THE PEOPLE, Plaintiff and Respondent, v. RANDY EUGENE GARCIA, Defendant and Appellant, 52 Cal. 4th 706

Opinion BAXTER, J. A Los Angeles jury found defendant Randy Eugene Garcia guilty of crimes stemming from two home invasions committed the night before Mother’s Day, 1993, in the same neighborhood in Torrance. The most serious incident, in which the victims—a married couple with children—were home during the burglary, resulted in convictions for the first degree murder of Joseph Finzel (Pen.

Code, § 187, subd. (a)), and the attempted premeditated murder of his wife, L. (§§ 187, subd. (a), 664.) Related convictions involved burglary (§ 459), robbery (§ 211), attempted forcible rape (§§ 261, subd. (a)(2), 664), and forcible oral copulation (§ 288a, subd. (c)).

The jury also sustained special circumstances providing that the Finzel murder occurred in the commission of burglary, robbery, attempted rape, and oral copulation. (§ 190.2, subd. (a)(17).) Additional findings were that defendant was armed with and personally used a handgun (§§ 12022, subd. (a)(1), 12022.5, subd. (a)), and that he personally inflicted great bodily injury on L. (§ 12022.7).

In the other incident charged in this case, defendant was convicted of burglarizing the home of a second couple, the Kozaks, who were vacationing out of town at the time. (§ 459.) After a penalty trial, the jury fixed the penalty at death. The trial court declined to grant a new trial (§ 1179 et seq.), and denied the automatic motion to modify the death verdict (§ 190.4, subd. (e)). The court pronounced a death judgment for the special circumstance murder. Sentence also was imposed and stayed on the noncapital felony counts, including life with the possibility of parole for attempted murder.

This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We find no prejudicial error at defendant’s trial. The judgment will be affirmed in its entirety. I. GUILT EVIDENCE A. Prosecution Case 1. Events Surrounding the Charged Crimes On May 8, 1993, the day before Mother’s Day, defendant and his friend, Edward “Bruce” Pierce, drove in Pierce’s car from Portland, Oregon, to Torrance, California. In Torrance, they planned to stay with George Aguirre, another friend of defendant’s, and to buy marijuana for sale later in Oregon.

Pierce testified at trial that the trio sampled “Mexican weed” in Aguirre’s apartment that day. Aguirre confirmed this account. According to Pierce and Aguirre, defendant announced between 9:00 and 10:00 that night that he wanted to do “a job,” meaning he wanted to steal something. Aguirre offered to drive defendant, using Pierce’s car. Defendant put on a black turtleneck shirt, and wore jeans and black Nike shoes. He also carried a fanny pack around his waist. The fanny pack contained a small chrome handgun and a pair of black gloves.

A short time later, Aguirre dropped defendant off about one mile from the apartment. Aguirre waited 15 minutes and then drove home. On the way, he saw defendant walking on the street, carrying something he did not have before—a multicolored leather-like bag that closed with a rope. Defendant entered the car and said the bag held “a bunch of change.” Aguirre drove several blocks and defendant exited the car again, leaving the bag behind. This time, he jumped over a wall at a dead end on 180th Street. Aguirre went home with an uneasy feeling, arriving no more than one hour after he left with defendant.

There, Aguirre spoke with Pierce about “cops all around.” Pierce said he would leave for Oregon alone if defendant did not return to the apartment by 3:30 a.m. 2. The Kozak Burglary Prosecution evidence established that between the time defendant first left the car and the time Aguirre saw him carrying the multicolored bag of “change,” defendant burglarized a nearby home belonging to Archie and Winona Kozak. The Kozaks had locked the house and left for Las Vegas on May 6, 1993. Mrs. Kozak testified that when they returned late on May 9, Mother’s Day, the house had been ransacked.

The police found no fingerprints—only glove marks and fabric particles. Various items were missing, including jewelry, collectable coins, and a multicolored bag that pulled closed on top. Mrs. Kozak identified these items at trial. As we discuss below, they were found, along with other stolen property, in defendant’s possession in Oregon, where he was arrested a few days after the charged crimes. 3. The Finzel Crimes Around 11:15 p.m. on May 8, 1993, L. was in the master bedroom of her home on 180th Street, not far from where Aguirre last saw defendant exit the car and jump over a wall.

L. was dozing in bed, after having turned the lights off and left the bedroom television set on. The window blinds were closed. L. testified, however, that anyone standing in the backyard could see into the bedroom through gaps in the blinds. L.’s husband, Joseph, was socializing elsewhere with a friend and was expected to return home soon. The only other person in the house was the couple’s infant daughter, Brinlee, who was sleeping in a bassinet at the foot of the bed near L. Joseph’s son from a prior marriage, Garrett, lived with the Finzels, but was spending time elsewhere with his mother.

Awakened by a banging noise, and sensing movement nearby, L. looked up and saw defendant standing in the doorway, holding a small silver gun. She positively identified him at trial. His face was clearly visible in the available light. Without warning, defendant grabbed the bassinet and told L. not to scream because he had an armed accomplice outside, and because he would “hurt the baby.” Defendant wore dark clothes, black gloves, and a fanny pack. He carried a pack of Camel cigarettes in his pants pocket and smelled of cigarette smoke. In the first of two such episodes, defendant forced L. to engage in sex acts.

He made her remove her shorts and orally copulate him while she sat on the bed. He then told her to stand and insert his penis into her vagina from behind. She tried to comply but could not do so, because he did not have an erection. When he asked if “it [was] in,” she said “yes.” Next, defendant grabbed L.’s arm and took her into the hallway. There, he opened the door of Garrett’s bedroom, and was told by L. that the room belonged to her stepson, who was not home.

When they returned to the master bedroom, defendant told L. to remove her shirt and expose her “titties.” He attempted a second act of sexual intercourse from behind. As before, L. pretended to place his penis, which was not erect, into her vagina. Throughout the ordeal, defendant either held the gun in his hand or placed it visibly within his reach on the bed. According to L., subsequent events became more frenetic and deadly. Defendant demanded access to the “money,” “jewelry,” “safe,” and “gun.” L. said there was no money or safe, but told him where to find her gold watch and jewelry.

She also said that her wallet and credit cards were located in Brinlee’s diaper bag. Though L. sought to prevent defendant from finding her husband’s .357 Magnum handgun, and falsely said it was not on the premises, defendant nonetheless found the weapon in a bedroom drawer. At that point, he stuffed a sock into L.’s mouth and tied a pillowcase around the gag. He also used a pair of nylons to bind her wrists and feet together behind her back. Defendant then shifted his focus and asked L. about her husband’s whereabouts. L. indicated (once her gag was loosened) that Joseph was at a local restaurant.

Defendant partially closed the bedroom door so that only a five-inch opening remained. The next thing L. heard was Joseph’s truck outside the house. She estimated the time at 11:30 p.m. Once inside, Joseph opened the bedroom door, turned on the light, and looked at L. lying bound and nude on the bed facing him. Defendant stood slightly behind her, apparently holding the .357 Magnum pistol in his hand. Suddenly, Joseph and L. each screamed, followed by gunfire. L. saw blood flowing from Joseph’s abdomen, and then felt pain in her stomach and arm. She too had been shot.

