THE PEOPLE, Plaintiff and Respondent, v. GREGORY O. TATE, Defendant and Appellant, 49 Cal. 4th 635

Opinion BAXTER, J. A jury found defendant Gregory O. Tate guilty of the first degree murder of Sarah LaChapelle. (Pen. Code, §§ 187, 189.) The jury also found that defendant personally used a dangerous and deadly weapon, a knife (§ 12022), and that robbery-murder and burglary-murder special circumstances were true (§ 190.2, subd. (a)(17)). Defendant was sentenced to death. This appeal is automatic. We will affirm the judgment in its entirety. I. FACTS A. Guilt trial. 1. Prosecution case.

Around 8:00 p.m. on Monday, April 18, 1988, Tanya DeLaHoussaye paid a brief visit to Sarah LaChapelle in Sarah’s home on Hesket Road in Oakland. Sarah’s burgundy Oldsmobile Cutlass was parked in her driveway. Sarah was wearing a nightgown and said she planned to lie down because she had a cold. At 11:00 a.m. on Tuesday, April 19, 1988, Anthony LaChapelle, Sarah’s son, went to her home and noticed her Cutlass was not in the driveway. The front door was open, though the outer screen door was closed. Anthony went in and found his mother dead on the living room floor, dressed in a nightgown.

Her body had been impaled with a butcher knife and a barbecue fork. Her ring finger had been cut off and was lying near her body. A chair had been turned over, items had been tossed about, and the room was in disarray. There was a hole in the back door. Anthony called 911. An autopsy confirmed that a knife was embedded in the victim’s back, and a barbecue fork was stuck in the side of her neck. She had multiple stab wounds on her back, buttocks, and neck, some inflicted by a knife different from the one lodged in her back.

There also were incised, or slicing, wounds on her left shoulder, right index finger, and right thumb. Her back and face exhibited numerous puncture wounds, caused by something small and sharp entering the body, including one such wound that had penetrated her eye. In all, her body had 24 stab wounds and 28 puncture wounds. These wounds had caused damage to her ribs, voice box, pericardial sac, heart, torso, neck, back, right jugular vein, right chest cavity, right lung, vertebral column, left kidney, abdominal cavity, and left buttock, and well as the tendons and muscles of her right hand.

As noted, her ring finger had been detached from her hand, and she had damage to the adjacent third and fifth fingers. She had also suffered multiple blunt force injuries, including defensive wounds, to her head, face, arms, and torso. Her upper jaw was fractured, and teeth had been knocked out. The examining pathologist opined that the victim was alive, though not necessarily conscious, at the time these injuries were inflicted. The victim had a telephone cord wrapped around her wrists and torso. There was a 10-inch tear on the front of her nightgown, which had been lifted above her waist.

The evidence indicated that the assailant had made a forced entry through the back door, that a bloody struggle had occurred in the living room, that the assailant thereafter left bloody traces, including bloody footprints, throughout the house while looking for items to steal, and that the murder weapons were knives and tools found in the victim’s home. Defendant’s grandmother lived across the street and three houses down from the victim’s residence. Also living in the grandmother’s house were defendant’s mother, his brother, his aunt, and several other relatives.

According to defendant’s aunt, he sometimes lived with the family at his grandmother’s house, but he was not living there on the day of Sarah’s murder. Around 6:00 p.m. on April 19, 1988, Oakland patrol officers Sullivan and Boyovich were parked on Kingsland Avenue. They spotted a burgundy Oldsmobile Cutlass that was on the stolen vehicle list. They stopped the vehicle, which was the victim’s car. Defendant was driving. He was arrested.

The interior of the Cutlass contained a small carving knife and a pair of red pants, as well as a radio-television and a videocassette recorder (VCR) that had been taken from the victim’s home. After initial resistance, defendant was handcuffed and placed in the police car. Once seated in the police vehicle, he volunteered that he had gotten the Cutlass from “a guy named Fred Bush.” Defendant was taken to the homicide division of the Oakland Police Department to be interviewed.

Defendant’s sweater had a bloodstain on its sleeve, and, when one of the interviewing officers arrived, the bloody shoes defendant had been wearing were sitting outside the interview room. The interview began around 9:25 p.m. on April 19 and lasted through much of the night, with periodic breaks. Only a single portion was recorded. During the unrecorded initial segment, interrogating officers advised defendant they were investigating the theft of the Oldsmobile, and that a lady had been “hurt” in the incident. The officers read him his Miranda rights.

He agreed to waive his right to silence, both orally and by initialing the written advisement form. During the initial unrecorded segment, the officers asked defendant about the bloodstain on the sleeve of his sweater. Defendant said it was from a nosebleed. Defendant further stated the following: He lived with his grandmother, but was staying at the home of his girlfriend, Lisa Henry. He was at his grandmother’s between 2:00 p.m. and 3:00 p.m. on April 18, 1988, but arrived at Lisa’s residence around 8:00 p.m. The next morning, April 19, he got up at 10:00 a.m. and went to 55th Avenue and Foothill Boulevard.

There he met Fred Bush, who had the burgundy Oldsmobile Cutlass. Bush was trying to sell a small television and a VCR. He owed defendant $500 because, when defendant was arrested and jailed following an earlier fight between the two men, Bush or Bush’s mother had taken defendant’s jacket, which contained cocaine worth that sum. As a “fair trade” for the debt, defendant gave Bush two rocks of cocaine, worth $20 each; in return, Bush gave defendant the television and the VCR, and lent him the Cutlass until 11:00 that evening so he could take Lisa to a drive-in movie.

The recorded portion of the interview began at 10:07 p.m. At this time, defendant was re-Mirandized, and he agreed to continue speaking. During the recorded segment, defendant provided a more detailed version of the account he had previously given. Meanwhile, the officers learned that Fred Bush had been taken into custody on April 7, 1988. (He would thereafter remain in the county jail until July 18, 1988.) Without telling defendant that Bush was in jail, the officers asked defendant to identify a picture of Bush. Defendant positively identified, and initialed, the picture.

The recorded session ended at 10:33 p.m., and the interview resumed at 11:29 p.m. Before this latter segment commenced, the officers advised defendant that the victim in the case they were investigating was dead. In the renewed session, defendant conceded that his grandmother lived near the victim, Sarah LaChapelle, and that he knew Sarah’s son, but he denied ever being inside the victim’s house. An officer asked defendant whether anything had happened at his grandmother’s residence on April 18, 1988.

Defendant said he had gone there once that day to get money from his mother for a bus ticket, but she would not give him money. He had also gone to obtain his gun, and he went into his grandmother’s room for that purpose. Told that two 911 calls had been made from his grandmother’s address on that day (at 7:04 p.m. and 9:25 p.m.), defendant responded, “What if I did go back? But I didn’t.” Defendant insisted his family blamed him for everything and did not like him.

When accused of lying, defendant muttered to himself, “Going to jail for the rest of your life, man.” At length, the officers confronted defendant with the facts that Fred Bush was in jail, defendant had been driving the victim’s car and was in possession of property taken from her home, and he had bloodstains on his clothing and shoes. Urged to tell the truth in the face of this evidence, defendant responded, “Well, what’s in it for me?” The officers indicated there would be no deals. In the early morning hours of April 20, 1988, defendant was arrested for Sarah LaChapelle’s murder.

Later on the morning of April 20, and pursuant to a warrant, officers searched the residence where Lisa Henry lived with her father and her 15-year-old brother, Germaine. Among other things, the officers seized a watch, a chain necklace, and a Visa credit card in the victim’s name. Lisa gave the watch and chain to police after an officer advised her they were looking for evidence that might have been taken in the homicide. When the search was complete, the police transported Lisa to the station to obtain a statement. Among other things, the officers asked whether defendant had given her some rings.

Lisa said he had done so, but had subsequently taken them back. At the conclusion of an initial interview, Lisa was allowed to speak with defendant, who was in another interview room. There were several versions of how this visit came about, and of what defendant told Lisa. Sergeant Medsker, one of the interrogating officers, testified that Lisa asked if she could see defendant, was granted permission to do so, and spoke with him for about five minutes. Immediately thereafter, the officers questioned Lisa on tape about what defendant had said.

