defendant’s jury. Defendant contends the trial court abused its discretion in refusing to accept the stipulation.

Defendant asserts that the parties are entitled to stipulate to the excusal of a juror absent “extraordinary circumstances.” Instead, “[assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court.” (People v. Weaver (2001) 26 Cal.4th 876, 910 [111 Cal.Rptr.2d 2, 29 P.3d 103]; see Code Civ.

Proc., §§ 225, subd. (b)(1) [specifying grounds for challenge for cause], 230 [challenges for cause shall be determined by the court].) Defendant has cited no authority suggesting a court is required to accept the parties’ stipulation that a juror be excused for cause. (See People v. Singh (1932) 121 Cal.App. 107, 111 [8 P.2d 898] [court is not required to accept the parties’ stipulation on issues of law].) Defendant relies on the test established to determine whether parties who have settled a case while the appeal is pending are entitled to a stipulated reversal. (See Neary v.

Regents of University of California (1992) 3 Cal.4th 273 [10 Cal.Rptr.2d 859, 834 P.2d 119].) The standard established in Neary was based, in large part, on policies relevant to the settlement of civil actions—policies that are inapplicable in the present context. (See Neary, supra, 3 Cal.4th at pp. 277-280.) “On appeal, we will uphold the trial court’s decision if it is fairly supported by the record, and accept as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has given conflicting or ambiguous statements.” (People v.

Farnam (2002) 28 Cal.4th 107, 132 [121 Cal.Rptr.2d 106, 47 P.3d 988].) The court did not abuse its discretion in concluding that Peter W. was qualified to serve on defendant’s jury. The juror did not have actual contact with defendant through his employment at the jail and expressed no opinion suggesting he could not be fair and impartial.

Defendant contends that no deference is due the trial court’s ruling, because Juror Peter W.’s employment as a corrections officer in the county jail system where defendant was housed constituted “implied bias”—a presumption of bias that could not be overcome by a finding that he could be fair and impartial. Under California law, a juror may be excused for “implied bias” only for one of the reasons listed in Code of Civil Procedure

section 229, “and for no other.” (Code Civ. Proc., § 229.) If the facts do not establish one of the grounds for implied bias listed in that statute, the juror may be excused for “[ajctual bias” if the court finds that the juror’s state of mind would prevent him or her from being impartial. (Code Civ. Proc., § 225, subd. (b)(1)(C).) None of the statutory grounds for a finding of implied bias is present in this case, and the trial court concluded that Peter W. was not actually biased.

Defendant argues nevertheless that Peter W.’s position as a corrections officer and his knowledge that defendant was incarcerated rendered him unable to decide the case impartially, and that the failure to excuse him violated the Sixth Amendment’s guarantee of a trial by an impartial jury. Defendant relies upon federal cases concluding that bias may be implied or presumed from the “potential for substantial emotional involvement” inherent in certain relationships. (United States v.

Allsup (9th Cir. 1977) 566 F.2d 68, 71 [jurors should have been excused for cause from serving on case in which the defendant was charged with robbing a bank that employed them, even though they claimed they could be impartial]; see also Fields v. Woodford (9th. Cir. 2002) 309 F.3d 1095 [evidentiary hearing required to determine whether juror whose wife had been the victim of a crime quite similar to the ones charged was biased]; United States v. Eubanks (9th.

Cir. 1979) 591 F.2d 513 [juror who had two sons who were serving long prison terms for murder and robbery committed in an attempt to obtain heroin should have been excused from serving in case in which the defendant was charged with conspiracy to possess and distribute heroin].) Even assuming these federal decisions are otherwise persuasive, we discern on the present record no potential for the type of “emotional involvement” that these cases found to be grounds for disqualification. Peter W. did not work in the part of the jail in which defendant was housed.

The circumstance that he knew defendant was incarcerated did not render him unable to be impartial. (See, e.g., People v. Valdez (2004) 32 Cal.4th 73, 121 [8 Cal.Rptr.3d 271, 82 P.3d 296]; People v. Bradford (1997) 15 Cal.4th 1229, 1336 [65 Cal.Rptr.2d 145, 939 P.2d 259].) Defendant also contends that the trial court abused its discretion in refusing to grant defendant’s request for an additional peremptory challenge.