Defendant fled the room as L. begged him not to “leave us like this.” Brinlee cried in her bassinet. L. testified that defendant shot across and over the baby to hit Joseph. Defendant stayed in the Finzel home for two or three hours after the shootings. He reentered the master bedroom three times. First, he disabled the phone when L. tried to dial 911. The second time, as she pretended to be dead, he tapped her on the head. During his third visit, he raised and then dropped L.’s arm, saying “she’s dead.” Meanwhile, according to L., she pressed down on her bullet wounds to slow the bleeding.

The bed—a waterbed—was leaking. She moved her head to prevent water from entering her nose. By the time defendant left the house, L. had loosened the nylon wrist ties and pulled the gag away from her face. Dizzy and weak, she crawled over her husband, and stumbled through the house and yard to the neighbor’s porch. She knocked on the door and collapsed. The neighbors, the Nevilles, testified that they heard noises, possibly gunshots, around 11:00 p.m., and found L., nude and bleeding, on their porch around 2:00 a.m. She told them about the robbery and shooting, and about Brinlee and Joseph next door.

The Nevilles called 911. When police and paramedics arrived a short time later, L. was in shock and near death. She was rushed to the hospital. At the Finzel home, Joseph was found dead on the bedroom floor, his body partially blocking the door. His pants pockets had been turned inside out. Brinlee was unharmed. Her bassinet was resting on Joseph’s leg, between his feet. 4. Investigation of the Murder Scene The Finzels’ home, which was neat before the crimes, was in disarray afterwards. Torrance police officers found cabinets, closets, and drawers open in various rooms.

L.’s purse was on the living room floor, its contents strewn nearby. The back door stood ajar. A diaper bag was in the backyard. Gates in a side yard were open. One set of car keys was found on the ground near the garage. Another set was in the ignition of the Finzels’ Corvette. The car battery was dead. The investigation disclosed that a bullet fired from inside the master bedroom passed through the door and became lodged in a living room cabinet. Two expended bullets rested on or near the bed. In the hallway near the master bedroom, the police tested for fingerprints, and found only glove marks.

There were two Camel cigarette butts—one on the back porch, and the other at the rear of the property, near footprints and crushed weeds. Property missing from the Finzels’ home included L.’s gold watch and other jewelry, and Joseph’s truck. Police later found the truck parked near Aguirre’s apartment, where defendant was staying at the time. Credit cards belonging to the Finzels were found inside the truck. Police retrieved a Camel cigarette butt from beneath the driver’s door. 5. Defendant’s Return to Aguirre’s Apartment Between 3:00 a.m. and 3:30 a.m., Aguirre and Pierce heard defendant enter the apartment.

Defendant said he was “going straight to hell.” Aguirre recalled defendant also saying that he “shot two people,” while Pierce thought that the word “killed” might have been used. Defendant displayed a .357 Magnum handgun, attributed it to his “second job,” and expelled empty casings onto the floor. He was carrying a woman’s purse and another cloth bag. He dumped jewelry from the purse onto a coffee table. Defendant and Pierce left for Oregon the same night, leaving by 4:00 a.m. Aguirre testified that he declined defendant’s request to dispose of the .357 Magnum handgun.

Hence, defendant included the gun in the items he packed for the trip. He also took the woman’s purse, jewelry, and the .25-caliber gun that he carried in his fanny pack. Pierce testified that defendant tossed the purse onto a Los Angeles freeway. He kept the other items. They included a gold watch, which defendant put in the glove compartment of Pierce’s car. 6. Aguirre’s Cooperation with Police While watching a television newscast on May 9, Aguirre realized that defendant might be linked to the Finzel crimes.

He contacted the Torrance police, and began cooperating with the lead investigators, Detectives Mason and Nemeth. Though reluctant to admit he had driven defendant around town the night of the crimes, Aguirre gave police all relevant information and physical evidence in his possession. Such items consisted of those left in Aguirre’s apartment by defendant when he departed for Oregon, including bullets and expended casings, black clothing items (turtleneck shirt, gloves, and Nike shoes), and Camel cigarettes. 7.

Defendant’s Return to Oregon While driving with Pierce to Oregon in the early morning hours of May 9, defendant described the shootings that he had admitted before to both Pierce and Aguirre. Defendant said he shot the male victim because he saw defendant’s face, and that he shot the female victim because she “freak[ed] out.” In Oregon, defendant gave the .357 Magnum handgun to Pierce. Pierce gave it to his mother. On May 10, defendant contacted his friend, Antoin Jackson, in Oregon, and stayed overnight at Jackson’s house. On May 11, defendant communicated with someone by page and phone.

Afterwards, he seemed nervous, and made incriminating statements to Jackson. Defendant said he was going “to hell” and to prison for “life” because he had “killed someone.” The victims were a “bitch” who “scream[ed] too loud,” and a man who “walked in” while defendant was burglarizing a house. Defendant told Jackson that he stayed in that house for “a few hours,” and was “real high” at the time. Defendant identified the murder weapon as the .357 Magnum handgun he gave to Pierce, and admitted trying to steal a car during the crime.

Meanwhile, on May 11, sheriff’s detectives in Washington County, Oregon, learned that an arrest warrant had issued in the present case, and that the Torrance police sought help in apprehending defendant. Hence, that same day, the Oregon detectives contacted Pierce, who cooperated in the investigation. Pierce disclosed defendant’s incriminating statements. Pierce also helped retrieve the gold watch and the .357 Magnum handgun he had obtained from defendant. All such evidence was given to the lead investigators in Torrance. Through Pierce, Oregon detectives contacted defendant’s friend, Suely Caramelo.

She gave them items she had received from defendant after his Torrance trip—items that were given, in turn, to the Torrance police. They included a woman’s gold and diamond ring and a multicolored cloth bag with coins inside. Caramelo also said that defendant was at Jackson’s house. Defendant was arrested a short time later at Jackson’s house. Items found in his possession included a fanny pack with a small chrome pistol inside, and a bag of jewelry. Defendant was wearing a gold and diamond ring at the time. After being told about the murder warrant in Torrance, and read his Miranda rights (see Miranda v.

Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]), defendant remarked that he was the “wrong guy,” that he became involved with the “wrong people,” and that they had “threatened” him. During the drive to the sheriff’s station, defendant made similar statements that “four Mexican gang members” forced him to “take the gun and jewelry” near the spot where “two people” were killed. Defendant denied knowing anything about the victims, including gender, and could not explain how Pierce and Aguirre might have acquired such information.

When told that the female victim had survived and identified him as the lone intruder, defendant turned pale, breathed deeply, and said, “Shit.” 8. Physical Evidence Property recovered in Oregon had been stolen not only during the Kozak burglary, as noted above, but also during the capital crime. The ring defendant wore when arrested was Joseph Finzel’s wedding ring. It was on Joseph’s finger when he was shot. The ring defendant gave Caramelo was L.’s. L. identified other items seized by arresting officers, including the gold watch that defendant left in Pierce’s car.

Based on ballistics tests, a criminalist with the Los Angeles County Sheriff’s Department determined that the expended casings found in Aguirre’s apartment were fired from the .357 Magnum handgun retrieved from Pierce in Oregon. The witness reached a similar conclusion as to the expended bullets found in the Finzels’ bedroom. 9. Medical Testimony Dr. Carlos Donayre testified that emergency surgery was required to save L.’s life after the shooting. One bullet entered the side of her body, penetrated several vital organs, and exited through the arm. Another bullet entered and exited the back, grazing the spine.