In this recorded portion of the interview, which was played for the jury, Lisa stated that defendant had denied committing the crime, had ultimately agreed with Lisa’s suggestion that “Freddie, Fred did it,” and at one point had said he tried to stop Fred. Lisa indicated she had urged defendant to disclose who else was involved in hopes of receiving a lesser sentence, but defendant said he would have to stay in jail anyway. At trial, when asked by the prosecutor if she had requested permission to see defendant, Lisa responded only that the officers said they would allow her to see and speak with him.

On cross-examination, she denied having asked to see defendant.

Lisa testified that when she asked him about Fred, defendant “didn’t say anything,” and when she asked him what happened with a lady, he was “just vague” and “didn’t really say.” When the prosecutor sought to refresh her recollection by showing her the transcript of her taped police statement, Lisa claimed she had misspoken to the officers; they had mentioned Fred and she went into the room thinking Fred must have committed the crime, so after her visit with defendant, in which she did “all the talking,” she just told them, “Fred did it.” Lisa further testified as follows: Defendant had stayed at her home off and on since the end of March, when he was discharged from the hospital after being treated for gunshot wounds.

He came to her house around 8:00 p.m. on April 18, 1988, but he did not stay the night. When he arrived, he was wearing acid-washed jeans with a red jacket. He subsequently left the house with Lisa’s father. Her father returned later that evening, but defendant did not. Lisa saw defendant again the next morning; Germaine had let him in while Lisa slept. Defendant was still wearing the jeans and red jacket. The jacket had a matching pair of red leather pants. Lisa had seen defendant wear jeans under those pants before. Germaine wore the matching jacket and pants to school that day.

That same morning, Lisa found a Chase Manhattan Visa card with the name “Sarah” in a paper bag on the kitchen table. Defendant gave her a watch, a necklace, a diamond wedding ring, and a diamond engagement ring. She did not ask where he got these items and assumed they were from his drug dealing activities. Later that day, defendant drove Lisa to the store in a burgundy Oldsmobile Cutlass. She asked where he had obtained the car, but he did not answer. During the drive, he asked her to give him back the rings; she did so. He dropped her off at her home around 6:00 p.m.

In his trial testimony, Germaine Henry admitted he had told police defendant arrived at the Henry residence on the morning of April 19, 1988, carrying a red jogging suit in a pillowcase. However, he disavowed this statement on the stand, saying the jogging suit had been in his possession for weeks. He testified he wore the suit on occasion, but could not remember wearing it on April 19. He admitted the pants legs had little soiled spots, as well as dirt that needed to be wiped off. Thereafter, Germaine’s tape-recorded statement to the police was admitted in evidence and played for the jury.

In this statement, Germaine recounted the following: Defendant was not at the Henry residence on the evening of April 18, 1988, but arrived the next morning carrying a red jogging suit in a pillowcase. Germaine wore the suit to school that day (Apr. 19) after wiping dirt off the pants legs. When he left for school, a burgundy-colored car was parked outside the house. When he got back from school, Lisa was wearing a watch, and defendant showed Germaine a ring, which Germaine put on his finger and then returned to defendant. Defendant’s aunt, Mamie Jackson, lived with defendant’s grandmother on Hesket Road.

Jackson testified as follows: Defendant came to the house in the late afternoon or early evening of April 18, 1988. He was wearing a red jogging suit. Jackson was not present when defendant left the house later that night, but when she next returned, the grandmother’s room appeared to have been ransacked. The next morning, the victim’s husband, Sylvester LaChapelle, called Jackson and asked if she could see Sarah LaChapelle’s Oldsmobile Cutlass parked in Sarah’s driveway. Jackson walked across the street to check, saw the car was not there, and relayed this information to Sylvester.

Serological evidence indicated that the pants of the red leather jogging suit and the sleeve of defendant’s sweater both contained type B human blood, found in 19 percent of the Black population. The victim had type B blood; defendant has type O blood. Other genetic markers in the blood on the sweater were consistent with the victim’s blood and appear in about 1.2 percent of the Black population. Other genetic markers in the blood on the red pants were also consistent with the victim’s blood and appear in about 11 percent of the Black population.

According to the prosecution criminologist, the bloodstains on the pants were both “transfer-type” and “spatter” stains. The criminologist described the latter as “blood in flight.” There was also blood on the jacket of the red jogging suit, and on the tops and tongues of defendant’s Fila tennis shoes. The print of one of these shoes matched a bloody shoeprint found at the crime scene. 2. Defense case.

An Oakland Police Department fingerprint specialist testified for the defense that he could obtain no fingerprint match with defendant for prints taken from the crime scene, the victim’s car, or various items seized from the victim’s house. Defendant testified in his own behalf and denied killing Sarah LaChapelle. He gave the following account: He went to his grandmother’s house between 4:00 p.m. and 5:00 p.m. on April 18, 1988. He was wearing Fila tennis shoes and a red leather jogging suit over acid-washed jeans and a sweater.

He sought to obtain a gun, and also wanted his grandmother to give him money for a bus ticket, because he had learned that the man who had shot him the previous month was after him again. His grandmother did not have enough money to give him. He went into her bedroom without permission and opened drawers to look for a firearm, but he did not ransack the room. He found a .38-caliber revolver under the bed and put it in his belt. As he left, after a stay of about 40 minutes, he heard his name broadcast on his grandmother’s police scanner.

Because he was on probation for prior weapons offenses, and feared the police might catch him with the revolver, he hid it on a shelf in his old clubhouse adjacent to his grandmother’s garage. Then, carrying the scanner, he jumped over her fence. Still listening to the scanner, defendant walked along a creek to Hegenberger Road, getting mud on his pants and shoes in the process. Eventually he took a bus to Lisa Henry’s house, where he rinsed off his pants with a hose. He changed shoes and socks, putting on a different pair of Fila tennis shoes that belonged to Germaine.

Lisa’s father, Reginald Henry, then drove defendant to look for drags defendant had hidden. When they could not find the drags, they went to a liquor store and bought beer. They sat in the parking lot, drinking the beer, for about 40 minutes. Then they drove back to the Henry house. Reginald went inside, but defendant did not. After several more stops, including one to purchase wine, defendant returned to his grandmother’s house to retrieve the gun. He was not sure when he arrived there. This time, he did not go into the house.

He proceeded to his old clubhouse, obtained the gun, and stayed for about 15 minutes, finishing the wine. As he walked toward the front of his grandmother’s property, defendant observed two men, whom he had seen before, coming out of Sarah LaChapelle’s house. One was carrying a box and the other a pillowcase. The man with the pillowcase saw defendant, dropped the pillowcase, and ran. Both men were Black. One was tall and had a light complexion. Defendant looked inside the pillowcase and saw a VCR and a television. The front door to the victim’s house was open, and he entered the residence.

There he found the victim dead and the house in bloody disarray. He tried to see if the victim was breathing, but was distracted when he heard a noise at the back door. He reached for his gun and dropped it beside the victim’s body. He picked up the gun, went to the back door, and saw that it had been kicked in. Because Germaine’s shoes were two sizes too small, he was wearing them like slippers, and one fell off. Defendant wiped his gun off with a towel. He took the victim’s car keys, the television, the VCR, and other items, and drove away in her Oldsmobile.

He did not call the police to report that she was dead. Nor did he impart this information to his grandmother. After leaving the victim’s house, defendant drove aimlessly. He threw away his bloody socks, and finally fell asleep in the Oakland hills. The next morning, he drove to Lisa Henry’s residence. He took off his leather pants, put them in the pillowcase containing the television and the VCR, took the pillowcase into Lisa’s house, and put it in a closet. Germaine asked if he could wear the red leather jogging suit to school, and defendant agreed.

He retrieved the red pants from the pillowcase and gave them to Germaine. He did not realize there was blood on them. After taking a shower, defendant examined the pillowcase’s contents. Along with the television and the VCR, it contained a watch, a chain necklace, some rings, and a paper bag with a credit card inside. He gave the chain, watch, and rings to Lisa, then went to sleep on the floor. Later, defendant drove Lisa and her friend Yolanda to the supermarket. They dropped off some medicine for Yolanda’s mother and returned to Lisa’s house.

Defendant then placed the television and VCR in the trunk of the Oldsmobile and drove to the apartment of his friends Roshan and Judo, intending to sell the items. However, he began drinking and talking with his friends and did not get around to selling the television and the VCR. On his way back to Lisa’s house, defendant picked up his friend Arnold Haney. Defendant cooked a pizza for himself and Arnold, but Lisa came home and demanded that Arnold, whom she disliked, leave the house. Defendant and Arnold ate the pizza in the car.

