THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE ZAMBRANO, Defendant and Appellant, 41 Cal. 4th 1082

Opinion BAXTER, J. An information charged defendant with three 1988 crimes, the attempted murders of Robert and Barbara Mishell (Pen. Code, §§ 21a, 187), and the first degree murder of Luis Reyna (§§ 187, 189). As to the attempted murders, it was alleged that defendant inflicted great bodily injury (§§ 1203.075, 12022.7) and used a dangerous and deadly weapon (§ 12022, subd. (b)).

As to the murder, the information alleged a special circumstance of witness killing (§ 190.2, subd. (a)(10)) and included further allegations that defendant inflicted great bodily injury (§ 1203.075) and committed the offense while free on bail (§ 12022.1). The prosecution’s evidence indicated that defendant, a member of the Berkeley Waterfront Commission, bludgeoned the Mishells, a University of California professor and his wife, because he believed they had made anonymous telephone calls exposing his extramarital affair.

The evidence further indicated that defendant then fatally shot Reyna, a fellow waterfront commissioner, to prevent Reyna from testifying against him in the Mishell matter. Defendant admitted attacking the Mishells, but claimed provocation. He asserted that Reyna’s death was an accident. Defendant admitted that, to cover up the homicide, he decapitated, dismembered, and scattered Reyna’s body, then fled to Mexico with his girlfriend. The jury convicted defendant of all charges and found true all the additional allegations in the information.

After hearing aggravating and mitigating evidence at the penalty phase, the jury returned a death verdict, which the trial court declined to modify. This appeal is automatic. We will affirm the judgment in full. I. FACTS A. Guilt evidence 1. The Mishell assaults and their aftermath On January 31, 1988, Robert Mishell (Robert), an immunology professor at the University of California in Berkeley and his wife Barbara, a high-ranking technician who managed Robert’s laboratory, were brutally bludgeoned in their Berkeley home. Robert sustained two depressed skull fractures and 12 head lacerations.

His injuries were life-threatening, but he largely recovered, though he suffered memory problems, could not continue teaching, and took a disability retirement. He suffered from posttraumatic amnesia and did not remember everything that occurred before the assault. Barbara received six distinct blows to the head, resulting in compound skull fractures and brain damage. Her injuries rendered her severely and permanently disabled. At the time of trial, as a result of the damage to her brain, she remained behaviorally erratic, and she still could not speak.

The trial evidence, including defendant’s own testimony, conclusively established defendant as the perpetrator of the assaults. The prosecution’s evidence was as follows: Defendant, a contractor, had done remodeling work on the Mishells’ home. Robert and defendant shared an interest in computers, but the Mishells had no other social relationship with defendant. They knew nothing of his personal life. In July 1987, defendant, a married man, began an affair with Celebration Oberman. In September 1987, defendant, members of his family, and Oberman began receiving anonymous telephone calls that exposed the affair.

Defendant was upset by the calls and suspected someone was trying to break up his marriage. Nonetheless, he continued to see Oberman. Defendant told Luis Reyna, a fellow member of the Berkeley Waterfront Commission, about the calls. Among others, defendant said, he suspected a Berkeley professor’s wife who, he claimed, was in love with him. Ultimately, defendant indicated that a private investigator had traced the calls to this couple. Reyna advised defendant to take his information to the authorities.

More than once, however, defendant said he would handle the matter “his way.” On Sunday morning, January 31, 1988, around 11:00 a.m., defendant appeared unexpectedly at the Mishell residence. He and Robert chatted on the pool deck, where Barbara joined them. All three then went inside, drank coffee, and talked politics. At some point, Robert took defendant into the dining room to demonstrate his new computer. At trial, Robert recalled that defendant was standing behind him, next to a toolbox he had brought with him. The next thing Robert remembered was waking up in bed several hours later. His head was bleeding.

He looked for his wife. He found her on the kitchen floor, bleeding, unconscious, and unresponsive. He called the police. Berkeley Police Officer Emberton arrived within minutes after Robert’s call. Robert was dazed and bleeding, but able to speak. Barbara was unconscious on the kitchen floor, with coagulated blood all around. Robert recounted to Emberton his recollection of the events leading to his injuries, but did not mention that defendant had a utility belt or toolbox with him. The house showed no signs of forced entry.

Defendant’s fingerprints were found on a half-full coffee mug in the kitchen, and on a book in the kitchen or dining room. Robert had purchased the book the day before. Officers went to defendant’s home on the night of January 31. When they told him they were investigating an assault against the Mishells, he left the room to make a telephone call. Upon his return, he said his lawyer had advised him not to speak. He spoke nonetheless, claiming he had not been at the Mishell home in two weeks.

Asked to name a possible suspect, defendant mentioned another contractor to whom, defendant said, the Mishells owed a lot of money. Asked to recount his movements for the day, defendant said that, after dropping off his daughter at 11:00 a.m., he went to the Berkeley Marina around 11:30 and spoke to Dave Shelley, who was working there. Then, defendant said, he went to Reyna’s home to watch the Super Bowl. Defendant described the clothes he was wearing, and specifically mentioned athletic shoes. Defendant did arrive at the Berkeley Marina sometime between 11:30 a.m. and 12:30 p.m. on January 31.

According to Shelley, defendant stayed about 45 minutes. He made a telephone call and wrote a note to Chuck Roberts, the Berkeley Waterfront Commission’s secretary, about an agenda item. The note included a notation of the ostensible time it was written—noon. Defendant later called and asked Shelley to make a copy of the note and send it to him. Shelley did so. Roberts found the note when he came to work the next day. According to Roberts, defendant had written him notes before, but had never included the time. Given the note’s subject matter, there was no reason to do so in this case.

Defendant arrived at Reyna’s home about 1:00 p.m. on January 31, freshly groomed and wearing boots. Defendant volunteered that he had dropped off his daughter, then gone to his boat at the marina, and to the marina office. Reyna thought it odd that defendant wore boots on his boat. Defendant did not stay to watch the Super Bowl, but left after about 20 minutes. On February 2, Reyna saw a newspaper

article about the Mishell assault. Realizing that defendant had worked on the Mishells’ home, Reyna contacted defendant and told him about the article. Defendant said he did not want to talk, but that his problem was solved. On February 3, defendant asked Reyna to come to his house. Despite his reservations, Reyna went. Defendant took Reyna onto the deck, saying the police had just been there to search, and he did not want to speak inside. Defendant told Reyna the following: He had gone to the Mishells’ home on January 31 to confront them about the harassing telephone calls.

They laughed at his accusations and said he could do nothing about it. He then picked up something and beat the Mishells over the head. He took the unidentified weapon with him and discarded it where it would never be found. When Reyna said that the Mishells could identify him, defendant responded that they never saw or knew who attacked them. Defendant asked Reyna to falsely tell the police defendant had telephoned him at 9:00 a.m. on January 31. That evening, at a commission meeting, defendant again made this request, explaining that the police believed the assaults had occurred before 11:30 a.m.

To Reyna, defendant never expressed remorse or regret about the Mishell assaults. Defendant said he was only sorry he was caught with another woman, and was just protecting his family. Reyna did not immediately advise the authorities that defendant had confessed to him. Moreover, he initially did comply with defendant’s request that he lie to the police about when defendant called him on January 31. Members of Reyna’s family testified that he was fearful, distraught, confused, and in turmoil about whether he should tell what he knew. Ultimately, on April 5, 1988, Reyna gave a taped statement to the police.

Defendant was arrested two days later. Thereafter, defendant wrote Reyna letters from jail, urging Reyna to lie for defendant about the Mishell assaults, and to recant his police statement. Defendant enlisted Oberman in efforts to persuade his own defense team of his innocence. At defendant’s request, Oberman falsely told a defense investigator she met defendant at the Berkeley Marina at 11:00 a.m. on January 31. She gave the investigator additional false information, supplied by defendant, that Reyna was angry with defendant over a debt, and thus had a motive to fabricate defendant’s confession.