Because L.’s weak state prevented the use of general anesthesia, she received only mild narcotics during the three-hour procedure. L. confirmed that she “wasn’t numb” on the operating table, and that the pain of surgery seemed “worse than being shot.” Dr. Susan Selser, the medical examiner who performed the autopsy on Joseph, testified that he sustained two gunshot wounds, each of which entered the chest and exited through the back. One struck the lung and aorta, and the other pierced the heart. Both were fatal. B. Defense Case Defendant presented no evidence at the guilt phase. H. PENALTY EVIDENCE A.

Prosecution Case 1. Prior Felony Conviction In 1989, before he committed the capital crime, defendant was convicted in Oregon as an adult of a felony, theft, also known as receiving stolen property. 2. Circumstances of the Capital Crime George Aguirre testified that one month before defendant and Pierce drove to Torrance on May 8, 1993, when the capital crime occurred, defendant visited Aguirre there alone. While smoking marijuana one night, defendant said, “I wonder what it would be like to rape a woman at gunpoint.” He seemed serious at the time. Nothing more on the topic was said.

The only other prosecution witness at the penalty phase was L., who described the effects of the capital crime, as follows: When the murder occurred, her daughter, Brinlee, was about two months old, and Joseph’s son, Garrett, was seven years old. Joseph was 29 years old when he died. He was an only child. His death devastated his parents. L. and Joseph met in March 1990, fell deeply in love, and married in May 1992. They enjoyed outdoor activities together. To prepare for marriage, they attended an “engagement weekend” with other couples. At trial, L. read a letter that Joseph wrote during that event.

L. testified that she and Joseph enjoyed spending time with Garrett. Together, the couple sometimes walked Garrett to and from school. Garrett played a key role in their wedding ceremony. L. had many fond memories of that day. Wedding photos were introduced at trial. According to L., she and Joseph planned to have more children and to move to the country where they could ride horses and motorcycles. Meanwhile, Joseph worked for a computer company, and L. was a homemaker. They ran a small business bringing pets and a pony to children’s birthday parties. Photographs of these events were introduced.

L. described the support Joseph provided during her pregnancy, including his presence in the delivery room when Brinlee was bom. The umbilical cord was wrapped around Brinlee’s neck, requiring medical treatment. Joseph surprised L. afterwards with 100 red roses. One month later, the family, including Brinlee, went camping together. Photos of family trips and outings were introduced. L. recalled the terror she felt during the capital crime. While hospitalized afterwards, she had tubes in her throat and could communicate only by writing notes. She read the notes in court.

After the murder, L. and Garrett became estranged. L. has no permanent home and lives with different relatives. Medication and therapy have not eased her fear, guilt, and grief. L. testified that she visits Joseph’s grave twice a week. The cemetery is near other special places, such as the hotel where the couple spent their wedding night. She described markings on the headstone, as well as the various mementos that were buried with Joseph or placed on his grave later. Following L.’s testimony, the jury watched an 11-minute 45-second videotape.

The videotape shows L. from the shoulders up, talking in front of a plain gray backdrop. Her voice also is heard describing video clips and still photographs that appear on the screen. Both the narration and images concern the joy L. and Joseph shared as a couple (e.g., getting married, raising children, relaxing at home, and enjoying the outdoors), and the loss she experienced from his death (e.g., emotional turmoil, estrangement from Garrett, and a gravesite visit with Brinlee on Christmas Day). The videotape departs from the foregoing format in only two respects.

First, at the beginning, white lettering silently appears on a black screen, referring to an “intruder” who entered L. and Joseph’s home on Mother’s Day 1993, and who forever “altered” their lives and the lives of family and friends. Second, at the end of the videotape, a song plays softly in the background for 80 seconds, with lyrics about a “hero [who] goes free” and a “villain [who] goes to jail.” More images of the Finzels appear at that time, including one of Joseph as a boy sleeping with a puppy. B.

Defense Case Various relatives, friends, juvenile justice officials, and mental health professionals testified on defendant’s behalf. He did not take the stand. 1. Family History Defendant’s mother, Suszanne, married Adolpho “Rudy” Garcia when she was 18 years old. Defendant was one of three boys bom in fairly quick succession during the marriage. However, defendant and his older brother, Fred Garcia, are not related by blood to Rudy, and were each fathered by different men. Only the youngest boy, Teodi Garcia, is Rudy’s biological son. Defendant, who was bom in 1970, did not learn this fact until age 13.

By the time defendant started kindergarten, Suszanne and Rudy were divorced. Though Rudy had legal custody of the three children, Suszanne decided to keep them with her. She and the boys moved several times over the next few years, living in Idaho, Texas, Alabama, and Washington. Suszanne had a series of romantic partners during this time, including her second husband, Frank Poleta. Defendant’s younger brother, Teodi, testified that Suszanne was a loving mother.

After defendant finished the third grade, Suszanne left the children in Georgia at the home of her first husband, Rudy, who “they thought was their father.” They lived with Rudy and his new wife, Cecelia, for two years. Teodi and Fred testified that Cecelia punished all three boys harshly. She made defendant, who wet the bed at night, stand outside wearing his soiled underpants on his head, holding a sign stating that he was a bed wetter. Once, when defendant accidentally hit Cecelia’s hand with the car door, she slammed the door on his hand.

As a fifth or sixth grader, defendant left Rudy’s home in Georgia and reunited with his mother, Suszanne. She lived in Oregon and had a new partner, Randy Newton. Suszanne testified that defendant developed learning problems and became disruptive in class. The drug Ritalin eased his hyperkinetic symptoms and improved his school performance. Before defendant entered the seventh grade, Suszanne met Tim Tugg, who became her third husband. Tim had no interest in raising defendant, Fred, or Teodi, and doted on his own children, including a son, Matthew, whom he had with Suszanne.

Suszanne testified that Tim was “physically and emotionally abusive to me and my kids.” Tim and Suszanne used marijuana and cocaine at home, and gave drugs to the children. Tim drank alcohol every day. Tim told defendant that Rudy Garcia was not his biological father. That night, defendant stole property and was arrested. Defendant’s biological father, Patrick Grandchampt, testified that he became acquainted with defendant during the capital case. Grandchampt read two letters from defendant seeking to develop a father-son relationship.

The witness testified that he cared about defendant, and chose not to disclose his true identity earlier for fear of “destroy[ing] everything.” 2. Juvenile Delinquency Beginning in 1983, when he was 13 years old, defendant came under the authority of the juvenile justice system in Oregon. A probation officer, Larry Tomanka, testified that defendant’s homelife was dysfunctional, that family counseling was not likely to succeed, and that placement outside the home eventually occurred. Steven Walker, a probation counselor, testified that defendant behaved well while confined in a juvenile facility in 1987.

However, he was estranged from his family, and his bed-wetting continued. Joan McCumby, a court counselor, found the family to be guarded and tense, especially around Tim Tugg. She believed the children had been mistreated while living with Rudy Garcia and Cecelia in Georgia. McCumby knew of no medical cause for defendant’s bed-wetting problem, and learned that he had been treated for hyperactivity as a child. An updated evaluation disclosed that the latter condition had dissipated and that medication was unnecessary. 3. Mental Condition Dr.