Defendant then returned to the house, where Germaine gave back the red leather pants he had worn to school. Lisa started an argument that escalated as she and defendant drove around in the Oldsmobile. Finally, she threw at him the rings he had given her. He put the rings in the car’s ashtray, dropped Lisa off, and drove away. He removed the television and the VCR from the trunk and placed them in the passenger compartment, intending to sell them. While he was stopped at an intersection on Kingsland Avenue, an acquaintance approached and inquired about purchasing drugs.

Police had been sitting in a parked patrol car on Kingsland Avenue. At this point, they jumped out of their car and pointed guns at the two men. After defendant complied with their orders to put his hands through the window, crawl out onto the ground, and place his hands on his head, one of the officers kicked him while handcuffing him. In the police car following his arrest, defendant falsely told Officer Sullivan that he got the Oldsmobile from Fred Bush. He lied because he held a grudge against Bush. Two months earlier, he and Bush had gotten into a fight that led to defendant’s being arrested and jailed.

When defendant fled from the fight, Bush grabbed defendant’s jacket, the pockets of which contained rock cocaine, and gave it to a family member. This incident caused defendant to think of Bush as his enemy. At the homicide division, the police took defendant’s shoes, and he was placed in an interview room, where Sergeants Medsker and Paniagua questioned him. They read defendant his rights, and he agreed to talk, but he did not know why. When asked where he got the Oldsmobile, he repeated the lie about Fred Bush because he had already told that story to Sullivan.

Moreover, he did not think the truth would help and, in any event, he disliked Medsker, whom he knew from a previous investigation into the murder of defendant’s friend. He also lied about getting the VCR and television from Bush in exchange for two rocks of cocaine, and lied by denying that he went into Sarah LaChapelle’s house. When he told these falsehoods, he did not know he was going to be charged with homicide. B. Penalty trial. 1. Prosecution case.

In aggravation of penalty, the prosecution presented evidence of three other instances of defendant’s violent criminal conduct (§ 190.3, factor (b)): In March 1986, following a traffic accident between a truck he was driving and a car, defendant pointed two guns at the car’s owner, then pursued the other vehicle at high speed, rammed it twice with the truck, fired three shots at the car, and, when finally cornered on foot by California Highway Patrol officers, initially resisted their orders and made movements as if to draw the two handguns in his belt.

In September 1987, defendant resisted arrest after a traffic stop by punching the officer’s shoulder, challenging the officer to a street fight, and then rushing at the officer, whereupon the officer was forced to fell defendant with his baton. In February 1988, several days after his fight with Fred Bush, defendant approached Bush’s sister, Marlena Brown, hit her in the face with the back of his hand, placed her in a chokehold, and forced her to telephone Bush under threat that if she did not do so, he would shoot her. The prosecution presented a single victim impact witness, Sarah LaChapelle’s son Anthony.

Anthony testified as follows; His son, age 11, and daughter, age 7, were both severely affected by Sarah’s death. The mention of grandparents in the children’s presence now caused them to cry, so the adults in the family avoided talking about the victim in front of the children. Anthony often dreamed about his mother. Since her death, he could not accomplish anything or face his friends. He began to drink heavily and was arrested for drunk driving. His friends advised him to hunt down and kill his mother’s murderer.

To get away from his friends, he moved to Los Angeles, where he again was arrested for drunk driving and spent time in jail. While he was in jail, his father passed away. Because of the loss of his parents, Anthony had trouble making business decisions, and he lost his contracting business. As to his feelings about defendant, Anthony said, “Even now I want to get this guy. I want him to die, so I hope the law gets him for me.” 2. Defense case. Defendant presented an extensive case in mitigation.

His mother, father, paternal grandmother, and various friends, acquaintances, school officials, and juvenile justice workers testified at length about his family, his childhood, his educational difficulties, and his troubles with the law. A marriage and family counselor testified about the effects of child abuse on mental and psychological development. Regarding defendant’s childhood and family background, his mother, Rosia Carter, testified as follows: Defendant was bom out of wedlock in 1967. At one point, Rosia had tried to abort the pregnancy by taking quinine and mustard powder.

Defendant’s father, Gregory Tate, Sr., ultimately married another woman and was involved only intermittently in defendant’s life. Rosia was physically abused by Gregory, Sr., and by her husband, Wayne Carter. Defendant also suffered childhood physical abuse at the hands of these men, who used dmgs such as heroin and cocaine. Among other things, Carter treated defendant harshly about defendant’s bedwetting problem, which did not go away until the sixth or seventh grade. Carter was involved in criminal drug activities and went to prison twice during his marriage to Rosia.

During Carter’s second prison term, Rosia divorced him. In his teenage years, defendant was affected by the deaths of a cousin, Clifton Spencer, who was fatally stabbed; a neighborhood youth, Willis Reed, who died in a shed fire in Rosia’s backyard; a friend, Antoine Martin, who died in defendant’s arms after a driveby shooting; and defendant’s maternal grandfather, who had been a constructive force in the family. After the grandfather’s death, the family “fell apart.” Several relatives developed dmg problems, and there were physical fights in which defendant was sometimes involved.

At age 17, defendant tried to hang himself in Rosia’s backyard, got into an altercation with responding police officers, then fled. The officers opined he might be trying to make them kill him. Once during a violent argument with Rosia, defendant blamed his upbringing for his life of crime and drugs. Further details of the family background were supplied by Gregory, Sr., and defendant’s paternal grandmother, Zelma Richard. Both confirmed that Gregory, Sr., dropped out of high school, married another woman, Pat Davis, in 1969, entered the military, was sent to Vietnam, and came back addicted to heroin.

Gregory, Sr., recalled a 1968 incident, to which Rosia had also alluded, in which Rosia stabbed Davis during a street altercation, causing Gregory, Sr., to slap Rosia. Gregory, Sr., recounted his further abuse of marijuana and alcohol, and admitted he supported his drug habits with crime. He confirmed that during the two periods he and Rosia lived together, they fought, and he hit her. They argued about how defendant was being raised; Gregory, Sr., thought Rosia was overprotective and too lenient.

Gregory, Sr., recounted that when defendant was 17 years old, he briefly lived with Gregory, Sr., in Seattle after escaping from a juvenile camp. Gregory, Sr., was then living in Seattle to avoid arrest for a parole violation. Richard observed signs that defendant was an angry child who was getting into trouble in school and with the law. Like Gregory, Sr., she believed Rosia was too lenient. When defendant was a teenager, Richard tried to get him to work or go to school, and she enrolled him in a trade school; but he did not attend. She generally considered defendant to be smart, helpful, and respectful.

A friend of Rosia’s and a jail acquaintance of Wayne Carter’s confirmed the physical abuse Rosia suffered from both Carter and Gregory, Sr. A crisis intervention counselor recalled Rosia’s efforts to place defendant, then eight years old, in a residential school because he was disobeying, fighting, and stealing. The counselor sensed that Rosia was rejecting defendant. Three men, all of whom were serving prison terms at the time they testified, recounted their relationships with defendant as a child and youth.

Their testimony indicated that defendant began drinking beer, smoking, stealing, and committing burglaries as early as age six; was smoking marijuana by the fourth grade; “hung out” with older people in an effort to “fit in”; had a violent temper and a “don’t care” attitude; and engaged in fights. One of these witnesses opined that defendant was affected by the deaths of Willis Reed, defendant’s friend Antoine Martin, and defendant’s maternal grandfather. Numerous witnesses detailed defendant’s educational history.

Rosia testified that she enrolled him in kindergarten a year early, but he was already having problems by the first grade. He transferred elementary schools several times. He was smaller than the other children, and tended to act aggressively toward them. He was easily distracted and may have been diagnosed with dyslexia. When learning disabilities caused his one-year transfer in third grade to a school with smaller class sizes, neighborhood children teased him about going to and from school on a “special bus.” Back in his regular school, he had to repeat fourth grade.

During this time, Rosia took him to juvenile authorities to see if they could talk to him before he got into trouble. She tried to place him in a residential school, but it already had one student with the same learning disability and could not take another. She took defendant for counseling, but he resisted, and the counselor could not break through. Defendant took some special education classes during junior high school. He was expelled for the remainder of the school year during seventh grade when a friend brought a pellet gun to school.