To support a claim that he is constitutionally entitled to more peremptory challenges than are provided by statute, a defendant must establish “at the very least that in the absence of such additional challenges he is reasonably likely to receive an unfair trial before a partial jury.” (People v. Bonin, supra, 46 Cal.3d 659, 679; see People v.

Pride (1992) 3 Cal.4th 195, 231 [10 Cal.Rptr.2d 636, 833 P.2d 643] [additional peremptory challenge not required when the defendant did not demonstrate that the trial court erroneously denied challenges for cause and none of the allegedly biased prospective jurors actually served on the jury].) Other than the meritless contention that Peter W.’s employment at the jail was ground for disqualification, defendant suggests no reason that an additional peremptory challenge was necessary in order to avoid an unfair trial.

Defense counsel argued that he needed the additional challenge because the jury panel was tainted by the information that defendant was in custody, but any such bias could have been addressed through an appropriate admonition, had one been requested. 4. Denial of challenges based on jurors’ views concerning the death penalty Defendant contends that the trial court erred in denying eight challenges to jurors under Wainwright v.

Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844]. “A prospective juror who would invariably vote either for or against the death penalty because of one or more circumstances likely to be present in the case being tried, without regard to the strength of aggravating and mitigating circumstances, is . . . subject to challenge for cause . . . .” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005 [30 Cal.Rptr.2d 818, 874 P.2d 248].) “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].) Under this deferential standard of review, we find no error. The trial judge concluded that each of the prospective jurors at issue (none of whom ultimately served on the jury) would follow the court’s instructions and consider the relevant circumstances before making a decision. As we explain below, the trial court’s conclusions are supported by the record.

a) George C. George C. initially stated that he was “pretty much noncommittal” concerning the appropriate penalty and would not favor the defense or the prosecution. He also stated, however, that he would not give much weight to a defendant’s background, psychiatric evidence, age, childhood abuse, drug use, or testimony from family members, as long as the person knew right from wrong. Although he would not afford such evidence much weight, he would consider it.

And, he stated, he would follow the court’s instructions and, if persuaded by the evidence, could return a verdict of life imprisonment without possibility of parole. The trial court properly disallowed the challenge.

The court noted that although the prospective juror was somewhat unwilling to give weight to particular mitigating factors, he was not asked about other mitigating and aggravating factors, and the juror’s decision is based on “the final evaluation of all the circumstances.” The prospective juror never stated he would vote for the death penalty without regard to mitigating evidence, but merely expressed his view that certain types of evidence were not entitled to much weight in the penalty decision.

b) Glenn H. Glenn H. stated several times that he definitely would vote for the death penalty if a deliberate, premeditated murder were proved. On his questionnaire he indicated that anyone who intentionally kills another person automatically should receive the death penalty and that he would not be willing to give weight to defendant’s background. He stated, however, that if he were instructed that he must consider other evidence, he would follow the instructions.

In that circumstance, he stated he would not automatically vote for death, but the mitigating evidence would have to be “very overwhelming” to cause him to change his opinion. Childhood beatings, alcohol or drug problems, and mental problems short of insanity would not affect his decision. He said he would consider other mitigating evidence, including whether defendant was dominated by someone else, acted under duress, or was a minor participant in the crime and, if persuaded, could vote for life imprisonment without possibility of parole.

Defense counsel challenged Glenn H. for cause on the ground that the only mitigating factors he was willing to consider were ones that were not relevant to the case. The court properly disallowed the challenge, stating that it believed the juror would follow the law and would consider both penalties before arriving at a decision.