Oberman also told the investigator, again falsely, that she was hiding under defendant’s deck on February 3, when defendant supposedly told Reyna he had assaulted the Mishells. The surgeons who operated, respectively, on Robert and Barbara after the assaults both testified that the victims’ head injuries were inflicted by a blunt instrument like the head of a hammer. 2. The murder of Luis Reyna and its aftermath On July 15, 1988, defendant made bail in the Mishell assault case, and he was released from custody.

On the morning of July 18, Reyna left his home for a meeting with defendant and was never again seen alive. On July 26, Reyna’s decapitated and dismembered body was found in an isolated location near the Lafayette Reservoir. Overwhelming evidence linked defendant to Reyna’s death. Reyna’s sister Yolanda testified that, on the evening before his disappearance, Reyna received a call from defendant. During the call, she overheard Reyna say he was not afraid of defendant and intended to tell the truth.

The next morning, after calling work to say he would be late, Reyna told his mother he was going to meet defendant around the comer. Reyna, who did not own a gun, then departed, leaving behind his wallet, car keys, and automobile. He never returned. His family contacted the police. Around 4:00 p.m. on July 19, defendant’s track was found at a Bay Area Rapid Transit station, its interior bloodstained and its bench seat missing. Water residue in the track’s interior indicated it had been hosed or washed out. Oberman had seen the bench seat in the track the previous afternoon.

On July 20, while they were riding together, defendant handed Oberman a gun and told her to throw it in a sewer. She did so. On July 21, after making financial arrangements for an extended absence, the couple flew to San Diego and entered Mexico. Meanwhile, on July 19, a hiker in the Lafayette hills came upon a human hand. On July 26, an unclothed human torso, missing head and hands, was found at a separate Lafayette hills location. The torso was positively identified as Reyna’s, and the severed hand perfectly matched the torso’s handless left arm.

On July 28, items of clothing, an ax, and a saw were found near where the body had lain. A witness who had done constmction work with defendant identified the ax, a somewhat rare type, as defendant’s. An autopsy indicated that Reyna had been dead for several days before his body was found. Except for the decapitation and dismemberment, the body showed no external or internal signs of human-inflicted trauma. A cause of death could not be determined.

Forensic experts opined that the head and hands had been severed by sharp, incisive blows, and that damage to certain of the severed bones was consistent with the use of a saw. In March 1989, a skull, positively identified as Reyna’s, was found near where the body had been discovered. Four years later, Dr. Herrmann, a pathologist, examined the skull. He opined that the severed neck vertebrae had been cut either by a sharp object, or more likely, based on small ridges in the bone, by a saw. Though missing its lower jaw, the skull showed no other sign of trauma, such as a gunshot wound.

After July 1988, defendant and Oberman stayed in various locations in Mexico. They obtained false identification papers. In September 1988, they bought a residence in Mexico. Thereafter, Oberman returned to California. She worked in La Jolla and Palm Springs to earn money for their mutual support. In February 1989, while on a surprise visit to Mexico, Oberman argued with defendant over his affair with another woman. During the argument, defendant confessed he had killed Reyna, and was not sorry.

Defendant recounted the following: He picked Reyna up in his truck on the morning of July 18, 1988, and drove Reyna to a park in the hills. Reyna again told defendant he would not recant his police statement in the Mishell case. Reyna also called Oberman a whore. Defendant retrieved a gun from the toolbox in the rear of the vehicle and shot Reyna, who was sitting in the passenger seat, in the temple. In March 1989, Oberman returned to Palm Springs. At her insistence, defendant followed. On September 11, 1989, FBI agents arrested him there while he was driving with Oberman.

Upon his arrest, defendant said to Oberman, “don’t tell them anything.” In a letter to Oberman from jail, postmarked July 6, 1992, defendant said he would tell her, under separate cover, what he “expect[ed] [her] to remember” if she was called as a trial witness. A second letter, postmarked the same date, set forth a version of Reyna’s death in which Reyna pulled a gun, which went off during a struggle, inflicting a fatal head wound on Reyna.

The letter recited that defendant had dumped Reyna’s body because both he and Oberman assumed the police would never believe him, and he needed time to consult with his lawyer. According to the letter, defendant fled the country to forestall civil suits and because of death threats from the Reyna family. Defendant wrote further that he hoped to avoid a harsh sentence in the Mishell case by claiming provocation. At trial, Oberman insisted the letter’s recitations about Reyna’s death were false.

She testified she had never discussed this version of events with defendant, or heard of it, until she received the letter. 3. Defense case Defendant testified in his own behalf. He admitted bludgeoning the Mishells, inflicting multiple blows on each. Defendant stated that he lost control when the Mishells admitted, but laughed at, his accusations that they were behind the anonymous telephone calls exposing his affair. He said he picked up a meat tenderizer in the Mishells’ kitchen, used it as his weapon, then threw it, weighted, into San Francisco Bay.

Defendant acknowledged he lied to the police about the incident, sought to construct an alibi, confessed to Reyna, then pressured Reyna to recant the statement Reyna had given to the police. Defendant further conceded that he called Reyna on the evening of July 17, 1988, that he met with Reyna on the morning of July 18, that Reyna died in his presence that day, and that he then dismembered Reyna’s body. But defendant denied murdering Reyna. Defendant claimed the following: The men drove in defendant’s truck to a waterfront park in Richmond.

During a tense conversation, defendant walked around to the passenger door and opened it. Reyna, who seemed somewhat intoxicated, was pointing a gun at him. They struggled, and the weapon discharged. According to defendant, he checked Reyna for signs of life and found none, though he saw no blood, wound, or visible sign of the bullet’s trajectory. After driving around for several hours, trying to decide what to do, he disposed of Reyna’s gun in Walnut Creek, then drove to the Lafayette hills, where he dismembered Reyna’s body, using a hacksaw not in evidence, and scattered the remains.

He rinsed the truck, inside and out, at a carwash, then discarded other items of evidence, including the truck’s bench seat. He did these things, he said, because he thought nobody would believe him, and he needed time to consult his attorneys. After meeting with his lawyers on July 20, defendant said, he decided to flee because of death threats from Reyna’s family, potential civil lawsuits, and the fear he would be denied bail on homicide charges. Defendant denied telling Oberman the details of his encounter with Reyna, and he insisted he never told her he murdered Reyna.

Defendant also insisted he had no reason to fear, and thus to kill, Reyna as a potential witness against him in the Mishell assault case. According to defendant, his attorney had advised him that, in an interview with a defense investigator, Reyna had recanted his earlier statement to the police, and his credibility could thus be destroyed on the stand. (See discussion, post.) Also, defendant suggested, Reyna was vulnerable because he had confided to defendant that he was homosexual, a fact he did not wish even his family to know.

The defense presented witnesses to challenge Robert Mishell’s memory, particularly with respect to Robert’s trial recollection that defendant arrived at the Mishell residence carrying a toolbox (and was thus perhaps already armed with the weapon used in the assault). The defense attacked the credibility of Reyna family witnesses, including Reyna’s sister Yolanda, by presenting evidence of their extreme hostility to defendant and their dissatisfaction with police handling of the case. The defense attacked Oberman’s credibility through the testimony of Sue Ann Van Epps, Oberman’s former friend and business partner.

Van Epps asserted that Oberman was motivated by money and attention, had engineered the flight to Mexico because of death threats from the Reyna family, and had suggested she and Van Epps collaborate on a book about Oberman’s experiences in Mexico. Finally, the defense sought to undermine Reyna’s credibility and importance as a witness in the Mishell case, in order to suggest defendant had no motive to kill Reyna.

Detective Gustafson testified that, although Reyna was a confidential informant in two earlier search warrants for defendant’s property, Reyna’s April 5, 1988, revelation that defendant had confessed to him added only details to what the police already knew about the Mishell assaults. Gustafson also said Reyna was reluctant to come forward because he doubted the veracity of defendant’s claim and was wrestling with his loyalty to defendant.