Things improved somewhat in ninth grade after defendant’s transfer to yet another school. He joined the gymnastics team in 10th grade, but a foot injury ended his participation. Teachers, an administrator, a psychologist, and a counselor who had contact with defendant while he attended public school testified about his behavior, attitude, grades, and test scores. These witnesses variously confirmed that, throughout much of his school career, defendant performed poorly, and he attended special classes for educationally handicapped students.

In February 1975, when he was in the third grade, he attained an IQ score of 96, within the average range. Had the tester known defendant was only eight years old instead of nine, the score would have been higher. In separate evaluations during each of his fourth grade years, defendant tested well below grade level in reading, though his math scores were solidly at grade level. In seventh grade, after he was suspended for receiving a pellet gun from another student and was placed on home instruction for the remainder of the year, defendant received all failing grades.

He did earn some B’s and C’s during his ninth grade year. According to several witnesses, defendant was hot tempered and aggressive, often involved in fights with other students, and a frequent disciplinary problem. One teacher perceived him as a bully, while another reported that, though not a high achiever, he could behave when strict control was maintained. The individual education plan, or IEP, prepared for defendant early in his school career indicated he had visual-motor integration and reading disabilities, was overactive, and lacked impulse control. The IEP also suggested he had emotional problems.

There was evidence that Rosia’s parenting methods, and her ambivalent attitudes toward defendant, contributed to his school problems. An elementary school teacher thought Rosia believed defendant’s difficulties were the school’s fault. A high school dean testified that, when he suspended defendant for fighting, Rosia at first asserted she did not believe defendant was involved in the incident, and she threatened to kick the dean’s “ass,” though she later came to accept defendant’s complicity.

One witness was a clinical psychologist who, as a graduate psychology student, had evaluated defendant during his third grade year. She testified Rosia told her, in front of defendant, that he resembled his father, that he was “evil,” and that Rosia whipped him to make him angry enough to fight other children when that became necessary. A juvenile probation officer testified about defendant’s contacts with the juvenile justice system in 1983 and 1984, when he was 16 and 17 years old.

According to this witness, defendant was arrested for battery in November 1983, but the district attorney deemed the incident mutual combat, and defendant was released to his stepfather, Carter. Defendant was arrested for burglary in early December 1983, but no wardship petition was filed, and he was released to his mother. Two weeks later, he was arrested on another burglary charge; he was declared a court ward and released to his mother under home supervision. In February 1984, he was arrested for yet another burglary and committed to a county juvenile camp.

He twice walked away from this camp, but surrendered both times. Finally, a licensed marriage and family counselor provided expert testimony about the nature of child abuse, the effects it can have on family dynamics, and the development, behavior, and maturity of one who has suffered it. The witness indicated the following; Child abuse is

an act or omission by a parent that is developmentally inappropriate and damaging to the child. A child can suffer physical, sexual, or psychological abuse, and parental neglect can also qualify as abuse. Psychological mistreatment can include rejection of the child, singling a child out for negative treatment, wishing the child had not been bom, or terrorizing a child. Symptoms can include fistfighting by a young child and bed-wetting by an older child, though the latter problem may also have a physiological origin.

The long-term effects of childhood abuse can include cognitive difficulties, poor school performance, impulsive behavior, alcohol and drag abuse, “acting out” behavior, aggressiveness, running away from home, depression, and suicide. People who were abused as children often become immature adults prone to temper tantrums. There is also a correlation between child abuse and a “conduct disorder,” a diagnosis that may apply to one who breaks the law before age 18. In the 1970’s and 1980’s, child abuse often was not identified, and even if identified, the treatment may not have been effective. II. DISCUSSION A.

Jury selection issues. 1. Restrictions on voir dire. Defendant claims that by refusing to allow questioning of prospective jurors about whether they would automatically vote for the death penalty in light of certain specific facts about Sarah LaChapelle’s murder, the trial court risked empanelling a juror who, though perhaps open to either the death penalty or life without parole in some cases, would vote for death in this case without regard to the mitigating evidence.

The court’s ruling, defendant urges, violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and analogous provisions of the California Constitution. We find no error. The pertinent procedural facts are as follows: Prior to trial, defendant’s counsel submitted a proposed script to be used by the court in questioning jurors during the death qualification voir dire. This script first advised a prospective juror that he or she was to hear a

summary of the accusations against defendant in order to make voir dire more meaningful. The script then instructed the prospective juror not to assume the trial evidence would prove the accusations beyond reasonable doubt, not to draw inferences about defendant’s guilt or innocence from the

summary, and that guilt or innocence was a jury question to be decided on the basis of the evidence.

After setting forth these admonitions, the script asked the prospective juror whether, if it were proved beyond reasonable doubt that (1) defendant kicked in the victim’s back door and entered her home with intent to rob, (2) he murdered the victim during that burglary and robbery, (3) the victim died of multiple stabbing and puncture wounds and multiple blunt instrument blows, (4) defendant severed the victim’s ring finger and took her wedding rings, and (5) the victim’s adult son discovered her body, the prospective juror would automatically impose either death or life without parole as a penalty.

The defense proposal was extensively argued over three separate hearing dates, during which the court considered several alternatives. At the initial hearing, on September 3, 1992, the prosecutor objected that the defense’s proposed question was “too detailed” and invited prospective jurors to prejudge the evidence. The court offered the prosecutor the chance to draft an alternative, and he agreed to do so. The court took the matter up again on September 8, 1992. Having reviewed the prosecutor’s draft, the court proposed its own question.

With the prosecutor’s approval, this version included reference to the assumed facts that a woman was robbed, stabbed, and bludgeoned to death in her own home. Defense counsel urged that this was inadequate because it left out the most serious piece of aggravating evidence, i.e., that the victim’s finger was severed. The court responded that it intended to omit this latter detail because whether, and why, the finger was severed was a jury issue.

The court said that if a severed finger were mentioned, it would “invit[e] inquiries from the jurors why that is significant, and so then we are going to have to be feeding them more and more of the facts of this case, and we are asking them to prejudge the evidence.” The matter was continued again for two days, during which the court researched and considered the issues further.

In its final ruling, on September 10, 1992, the court retreated from its September 8 position, and determined that death qualification inquiry about prospective jurors’ case-specific penalty attitudes should be confined to matters embodied in the accusatory pleading. The court said it would read the information to the prospective jurors, and then would ask whether both penalties would be open if defendant was convicted of first degree murder, and the jury further found true the robbery-murder and burglary-murder special circumstances and that a deadly weapon was used.

In addition, the court ruled, counsel could question prospective jurors about the effect on their penalty attitudes of (1) the felony-murder rule, (2) the fact that the victim was a woman, and (3) the fact that a knife was used in the murder. On the other hand, the court indicated, it would not allow counsel to explore such details as that the victim was bludgeoned to death and was stabbed multiple times and that, when found by her son, she was nude below the waist and a finger was severed.

The court expressed the view that, under Witherspoon, supra, 391 U.S. 510, death qualification was concerned with a prospective juror’s penalty attitudes in the abstract and should not focus on the specific facts of the case at hand. Questions that went into great detail about the facts of the particular case, the court remarked, improperly sought to “indoctrinate[j the juror” and get the “juror to vote in a specific way.” We have had several recent occasions to summarize the relevant law.

At the time of trial, as now, a prospective juror could be excluded from service on a capital case if the person’s attitudes toward the death penalty would prevent or substantially impair his or her ability to follow the court’s instructions and the juror’s oath. (Wainwright v.

Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt) [clarifying that exclusion is permitted under broader circumstances than those previously specified in Witherspoon, supra, 391 U.S. 510, 522, which allowed exclusion where a prospective juror made “unmistakably clear” that he or she would “automatically” vote for or against the death penalty].) In the process of determining prospective jurors’ capital case qualifications, the court has considerable discretion to place reasonable limits on voir dire (People v. Carasi (2008) 44 Cal.4th 1263, 1286 [82 Cal.Rptr.3d 265, 190 P.3d 616] (Carasi); People v.