Despite the personal opinions he asserted at the beginning of voir dire, this prospective juror stated he would consider the mitigating evidence as required by the court’s instructions and could vote for life imprisonment without possibility of parole if persuaded that was the appropriate penalty.

c) James L. James L. stated that a person who commits a murder should receive the death penalty and that he would automatically vote for the death penalty if he were convinced that an intentional murder had been committed. He also stated, however, that this was only his opinion—he would follow the law, keep an open mind, and consider both penalties. When questioned by defense counsel, James L. confirmed that he would automatically vote for the death penalty for an intentional, cold-blooded murder.

But after the prosecutor and the court further explained his obligations under the law, he indicated he would keep an open mind and would seriously consider both penalties. The trial court properly denied defense counsel’s challenge for cause. The prospective juror acknowledged that his initially stated views were only his personal opinion and that he would follow the law requiring him to consider both penalties.

d) John V. On his questionnaire, John V. wrote that a person who intentionally killed someone who had done nothing to harm the killer always should receive the death penalty. If faced with an intentional killing during a robbery or the killing of a witness, and there was no other relationship between the killer and the victim, he believed the death penalty always should be imposed. Information concerning defendant’s background would not, he stated, carry much significance.

He also stated, however, that he would follow the law as instructed and keep an open mind, and if the evidence warranted it he could vote for life imprisonment without possibility of parole. He felt that he would vote for the death penalty, but conceded it was possible that upon learning more facts he might change his mind. The trial court properly disallowed defense counsel’s challenge for cause, stating it appeared the juror was “ambivalent at the moment and would follow the law and the evidence as given in the case.”

e) Jean A. Jean A. believed in the death penalty and doubted that life imprisonment without possibility of parole truly was carried out. But she did not lean strongly toward the death penalty and thought her ultimate decision would depend on the case and the circumstances. She considered herself an opinionated person and stated it would take a lot to sway her—the burden would be on the defense to convince her of extenuating circumstances. At the penalty stage, she could wait until she heard all the evidence before making a decision.

She explained she would try to keep an open mind, although she would find it difficult to be fair to both sides because she has very strong feelings against violence and would find it difficult to be lenient. She did not believe that anyone who intentionally kills should be sentenced to death automatically because, she conceded, there might be extenuating circumstances. She thought she could keep an open mind and listen to whatever extenuating circumstances were presented at the penalty phase, including psychological testimony. Defense counsel challenged her for cause.

The court found the challenge to present a close question because Jean A.’s answers fluctuated, but ultimately concluded the prospective juror would follow the court’s instructions, and hence the court disallowed the challenge. In view of the prospective juror’s conflicting responses, we defer to the trial court’s conclusion that she could follow the law.

f) Gary M. Gary M. had been the victim of a robbery in 1982, during which the robber attempted to shoot him. He stated that he had considered whether his being shot at might be a reason to excuse him from the case, but that he was trained in science and followed the scientific method; he felt he would be willing to follow the rules and decide the case in accordance with the evidence. He stated that if the killing were intentional and committed with a gun, he felt the death penalty should be automatic, but later clarified that he would have to know the circumstances and hear the instructions on the law.

If the judge told him he was to consider defendant’s background and the circumstances of the crime in deciding the appropriate penalty, and to keep an open mind, he would follow those instructions and put aside his personal beliefs. Defense counsel challenged Gary M. for cause based upon his stated views regarding the death penalty and the fact that he had been shot at during a robbery. The court properly disallowed the challenge, stating that the juror was in “the category of those who would favor the death penalty but would not impose it in every case.”

g) Harley R. Harley R.’s brother had been the victim of a robbery in 1984, during which he was beaten with a gun and sustained serious injuries. When questioned concerning whether that event would have any effect upon him if he served on the case, the prospective juror stated he believed he could keep an open mind. He believed the death penalty always should be imposed if a person murders in order to cover up a crime and that a person’s background should not carry strong weight if the person knew right from wrong.