Chuck Roberts testified that Reyna had also revealed defendant’s confession to him, but was reluctant to go to the police because of his friendship for defendant and because defendant had told him things in the past that were not true. Defense investigator George Cramer testified that, in an April 13, 1988, interview, which occurred subsequent to Reyna’s taped police statement, Reyna recanted, saying that the police had taken his statement out of context, and that he did not believe defendant’s confession was serious. According to Cramer, Reyna wanted to help defendant by telling the police everything he knew.

Cramer said that he, defense counsel, and Reyna tried to speak with the prosecutor after April 13, but she refused to see them. B. Penalty evidence 1. Prosecution evidence The prosecution presented three penalty phase witnesses. Yolanda Reyna, the murder victim’s sister, and Helen Reyna, his mother, testified about the effect of his death on them. Alexandra M., defendant’s niece by marriage, recounted defendant’s sexual assault on her. Alexandra testified as follows: She spent the summer of 1982, when she was 15 years old, with defendant’s family.

He contrived to drive her to the airport alone for her flight home. On the way, he asked her personal questions of a sexual nature. He parked in a deserted airport lot and enticed her into the rear of his van, where he kissed her and forced her head down onto his penis. When she bit him, he slapped her and stuffed a bandanna into her mouth. Restraining her arms, he then raped and sodomized her, ejaculating in her anus. He threatened to kill her and her family if she told anyone. He also told her she had enjoyed the experience. Though hysterical, she accepted the comment, because she knew no better.

On the flight home, she wrote a letter, never mailed, to her friend Margaret Yen, in which she said she enjoyed the encounter and mentioned no force or threats, but expressed shame that the incident had occurred. She did not tell her mother until, three months later, she discovered she was pregnant. She did not report the incident to police because she was afraid of the effect on her grandparents. By 1988, she had still told only Yen, her therapist, and other close friends and family members. In 1988, she told FBI agents who came to her home in connection with defendant’s status as a wanted fugitive. 2.

Defense evidence Margaret Yen testified that when Alexandra M. returned home from California in 1982, she told Yen she had consensual sex with her uncle in a car at the airport. On the other hand, Yen stated that several months later, when Alexandra was upset over her parents’ breakup, she told Yen she felt unloved and worthless, and had even been forced by her uncle to have oral sex.

A number of witnesses testified to defendant’s positive qualities and contributions, including his involvement in community affairs, charm, sense of humor, diligence, intelligence, computer knowledge, helpfulness, concern for family, trustworthiness, and concern for human equality. His efforts to tutor fellow inmates while he was in jail awaiting trial were noted. But some witnesses admitted he had a temper, could be hard on others, and was capable of anything. And some conceded there was much about defendant they did not know, and that the trial had altered their opinions of his honesty.

There was evidence that defendant held a contractor’s license with no record of disciplinary action. No member of defendant’s family testified in his behalf. The defense presented evidence that his parents were deceased, and that he had asked that his children not be involved in the trial so as to spare them further pain. Based solely on his review of defendant’s jail records, Jiro Enomoto, a former Director of the Department of Corrections, testified that, if incarcerated, defendant would be assigned to high-security housing, and could be a constructive person.

Enomoto conceded the security level of defendant’s housing could change in the future. He insisted that defendant’s numerous county jail incident reports were minor and not a cause for serious concern, though he admitted they were troubling. II. DISCUSSION A. Jury selection issues 1. Wheeler/Batson claim Sixty-eight members of the venire, including nine members who identified themselves as African-Americans, survived challenges for cause. Thirty-nine of these qualified prospective jurors were called into the jury box to face peremptory challenges.

Selection of both regular and alternate jurors was completed on Thursday, March 11, 1993. The remaining venire was excused, but the empaneled jurors were not formally sworn. They were instructed to return for trial the following Monday morning, March 15, 1993. On that morning, defendant filed a written “Motion to Reinstate Improperly Challenged Jurors, Or, Alternatively, to Dismiss Empaneled Jurors and Quash Remaining Venire.” The motion alleged violations of People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler) and Batson v.

Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson), in that the prosecutor had employed peremptory challenges for the purpose of excluding African-Americans from the petit jury. Specifically, the motion asserted, the prosecutor had used five of the 15 peremptory challenges he exercised to excuse Prospective Jurors Altie T, Gregory S., James B., Debria W., and June W.—every one of the identified African-Americans called into the jury box—such that the regular jury as empaneled had no African-American members. The motion conceded that the four alternate jurors included an African-American.

Opening statements were deferred, the jurors were sent home, and the motion was argued on March 15 and 16, 1993. Defense counsel insisted, as in the written motion, that the prosecutor’s use of five of 15 peremptory challenges to excuse all African-Americans from the final jury established a prima facie case of discriminatory intent. Observing that the prosecutor’s voir dire had centered around death qualification, counsel argued that the disputed prospective jurors had expressed no extreme views on that issue, either orally or in their questionnaires.

The prosecutor responded that the defense’s statistical argument was misleading because of the small sample size, and that his questioning of the disputed prospective jurors demonstrated no intent to exclude them on the basis of their race. He indicated that this was all he had to say on “the prima facie issue,” but if the court wished, he would discuss his individual reasons for excusing each disputed juror.

Without ruling on whether a prima facie case had been made, the court said, “I think you might as well.” The prosecutor first conceded that all the excused jurors were theoretically death-qualified, but pointed out that he had to make a “more subtle judgment” whether these individuals could actually impose the death penalty. As to Altie T., the prosecutor observed that he “does not believe in the death penalty.

Yes, he said he could work with it, but in my judgment someone that does not believe in the death penalty will not give it the same consideration and is not as likely to vote for the death penalty as someone who is in favor of it or is at least neutral.” The prosecutor said he excused Gregory S., not because of his death penalty views, but because he indicated in voir dire that he “had been the victim of circumstantial evidence in a case when it seemed that he was guilty but, in fact he was not.” Because the instant case was largely based on circumstantial evidence, the prosecutor explained, Gregory S. did not seem a suitable prosecution juror.

James B., the prosecutor noted, would probably be a suitable juror in a noncapital case.

However, the prosecutor observed, “my notes indicate [James B.] said that he would have a difficult time voting for the death penalty because of religious convictions,” and “that his wife was extremely opposed to the death penalty.” Debria W. had been excused, the prosecutor explained, because she said that “maybe” she could impose the death penalty, but it should not be used “except as a last resort and unless she was absolutely sure.” This persuaded the prosecutor she would not evaluate death “even-handed[ly]” against life without parole, and thus was not a suitable juror.

June W., said the prosecutor, had “repeated many, many times that she could be fair,” but he could not get a sense, from her answers, about her death penalty attitudes.

Moreover, he indicated, “there was also a question or two that was asked that she did not understand, and she answered incorrectly based on her understanding, and it was my feeling [that] while she was a very nice woman, an older lady, that I did not believe that she would in the end be able to vote for the death penalty.” Ruling on the motion, the trial court first stated it “[did] not feel the manner in which the peremptory challenges were used created an inference that the prosecutor had a discriminatory motive.

Therefore, I do not think there has been made a prima facie case.” The court further indicated that “I remember these particular people. I reviewed my notes; and, frankly, I feel that [the prosecutor] has given a satisfactory reason with reference to these particular people. They were— They were at best neutral to the death penalty.

And if I were a prosecutor, I’d want people more in favor of it. [j[] Many of them did say only in the last resort could they do it or if they’re absolutely sure, which is not the burden of proof. [j[] One juror, [Altie T.], said he did not believe in it. [f] [Gregory S.] again is worried about circumstantial evidence, [f] [Debria W.j is concerned about the absolute certainty, which kind of bothered me. [§] [James B.] indicated it would be difficult to apply. H] Now, forgetting their color for a moment, any prosecutor would knock those people off. [<J[] [June W.] was rather equivocal.

I’m not so sure whether that’s her personality or that is in response to the questions. [][] But in my opinion, there’s a valid basis for . . . the exercise of a peremptory, and I don’t feel it was based on any type of discriminatory motive. [][] So, ... I will deny your motion.” On appeal, defendant renews his Wheeler/Batson challenge.