Zambrano (2007) 41 Cal.4th 1082, 1120 [63 Cal.Rptr.3d 297, 163 P.3d 4] (Zambrano)) and to determine the number and nature of voir dire questions (Carasi, supra, at p. 1286; People v. Stitely (2005) 35 Cal.4th 514, 540 [26 Cal.Rptr.3d 1, 108 P.3d 182] (Stitely)). “[D]eath-qualifying voir dire seeks to determine prospective jurors’ attitudes about capital punishment only in the abstract, and whether, without knowing the specifics of the case, they have an open mind on penalty. (Zambrano, supra, 41 Cal.4th [1082,] 1120, quoting People v.

Clark (1990) 50 Cal.3d 583, 597 [268 Cal.Rptr. 399, 789 P.2d 127].)” (Carasi, supra, 44 Cal.4th 1263, 1286.) Thus, “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 ([Cash, supra,] 28 Cal.4th 703, 721-722 . . .), 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] . . . .)” (Zambrano, supra, at p. 1120.) “Nevertheless, voir dire cannot be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair their performance under Witt, supra, 469 U.S. 412, 424.

Rules have developed to balance the competing interests.” (Carasi, supra, 44 Cal.4th 1263, 1286.) The gist of these rules is that the defense cannot be categorically denied the opportunity to inform jurors of case-specific factors that could invariably cause an otherwise reasonable and death-qualified juror to vote for death regardless of the strength of the mitigating evidence. (Id. at pp. 1286-1287; Zambrano, supra, 41 Cal.4th 1082, 1120-1123; People v. Roldan (2005) 35 Cal.4th 646, 693-694 [27 Cal.Rptr.3d 360, 110 P.3d 289] (Roldan); People v.

Vieira (2005) 35 Cal.4th 264, 285-286 [25 Cal.Rptr.3d 337, 106 P.3d 990]; Cash, supra, 28 Cal.4th 703, 721.) In Cash, supra, 28 Cal.4th 703, “our lone reversal for limiting death penalty inquiry into case-specific facts” (Carasi, supra, 44 Cal.4th 1263, 1286), we concluded that such a reaction might be engendered by anticipated penalty phase evidence—mention of which the trial court had categorically excluded at all phases of voir dire—that, as a juvenile, the defendant had murdered his grandparents. (Cash, supra, at p. 723.) On the other hand, in Roldan, supra, 35 Cal.4th 646, we found no facts so similarly inflammatory that reliance on Cash was appropriate.

The Roldan evidence suggested that, after the defendant and an accomplice robbed participants in a swap meet, then fled, the defendant reappeared and fatally shot a swap meet employee who had chased and caught the accomplice, even though the victim complied with the defendant’s order to release the accomplice. (Roldan, supra, at pp. 663-664.) Seeing no need for specific voir dire on details such as these, we explained that Roldan involved “no prior murders, no sensational sex crimes, no child victims, no torture.” (Id. at p. 694.) Here, defendant renews his contention that his counsel should have been allowed to question prospective jurors about anticipated evidence that the murder victim, Sarah LaChapelle, was bludgeoned as well as stabbed, and in particular, that her ring finger had been severed.

However, we find no abuse of the trial court’s broad discretion. Closely on point in this regard is our recent decision in Zambrano, supra, 41 Cal.4th 1082. There the information charged that the defendant, using a dangerous and deadly weapon, had committed the attempted murders, with great bodily injury, of a Berkeley couple, the Mishells. The information further asserted that the defendant had committed the first degree murder of Luis Reyna, inflicting great bodily injury. As to Reyna’s murder, the information alleged a witness-killing special circumstance.

The prosecution intended to introduce evidence that the defendant, a successful contractor and local official, bludgeoned the Mishells, a University of California professor and his wife, in their home because he thought they had exposed his extramarital affair, and that he murdered Reyna, a friend and colleague, to prevent the victim from testifying against defendant in the Mishell case. There would also be evidence that the murder victim’s body was found in an isolated hilly area, decapitated and dismembered.

The trial court indicated that, for purposes of death qualification, it would read aloud, and paraphrase, the information for the prospective jurors, and would permit counsel to question them with respect to the community status of the defendant and the victims, and the location of the Mishell assaults, but would not grant the defense request to explore the issue of dismemberment. To ask prospective jurors about their reaction to the “method of killing,” the court explained, would be inviting them to prejudge the case. On appeal, we upheld the trial court’s ruling as a valid exercise of its broad discretion.

Distinguishing Cash, we held that “[t]he sole fact as to which the defense unsuccessfully sought additional inquiry—the condition of the adult murder victim’s body when found—was not one that could cause a reasonable juror—i.e., one whose death penalty views otherwise qualified him or her to sit on a capital jury—invariably to vote for death, regardless of the strength of the mitigating evidence.” (Zambrano, supra, 41 Cal.4th 1082, 1122.) We acknowledged that a normal juror would certainly be affected by the condition in which the victim’s body was found, “as by any brutal circumstance of a criminal homicide.

But the fact of dismemberment, in and of itself, does not appear so potentially inflammatory as to transform an otherwise death-qualified juror into one who could not deliberate fairly on the issue of penalty.” {Id. at p. 1123.) Similarly here, the fact that Sarah LaChapelle was beaten as well as stabbed, though affecting, is not outside the realm of “brutal circumstance[s]” that might be expected in a trial for capital homicide.

And if dismemberment of the victim’s body in Zambrano was not a detail so gruesome, sensational, and inflammatory that it could cause a reasonable, otherwise qualified capital juror invariably to vote for the death penalty, the victim’s severed finger in this case also does not qualify for that status. Defendant urges that, in Zambrano, we made a point of noting there would be no evidence the murder victim might have been dismembered while alive, and thus perhaps was tortured.

By contrast, defendant notes, the prosecution here presented evidence that the victim was likely alive, though not necessarily conscious, when the various injuries to her body, including the severed finger, were inflicted. But again, capitally charged homicides are often brutal. Since the victim was alive at the time she was stabbed to death—a detail prospective jurors would learn—it seems unlikely a reasonable, otherwise qualified juror would focus on the additional pain and suffering represented by the severed finger as a basis for refusing to consider any penalty but death.

Of course, many would deem it offensive that a robber-murderer cut off the victim’s finger in a crass effort to obtain her rings. But that alone does not seem calculated to transform an otherwise fair juror into one who would vote for death regardless of the mitigating evidence.

Defendant’s proposed script for death qualification voir dire included various admonitions against prejudgment, but it would nonetheless have invited prospective jurors to focus on specific details about the case at the outset, and to begin to form judgments and opinions about the appropriate penalty in advance of hearing the trial evidence. The trial court properly sought to avoid such a situation. The court did not abuse its broad discretion in denying inquiry on the subjects about which defendant now complains. His contention lacks merit. 2. Hardship excusal of Prospective Juror R. W.

Defendant contends the trial court improperly excused Prospective Juror R.W., despite defense counsel’s refusal to stipulate to the excusal, on grounds R.W. was a full-time student. Defendant claims the excusal was not permitted, under the governing statute and rules, because R.W. did not affirmatively request to be excused and because the record does not show R.W. faced hardship sufficient to justify an excusal. The error, defendant asserts, implicates his federal and state constitutional rights to a fair and impartial jury drawn from a representative cross-section of the community. (U.S.

Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) We are not persuaded. The pertinent facts are as follows: On September 10, 1992, at the outset of jury selection, the trial court directed introductory remarks to the entire venire. Among other things, the court explained that the trial would begin in early December, and could take as long as four weeks, not counting jury deliberations or the hiatus that would occur between the guilt phase and any penalty phase.

The daily trial schedule, said the court, would generally be from 1:30 p.m. to 4:30 p.m. on Mondays and Wednesdays, and from 11:00 a.m. to 4:30 p.m. on Tuesdays and Thursdays, with Fridays off. The court further indicated that, because it was responsible for empanelling a fair and impartial jury, an excusal from service on the case would not be easy to obtain, but the court nonetheless would consider certain kinds of hardship excuses, including significant loss of employment income, prepaid vacations, medical problems, and full-time student status.

The court said it would take up any prospective juror’s hardship issues during individual voir dire. During the subsequent individual voir dires, counsel stipulated to, and the trial court granted, hardship excusáis to students L.S. and A.K. On her juror questionnaire, Prospective Juror L.S., a self-identified 22 year old with strong pro-death-penalty views, had indicated she was “currently attending” California State University, Hayward (Cal State Hayward).