Although it would be very difficult to convince him not to vote for the death penalty, it was possible he could be swayed and could set aside his personal feelings, follow the law, keep an open mind, and consider all of the mitigating factors. The court properly disallowed the challenge for cause, finding that the prospective juror favored the death penalty but would not vote to impose it in every case.

h) Kathryn R. Kathryn R. stated she believed a person who deliberately killed should be put to death, in spite of any background or mitigating evidence that might be presented. She had a sister whose boyfriend had been beaten to death with a crowbar during a gas station robbery. She stated that this incident might have an effect on her because the person who committed the offense was only lightly punished and she was displeased with that outcome. At one point she stated she was unsure whether she could set aside her personal views concerning the death penalty.

After the law and the procedures were explained to her, however, she indicated she would want to know defendant’s background and “would hope” she could keep an open mind and listen to all the evidence. She could vote for life imprisonment without the possibility of parole “if it was really strong evidence.” She explained she did not believe drug and alcohol use would constitute such evidence, but a brutal childhood might hold more weight. It would be difficult but she would attempt to put aside her personal feelings concerning the death penalty.

Defense counsel challenged her for cause, but the trial court properly disallowed the challenge. Although her answers were equivocal, the trial court did not abuse its discretion in concluding she would be willing to follow the law and consider both possible penalties. 5. Implied bias Defendant additionally contends that the trial court erred in denying challenges for cause to four prospective jurors—three of those discussed above (Gary M., Harley R., and Kathryn R.) and a fourth, Gary Me.—based on their asserted “implied bias.” Gary Me. had been the victim of a robbery and shooting.

Harley R.’s brother had been the victim of a robbery, during which the brother was seriously injured. Kathryn R.’s sister had a boyfriend who was beaten to death during a gas station robbery. Gary Me. had two friends in law enforcement who were killed on the job. We apply the same standard of review to challenges for cause based upon a prospective juror’s bias as we do to challenges based on the juror’s views concerning the death penalty. “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, supra, 34 Cal.4th at pp. 896-897.) Jurors Gary Me., Harley R., and Kathryn R. were challenged during the Hovey voir dire, and all of the circumstances indicate that the challenges were based upon their views concerning the death penalty—including the impact of their personal experiences on those views—and not on any alleged inability to be impartial regarding guilt or innocence. Thus, the challenges to these jurors have been fully addressed above.

Defense counsel did challenge Gary Me. for cause based upon his relationship with law enforcement. Gary Me. had been a deputy sheriff. He had been the victim of a violent assault when he worked as a park ranger and had two friends in law enforcement who had been murdered. He stated he did not believe that experience would have any effect upon his ability to consider fairly the appropriate penalty in this case.

During the general voir dire, when defense counsel questioned him extensively about his relationship with law enforcement and whether he could be fair if questions were raised regarding the credibility or performance of a police officer, Gary Me. insisted he would maintain an open mind. He stated he could be impartial and listen to the testimony of all witnesses fairly and would not be prejudiced for or against any officer. This record supports the trial court’s conclusion that Gary Me. could be a fair juror.

As he did in relation to the challenge to Juror Peter W., discussed above, defendant argues that bias should be presumed on the basis of these jurors’ experiences with violent crime, relying upon federal cases concluding that bias may be implied or presumed from the “potential for substantial emotional involvement” inherent in certain relationships. (See, e.g., United States v. Allsup, supra, 566 F.2d at p. 71; see also Fields v. Woodford, supra, 309 F.3d 1095; United States v.

Eubanks, supra, 591 F.2d 513.) Even assuming, as discussed above, that such decisions are persuasive, these four potential jurors’ experiences with violent crime were unconnected to the present case and were not sufficiently similar to create the type of “emotional involvement” that these cases viewed as a ground for disqualification. 6. Exclusion of jurors from guilt phase under Witt Defendant argues he was deprived of due process by the exclusion of jurors from the guilt phase of his trial because of their stated inability to impose the death penalty.

He invites us to reconsider our contrary conclusion in People v. Fields (1983) 35 Cal.3d 329 [197 Cal.Rptr. 803, 673 P.2d 680], We continue to adhere to that decision, in which we held that the exclusion of jurors who could not consider imposing the death penalty from serving on the guilt phase of a capital trial was justified by the “interest of the state in maintaining a unitary jury for both phases of the trial.” (Id. at p. 353; see People v. Wader (1993) 5 Cal.4th 610 [20 Cal.Rptr.2d 788, 854 P.2d 80].) 7.