The applicable law is well settled. “[Under Wheeler,] [a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’—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 state Constitution. [Citations.] [Under Batson,] [s]uch a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment. [Citations.] “The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard trial courts should use when handling motions challenging peremptory strikes. ‘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.” [Citation.]’ ” (People v.

Lewis and Oliver (2006) 39 Cal.4th 970, 1008-1009 [47 Cal.Rptr.3d 467, 140 P.3d 775] (Lewis and Oliver), quoting Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410].) “We review the trial court’s ruling on purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner.

We defer to the court’s ability to distinguish ‘bona fide reasons from sham excuses.’ [Citation.] As long as the court makes ‘a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.’ ” {Lewis and Oliver, supra, 39 Cal.4th 970, 1009.) As noted above, the trial court, after expressly reserving its decision whether a prima facie case had been established, accepted the prosecutor’s offer to state his reasons for excusing individual prospective jurors.

Having heard the prosecutor’s justifications, the court ruled that his actions gave rise to no “inference” of discriminatory motive, and that a prima facie case had thus not been established. After comparing its own recollections with the prosecutor’s stated grounds for the challenged excusáis, the court further concluded that the prosecutor had given “satisfactory reason[s]” for their dismissal. Under these circumstances, the decision to hear the prosecutor’s reasons did not imply that the court had found a prima facie case, nor did it moot the court’s later contrary determination. (See People v.

Welch (1999) 20 Cal.4th 701, 746 [85 Cal.Rptr.2d 203, 976 P.2d 754] (Welch).) However, our review of the court’s finding that defendant failed to establish a prima facie case is complicated by intervening legal developments. In Johnson v. California, supra, 545 U.S. 162, the United States Supreme Court reversed People v.

Johnson (2003) 30 Cal.4th 1302 [1 Cal.Rptr.3d 1, 71 P.3d 270], wherein we confirmed that the established California standard by which the opponent of juror strikes must demonstrate, prima facie, a Wheeler/Batson violation—even if sometimes previously expressed as a “ ‘reasonable inference’ ”—was to show that purposeful discrimination was “more likely than not.” (People v. Johnson, supra, at pp. 1312-1318.) The high court made clear that this standard is too demanding for federal constitutional purposes.

Under Batson, the court said, the prima facie burden is simply to “produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson v. California, supra, 545 U.S. 162, 170.) Despite the instant trial court’s use of “inference” in its prima facie ruling, that word had sometimes been employed in California as shorthand for the “more likely than not” standard. (See discussion, ante.) Hence, we cannot be sure the court understood the term in the sense later established by Johnson v. California.

Accordingly, we cannot simply defer to the trial court’s prima facie ruling. To uphold it, we would have to be satisfied, from our independent review of the record, that defendant produced insufficient evidence at the outset to permit an inference of discrimination. (E.g., Bell, supra, 40 Cal.4th 582, 597; People v.

Avila (2006) 38 Cal.4th 491, 554 [43 Cal.Rptr.3d 1, 133 P.3d 1076].) In the alternative, we may assume, without deciding, that defendant did satisfy the first, or prima facie, step of Batson and Wheeler by pointing to the prosecutor’s use of five of 15 peremptory challenges to excuse from the regular jury the only African-Americans called to the box. (See, e.g., Wheeler, supra, 22 Cal.3d 258, 280.) Because the prosecutor voluntarily explained his dismissals, we may then proceed directly to the second and third steps of the Wheeler/Batson analysis. (Lewis and Oliver, supra, 39 Cal.4th 970, 1010; People v.

Ward (2005) 36 Cal.4th 186, 200-201 [30 Cal.Rptr.3d 464, 114 P.3d 717].) We do so here. We find the prosecutor’s stated nondiscriminatory reasons for excusing Prospective Jurors Altie T., Gregory S., James B., Debria W., and June W. to be amply supported. As the prosecutor indicated, when asked in the juror questionnaire to describe his general feeling about the death penalty, Altie T. responded, “I don’t believe in it but I can work with it.” He also indicated that he was “[mjoderately against” the death penalty and was “[n]ot sure” how he would vote if the death penalty were on the ballot.

On voir dire, Altie T. indicated quite a strong conflict between his feelings against the death penalty and his duties as a juror. While he insisted he could vote for death “if [he] had to” in an appropriate case, including one with only one murder victim who was killed as a potential witness, he made clear that he “basically [didn’t] believe in the death penalty” because “I don’t think a man should take another man’s life.

He should be punished for it, but his life shouldn’t be taken.” Altie T. responded affirmatively when asked whether “therefore you think it’s wrong for the state to take another man’s life,” i.e., “that it’s morally wrong to do that.” As the trial court found, the prosecutor had ample reason to be skeptical of Altie T.’s willingness and ability to impose death, and to excuse him on that basis. During the voir dire of Prospective Juror Gregory S., the prosecutor explained the difference between direct evidence and indirect, or circumstantial, evidence.

The prosecutor asked if Gregory S. could impose the death penalty in a case based primarily on circumstantial evidence. Later, defense counsel inquired about Gregory S.’s disclosure on his questionnaire that he himself had been the victim of an attempted robbery in which he suffered a head injury when struck with a pipe.

Counsel asked if this experience caused Gregory S. to come into court with a “vendetta or some kind of ax to grind.” Gregory S. responded: “No, no, I don’t mainly because I’ve been in a situation myself years ago where—where there’s a lot of circumstantial evidence laid against me and was viewed as being guilty when I knew I wasn’t and couldn’t prove it, so I knew that there [are] situations where a person could seem to be guilty but [is] not. But I didn’t have a situation where I could go into a court system and prove it and the whole bit.

So I keep an open mind whether a person’s—is thought to be guilty until—until I’m convinced.” On this basis, the prosecutor could reasonably decide that Gregory S.’s personal experience, dissimilar to any disclosed by other prospective jurors, might make him reluctant to impose death, or even to convict, in a case where the murder evidence was largely circumstantial. In his juror questionnaire, Prospective Juror James B. expressed neutrality about the death penalty. On voir dire, he continued, at first, to insist he had no feelings that would interfere with his ability to consider the death penalty fairly.

But when defense counsel asked if James B. had any religious or philosophical beliefs that might affect his decisionmaking ability in a death penalty situation, he responded, “It would be very difficult for me because of my religious convictions to really give a death sentence to another human being.” Later, the prosecutor examined James B. about his prior disclosure that recent murders reported in the newspapers had led to discussions with his wife and friends about whether they could actually impose the death penalty. The prosecutor asked what opinion James B.’s wife held on that subject.

James B. responded, “My wife would not be able to do it at all. She was really a very religious woman, and she could not give out a death sentence to another human being at all.” Though James B. insisted his wife’s views would not influence him, the prosecutor could reasonably conclude that James B.’s own religion-based death penalty scruples, reinforced by his wife’s even stronger pro-life views, would make him an unsuitable prosecution juror in a death penalty case.

In her juror questionnaire, Prospective Juror Debria W. described her philosophical opinion about the death penalty as “[njeutral.” She explained that “if the evidence [strongly] show[ed] guilt,” then “maybe” the death penalty would be appropriate. On voir dire, Debria W. displayed, and admitted, considerable nervousness, and defense counsel remarked that she seemed shy. She stated at various points that she would be open and fair, that she would consider death in a single-victim witness-killing case, and that she could impose death where the evidence of guilt was circumstantial.

However, when defense counsel asked if Debria W. thought the death penalty served a purpose in society, she responded, “Not all the time I don’t feel—I don’t feel like it’s justified.” Asked to explain, Debria W. stated, “Only when it’s—when it’s—that’s the last resort I mean, you know, that’s it.” She volunteered that she would have to be “absolutely sure”—“gut sure”—before imposing death; “I wouldn’t just say yeah, guilt and then death.” On the other hand, she agreed, she would “definitely” consider life without parole as an option.