In response to a question about her “job status,” she had circled “full-time student,” and had handwritten that she “[c]an’t afford to miss my classes cuz it’s already been paid for.” During voir dire, the court obtained U.S.’s oral representation that she would be taking 17 units at Cal State Hayward, and that her class

schedule primarily fell during daytime weekday hours. Defense counsel indicated she would stipulate to U.S.’s excusal, and the prosecutor concurred. The court excused L.S., advising her that “we are going to excuse you for hardship. We don’t want to interrupt your schooling.” On his juror questionnaire, Prospective Juror A.K., self-described as 34 years old and with strong pro-life views, had indicated he was a full-time student pursuing a master’s degree in clinical psychology at the University of California, Berkeley.

When A.K. appeared for individual voir dire, the court placed on the record that he had supplied official verification of his student status and advised him that “because of your school commitment, . . . both sides have stipulated you can be excused.” Thereafter, the court conducted individual voir dire of Prospective Juror R.W. On his juror questionnaire, R.W. had described himself as 19 years old, and had indicated that a life sentence was preferable to the death penalty in all but “severe” cases. Like L.S. and A.K., he had circled “full-time student” on his questionnaire.

He indicated he was studying criminal justice at Cal State Hayward. During his death-qualification voir dire, R.W. confirmed that he was open to the death penalty in “severe” cases like serial or multiple murder, and said he could also consider it in this single-murder case because the victim was stabbed to death. While examining R.W. during the immediately following general voir dire, defense counsel asked what R.W. intended to do with his criminal justice major. At this point, the following colloquy occurred: “The Court: Can I interrupt for just a second?

Are you still in school, Mr. [W.]? [ft] Prospective Juror Mr. [W.]: Yeah. [IQ The Court: Are you a full-time student? [ft] Prospective Juror Mr. [W.j: (Nods head.) [1] The Court: You are a full-time student? [ft] Prospective Juror Mr. [W.] Yes. [ft] The Court: Where are you going? [ft] Prospective Juror Mr. [W.]: Cal State Hayward, [ft] The Court: Cal State Hayward.

And how many units are you taking? [ft] Prospective Juror Mr. [W.]: Seventeen, [f] The Court: And you’re in school right now; right? [f] Prospective Juror Mr. [W.]: Yeah.” At this point, defense counsel interjected, “There hasn’t been any complaint about that. We don’t have anything written about that.” The court responded, “But I’ll accept it.” Defense counsel then asked R.W. if he had a problem sitting on a jury for a trial that might take one or two months. R.W. answered, “It depends on the time schedule.” Counsel repeated the day-to-day

schedule the court had given earlier, Tuesdays and Thursdays 11:00 a.m. to 4:30 p.m., Mondays and Wednesdays 1:30 p.m. to 4:30 p.m., with Fridays off. The court added, “Plus you may be deliberating all day for three or four days or longer. I don’t know. [][] The point is, Mr. [W.j, we don’t want to screw up your semester at school.” Defense counsel argued, however, that if the trial

schedule could work around R.W.’s school schedule, “and [if] he is not claiming a hardship, we don’t have to insist that he take it.” At this point, the prosecutor indicated he would stipulate to R.W.’s excusal.

However, defense counsel stated she would not do so, and “want[ed] to hear what [R.W.] has to say.” The court said to R.W. that “I notice here you circled full-time student.” Then the court explained that “[w]e’ve been letting students off,” because they might get so far behind academically that they could not catch up, and “[t]hat’s my concern.” The court continued: “And we’ve let a lot of students off here now. If you think you can do it both ways, that’s okay.

But if you think it’s going to be a burden, you know, to go to school full time, taking 17 units and maybe sitting here as a juror for a month, two months, you let me know now.

Because if it’s going to be a real problem, I will seriously consider letting you go. [f] What do you think?” The following exchange then occurred: “Prospective Juror Mr. [W.]: This is during the month of December? [][] The Court: December and probably January. [][] And that’s around finals time; right? [][] Prospective Juror Mr. [W.]: Yeah. [][] The Court: See, that’s the problem. [][] Prospective Juror Mr. [W.]: Most likely it would probably be a burden. [][] The Court: I think it will.

Yeah, [f] All right. [Defense counsel], over your objection I’m going to excuse Mr. [W] I don’t see any point in having this kid lose two months of school sitting here, .[f] I know you like him as a juror, but on the other hand, he should be treated like everybody else. He is a full-time student. Seventeen units is a big load to carry. And to sit here for two months I think would unduly burden him, and he admitted as much just now.” Defense counsel argued that R.W. had not brought up the subject himself, had inquired about scheduling, and had “admitted” hardship only after great hesitation.

The court responded, “I’m not here to have kids flunk out of school by taking two months sitting here as a juror when we have a lot of other jurors. I know he is 19 years old, he is an African-American. You probably want to see him as a juror. I understand that. [][] But I don’t want [R.W.] to blow a whole semester at school because of this case. He can always serve during the summer when he is not in school.” Under these circumstances, the court asserted, “Why should he blow two months of school? It doesn’t make any sense.

It really doesn’t.” The court thereupon excused R.W. “[A] trial court has authority to excuse a person from jury service for undue personal hardship. [Citations.] Exercise of that authority is reviewed for abuse of discretion. [Citation.]” (People v. Mickey (1991) 54 Cal.3d 612, 665 [286 Cal.Rptr. 801, 818 P.2d 84]; see also People v. Jenkins (2000) 22 Cal.4th 900, 986, fn. 15 [95 Cal.Rptr.2d 377, 997 P.2d 1044]; People v. Lucas (1995) 12 Cal.4th 415, 488 [48 Cal.Rptr.2d 525, 907 P.2d 373].) Under the governing statute, Code of Civil Procedure

section 204, subdivision (b), such excusáis “are to be granted only on a sufficient showing that the individual circumstances of the prospective juror make it unreasonably difficult for the person to serve or that hardship to the public will occur if the person must serve in the particular case.” (Visciotti, supra, 2 Cal.4th 1, 44, fn. 15.) Here it is manifest, and defendant does not dispute, that the court applied a blanket policy of granting hardship excusáis to prospective jurors who established to the court’s satisfaction they were full-time students with academic schedules that would make jury service burdensome.

The court made clear it believed such persons would suffer undue hardship and academic loss if forced to sit, during a critical period of their fall school terms, on a capital trial that might take two months to complete. Defendant fails to demonstrate that this determination was unreasonable. Nor did the court act unreasonably by concluding, in each student hardship case, that the requisite showing of full-time student status had been made.

L.S. and R.W. each were excused after they stated under oath, in their questionnaires and/or in oral voir dire, that they were taking 17 units of college credit at Cal State Hayward. A.K. was excused when he provided the court with official verification of his full-time student status at the University of California, Berkeley. Nonetheless, defendant argues that the court excused R.W. improperly because

(1) R.W. did not affirmatively claim a hardship exemption, but was coached and prompted by the court—acting in a misguided sense of paternalism toward a minority prospective juror—to say that jury service would burden him, and (2) the record does not establish that jury service would actually present an unduly burdensome conflict with R.W.’s class

schedule and academic responsibilities. At the outset, we observe that the record indicates no clear-cut affirmative request for excusal in either of the other cases in which student hardship excusáis were granted. L.S. did say in her questionnaire that she could not afford to miss prepaid classes, but she did not explicitly ask to be excused for that reason. While A.K. brought in documentary support for his claim of student status, his questionnaire contained no assertion that jury duty would interfere with this status, and the record includes no other indication that he requested excusal.

Moreover, as a matter of reasonable discretion, we see no impropriety in the court’s effort to protect the interests of one who reported his status as a full-time student, but did not immediately seek excusal on that basis. Whether R.W.’s inaction in this respect stemmed from initial ignorance that a hardship excusal might be available, or from a willingness to consider serving if service was practicable, the law did not require he be penalized, once he was before the court, for failing to demand excusal in the first instance.

Defendant points to California Rules of Court, rule 2.1008 (rule 2.1008), formerly rule 860, adopted under authority of Code of Civil Procedure

section 204, subdivision (b). Rule 2.1008(b) “govem[s] the granting of excuses from jury service by the jury commissioner on grounds of undue hardship . . . .” (Italics added.) The rule specifies, among other things, that “[n]o class or category of persons may be automatically excluded from jury duty except as provided by law” (id., subd. (b)(1)) and that “[a] statutory exemption from jury service [(i.e., for undue hardship)] must be granted only when the eligible person claims it” (id., subd. (b)(2)). Defendant also cites Code of Civil Procedure

section 218, which provides that “[t]he jury commissioner shall hear the excuses of jurors summoned, in accordance with the standards prescribed by the Judicial Council. . . .