Arthur Kowell, a neurologist, performed a brain electrical activity mapping (BEAM) study of defendant before trial. Defendant’s performance in two areas, involving visual and auditory responses, showed abnormality in the frontal and temporal lobes. Both regions affect impulse control, among other things. These test results were consistent with attention deficit hyperactivity disorder (ADHD). Dr. Nancy Kaser-Boyd, a psychologist, interviewed defendant and various family members, conducted psychological tests, and reviewed school, medical and probation records.

In her opinion, defendant was a highly manic person, predisposed as an adult to committing criminal acts and suffering from mental illness and drug abuse. Dr. Kaser-Boyd determined that defendant suffered from ADHD as a child (evidenced, in part, by his bed-wetting), that the condition was likely inherited from his parents (including Patrick Grandchampt), and that he suffers from an adult version of the disorder (attention deficit disorder residual). Other risk factors for adult dysfunction included mental and physical abuse, as well as sexual molestation, as a child. On the latter point, Dr.

Kaser-Boyd testified that she was told by Fred Baumgarte, defendant’s grandfather, that Rudy Garcia had “touched” defendant’s genitals “in a sexual way” when defendant was three or four years old. Rudy was married to Fred’s daughter, Suszanne, at the time. C. Prosecution Rebuttal Fred Baumgarte confirmed that he saw a sexual fondling incident similar to the one that Dr. Kaser-Boyd described. However, as discussed further below, both Fred and his wife, Dorothy Baumgarte, testified that they did not remember discussing the matter with Dr. Kaser-Boyd.

Amy York, a defense paralegal, prepared a report before trial indicating that defendant’s older brother, Fred Garcia, told her that Tim Tugg physically abused only his wife Suszanne—not defendant and his brothers, Fred and Teodi. III. PRETRIAL ISSUES A.

Grand Jury Selection Process Defendant contends that the judicial nomination process long used in Los Angeles County to select prospective grand jurors—a process that led to the random draw of the grand juries that indicted defendant and, presumably, countless other persons—involved intentional and invidious discrimination, and resulted in the substantial underrepresentation of women and Hispanics in the grand jury pools. The claim is based upon the equal protection clause of the Fourteenth Amendment of the United States Constitution.

Defendant seeks automatic reversal of the indicted counts, including capital murder. In our view, no. constitutional violation or reversible error occurred. 1. Trial Court Proceedings On June 3, 1993, the Grand Jury of Los Angeles County returned an indictment, which was filed in superior court, charging defendant with the Finzel crimes. In a separate superior court case, an information was filed on November 30, 1993, charging defendant with burglary of the Kozak residence. Both cases were consolidated for trial on May 12, 1994. On May 23, 1994, defendant moved in writing to dismiss the indictment.

At the hearing on November 4, 1994, defendant argued that the grand jury selection process discriminated against women and Hispanics, and thus violated the equal protection guaranteed by the Fourteenth Amendment of the United States Constitution, as set forth in Castaneda v. Partida (1977) 430 U.S. 482 [51 L.Ed.2d 498, 97 S.Ct. 1272] (Castaneda).

Defendant claimed he had made a prima facie case, which the People did not rebut, by showing that both groups were substantially underrepresented in Los Angeles County Grand Jury pools over time, and that the nominating process was “highly subjective” and “susceptible of abuse as applied.” (Id. at p. 497.) The prosecutor replied that to the extent the two cases conflict, Castaneda had been “superseded” by Duren v.

Missouri (1979) 439 U.S. 357 [58 L.Ed.2d 579, 99 S.Ct. 664] (Duren), which prohibits “systematic” exclusion in violation of the Sixth Amendment right to an impartial jury drawn from a fair cross-section of the community. (Duren, at p. 364.) The prosecutor insisted, however, that nothing in Duren affected Castaneda’s requirement that, for equal protection purposes, “the defense actually has the burden of proving intentional discrimination.” Extensive evidence was admitted at the hearing through (1) live witness testimony, (2) documentary exhibits, and (3) other voluminous materials that the court judicially noticed from the record in an unrelated criminal case.

First and foremost, two superior court employees, Gloria Gomez and Juanita Blankenship, testified about the Los Angeles grand jury selection process, as follows: Unlike trial jurors, who are randomly summoned from Department of Motor Vehicle lists and voter registration rolls, grand jurors perform a voluntary public service and are not, in Blankenship’s word, “draftees” of the court. A full-time commitment is involved. Grand jurors serve for one year. They meet four or five days a week. The pay is $25 a day, plus mileage costs.

Blankenship alluded to certain statutory eligibility requirements for grand jury service. Some, she noted, also apply to trial jurors (e.g., being a citizen age 18 or older, knowing the English language, and having no felony convictions). However, only grand jurors have a one-year county residence requirement, and cannot hold elective office. According to both witnesses, all grand jurors are first nominated by a superior court judge. At the time of Blankenship’s testimony, there were 238 judges on the Los Angeles County Superior Court. Each judge is allowed to nominate up to two persons a year.

However, nothing prevents any judge from nominating only one person or making no nomination at all. Blankenship made clear that there are two ways to be nominated: (1) “be known to the judge or make yourself known to the judge and ask to be nominated” (direct nominees), or (2) “volunteer to be a candidate for a nomination” (volunteer candidates). Either way, the person completes the same standard application, which the nominating judge eventually signs. It gives applicants the option of disclosing race or ethnicity, and seeks a brief biographical statement.

The jury commissioner hands or mails an application to every person who requests one. It can be returned by mail or in person. For volunteer candidates (as opposed to direct nominees), submission of an application triggers a formal interview process. The person meets, at random, with one of the judges serving on the court’s grand and trial juror committee (Committee). The interview concerns statutory requirements and qualifications for grand jury service, as set forth in written guidelines promulgated by the Committee.

Blankenship testified that the guidelines, in addressing technical and clerical skills, do not seek to exclude applicants who lack office jobs or college degrees. Gomez noted that administrative skills bear on the grand jury’s “civil function.” After the interview, the interviewing Committee judge assigns a rating, and notes it on the form, as the guidelines provide. Copies of all applications submitted by volunteer candidates are distributed for nomination purposes to every judge on the superior court. As with direct nominees, a volunteer candidate is nominated when any one judge signs the form.

A tentative list of grand jury nominees is published in the newspaper, and circulated to the entire superior court to lodge any objection. In Blankenship’s experience, such objections are rare, and typically involve conflicts of interest, such as when a nominee is related to a sitting judge. (See ante, fn. 11.) Once this process is complete, a final list of nominees is compiled, filed, and published. According to Blankenship, the grand jury pool typically consists of 150 to 175 nominees. Many are volunteer candidates.

The next step is a random blind draw from a jury wheel of the names of 40 prospective grand jurors and 10 alternates. The sheriff’s department conducts criminal record checks of these 50 individuals. The names of those nominees who survive this check are again placed in the jury wheel. Another random blind draw then occurs to select the actual grand jury. Gomez testified that there are 23 grand jurors and four alternate jurors in Los Angeles County. Both Blankenship and Gomez described the superior court’s ongoing campaign to recruit grand jurors from a broad cross-section of Los Angeles County residents.