Batson-Wheeler issues Defendant contends the prosecutor employed peremptory challenges to excuse Hispanic jurors on the basis of race, in violation of his state and federal constitutional rights. (See People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]; Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712].) After the prosecutor employed one of his few remaining peremptory challenges to excuse a Hispanic-sumamed juror, defense counsel objected on the ground the prosecutor was exercising peremptory challenges on the basis of race.

After asking for and receiving the prosecutor’s explanation for excusing that juror and four other Hispanic jurors, the trial court ruled that each reason given by the prosecutor was sufficient. Defendant contends the trial court erred in so concluding and that the prosecutor’s reasons for excusing Prospective Jurors Norma R., Jimmy B., Frank F, and Irene H. were contrived.

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, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410, 2416], fn. omitted.) This court gives “great deference to the trial court in distinguishing bona fide reasons from sham excuses.” (People v. Turner (1994) 8 Cal.4th 137, 165 [32 Cal.Rptr.2d 762, 878 P.2d 521].) As explained below, the record supports the trial court’s conclusions that each of the jurors at issue was excused for valid, race-neutral reasons.

a) Norma R. The prosecutor explained that, among other reasons, he excused Norma R. because she did not know whether she could vote for the death penalty. Although she stated generally that she supported the death penalty for someone who kills intentionally, she repeatedly expressed uncertainty whether she actually could cast a vote for that punishment as a juror. The prosecutor questioned her intensively on this subject, as did defense counsel. Ultimately, she stated she thought she could make the decision, and the trial court denied the prosecutor’s challenge for cause.

The record amply supports the trial court’s conclusion that the prosecutor had an acceptable, race-neutral reason for excusing this juror. A juror’s reluctance to impose the death penalty, even if insufficient to justify a challenge for cause, is a valid reason for a prosecutor to exercise a peremptory challenge. (See People v. Johnson (1989) 47 Cal.3d 1194, 1222 [255 Cal.Rptr. 569, 767 P.2d 1047].)

b) Frank F. Similarly, the prosecutor explained that he excused Frank F. because he indicated that the prospective juror would impose the death penalty only for multiple murders. Although he stated he could vote for the death penalty if he were convinced it was appropriate, Frank F. asserted several times that he would impose that punishment only if it were shown that the perpetrator enjoyed killing and killed repeatedly.

The prosecutor noted that when asked a question calling for a yes-or-no answer, Frank F. stated he could vote to impose a death sentence, but that whenever he was asked a question calling for him to express his own views he indicated he would expect facts showing multiple murders, or someone who enjoyed killing, before he could vote to impose a death sentence. In addition, he described his feelings concerning the death penalty in general as neutral, and expressed the opinion that life imprisonment without possibility of parole was the harsher sentence. The prosecutor’s stated reason was valid. (See People v.

Johnson, supra, 47 Cal.3d at p. 1222.)

c) Jimmy B. Jimmy B. had been convicted of brandishing a weapon and of driving under the influence. The prosecutor explained that Jimmy B. had suffered the second highest number of convictions of any potential juror, and the prosecutor also had excused the one prospective juror who had more convictions. Jimmy B. also had several family members who were heroin addicts and a brother who was confined in prison.

He checked a questionnaire box indicating he was “very liberal”; he had not given much thought to the death penalty; and at one point he indicated he would require a showing of multiple murders before imposing the death penalty. These reasons are adequate, particularly when viewed in combination. “[A] party may decide to excuse a prospective juror for a variety of reasons, finding no single characteristic dispositive.” (People v. Gray (2005) 37 Cal.4th 168, 189 [33 Cal.Rptr.3d 451, 118 P.3d 496].)

d) Irene H. The prosecutor stated he lacked confidence in Irene H. He felt she was not very bright, and he was concerned about discrepancies between some of her questionnaire answers and responses she gave during oral voir dire. In the prosecutor’s opinion, the prospective juror also appeared to be predisposed toward defense counsel. The prosecutor believed Irene H. might have been an acceptable juror under some circumstances, but she was not a leader, and at the time he excused her the group appeared to be lacking in leadership. We recognized the validity of this type of strategic decision in People v.