All excuses shall be in writing setting forth the basis of the request and shall be signed by the juror.” (Italics added.) But these provisions, which apply explicitly to the jury commissioner’s preliminary screening of hardship claims received in response to a general jury summons, have little or nothing to do with the procedures the trial court itself may subsequently employ to resolve hardship issues in the course of jury selection in a specific case.

Defendant cites no authority suggesting that the statutes and rule he invokes limit the trial court’s authority, upon its reasonable exercise of discretion, to examine and excuse individual prospective jurors on grounds of undue hardship. Finally, we see no basis to conclude the record demonstrates insufficient justification to excuse R.W. As noted, full-time students L.S. and A.K. had previously been excused without objection, and with little inquiry into their specific academic burdens. There appeared no reason to treat R.W. differently.

He was carrying a full load of 17 units and, upon inquiry by the trial court, he conceded that service in a lengthy capital case, under the trial

schedule proposed by the court, during the “finals time” months of December and January, would “likely” be a burden. Accordingly, we find no error in the excusal of this prospective juror. 3. Excusal of prospective jurors for cause. Defendant urges that several prospective jurors were improperly excused on prosecution challenges as a result of the death qualification process. We find no merit in defendant’s contentions.

The following principles apply: A prospective juror in a capital case may be excused for cause on the basis of his or her death penalty views if, but only if, those views would prevent or substantially impair the performance of a juror’s duties under the court’s instructions and the juror’s oath. (Witt, supra, 469 U.S. 412, 424; People v. Stewart (2004) 33 Cal.4th 425, 441 & fn. 3 [15 Cal.Rptr.3d 656, 93 P.3d 271] (Stewart); People v. Heard (2003) 31 Cal.4th 946, 958 [4 Cal.Rptr.3d 131, 75 P.3d 53] (Heard); People v.

Cunningham (2001) 25 Cal.4th 926, 975 [108 Cal.Rptr.2d 291, 25 P.3d 519].) Thus, a prospective juror may be excused if his or her views on capital punishment would cause him or her invariably to vote either for death, or for life, in the case at hand. (People v. Ochoa (2001) 26 Cal.4th 398, 431 [110 Cal.Rptr.2d 324, 28 P.3d 78] (Ochoa); People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005 [30 Cal.Rptr.2d 818, 874 P.2d 248]; see Morgan v.

Illinois (1992) 504 U.S. 719, 726-728 [119 L.Ed.2d 492, 112 S.Ct. 2222].) We will uphold the trial court’s decision to excuse a prospective juror under Witt if that decision is fairly supported by the record. (Stewart, supra, 33 Cal.4th 425, 441; People v.

Cunningham, supra, 25 Cal.4th 926, 975.) The court must have “sufficient information ... to permit a reliable determination” whether a prospective juror’s views would disqualify the juror from service in a capital case. (Stewart, supra, at p. 445.) But even where the prospective juror has not expressed his or her views with absolute clarity, the court may be left with the definite impression that the person cannot impartially apply the law.

Thus where, after reasonable examination, the prospective juror has given conflicting or ambiguous answers, and the trial court has had the opportunity to observe the juror’s demeanor, we must accept as binding the court’s determination of the juror’s true state of mind. (E.g., Uttecht v. Brown (2007) 551 U.S. 1, 9-10 [167 L.Ed.2d 1014, 127 S.Ct. 2218]; Morgan v. Illinois, supra, 504 U.S. 719, 729; Witt, supra, 469 U.S. 412, 424-426; People v. DePriest (2007) 42 Cal.4th 1, 20-21 [63 Cal.Rptr.3d 896, 163 P.3d 896] (DePriest); People v. Avila (2006) 38 Cal.4th 491, 529 [43 Cal.Rptr.3d 1, 133 P.3d 1076]; People v.

Moon (2005) 37 Cal.4th 1, 14, 16 [32 Cal.Rptr.3d 894, 117 P.3d 591] (Moon); Stewart, supra, at p. 451.) The erroneous granting of the prosecution’s Witt challenge against a prospective juror requires automatic reversal of the penalty verdict, even if the prosecutor had remaining peremptory challenges and could have excused the prospective juror. However, an error of this kind does not require reversal of the guilt phase verdict. (Gray v. Mississippi (1987) 481 U.S. 648, 663-666 [95 L.Ed.2d 622, 107 S.Ct. 2045]; Stewart, supra, 33 Cal.4th at pp. 454-455; Heard, supra, 31 Cal.4th 946, 966; People v.

Ashmus, supra, 54 Cal.3d 932, 956-957, 962.) Moreover, the improper excusal for cause of a prospective juror for reasons other than his or her views on the death penalty does not require reversal of either the guilt or penalty judgments unless the defendant can show that the improper excusal resulted in the seating of a biased juror, or of a sworn jury that was not fair and impartial. (People v. Holt (1997) 15 Cal.4th 619, 656 [63 Cal.Rptr.2d 782, 937 P.2d 213] (Holt).) We consider each of the asserted improper excusáis under these standards, a. Prospective Juror A.S.-P.

On her juror questionnaire, A.S.-P., who identified herself as African-American, indicated she had done graduate work in international and multicultural education at the University of San Francisco (USF), and had received a Doctor of Education degree in 1992. On October 6, 1992, court and counsel conducted the sequestered voir dire of A.S.-P.

In response to questioning during the death qualification procedure, she stated that she had no feelings about the death penalty that might prevent her from selecting the appropriate penalty in a capital case, and that after hearing all the relevant evidence, she could choose between life and death. She indicated she had reservations concerning the time lapse between the commission of a crime, conviction, and execution, and also about the method of execution.

However, she asserted, she accepted these circumstances as part of the process, and they would neither affect her ability to apply the law nor influence her penalty decision. In her general voir dire, which followed immediately, A.S.-P. stated that, while she thought it was “impossible” to be completely free of bias, she believed she could put any bias aside and be “objective.” Defense counsel asked A.S.-P. about her experience as the victim of a burglary, and about an assault on her niece by the niece’s domestic partner.

A.S.-P. again indicated that, despite these events, she could be objective in the instant case. Neither party challenged A.S.-P. for cause at the conclusion of her voir dire. The court advised her she had qualified herself to sit on a capital jury, and it directed her to return at a subsequent time for peremptory challenges. On October 27, 1992, while the voir dire process was still ongoing, the prosecutor challenged A.S.-P. for cause.

Asked by defense counsel to explain the belated challenge, the prosecutor said that A.S.-P. had claimed she had a doctoral degree in her juror questionnaire, and had asked the court bailiff to call her “doctor,” but the prosecutor had had a “funny feeling about that,” so he checked with USF and discovered that A.S.-P. “has lied to us” and “is not a doctor in education.” The prosecutor stated he had spoken by telephone to Sunny Kidd, an administrative aide at USF who, after looking at A.S.-P.’s file, reported that A.S.-P. was currently in USF’s doctoral program, but “has not submitted her dissertation yet” and had not been awarded a doctoral degree.

When defense counsel inquired whether “the basis for the challenge for cause is perjury,” the prosecutor confirmed that “[i]t’s perjury.” However, the court indicated it was not a question of perjury; rather, the court remarked, “It’s a question of [A.S.-P.’s] credibility in how she answered her other questions. If she purports to be something she isn’t, how can we lend any credence to the way she answered her other questions?” The court briefly took the matter under submission to allow defense counsel to obtain a copy of A.S.-P.’s questionnaire.

When the court took up the matter again later the same day, defense counsel asserted that the prosecutor had singled out A.S.-P., “an African-American woman with a high education,” for investigation, and that the Penal Code did not allow a challenge under these circumstances. In any event, counsel urged, A.S.-P. should be called back to explain her questionnaire answers, because she might have misinterpreted the question about her academic credentials, and because hearsay information the prosecutor had obtained on the telephone should not be a sufficient basis for challenge.