In Blankenship’s words, “substantial affirmative efforts” are made to attract Hispanics and members of other minority groups. Every year, a press release circulates to over 100 newspapers and media organizations, including most Spanish-language outlets. Public service announcements run in both English and Spanish on television and radio stations. Recruitment letters are sent to community groups, public officials, and consulates countywide. Judges personally consult with Hispanic community groups on the issue.

In a related vein, the record includes a sample “Nomination Form.” Consistent with Blankenship’s testimony, the form asks grand jury applicants to disclose their race or ethnicity (e.g., “Caucasian,” “Black,” “Hispanic,” “Asian,” or “Other Minority”), and states that such information is “optional” and “voluntary.” The following explanation appears nearby: “Recent Supreme Court decisions place added emphasis on the ethnic makeup of the pool from which Grand Jurors are drawn.

Your answer will assist the Judges of the Court in establishing full compliance with these decisions.” On an adjacent line, applicants are asked to specify whether they were “Male” or “Female.” In addition to information about the nominating process, defendant introduced statistical evidence. Regarding women in the grand jury pool, one chart indicated that, based on the 1990 census, women comprised 50 percent of the population of Los Angeles County 18 years and older. Another chart showed the gender of grand jury nominees from the 1986-1987 term through the 1993-1994 term.

The percentage of women in the pool ranged from a low of 34 percent one year, to a high of 50 percent another year. However, for five of the other eight years, grand jury nominees were 40 to 45 percent female. At the hearing, defense counsel used an “absolute disparity” measure, which calculated the difference between the percentage of adult women in the population and the percentage of women in the grand jury pools. Such disparity ranged from zero to 16 percent at each extreme, and otherwise hovered mostly in the 5 to 10 percent range.

Finally, demographic testimony by three experts was admitted, in transcribed and judicially noticed form, concerning Hispanics in the grand jury pool. Relying on the 1990 census and other sources, the witnesses used different assumptions, methodologies, and measures, and their calculations produced varying results. Notably, Dr. Nancy Bolton found an absolute disparity of 9.7 percent between the percentage of adult Hispanic citizens in Los Angeles County and the average percentage of Hispanics in the county’s grand jury pools over a five-year period between 1986 and 1991. Dr.

Bolton also found that 73 percent of the Hispanic volunteer candidates who were interviewed by superior court judges were nominated, compared to only 46 percent of their White counterparts. She inferred that the judges were “enriching” the Hispanic pool of nominees. By comparison, certain absolute disparity figures gleaned from the testimony of Dr. William Clark—10.5 percent—and Dr. Dennis Willigan—11.4 percent—were similar to, but somewhat higher than, Dr. Bolton’s figure. Dr. Clark and Dr.

Willigan based these results on the percentage of the Los Angeles County population who were Hispanic voting age citizens and who spoke English “well” (as opposed to those who spoke only “some” English or who spoke English “veiy well”). Both of these witnesses also used the six-year period from 1986 through 1992 to calculate the average percentage of Hispanics in Los Angeles County Grand Jury pools. Dr.

Willigan opined that the various disparities might be attributable to judges not knowing, and therefore not nominating, persons from “certain racial or ethnic groups.” He admitted, however, that “whatever goes on in the nomination process,” or “how or why it does, I don’t know.” After considering the foregoing evidence, the trial court rejected the grand jury challenge on the ground defendant had not presented a prima facie case of unconstitutional discrimination.

In describing the principles and authorities used to make this decision, the court explicitly “agreed with the People’s position.” Based on the above described arguments of the parties, the court apparently believed that Duren, supra, 439 U.S. 357, “superseded” Castaneda, supra, 430 U.S. 482, to some extent, but that the defense retained the burden of proving “intentional” discrimination under the latter case.

In any event, after acknowledging that women and Hispanics were distinctive groups entitled to constitutional protection, the court declined to decide whether there was a meaningful difference between the percentage of women and Hispanics nominated as grand jurors, and the percentage of women and Hispanics in the population eligible for such service. Instead, under the “third prong” of the test being applied, the court found no evidence of “any discriminatory system in place by the superior court.” Hence, the motion to dismiss the indictment was denied. 2.

Analysis of Constitutional Claim On appeal, defendant renews his argument that the judges of the Los Angeles County Superior Court violated equal protection guarantees by purposefully discriminating against women and Hispanics in selecting nominees for the pool from which his grand jury was drawn. We first summarize the statutory scheme which regulates this process, and which gave rise to the challenged procedures. The grand jury scheme, which codified prior law, has been in effect for decades. (See § 888 et seq., added by Stats. 1959, ch. 501, § 2, p. 2443; see also Stats. 1959, ch. 501, § 20, p. 2458; People v.

Superior Court (1973 Grand Jury) (1975) 13 Cal.3d 430, 436 & fn. 5 [119 Cal.Rptr. 193, 531 P.2d 761] (1973 Grand Jury).) Each county must have at least one grand jury drawn and impaneled every year. (§ 905; see Cal. Const., art.

I, § 23.) The grand jury consists of “the required number of persons returned from the citizens of the county before a court of competent jurisdiction,” and sworn to inquire into both “public offenses” within the county and “county matters of civil concern.” (§ 888; see § 888.2 [specifying “required number” of grand jurors based on county size]; see also §§ 904.4-904.8 [authorizing “additional” grand juries depending on county size].) This general authority over both criminal and civil matters involves three functions: (1) weighing criminal charges and deciding whether to present indictments (§ 917), (2) evaluating misconduct claims against public officials and deciding whether to formally seek their removal from office (§ 922), and (3) acting as the public’s “watchdog” by investigating and reporting upon local government affairs. (§§ 919-921, 925 et seq.; see McClatchy Newspapers v.

Superior Court (1988) 44 Cal.3d 1162, 1170 [245 Cal.Rptr. 774, 751 P.2d 1329] (McClatchy).) In counties with a single grand jury, that one body performs all three functions. (See 76 Ops.Cal.Atty.Gen. 181, 182 (1993) [concluding that any additional grand jury authorized by statute is restricted to criminal matters and may not perform civil oversight functions].) In California, unlike other jurisdictions, the grand jury most often plays the civil oversight role. (McClatchy, supra, 44 Cal.3d 1162, 1170; see 1973 Grand Jury, supra, 13 Cal.3d 430, 436, fn. 4 [distinguishing federal grand juries insofar as they do not report on public affairs].) Many statutes identify specific topics of inquiry.

In performing its functions, the grand jury operates in secret. (E.g., §§ 915, 924.2, 939; see § 911 [oath].) It may retain auditors, appraisers and other experts (§ 926), and has subpoena power (§ 939.2; see § 921 [access to public records]).

At the end of its term, the grand jury must issue a final report to the presiding judge of the superior court (§ 933, subd. (a)), documenting all findings therein. (§ 916; see 1973 Grand Jury, supra, 13 Cal.3d 430, 434 [interim report].) As shown by the testimony here, grand jurors must be citizens age 18 or older and have resided in the county for at least one year immediately before their service begins. (§ 893, subd. (a)(1).) A person who serves on this body also must have sufficient knowledge of the English language to perform the grand jury function (id., subd. (a)(3)), and be “in possession of his natural faculties, of ordinary intelligence, of sound judgment, and of fair character” (id., subd. (a)(2)).