Johnson, supra, 47 Cal.3d at page 1220: “If the panel as seated appears to contain a sufficient number of jurors who appear strong-willed and favorable to a lawyer’s position, the lawyer might be satisfied with a jury that includes one or more passive or timid appearing jurors.

However, if one or more of the supposed favorable or strong jurors is excused either for cause or peremptory challenge and the replacement jurors appear to be passive or timid types, it would not be unusual or unreasonable for the lawyer to peremptorily challenge one of these apparently less favorable jurors even though other similar types remain.” Defendant contends the trial court erred by applying the standards set out in People v.

Johnson, supra, 47 Cal.3d 1194, and by not comparing the responses of the jurors not stricken by the prosecutor with those of the Hispanic jurors he did strike, in evaluating the good faith of the prosecutor. Defendant did not request that the trial court engage in such an analysis, but argues that we should do so on appeal. In Johnson, we held that a reviewing court is not required to engage in a comparative analysis of jurors. Assuming without deciding that the United States Supreme Court’s decision in Miller-El v.

Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196, 125 S.Ct. 2317] (Miller-El) requires us to perform an analysis comparing jurors the prosecutor excused with those he or she did not excuse, we conclude that the comparative analysis relied upon by defendant fails to demonstrate purposeful discrimination.

In Miller-El, the high court stated that “[i]f 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].) That analysis does not provide a basis to doubt the trial court’s findings in the present case, however, because the examples of “comparative” jurors cited by defendant are not truly comparable to those whom the prosecutor excused.

For example, the circumstance that the prosecutor did not strike some jurors who had received traffic citations for speeding does not call into question the validity of his explanation that he excused Jimmy B. because that prospective juror had convictions for brandishing a weapon and driving under the influence (which was only one of several reasons given by the prosecutor).

Defendant contends the procedures employed by the trial court were improper in that the court ruled one at a time on the propriety of each of the prosecutor’s reasons for excusing the prospective jurors, rather than ruling on the basis of the totality of the circumstances after all of the explanations had been given. Defendant complains that this procedure deprived defense counsel of the opportunity to argue, based on all of the circumstances, that the prosecutor was discriminating against Hispanics, and that the trial court did not make a meaningful and sincere determination concerning the prosecutor’s intent.

Even if it might have been better practice for the trial court to withhold its ruling until hearing all of the prosecutor’s reasons, we find no basis for concluding that its ruling might have been different had it done so. The trial court did not deny defense counsel the opportunity to argue, and defendant does not point to any circumstances in the record that would support the conclusion that the prosecutor was discriminating unlawfully in his use of peremptory challenges despite the apparently valid, race-neutral reasons he provided. 8.

Prosecutor’s conduct Defendant contends the prosecutor engaged in a continual pattern of misconduct during the voir dire proceedings, violating defendant’s right to a fair trial under the state and federal Constitutions. In essence, he complains that the prosecutor accused defense counsel of misconduct in the presence and hearing of prospective jurors, leading to frequent heated exchanges and reciprocal accusations between the two attorneys.

For example, the prosecutor complained that defense counsel was interrupting him and engaging in distracting conversation at the counsel table, stated that defense counsel’s answer to a juror’s question was incorrect and unfair, and accused defense counsel of “grandstanding.” Defendant did not object to most of the prosecutor’s comments, and to that extent the claim is forfeited. In any event, the contention is without merit.

A prosecutor’s conduct violates the Constitution only when it is “ ‘ “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214 [40 Cal.Rptr.2d 456, 892 P.2d 1199]; see People v.

Espinoza (1992) 3 Cal.4th 806, 820 [12 Cal.Rptr.2d 682, 838 P.2d 204].) Conduct that does not rise to the level of a constitutional violation will constitute prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” (Espinoza, supra, 3 Cal.4th at p. 820.) In the present case, both counsel engaged in a pattern of aggressive advocacy and mutual expressions of antagonism, which caused the trial court to admonish them frequently.