The prosecutor followed up, asking again what Debria W. meant by saying the death penalty was a “last resort.” She explained that if “all the evidence weighed out and everything pointed that way on the death penalty, then that’s the way I would feel.” (Italics added.) On this basis, the prosecutor could reasonably conclude that Debria W. would be inclined to impose the death penalty, if at all, only in the most extreme cases, where she believed no evidence at all favored life without parole.

Thus, as he indicated, he could surmise that she would not weigh the penalty evidence fairly to determine whether the balance of aggravating and mitigating factors made death the appropriate penalty. In justifying his excusal of Prospective Juror June W., the prosecutor acknowledged this prospective juror had insisted on many occasions that she could weigh the penalty options fairly based on the evidence presented in the particular case.

However, the prosecutor pointed to certain “incorrect[]” and ambiguous answers that prevented him from ascertaining June W.’s death penalty attitudes, but left him with the sense that “in the end” she would not be able to vote for death. Beyond any impressions the prosecutor may have gleaned from June W.’s personality and demeanor—factors we cannot assess on the cold record— there is support for his evaluation.

In her jury questionnaire, when asked how she would vote if the death penalty were placed on the ballot, June W. answered that she “had not thought about it, [but that] [o]n a jury I could be fair in [judgment].” (Italics added.) On voir dire, defense counsel followed up on this point, asking June W. if she had thought, since filling out the questionnaire, about how she might vote “if California placed it on the ballot [whether] there ought to be a death penalty.” She responded, “I feel that I wouldn’t have a problem voting for the death penalty if that in my opinion was the case." (Italics added.) She then answered “[c]orrect” when defense counsel asked whether this meant she agreed the death penalty “has a legitimate place in criminal justice” and is “an option the jury should have in deciding a case.” These answers could suggest that June W. was being evasive about her political position on the death penalty, and thus sought, by her answers, to redirect all such questions on that subject toward her ability to be a fair capital juror.

However rational such a stance might be in the abstract, it could reasonably raise concerns in the prosecutor’s mind whether June W. was using it, consciously or unconsciously, to mask a deeper antipathy to capital punishment. On that basis, he could decide she was a less than suitable prosecution juror. For the first time on appeal, defendant asks us to compare the responses provided by the 12 seated regular jurors, none of whom were African-American, with those given by the excused African-American prospective jurors, and cited by the prosecutor when justifying the disputed challenges.

Such a comparison, defendant insists, exposes the prosecutor’s stated reasons as sham, because the seated jurors disclosed death penalty views substantially similar to those expressed by Altie T., Gregory S., James B., Debria W., and June W. We had previously declined to engage in comparative juror analysis for the first time on appeal, deeming such analysis unreliable in evaluating the prosecutor’s reasons for excusing minority prospective jurors. (E.g., People v. Box (2000) 23 Cal.4th 1153, 1190 [99 Cal.Rptr.2d 69, 5 P.3d 130] (Box); People v.

Johnson (1989) 47 Cal.3d 1194, 1220-1221 [255 Cal.Rptr. 569, 767 P.2d 1047].) However, in Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196, 125 S.Ct. 2317] (Miller-El), a federal habeas corpus case, the United States Supreme Court conducted a comparative juror analysis to examine the veracity of the prosecutor’s stated race-neutral reasons for the challenged excusáis, though no such analysis had been sought or performed in lower courts.

The court observed 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.” (Id. at p. 241.) Assuming, without deciding, that we must undertake comparative juror analysis here (Lewis and Oliver, supra, 39 Cal.4th 970, 1017), we conclude that such a comparison fails to indicate the prosecutor engaged in purposeful discrimination.

Though they obviously did not hold extreme views, the seated jurors expressed attitudes significantly more favorable to the prosecution than the African-American prospective jurors he excused.

Thus, in his questionnaire, Juror Stewart B. indicated he believed the death penalty “is an appropriate punishment for special circumstance crimes and if the jury decides it fits the crime.” He also reported he was “[mjoderately in favor” of the death penalty, had no religious scruples against it, and would vote “[f]or” the death penalty on the ballot because “I believe it is appropriate for some crimes and may serve as a deterrent for some criminals.” On voir dire, Stewart B. indicated that he was familiar with the term “special circumstance,” thought it was reserved for particularly violent murders and peace-officer murders, did not realize witness killing was a special circumstance, but assumed, if the statute included this category, that “it [was] appropriate.” Asked by defense counsel if he understood he must vote for life if the good and bad in defendant’s life were equal, Stewart B. expressed some reservations, indicating that “[a]t that point, [having found both guilt and one or more special circumstances], it kind of tilts the other way I would think,” despite the need to be “careful,” “once you’re kind of balancing the scales of justice.” Indeed, he said, “I would have to tell you right now I’m probably preinclined toward the death penalty” and “I support the death penalty.” Stewart B. professed he was comfortable that the death penalty meant exactly that, because “you need appropriate measures for the appropriate crime.” He also indicated he would have no difficulty imposing the death penalty after having found guilt and special circumstances on the basis of circumstantial evidence, pointing out that the issues at the two phases of trial were different.

In her questionnaire, Juror Tina B. said that she had not thought a lot about capital punishment and was not sure how. she would vote on a ballot measure addressing that issue, but believed the death penalty “is here for a reason.” It was hard, she professed, to say how she felt about the death penalty, “[n]ot knowing the evidence.” She indicated she had no religious reservations about capital punishment. On voir dire, Tina B. said she was still not sure how she would vote on a death penalty ballot measure, because she did not have enough information.

However, when asked what she meant by saying the death penalty is here for a reason, Tina B. explained that the. “reason” was all the “bad” people who “cannot live on this earth without doing anything . . . but wrong such as murder over and over—. . . or child molestation, anything of that sort,” and that “we should use [the death penalty] when it comes to that.” When defense counsel inquired whether she had thought more about her attitudes since completing her juror questionnaire, Tina B. said, “Actually, yes, I have. . . .

My additional thoughts are that it is here, and . . . we’re supposed to use it, and if I had to make a choice, depending on the evidence, I would.” Asked if she would impose death in a witness-killing case, Tina B. said, “No, I’d have to hear the whole case,” thus suggesting that she would not automatically do so.

Asked about the death penalty in a circumstantial-evidence case, she replied that “[o]bviously he’d have to be pretty guilty of everything,” but if circumstantial evidence convinced her, to the requisite degree of proof, that defendant deserved the death penalty, “I believed I would” be able to vote for it. In her questionnaire, Juror Sharon B. indicated that she believed the death penalty was necessary for certain crimes “based on the evidence,” was “[m]oderately in favor” of the death penalty, had no religious scruples against it, but was “[n]ot sure” how she would vote on a ballot measure.

Responding to the question whether her death penalty views had changed substantially in recent years, she stated, “If I keep my emotions out of the way [and] think logically my feelings are the same.” In voir dire, defense counsel followed up on this latter comment, asking if it meant her thoughts changed from day to day depending on how she felt about a particular issue or case.

She agreed, explaining that she had extreme emotional reactions to the “horrible” crimes she saw on television, but “then if you sit and think about it, then it depends on, you know, . . . what type of evidence is given to me.” She insisted she could follow the penalty instructions and weigh both available punishments based on the aggravating and mitigating evidence. Sharon B. indicated she was still not sure how she would vote on a ballot measure, “[b]ecause I think each individual case needs to be taken into consideration. ...

I just can’t say somebody automatically deserves the death penalty.” (Italics added.) Pressed to distinguish between the voting booth and a juror’s duties, she maintained, on the political question, that “I [still] don’t know how I feel” and had no “definite feelings.” Asked about her views on life without parole, she said she was “[p]robably moderately favorable,” which, she agreed, “was about the same as [she felt on] the death penalty.” Finally, she agreed unequivocally that she could impose death even if the evidence of guilt was primarily circumstantial.

Thus, the overall portrait was of a juror who had strong initial reactions against aggravated murders, was inclined to favor the availability of both death and life without parole for selected crimes, and believed, in the end, that each individual case required careful consideration, based on logic and evidence. Under these circumstances, the prosecutor could readily conclude Sharon B. was a fair capital juror who would impose the death penalty if she believed it was warranted. Juror Roberta C. left blank that portion of her questionnaire dealing with death penalty attitudes.