The county pays grand jurors a modest daily fee, and reimburses mileage costs, upon the order of the superior court. (§§ 890, 890.1.) The Legislature has vested the superior court with responsibility for selecting grand jury members. (See 1973 Grand Jury, supra, 13 Cal.3d 430, 438 & fn. 8 [noting close statutory relationship between grand jury and convening court].) Shortly before the county fiscal year begins, the court makes an order estimating the number of grand jurors required for that year. (§ 895.) Thereafter, “the court shall select the grand jurors required by personal interview for the purpose of ascertaining whether they possess the qualifications prescribed by subdivision (

a) of

Section 893.” (§ 896, subd. (a).) If, “in the opinion of the court,” these qualifications are met, the person selected must sign a statement declaring that he “will be available” for the “number of hours” required of grand jurors in the county. (Ibid.) The court makes a “list” of the prospective grand jurors it has selected, and gives it to the jury commissioner. (§ 896, subd. (b).) After receiving and filing the list of prospective grand jurors, the jury commissioner publishes it in a newspaper of general circulation, along with the name of the judge who selected each person on the list. (§ 900.) The jury commissioner then randomly draws the names from the “ ‘grand jury box,’ ” using one of two methods. (Id., subds. (a) [folded slips of paper], (b) [numbered markers].) Once drawn, the grand jury is “certified and summoned” (§ 906), and the grand jury is impaneled. (§ 905; see § 909 [before “accepting” anyone drawn as grand juror, court must be satisfied that they are “duly qualified”].) Against this statutory backdrop, and based on the evidentiary record, defendant contends the trial court erred in concluding that he failed to present a prima facie case that the grand jury nomination process violated federal equal protection guaranties.

He insists all essential elements were present under Castaneda, supra, 430 U.S. 482, to wit, substantial underrepresentation of a distinct class (women and Hispanics) in the grand jury pool over time, and a highly subjective nominating process that was susceptible of abuse. Defendant argues that whether or not any “overt racism” was shown, the evidence he presented below raised an inference of purposeful and intentional discrimination, which the People did not rebut. We now consider Castaneda in some detail.

In Castaneda, defendant Partida was indicted and convicted of a felony in Hidalgo County, Texas, near the Mexican border. In seeking a new trial in state court, he claimed his federal equal protection rights had been denied because of the historical underrepresentation of Mexican-Americans on grand juries in the county when he was indicted in 1972. Besides testifying about racial discrimination in the area, Partida introduced evidence from the 1970 census showing that 79.1 percent of the county’s population was Mexican-American, and that the group was underprivileged by various socioeconomic measures.

Partida also showed that the average representation of Mexican-Americans on grand jury lists over an 11-year period, from 1962 to 1972, was 39 percent. In rebuttal, the state offered no evidence to show that the alleged underrepresentation and discrimination had not occurred. Ultimately, the motion for a new trial was denied, and the conviction was affirmed on appeal. (Castaneda, supra, 430 U.S. 482, 485-489.) Partida renewed his equal protection claim on habeas corpus in federal district court.

This time, the state outlined some of the procedures used to select grand juries in Hidalgo County, as follows: A state district court judge appointed from three to five jury commissioners. The commissioners, in turn, selected 15 to 20 persons to comprise the list from which the actual grand jury was drawn. When 12 persons on the list appeared by summons in court, the state district judge determined whether they were statutorily qualified to serve, examining them under oath on issues such as citizenship, voting age, literacy, mental soundness and moral character, and criminal record.

As soon as the court found 12 qualified persons, they were impaneled as the grand jury. (Castaneda, supra, 430 U.S. 482, 484-485.) Also, the state district judge who applied these rules—called a “key man” system-testified that in appointing the commissioners (including a greater number of Mexican-Americans than persons from other ethnic groups), he advised them on the qualifications and exemptions related to grand jury service.

However, there was no evidence in any form, including from the commissioners themselves, on the manner in which they compiled the grand jury list. (Id. at pp. 490-491.) The federal district court declined to grant habeas corpus relief on grounds the prima facie case of discrimination was weak, and sufficient rebuttal had occurred.

The court surmised that the statistical evidence overstated the racial imbalance on the grand jury lists, and that it ignored the role of Mexican-Americans as a local “governing majority” who held prominent posts in the community. (Castaneda, supra, 430 U.S. 482, 491-492.) The latter theory referred to the fact that, at the relevant time, a large percentage of Mexican-Americans served, among other things, as jury commissioners, prospective grand jurors, actual grand jurors, and trial jurors in Partida’s case.

However, the federal circuit court of appeals rejected this analysis and reversed the district court’s decision. The court of appeals placed little weight on the “governing majority” approach, and otherwise found that Partida’s prima facie showing of a constitutional violation had not been adequately rebutted by the State. (Castaneda, supra, 430 U.S. 482, 491-492.) The United States Supreme Court granted a petition for certiorari by the State of Texas, through the Sheriff of Hidalgo County, challenging the equal protection theory on which Partida had prevailed in the federal court of appeals.

In a five-to-four decision, accompanied by three dissenting opinions, the Supreme Court upheld the lower court ruling invalidating the state’s grand jury selection process. (Castaneda, supra, 430 U.S. 482, 492, 501; see id. at p. 504 (dis. opn. of Burger, C.

J.); see also id. at p. 507 (dis. opns. of Stewart, J., and Powell, J.).) At the outset, Castaneda embraced the venerable notion that equal protection precludes a defendant from being tried under an indictment issued by a grand jury from which persons “ ‘of his race or color’ ” have been excluded “ ‘because of that race or color.’ ” (Castaneda, supra, 430 U.S. 482, 492.) Reviewing its prior decisions, the court observed that such conduct “is not unconstitutional solely because it has a racially disproportionate impact.” (Id. at p. 493, italics omitted.) Rather, the equal protection clause of the Fourteenth Amendment targets discrimination that is “purposeful” and “intentional” (Castaneda, supra, 430 U.S. at p. 493), and that selects grand jurors in a “ ‘racially non-neutral’ ” way (id. at p. 494).

In evaluating how the key-man system was applied in Hidalgo County, Castaneda set forth the requirements that a criminal defendant must meet in order to establish a prima facie equal protection violation. “The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. [Citation.] Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. . . .

Finally, [the court noted], a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.” (Castaneda, supra, 430 U.S. 482, 494, citations & fn. omitted.) Once the requisite showing has been made, and a prima facie case of discriminatory purpose appears, “the burden then shifts to the State to rebut that case.” (Id. at p. 495.) Under this test, Castaneda held, Partida had presented a prima facie case.

First, Mexican-Americans were “a clearly identifiable class.” (Castaneda, supra, 430 U.S. 482, 495.) This conclusion rested on the common use of Spanish surnames in the group, and on the socioeconomic disadvantages its members had long endured. Second, Castaneda found the statistical showing clearly sufficient for prima facie case standards.