Although the prosecutor at times might have conducted himself in a more restrained manner, we do not find that any of these incidents, considered singly or in combination, amount to prejudicial misconduct. Defendant did object and requested a mistrial when the prosecutor asked Prospective Juror Peter W., who worked at the county jail, whether he ever had seen defendant there. The trial court sustained the objection and directed the prosecutor not to pursue that line of questioning.

Defendant contends the prosecutor’s voir dire of Peter W. deliberately was designed to inform other jurors that defendant was in custody and thereby undermine the presumption of innocence. We find no misconduct. Whether Peter W. had contact with defendant was a legitimate subject of inquiry on voir dire. As we have observed, “the mere fact that the jury is made aware of a defendant’s custodial status does not deprive the defendant of his constitutional rights.” (People v.

Valdez, supra, 32 Cal.4th 72, 121.) “[I]n certain circumstances a jury inevitably will learn a defendant is in custody for the current charged offense, for example where the jury is presented with the testimony of a jailhouse informant.” (People v.

Bradford, supra, 15 Cal.4th 1229, 1336 [prosecutor did not commit misconduct in eliciting responses from a witness about her continuing contacts with the defendant, from which the jury could have inferred he was in custody].) Furthermore, the trial court sustained defendant’s objections, and defendant did not request the court to admonish the jury to ignore the fact that defendant was in custody. C. Use of Material from Defendant’s First Trial 1.

Testimony that defendant had been on death row Defendant contends the trial court erred in failing to declare a mistrial after a prosecution witness, during cross-examination, mentioned that defendant had been on death row. When defense counsel was questioning Jona Cardona about conversations she testified she had with defendant, she stated, “He called me when he was on death row.” Although the witness’s statement did not reveal to the jury that defendant had been on death row as a result of prior proceedings in this same case, defense counsel subsequently revealed that circumstance.

Counsel asked the witness, “Did you not learn that Mr. Ledesma was previously convicted and went to death row in this case because he was incompetently represented, that his attorney was on drugs and gambling during the trial, and because of that the Supreme Court ruled that he had an unfair trial and that’s why we are back today?” The witness replied that she did not know, although she might have read about it in the papers.

Counsel further asked, “And you learned, did you not, that he had gone to death row or been sentenced because he had an attorney who did no investigation, put on a false defense to the court, himself, was on PCP and other drugs during trial, and was addicted to gambling . . . .” The prosecutor objected to that question, and the court sustained the objection. When questioning resumed, defense counsel referred once again to calls that defendant had made to the witness “during those many years that he sat on death row.” A few minutes later, outside the presence of the jury, defense counsel moved for a mistrial.

He argued the prosecutor was responsible for the witness and should have told her in advance not to mention defendant’s having been on death row. Once that information was revealed, defense counsel tried to minimize the prejudice by trying to explain the reason for the new trial, but was stopped by the court when it sustained the prosecutor’s objection. Defense counsel argued that no admonition the court could give would erase this from the minds of the jurors. The prosecutor explained that he did admonish this witness not to mention the previous trial.

The trial court denied the motion for mistrial, noting that it was defense counsel’s question that indicated that defendant was on death row as a result of prior proceedings in this same case. Defense counsel made a strategic decision to avoid juror speculation concerning whether defendant had committed another murder and to attempt to mitigate the damaging effects of this information by explaining to the jury that defendant previously had been convicted of the same offense for which he now was being tried but that he had not had an adequate defense at his previous trial.

Although objections had been sustained to counsel’s questions to Cardona about the prior trial, it was subsequently made clear through other witnesses that defendant’s prior trial was for the same offense and that prior defense counsel had not conducted a thorough defense. For example, when the prosecution attempted to impeach defense witnesses who testified about defendant’s drug use on the grounds that they had not mentioned the subject in the prior trial, defense counsel brought out the circumstance that the prior defense attorney had not questioned them on the subject. One of the defense experts, Dr.