On voir dire, she explained that she felt “rush[ed],” the form was “lengthy,” and she was “caught off guard” by questions she had not previously pondered.

However, asked by the court about her feelings on this issue, she replied that her Catholic religion did not “teach to be in favor of the death penalty or capital punishment; but for myself deep down in my heart I do believe in it.” (Italics added.) She admitted the conflict with her Catholic faith had given her a “difficult weekend,” but “I think I’m going to have to dismiss the Catholic principles and just go from what I feel.” Questioned further on the subject by the prosecutor, Roberta C. insisted she could go against her church’s teaching if she thought death was the appropriate penalty, “[a]nd I don’t think I’m the only one that would fall in that situation.” Roberta C. indicated she could consider the death penalty in a witness-killing case “[i]f that were the law.” When the court advised that this was the law, she said she “probably” could.

When the prosecutor asked what she meant by “probably,” she answered, “Maybe I should rephrase that. If that is the law, then I will have to follow the law.” Finally, she indicated unequivocally that she could impose the death penalty on the basis of circumstantial evidence. These responses indicated quite clearly that, after some understandable soul searching, Roberta C. had resolved any religious conflict in favor of her personal belief in the death penalty.

The prosecutor could readily conclude that her Catholic faith would not interfere with her duties as a capital juror, that she would follow the law, and that she would deliberate fairly on the issue of penalty.

In her questionnaire, Juror Suzanne H. indicated that she was “not opposed” in general to the death penalty, had no religious scruples against it, and would vote “[f]or” it on the ballot because she “[felt] it should be an option.” Asked to rate her “philosophical opinion” about the death penalty on a five-step scale, she first marked “[m]oderately in favor,” crossed that out, and marked “[n]eutral.” On voir dire, Suzanne H. expressed the views of an ideal capital juror.

She explained she was “neither for nor against” the death penalty in the abstract; instead, she said, “In some cases I’m very much in favor of [the death penalty] [while] [i]n some cases I would not be in favor.” She thought both death and life without parole were valid options, depending on the case and the evidence, and she would “accept the facts as they are.” She did not think death was appropriate only in cases of multiple murder victims, and she could impose the death penalty in a witness-killing case “[i]f I was so directed by the court.” She also indicated she could impose death on the basis of a circumstantial guilt case.

These responses left no doubt that Suzanne H. could deliberate fairly on the issue of penalty.

In his questionnaire, Juror David H. responded colorfully when asked his general feelings on the death penalty, explaining that “I used to be against it but now I feel [it is] a valid method of cleaning the pond scum off of the gene pool.” He indicated he had no religious scruples against the death penalty and would vote “[f]or” it on the ballot, but nonetheless rated his “philosophical opinion” on the subject as “[njeutral.” Asked on voir dire to explain his “pond scum” remark, David H. indicated he meant that “someone who’s out and out bad, would go out and murder again, and have no problem with that, I don’t see a point in that person existing.” Nonetheless, under intense questioning by defense counsel, he indicated he understood, and could abide by, his obligations as a penalty juror, and would consider life without parole if the “good” about the defendant, when compared against the “bad,” was sufficient to warrant that option.

David H. provided an obvious basis for the prosecutor to surmise that he would be a suitable, even favorable, prosecution juror in a capital case. Juror Judith H. stated in her questionnaire that she was “[mjoderately in favor” of the death penalty, and had no religious or philosophical reservations about it.

She indicated she would vote “[f]or” the death penalty on the ballot because she “believe[d] the option should be available.” Asked to explain her general feelings on the subject, she wrote she felt there were “probably some cases where it should be imposed.” Her religious beliefs, she explained, were “that man should be punished for his sins unless he repents and restores losses he had caused,” and it was impossible to restore life.

She expressed the view that “[u]nder some circumstances, a guilty person should forfeit his own life as a means of expiation,” but in others, “the death penalty would not be appropriate.” On voir dire, Judith H. confirmed these positions.

Asked by the court if she could impose death in an appropriate case, she replied, “I believe in it” and “I’d have to say yes.” When defense counsel inquired about her questionnaire statement that she was moderately for the death penalty, she said, “Well, I believe that it should exist.” She admitted she “[didn’t] believe anyone would really want to condemn another human being to death,” but suggested that the group nature of the decision reduced the risk of error. On the other hand, she said she understood that, as a juror, she must make an individual determination.

She denied that her religious beliefs required the forfeiture of life as expiation for every murder, and insisted she could not prejudge a case, but said she believed she could impose death in an appropriate case. She professed to prefer neither death nor life without parole, but had “a strong preference to presume innocent until proven otherwise.” She deferred to the law when asked whether death was ever appropriate in a witness-killing case.

In response to the prosecutor’s questions, she said she “probably” could impose death in a case of circumstantial evidence, though she “would have to feel that it’s warranted.” In sum, Judith H.’s questionnaire and voir dire answers portrayed a person who strongly believed on religious grounds that the death penalty was a valid punishment for some murders, was willing and able to assess it where appropriate, and accepted that the categories of death eligibility were a matter for the law.

On the other hand, they indicated that she would not prejudge individual cases, understood the gravity of condemning someone to death, and would therefore weigh the evidence and penalty choices carefully. On this basis, the prosecutor could readily conclude that Judith H. would be an evenhanded, and therefore acceptable, capital juror. In her questionnaire, Juror Sherry K. rated herself as “[njeutral” on the death penalty.

However, she indicated she had no religious scruples on the issue and would vote “[f]or” the death penalty on the ballot because “people should have choices.” Asked to describe her general feelings on the death penalty, she wrote, “The cases that I know about from the news indicate that it was warranted.” On voir dire, Sherry K. indicated she was thinking of high-profile cases— “Jeffrey Dahmer, Charles Manson”—when she wrote of cases in the news where the death penalty seemed appropriate. She also said she did not think death was warranted for a single murder to prevent a witness from testifying.

However, she made clear that she was distinguishing her political and philosophical views from her duties as a juror.

She explained that she would not “make such a law,” but “since it is the law, I can still agree and abide by it.” (Italics added.) Asked by the prosecutor if she meant that, even if she disagreed with the law, she could vote for death in such a case if persuaded the aggravating circumstances outweighed those in mitigation, she replied, “Yes, sir, that’s what I’m telling you.” When the court interrupted to ask if she would use the standard of proof required by the instructions, and not impose one of her own, she replied, “Absolutely.” Finally, she agreed she could impose death in a circumstantial-evidence case if instructed that such evidence was equal to direct evidence.

From these answers, the prosecutor could infer that Sherry K. favored the death penalty in certain cases, and could put aside her personal views in others to deliberate fairly, under the law and instructions, on the issue of penalty. On that basis, she would appear to be an acceptable juror for the prosecution. In her questionnaire, Juror Cecilia M. rated herself “[m]oderately in favor” of the death penalty, and stated she had no religious objections to it.

She indicated she would vote “[flor” the death penalty because “I feel it [is] necessary sometimes.” Asked to describe her general feelings about the death penalty, she wrote, “I feel [it] is necessary in some cases.” On voir dire, Cecilia M. explained she thought the death penalty was sometimes necessary because “some crimes are [so] horrible that a person deserves to die.” She stated that she could “make a choice” between death and life without parole in a case where a witness was killed to prevent his testimony.

Under questioning by defense counsel, she admitted that, though she generally favored the death penalty, she had thought about whether it would be difficult actually to impose it, i.e., “how I would feel about determining if someone should die or not,” and “if I could just morally do it.” But when the prosecutor followed up on the same theme, Cecilia M. said, “Well, as I said, I’ve thought about it a lot since the questionnaire; and I honestly think I could.” She agreed she could do so in a case involving circumstantial evidence.