The court responded that it believed “the Penal Code allows the Court to take into consideration the veracity of the particular juror if the Court’s of the opinion that there may be some question about the credibility of that particular juror and it’s brought into question. I think the Court has a right to—to weigh and assess that credibility, number one.” Moreover, the court stated that it seemed unlikely A.S.-P. was confused, and that there appeared no reason to disbelieve the prosecutor, an officer of the court.

Counsel insisted she did not disbelieve the prosecutor, but was concerned that the person he spoke to at USF—a person who, unlike A.S.-P., was not under oath—might have made a mistake. In response, the prosecutor provided further information about his inquiries at USF. The prosecutor stated the following: He wanted to read A.S-P.’s dissertation before deciding whether to retain her as a juror. For that purpose, sometime before October 20, 1992, he called the USF library and spoke to librarian Vickie Rosen, who said the dissertation was not on file and not catalogued.

He asked Rosen to look for the dissertation, and she spent several days doing so. On October 20, Rosen called him back and said “there is, in fact, no dissertation presented by [A.S.-P.]” He asked Rosen if this meant A.S.-P. had no doctorate in education. Rosen said she assumed so, but she advised him to call the administrative office for confirmation. The following day, he telephoned USF’s postgraduate division and spoke to Kidd, an administrative assistant.

After “pull[ing] [A.S.-P.’s] file,” Kidd reported that “no, there is no dissertation on file . . . , [A.S.-P.] has not finished her dissertation, and she has not received a doctorate degree.” The prosecutor purposely refrained from speaking to A.S.-P.’s department chair, or asking USF for a confirmatory letter, because he was afraid such matters would “go into [A.S.-P.’s] file” and would actually compromise her efforts to achieve her doctorate.

The prosecutor argued that the willfulness of A.S.-P.’s misrepresentation was shown by the fact that she had insisted the court bailiff introduce her as “doctor.” Moreover, the prosecutor observed, the court had addressed A.S.-P. by that title some 26 times during voir dire without being corrected by her. The prosecutor also indicated he had called USF on the very day he heard commentator Charles Osgood speak on the radio about people who misrepresent their degrees and awards to obtain employment.

Defense counsel seemed to concede the possibility that, for whatever reason, A.S.-P. had “padded her resumé,” perhaps to maintain “a certain consistency” after exaggerating her credentials on an employment application, as Charles Osgood had suggested people do. Counsel nonetheless pressed her contention that A.S.-P. should be allowed to appear personally and provide any information that might rebut or explain such concerns.

The court refused, suggesting again that A.S.-P. was an educated person, could not have been confused, and had had numerous opportunities to advise the court she did not have a doctorate. “[T]he problem with what’s happened here,” said the court, “is she’s been caught misrepresenting her credentials pure and simple. . . . [|] She’s telling us that she is something she isn’t. This casts some question on her veracity in my mind. How can you believe her answers to her other questions?

She is playing games with the Court.” The court asserted that the prosecutor had presented “pretty good, solid evidence,” and that the court would accept his representation.

The court declared that “[t]here is no question in my mind, based upon the representations from [USF], from the people who are running the program, that [A.S.-P.] doesn’t have a Ph.D. degree or doctor of education.” Moreover, the court suggested, it did not wish to subject A.S.-P. to the “embarrassment” of coming to court and being “called on the fact that she misrepresented her credentials.” Alluding to defense counsel’s speculation that A.S.-P. might have overstated her credentials on a job application, the court asked, “Wouldn’t that be more grounds to question her credibility and question her character if you’re telling me she’s padded her credentials in order to gain employment?” The court continued, “She has not been forthright with us in telling us what her credentials are.

Maybe that’s one little white lie, and how many others are there in that particular questionnaire. Now she’s been caught in perpetrating—I’m not going to say a fraud, but a misconception on this Court and on everybody in this courtroom, [ft] How can you trust the rest of her answers? How do I know?” Stating again its view that the error could not have been inadvertent, and that the misrepresentation raised questions about the veracity of all A.S.-P.’s voir dire answers, the court granted the challenge for cause.

The court made clear that it was taking this action because, “based upon her representation and her answers, the Court has some question about the veracity of the rest of her answers, because apparently she has not been forthcoming with the Court in answering these questions truthfully.” The next day, the court placed on the record that the excusal of A.S.-P. was “based on Wainwright versus Witt, because the impression is that it’s under [Code of Civil Procedure section] 229, and that’s not correct.” When defense counsel objected that A.S.-P.’s voir dire answers had made her a death-qualified juror, the court reiterated that “[i]t’s a Wainwright versus Witt challenge.

That is the basis for the challenge as far as I’m concerned.” On appeal, defendant insists the record was inadequate to justify a Witt excusal. He asserts that all A.S.-P.’s questionnaire and voir dire answers concerning her death penalty views indicated that they would not prevent or substantially impair her ability to serve as a capital juror. Indeed, the People do not suggest otherwise.

This being so, defendant contends, the court, faced with claims that A.S.-P. had misrepresented or concealed material information on voir dire tending to show disqualifying bias regarding the death penalty, was obliged to make a sufficient inquiry to determine the truth of such allegations. At a minimum, he asserts, this required the court to recall A.S.-P. herself, and to hear her explanation, before concluding that she had committed misconduct warranting excusal under Witt.

Finally, defendant insists, the excusal of A.S.-P. under Witt was error, requiring at least a penalty reversal, even if there was a proper showing that she lied on her questionnaire about holding a doctoral degree. Any such falsehood, defendant urges, bore no reasonable relationship to a conclusion that her death penalty views would prevent or substantially impair her ability to judge the issue of capital punishment fairly. However, we need not determine whether A.S.-P.’s excusal would have been proper under Witt.

This is because we are persuaded that, despite the trial court’s single contrary statement, the prosecutor did not challenge A.S.-P. on the basis of capital penalty bias, and the excusal of this prospective juror cannot properly be characterized as premised on such a ground. Our reasons for this conclusion are several. First, neither A.S.-P.’s questionnaire, nor her voir dire, was confined to examination of her death penalty -attitudes.

The juror questionnaire asked about views on the death penalty, but it also broadly explored how the prospective juror’s background might relate to general bias for or against a party. Similarly, as indicated above, the voir dire of each prospective juror began with death qualification but, if no Witt challenge was interposed and granted at this stage, the examination then immediately proceeded to noncapital issues. So it was with A.S.-P.

Indeed, as noted above, A.S.-P. stated on her questionnaire, and confirmed during general voir dire, that she had been the victim of a burglary, and that her niece had suffered an assault. In response to voir dire questions, A.S.-P. stated that whatever biases she might have as the result of these life experiences, she believed she could set them aside and be objective in the case at hand.

Second, contrary to the court’s statement that Witt was the “basis for the challenge” against A.S.-P., the prosecutor did not challenge this prospective juror on grounds that her death penalty views disqualified her for service on a capital jury. Instead, the prosecutor twice specified that his challenge was based on a claim of perjury. Third, in all but one instance, the court itself made clear that it was not concerned, in particular, with A.S.-P.’s death penalty attitudes as a basis for her qualifications to serve in a capital case.

While the court strove to avoid the prosecutor’s term “perjury,” the court agreed—indeed, stressed time and time again—that the “problem” was A.S.-P.’s credibility in answering all the questions posed to her. As the court repeatedly stated, if A.S.-P. had lied in answering the question about her academic background, one could not be confident she had not also done so in the rest of her answers. The court went so far as to suggest that the apparent falsehood called A.S.-P.’s overall character into question.

Never once, when analyzing the prosecutor’s challenge and the defense objections thereto, did the court indicate it believed the apparent falsehood impacted upon A.S.-P.’s capital qualifications in particular. Nor did the court do so in the course of issuing its ruling in the matter. The clear gravamen of the court’s remarks was that, insofar as A.S.-P. had deliberately misstated her academic credentials, the court could not trust any of her claims that she would be a fair and impartial juror.

Finally, for the reasons stated above, we are not convinced by the post hoc rationale the court placed on the record the day after it excused A.S.-P. Read as a whole, the record makes it apparent the court was not focused on A.S.-P.’s death penalty attitudes, but rather on whether she had represented herself honestly as a basis for allowing the court, and the parties, to assess her general qualifications for jury service. The court’s concerns about A.S.-P.’s overall credibility were, of course, relevant to those qualifications.

A prospective juror’s misstatement or concealment on voir dire of a material fact by itself undermines the selection and empanelment of unbiased jurors, and t

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