Evans, testified that prior defense counsel did not have psychological tests of defendant performed. Prosecution witness Dr. Glathe testified under cross-examination that he had performed only the brief examination of defendant that prior defense counsel had asked him to perform, and that the results of tests that had been performed subsequently would have been helpful in assessing defendant.

The issue here is whether the witness’s comment was so incurably prejudicial that a new trial was required. “A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” (People v.

Haskett (1982) 30 Cal.3d 841, 854 [180 Cal.Rptr. 640, 640 P.2d 776].) A witness’s volunteered statement can, under some circumstances, provide the basis for a finding of incurable prejudice. (See People v. Wharton (1991) 53 Cal.3d 522, 565 [280 Cal.Rptr. 631, 809 P.2d 290] [motion for mistrial properly was denied because court’s admonition and witness’s later testimony under cross-examination dispelled prejudice]; People v.

Rhinehart (1973) 9 Cal.3d 139, 152 [107 Cal.Rptr. 34, 507 P.2d 642] [witness’s inadvertent answer was insufficiently prejudicial to justify a mistrial].) But we do not presume that knowledge that a defendant previously has been convicted and is being retried is incurably prejudicial. (See People v.

Anderson (1990) 52 Cal.3d 453, 468 [276 Cal.Rptr. 356, 801 P.2d 1107] [claim that trial court improperly disclosed to jury that the defendant previously had been sentenced to death for the same offense was waived by counsel’s tactical failure to object, and was not prejudicial].) In the present case, the length of time between the crime and the trial and the numerous unavoidable references to witnesses’ prior statements created a high risk that the jury would become aware that defendant had been tried previously.

As the high court has recognized, “it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” (Smith v. Phillips (1982) 455 U.S. 209, 217 [71 L.Ed.2d 78, 102 S.Ct. 940] [verdict did not deny due process, even though one juror had applied for employment with the prosecutor’s office during the trial, absent showing of actual bias].) We find no basis for concluding, on the present record, that the knowledge that defendant previously had been convicted of murder and sentenced to death was incurably prejudicial.

Furthermore, defense counsel made a strategic decision to inform the jury that defendant previously had been convicted of the same offense, rather than a different crime, and that his conviction was reversed because of the inadequate defense provided by his attorney. Counsel’s approach appears to be an appropriate attempt to minimize damage and speculation, particularly in light of the circumstance that the jury inevitably would learn that defendant had been on death row if the case went to a penalty phase.

Defendant argues that the jury’s knowledge that the first jury had convicted him for the same offense was prejudicial not only because it may have influenced the jury’s verdict directly, but also because it enhanced the credibility of prosecution witnesses Michael Shay, Floyd Cowdell, and Sylvia Ontiveros, who had testified at the first trial and whose testimony apparently had been accepted by the first jury.

The jury was given the standard instruction, “You must decide all questions of fact in this case from the evidence received in this trial and not from any other source.” We presume the jury followed that instruction. There is no reason to believe that the jurors, who observed each of these witnesses, felt compelled to ignore the court’s instruction and defer to the judgment of a different jury that resulted from a different trial. Under these circumstances, we conclude that the witness’s comment did not require a mistrial. 2.

Defendant’s prior testimony Defendant contends the trial court erred in refusing to grant a mistrial after the prosecutor referred to defendant’s false testimony at his first trial during cross-examination of defense witnesses. Testifying at his first trial, defendant denied committing the robbery or murder, claiming that on the day of the gas station robbery he had loaned his motorcycle to two friends, who later told him they had committed the robbery. At the retrial, the prosecutor asked defense expert Dr. Evans whether she had reviewed defendant’s prior testimony.

When defense counsel objected, the court asked the prosecutor, in the presence of the jury, whether he would be getting into defendant’s testimony. At that point, the court conducted a bench conference and directed the prosecutor not to pursue that line of questioning. Subsequently, the prosecutor asked defense witness Dr. Rosenthal whether defendant had admitted to him that he previously lied in court about this matter. Dr. R

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