These answers indicate that Cecilia M. generally believed in the death penalty, had pondered the moral significance of personal involvement in its imposition, but had ultimately decided her moral qualms, if any, were not so strong as to hinder her ability to deliberate fairly as a penalty juror. On this basis, the prosecutor could well find her acceptable as a juror. In his questionnaire, Juror Manuel R. rated himself “[s]trongly in favor” of the death penalty and indicated he would vote “[f]or” the death penalty on the ballot.

Asked to explain his general feelings about the death penalty, he wrote, “I have always been in favor of the death penalty [as] a strong deterrent to murder and violent crime. But I never, ever thought that the situation would occur where I may have to assist in the decision to implement it as a sentence.” Asked if he had religious or philosophical scruples against the death penalty, he responded, “To be honest, I don’t know.

I think I’d actually have to be in the situation before I’d know for sure.” On voir dire, after hearing the court’s explanation of the guilt and penalty process, Manuel R. told the court that “the outline you just gave, that clarified a lot,” and he could now say he had no feelings that would prevent him from choosing between death and life without parole. He repeated this theme during questioning by both counsel.

When defense counsel asked whether, at the final stage, Manuel R. would be willing to make a penalty judgment without being affected by any religious or philosophical principle, Manuel R. replied, “I think I could.

It’s something I’ve—since our original instructions I’ve thought about a lot between then and now, and I think that I could make that decision without being prejudiced or—or tilted one way or the other.” Manuel R. further explained that, despite his ambivalence on the questionnaire, he did not actually think he had any “built-in religious or philosophical difference or bias” concerning his ability to consider the death penalty. His uncertain questionnaire answer, he said, “was simply [from] coming for jury duty and being put in this situation” without having considered in advance how he might feel.

However, he indicated, in thinking about it since, “I believe I could be objective and . . . consider the evidence and . . . make a decision that I thought was the correct decision without being biased.” When the prosecutor asked again if Manuel R. could actually impose the death penalty knowing that defendant would be taken to San Quentin and executed, Manuel R. responded, “Yes, I believe so.” He also indicated he could “certainly” vote for death in a case involving primarily circumstantial evidence if, as the court would instruct, such evidence was equal in weight to direct evidence.

In sum, the prosecutor could surmise that Manuel R. strongly favored the death penalty in principle, faced momentary uncertainty about his ability to impose it personally, but, after thinking the matter over, concluded he was willing and able to consider that penalty fairly during penalty deliberations. Thus, the prosecutor could readily assume he was an acceptable capital juror. Juror Brian S. stated in his questionnaire that he would vote “[f]or” the death penalty on the ballot “[b]ecause the person[’]s life is all but over and making him die a slow life [in prison] would be cruel.

That’s why we still shoot horses when they have a broken leg.” He indicated he had no religious or philosophical scruples against the death penalty, and that his philosophical opinion was “[n]eutral.” Asked to describe his general feelings about the death penalty, he stated that if the evidence justified the death penalty, “then I think it must go on with it. I do believe in the death penalty only after all appeals have been exhausted.” On voir dire, Brian S. generally indicated his willingness to apply the death penalty law as the court would explain it to him.

He confirmed, in response to questions from the court, that he supported the death penalty under “the terms permitted.” He explained that, as a correctional officer in both the Montana and federal systems, he had seen prison conditions and had thought about capital punishment throughout his career. His basic view, he said, was “to go with it.

The judge is supposed to make the determination and the jury, so I have to accept it.” He amplified the “shoot horses” remark in his questionnaire by saying he saw “no reason why [the death penalty] shouldn’t be carried out,” where warranted, in preference to a lifetime of confinement under poor prison conditions with no hope of release, no goals, and no chance to contribute to society or the prison.

When asked by the prosecutor what he meant in his questionnaire by rating himself neutral on the death penalty, Brian S. said he believed that “[i]f it warrants the death penalty, if the crime warrants the death penalty, then I think I am for it. And if it didn’t, then I’m against it.” That was why, he added, he had written that it should be imposed only after all appeals were exhausted; he agreed with the prosecutor’s suggestion that he wanted to “[m]ake sure everything was done right.” He insisted his professional relationships with prisoners had not caused him to oppose the death penalty.

He agreed he could impose death in a circumstantial-evidence case if such evidence was legally “equal” to direct evidence. And he indicated he would consider, but not prejudge, the propriety of the death penalty where one person was killed to prevent his testimony. Nothing in these statements suggests Brian S. had reservations about imposing the penalty of death in an appropriate case, as determined by a jury under the terms of the death penalty law and affirmed on postconviction review. The prosecutor had ample grounds to find him acceptable as a capital juror.

Finally, Juror Christian W., in his questionnaire, rated himself “[njeutral” on the death penalty and indicated his views had not changed substantially in recent years, explaining that “I’m not an advocate or proponent of the death penalty.” On the other hand, he reported he had no religious or philosophical reservations, remarking that “[i]f the facts and verdict warrant the death penalty, then so be it.” He also indicated he would vote “[f]or” the death penalty on the ballot, commenting that it was a “strong deterrent” to crime.

Describing his general feelings on the subject, he said it “is a very difficult way to punish someone, but, if the facts of a case warrant that action, then it is a part of our judicial system that must be imposed.” On voir dire, when the court asked Christian W. if he would have difficulty choosing between the two punishments, he said, “On the face of it, no.

Basically, my feeling[] is if the crime justifies [the] death penalty, then so be it, and if not—. . . .” In response to questions from defense counsel, he acknowledged that, now faced with possible personal responsibility for choosing between life and death, he realized he might not be as pro death penalty as he had thought. He said he had “relaxed a little bit” on the subject, and now understood his attitude to be “more or less, you know, that people have to have their say in front of the jury more so than . . . prejudging.” Nonetheless, he indicated, he felt he could vote for either punishment.

Asked similarly by the prosecutor if he thought he could “make that vote,” Christian W. answered, “As I sit here today, yes, I do if the facts warrant it.” He made clear that he could do so in a case supported primarily by circumstantial evidence, and where one person was killed to eliminate him as a witness. Thus, all the seated jurors expressed death penalty views ranging from truly neutral to moderately favorable.

Ultimately all indicated, without reservation, that they could apply the capital sentencing law, accept circumstantial evidence of defendant’s guilt, deliberate fairly on the proper punishment, and choose the death penalty in an appropriate case. By contrast, three of the five excused African-American prospective jurors made, and did not retract, allusions to significant religious, moral, or other qualms that would make it very difficult for them to choose death. A fourth recounted a unique personal experience that might impair his ability to accept circumstantial evidence.

The fifth evaded questions about her political stand on the death penalty in a manner that could give the prosecutor pause about her actual ability to deliberate fairly in a capital case. Certainly no seated juror expressed views so starkly similar to those of the excused prospective jurors as to expose, on the face of a cold record, any pretext in the prosecutor’s stated reasons for the excusáis.

Moreover, defendant points to no disparate or trick questioning by the prosecutor, designed to create pretexts for retaining nonminority panelists while excusing those belonging to a minority racial group. (See Miller-El, supra, 545 U.S. 231, 260-263, 265.) Under these circumstances, we see no basis to overturn the trial court’s determination that the prosecutor’s stated nondiscriminatory reasons for dismissing the five African-American prospective jurors were sincere, and that purposeful discrimination was not established. We therefore reject defendant’s Wheeler/Batson claim. 2.

Restriction on voir dire The juror questionnaire included a question asking what jurors had heard about the case. During pretrial proceedings, defendant’s counsel proposed to modify this question by preceding it with the following statement: “[Defendant,] a former Berkeley Waterfront Commissioner, is accused of attempted murder in connection with the January 31, 1988, beating of University of California Professor Robert Mishell and his wife while in their Berkeley home, [f] He is also accused of murdering Luis Reyna, a Berkeley Waterfront Commissioner and an alleged witness in the Mishell case, on July 18, 1988.

Mr. Reyna’s body was found dismembered in the Lafayette hills a short time after his disappearance.” Another question asked jurors to rate their attitudes towards capital punishment on a scale ranging from strongly in favor to strongly against.