Partida had established a 40 percent disparity between the percentage of Mexican-Americans in the county’s population and the average percentage of Mexican-Americans summoned as prospective grand jurors over an 11-year period before he was indicted. (Castaneda, supra, 430 U.S. 482, 495-496.) The court further indicated that the constitutional significance of the disparity would not change to the extent the relevant population could be limited, based on the available statistical evidence, to persons who were statutorily eligible to serve as grand jurors. (Id. at pp. 486, fn. 6 [noting that exclusion of noncitizens resulted in only a “negligible]” 3 percent decrease in the number of Mexican-Americans in the county population], 488, fn. 8 [finding a 26 percent disparity between Mexican-Americans 25 years or older who have “some schooling,” and are presumably literate, and Mexican-Americans in grand jury pools].) Third, the substantial underrepresentation of Mexican-Americans in grand jury pools did not end the inquiry.

Castaneda proceeded to address the final factor it had identified as bearing on the establishment of a prima facie case—the nature of the grand jury selection process itself. The court noted that, as a general proposition, the key-man system was not inherently unconstitutional, and that it had repeatedly been upheld against facial challenge.

However, referring to the Texas system in particular, the court characterized it as both “highly subjective” and “susceptible of abuse as applied.” (Castaneda, supra, 430 U.S. 482, 497.) In context, such criticisms seemed directed at evidence the court had previously described indicating that no known methods or standards regulated the manner in which the commissioners compiled the grand jury lists. (Id. at pp. 490-491.) In any event, without further discussion, the court found that an inference of intentional discrimination arose, which the state was required to dispel. (Id. at pp. 497-498.) In the final analysis, Castaneda determined that the state did not rebut the showing of intentional discrimination that Partida had made.

The court emphasized the “barren” state of the record as to both the “motivations and methods of the grand jury commissioners.” (Castaneda, supra, 430 U.S. 482, 499.) In light of the gross underrepresentation of Hispanics on the grand jury lists, the court indicated that proper rebuttal required some explanation as to how the commissioners determined “the other qualifications for grand jurors prior to the statutory time for testing qualifications” in state district court. (Id. at p. 498.) Nor did the governing majority theory devised by the federal district court fill the evidentiary gap.

The high court was not willing to assume that members of one definable group would never discriminate against other persons in the same group. It likewise did not matter to the court that certain local officials or prominent persons in Hidalgo County were Mexican-American. (Id. at p. 499.) For all these reasons, Castaneda concluded that there had been a denial of equal protection in the selection of the grand jury in Partida’s case.

The United States Supreme Court has referred to Castaneda, supra, 430 U.S. 482, sparingly in the 35 years since it was decided, and has had no occasion to apply its equal protection analysis to a “key man” system under circumstances other than those at issue there. Nevertheless, the high court has reaffirmed, in closely related contexts, that Castaneda involved the Fourteenth Amendment’s prohibition against purposeful and invidious discrimination. Thus, in Vasquez v.

Hillery (1986) 474 U.S. 254, 260-264 [88 L.Ed.2d 598, 106 S.Ct. 617], the court declined to adopt a harmless error standard where the grand jury had been selected in violation of equal protection guaranties. Consistent with a long line of cases, the court observed that such a fundamental structural flaw in the proceedings compelled reversal of the conviction. Few constitutional errors were as grave, the court said, as the state engaging in the “intentional” exclusion of grand jurors because of their race. (Id. at p. 262; see Rose v.

Mitchell (1979) 443 U.S. 545, 551-559 [61 L.Ed.2d 739, 99 S.Ct. 2993] [similar analysis].) Against this backdrop, we are not entirely certain of the elements of a prima facie equal protection violation sufficient to shift the burden of proof from the defense, and to require rebuttal from the state.

On the one hand, Castaneda, supra, 430 U.S. 482, speaks broadly of the “presumption,” or inference, of discriminatory intent raised by the constitutionally significant underrepresentation of a distinct group over time (id. at p. 494), of the underlying “support^ ” for such inference provided by a selection process that is “susceptible of abuse” or “not racially neutral” (ibid.), and of the “highly subjective” and malleable nature of the Texas key-man system in particular (id. at p. 497).

Read in its most literal and absolute manner, such language arguably implies that mere statistical disparity, coupled with some official discretion in the selection of grand jurors, is always sufficient, without more, to raise a prima facie case of intentional discrimination. On the other hand, it is difficult to conceive of a grand jury selection system—including one less unfettered and more objective than Castaneda’s— in which no meaningful discretion guides the nominating process, and which would survive constitutional scrutiny under the foregoing view, assuming the requisite statistical showing was made.

As reflected by the statutory requirement of personal interviews for grand jury nominees, and by the individualized screening process that the county used here, it seems inherent in the grand jury itself, and in its civic oversight role and strict schedule, that persons nominated and selected to that body not only be eligible and qualified to serve, but that they also be willing and able to do so.

For this pragmatic reason, perhaps, Castaneda recognized that key-man systems are not unconstitutional per se, absent any evidence or inference of discriminatory intent “as applied.” (Castaneda, supra, 430 U.S. 482, 497.) We now determine whether defendant’s motion to dismiss the indictment was properly denied. We begin by noting the parties’ agreement that women (see Duren, supra, 439 U.S. 357, 364), and Hispanics (Castaneda, supra, 430 U.S. 482, 495), each qualify as a distinct class for equal protection purposes. Hence, the first prong of Castaneda’s “prima facie” test is met.

Regarding Castaneda’s second “prima facie” prong, as to which considerable evidence was admitted below, the significance of defendant’s statistical showing is less clear. Here, as under the Sixth Amendment, the United States Supreme Court “has not yet spoken definitively on either the means by which disparity may be measured or the constitutional limit of permissible disparity.” (Bell, supra, 49 Cal.3d 502, 527-528, fn. omitted.) The exhibits showed various absolute disparities comparing adult women in the population to women in grand jury pools in Los Angeles over several years.

While the difference spiked at one point, it otherwise was either zero or ranged between 5 and 10 percent. Likewise, there was no expert consensus concerning the absolute disparity between Hispanics in the county population and Hispanics in grand jury pools, with each witness defining and measuring such groups for statistical purposes differently. (See id. at p. 526, fn. 12 [defendants must use available “jury-eligible population” figures in fair-cross-section cases].) Some of the more relevant absolute disparity figures for Hispanics ranged from 9.7 percent to 11.4 percent.

At bottom, none of the disparities shown for either women or Hispanics in this case approaches the 40 percent mark in Castaneda, supra, 430 U.S. 482. Nor do they show substantial underrepresentation over time outside the more modest limits that courts have assumed are constitutionally permissible. (See Bell, supra, 49 Cal.3d 502, 528, fn. 15 [reviewing cases that deemed absolute disparity of 4.5 to 11.49 percent “insufficient,” and that “seemingly” reached opposite result as to 14 percent disparity]; see also People v.

Burgener (2003) 29 Cal.4th 833, 856-857 [129 Cal.Rptr.2d 747, 62 P.3d 1] [declining to decide effect of 10.7 percent disparity on fair-cross-section claim].) However, we need not resolve these statistical issues. The same is true as to whether defendant has met Castaneda’s third “prima facie” prong by showing that the grand jury selection procedure was “not racially neutral” (Castaneda, supra, 430 U.S. 482, 494), or was “highly subjective” and “susceptible of abuse as applied” to women and Hispanics (id. at p. 497).