The defense proposed that, after answering this question, jurors be asked to review the facts set forth in the first modification, then state and explain “what change, if any, [those facts might produce] in your philosophical view of the death penalty.” Counsel argued that, in view of the publicity the case had received, the first modification was relevant to determining whether a motion for change of venue should be filed.

Moreover, counsel urged, while the defense was “aware of the court’s concern about any prejudgment of facts,” the second modification was appropriate to ascertain whether the particularly gruesome facts might influence the jurors’ penalty attitudes. The trial court explained that, as was its usual practice, it would apprise prospective jurors of the general facts by reading aloud, then paraphrasing, the information. Also, the court said, it would allow counsel to voir dire the jurors “as to pretrial publicity in terms of the status of Mr.

Mishell and his wife, him being a professor, that the assault occurred in their home, [and] that [defendant and the alleged murder victim Reyna] were Waterfront Commissioners.” However, the court rejected the proposed questionnaire modifications. As to the “issue of dismemberment,” the court explained, questioning prospective jurors about how they might be affected by the “method of killing” would, in effect, be asking them to prejudge the case.

Thus, the court ruled, counsel could examine jurors orally about their ability to choose between life and death if they found true the charges and allegations in the information—i.e., that defendant attempted to murder the Mishells, inflicted great bodily injury on them, and murdered Reyna to eliminate him as a witness in the Mishell case.

Moreover, the court indicated, it would allow voir dire “[about] the location of the assault, [and] the status of the [defendant and the victims]; but I will not permit you to go into any of the factual issues, including but not limit[ed] to the dismemberment.” After the guilt trial, counsel again moved for further voir dire of the jurors concerning their ability to choose between life and death in light of the evidence, particularly the dismemberment evidence, the jury had actually heard. The court denied the motion, noting that, in its view, the defense had conducted a “complete and exhaustive” voir dire.

The court indicated that it stood by its pretrial ruling against “arguing or voir diring the facts of the case.” Defendant now claims the court’s refusal to allow questioning of jurors about whether they would automatically impose death in light of the dismemberment evidence violated his rights under the Sixth, Eighth, and Fourteenth Amendments and analogous provisions of the California Constitution. The contention lacks merit. “[T]he trial court has ‘considerable discretion ... to contain voir dire within reasonable limits’ [citations].

This discretion extends to the process of death-qualification voir dire established by Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770] and Wainwright v. Witt [(1985)] 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844]. [Citation.] Limitations on voir dire are subject to review for abuse of discretion. [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 990 [95 Cal.Rptr.2d 377, 997 P.2d 1044] (Jenkins).) Moreover, as we have said on many occasions, “[defendant ha[s] no right to ask specific questions that invite[] prospective jurors to prejudge the penalty issue based on a

summary of the aggravating and mitigating evidence (People v. Cash (2002) 28 Cal.4th 703, 721-722 [122 Cal.Rptr.2d 545, 50 P.3d 332]), to educate the jury as to the facts of the case (People v. Sanders (1995) 11 Cal.4th 475, 538-539 [46 Cal.Rptr.2d 751, 905 P.2d 420]), or to instruct the jury in matters of law (People v. Ashmus (1991) 54 Cal.3d 932, 959 [2 Cal.Rptr.2d 112, 820 P.2d 214]).” (People v. Burgener (2003) 29 Cal.4th 833, 865 [129 Cal.Rptr.2d 747, 62 P.3d 1]; see also, e.g., People v.

Mason (1991) 52 Cal.3d 909, 939-941 [277 Cal.Rptr. 166, 802 P.2d 950] (Mason).) We have explained that “[t]he Witherspoon-Witt . . . voir dire seeks to determine only the views of the prospective jurors about capital punishment in the abstract .... The inquiry is directed to whether, without knowing the specifics of the case, the juror has an ‘open mind’ on the penalty determination.” (People v.

Clark (1990) 50 Cal.3d 583, 597 [268 Cal.Rptr. 399, 789 P.2d 127], citations omitted.) In Mason, alluding to the facts there presented, we said that “[m]any persons whose general neutrality toward capital punishment qualifies them to sit as jurors might, if presented with the gruesome details of a multiple-murder case, conclude that they would likely, if not automatically, vote for death.” (Mason, supra, 52 Cal.3d 909, 940; see also People v.

Sanders, supra, 11 Cal.4th 475, 539.) On the other hand, we have indicated that because “ ‘[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,’ ” the death qualification process “must probe ‘prospective jurors’ death penalty views as applied to the general facts of the case, whether or not those facts [have] been expressly charged.’ ” (People v.

Earp (1999) 20 Cal.4th 826, 853 [85 Cal.Rptr.2d 857, 978 P.2d 15] (Earp).) Reconciling these competing principles dictates that “death-qualification voir dire must avoid two extremes. On the one hand, it must not be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair the performance of their duties as jurors in the case being tried. On the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a

summary of the mitigating and aggravating evidence likely to be presented. [Citation.] In deciding where to strike the balance in a particular case, trial courts have considerable discretion. [Citations.]” (People v.

Cash, supra, 28 Cal.4th 703, 721-722 (Cash).) In Cash—our only reversal of a death penalty judgment for failure to allow sufficient inquiry into jurors’ death penalty attitudes about particular facts—we stressed that the court had refused to allow defense counsel to ask prospective jurors about “a general fact or circumstance . . . that could cause some jurors invariably to vote for the death penalty, regardless of the strength of the mitigating circumstances.” (Cash, supra, 28 Cal.4th 703, 721, italics added.) There, we concluded, the fact that the defendant had previously murdered his grandparents was “likely to be of great significance to prospective jurors.” (Ibid.) In Roldan, supra, 35 Cal.4th 646, the trial evidence showed that the defendant and an accomplice approached swap meet employees who were collecting and bundling the day’s cash receipts.

The defendant, brandishing a firearm, ordered the victims not to “fucking move.” When one potential victim tried to flee, the defendant stated, “I said don’t anybody fucking move.” He then pointed his weapon at the fleeing victim and pulled the trigger, but the gun misfired. After taking bags of money, the robbers themselves fled, but another swap meet employee, one Teal, chased, caught, and held the accomplice. The defendant reappeared and told Teal he would shoot unless Teal released the accomplice. Teal obeyed the order, threw up his hands, and froze.

The defendant thereupon fired several rapid shots into Teal’s chest and arm, wounding him fatally. The trial court itself undertook the death qualification of prospective jurors. It asked each panelist whether he or she would change any questionnaire answer, then posed four general questions about the panelist’s ability to deliberate fairly in a death penalty case. Defense counsel requested that the court inquire further into the questionnaire and voir dire answers of two persons who ultimately sat on the jury. However, counsel never specified what additional questions and information he desired.

The court denied the request. On appeal, we rejected the defendant’s claim that the court thereby erred. We first observed that the requests for supplementary voir dire were not sufficiently specific as to purpose or subject matter. We also dismissed the defendant’s reliance on Cash.

There, we noted, the defense had been denied the opportunity to probe juror attitudes toward the defendant’s prior murder of his grandparents—quoting, in added italics, Cash’s statement that this fact “ ‘could cause some jurors invariably to vote for the death penalty, regardless of the strength of the mitigating circumstances’ ” (Roldan, supra, 35 Cal.4th 646, 694.) By contrast, we said in Roldan, “defendant identifies no fact about his case that is comparable in relevance to the prior murders in . . . Cash . . . , facts that could potentially have prejudiced even a reasonable juror.

There were in this case no prior murders, no sensational sex crimes, no child victims,no torture.” (Roldan, supra, 35 Cal.4th 646, 694, italics added, citation omitted.) Under these circumstances, we concluded, the trial court did not abuse its discretion in disallowing further questioning. Similarly here, the court did not abuse its broad discretion. We note at the outset that the defense was allowed to explore with prospective jurors several of the specific circumstances of the case.

These included the Mishells’ status as members of the University of California academic community, the prosecution’s claims that defendant attempted to murder the Mishells and inflicted great bodily injury on them, the fact

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