The reason is that even assuming a prima facie case exists under Castaneda, the evidence admitted and considered by the trial court is more than sufficient to “dispel [any] inference of intentional discrimination” and to show that no equal protection violation occurred (Id. at pp. 497-498.) To recap the process, grand jurors are randomly selected from a group of persons nominated by the judges of the Los Angeles County Superior Court. The original pool of applicants for nomination includes both volunteers from the community and individuals personally known to the judges.

The superior court determines “by personal interview” whether prospective grand jurors meet the eligibility requirements under

section 893, subdivision (a). (§ 896, subd. (a).)

Section 893, subdivision (

a) ensures that such persons have, among other things, the basic capacity to perform the grand juror function. Elsewhere, the scheme defines such function in terms of the responsibility to conduct criminal and civil inquiries, most of which concern investigating and reporting on the financial, administrative, and legal affairs of government agencies and officials. The relevant statutes further assume that this service, which is largely uncompensated, demands a high level of personal commitment from those sworn to perform it.

Thus, in addition to determining eligibility and qualification to perform the grand jury function, the court must ensure that nominees can and will work the necessary hours. (§ 896, subd. (a).) These statutory requirements are neither uncommon nor inherently unconstitutional. (See Carter v. Jury Commission (1970) 396 U.S. 320, 331-337 [24 L.Ed.2d 549, 90 S.Ct. 518]; 1 Wharton’s Criminal Procedure (14th ed. 2010) § 4:4, pp. 4-30 to 4-42.) The evidence in this case showed that the Los Angeles County Superior Court had adopted standard procedures and written guidelines to implement the foregoing rules.

The jury commissioner gave the same application to all persons who wanted to serve as grand jurors, whether or not they were known to any judge. Similarly, the interview system used to nominate grand jurors was not limited to persons known to the judges, but was extended to everyone who volunteered to apply. To ensure that all applicants and interviewees were evaluated in a uniform and proper manner, the court used written guidelines focusing on statutory eligibility rules, relevant background and experience, and time and service requirements.

Nominating responsibility was shared by the entire superior court bench, which consisted at the relevant time of 238 judges serving in courthouses located in different communities throughout Los Angeles County. Contrary to defendant’s view, nothing in these rules or procedures authorized, encouraged, or established that the judges nominated grand jurors in a manner that discriminated against women, Hispanics, or any other distinct group. Rather, the criteria used to select nominees were gender and race neutral, and clearly sought to test qualifications without reference to any impermissible subjective factor.

Far from seeking to exclude members of minority groups from the pool of nominees, the superior court operated under a prodiversity policy. It engaged in a widespread campaign to recruit grand jury volunteers from all segments of the county population. These efforts targeted Hispanics and other minority groups. (See People v.

Burney, supra, 47 Cal.4th 203, 227 [rejecting 6th Amend, fair-cross-section challenge to Orange County Grand Jury pool where superior court made “exhaustive efforts” to “invite Asian-Americans to apply”].) In a related vein, the neutral selection criteria used by the Los Angeles Superior Court, consisting of statutory requirements and its own guidelines, were rationally related to the grand jury fiinction. The pool of persons who were eligible, qualified, and willing to serve as grand jurors was not unlimited.

Hence, in evaluating nominees, the court considered any traits, skills, and experience that would assist the grand jury in conducting its investigations and preparing its reports. The testimony indicated that these standards were broadly inclusive and did not seek to eliminate persons based on occupation or education. (See People v.

Brown (1999) 75 Cal.App.4th 916, 927 [89 Cal.Rptr.2d 589] [rejecting equal protection challenge to selection of grand jury foreperson where presiding judge in San Francisco Superior Court used “race-neutral,” “job related” factors to make decision].) Finally, in implementing the screening process, the Los Angeles Superior Court was evidently aware of its constitutional duties in selecting grand jurors, including the requirement that no one be excluded “ ‘because of [their] race or color.’ ” (Castaneda, supra, 430 U.S. 482, 492.) Such awareness can be inferred from the written form given to all grand jury applicants, and distributed (at least in the case of volunteer candidates) to the entire court, announcing “full compliance” with the law in this regard.

Further, it appears that any racial or similar background information voluntarily provided on the form was used in a manner consistent with the diversity policy and outreach efforts we have described. Indeed, the evidence showed that the application and interview process was not used to eliminate Hispanic volunteer candidates, because they were nominated at a higher rate than Whites who were screened in the same manner.

Thus, unlike Castaneda, on which defendant so heavily relies, the present record is filled with—not devoid of—evidence of the nondiscriminatory “motivations and methods” of the judicial officers who selected the grand jury pool. (Castaneda, supra, 430 U.S. 482, 499.) Accordingly, we conclude that the Los Angeles County procedure for the nomination of prospective grand jurors neither allowed, nor produced, purposeful or intentional discrimination against women and Hispanics.

We therefore reject defendant’s claim that his indictment violated the Fourteenth Amendment, and that the motion to dismiss was erroneously denied. B. Trial Jury Selection Process Defendant maintains the trial court erred by excusing, for cause, a prospective juror who expressed “pro-life” views, and by rejecting his claims that the prosecutor’s peremptory excusáis of three female prospective jurors were improperly motivated by gender bias. All such contentions lack merit. 1.

Overview We summarize the process used to select the trial jury in this case—context that defendant fails to provide in challenging such procedures on appeal. The process began with 160 prospective jurors. After a prehminary screening, which resulted in numerous excusáis on hardship grounds, a pool of 75 prospective jurors remained. All 75 persons completed an 18-page questionnaire, which they were required to sign under penalty of perjury. The written questions were the product of substantial collaboration between the court and counsel. About 25 percent of the questions concerned the death penalty.

Voir dire began with 18 prospective jurors inside the jury box, representing the 12 persons needed for the actual jury and the six persons needed as alternate jurors. The court examined each panelist at length. Counsel on both sides asked followup questions. Except for sensitive personal matters, voir dire occurred in open court. At the bench, the parties exercised challenges for cause, followed by peremptory challenges. When only 11 people were left in the jury box, the court called more names to create a new 18-person panel. This process occurred a total of seven times to select the 12-person jury.

A similar procedure involving four panels of five persons each was used to choose the six alternate jurors. 2. Challenge for Cause Defendant claims the trial court erred in granting the prosecution’s challenge for cause to D.G., who was one of the first 18 persons to undergo voir dire. He argues here, much as he did below, that the ruling violated Wainwright v.

Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt), and thereby deprived him of due process, an impartial jury, and a fair and reliable penalty determination under the Sixth, Eighth, and Fourteenth Amendments of the federal Constitution, and under parallel provisions of the state Constitution. We disagree. The record discloses that D.G. expressed personal opposition to capital punishment on her questionnaire.

She indicated that she “strongly agree[d]” with the statement that “[ajnyone who commits murder, attempted murder and sexual assaults should never get the death penalty.” She explained her answer to this and other questions—including one soliciting her general views on the death penalty—by writing, “I do not believe in the Death Penalty.” She also wrote that no one “should die at the hands of the Death Penalty,” and that her preferred outcome in cases involving violent crimes was “jail for life.” When asked to identify cases in which the death penalty was not appropriate, she wrote, “all cases.” Consistent with this view, she listed no case, and left the answer blank, when asked to identify circumstances in which the death penalty was appropriate.

On voir dire, the trial court first inquired whether D.G. held strong views on punishment. Echoing her questionnaire, D.G. said, “Right.

I just don’t believe in the death penalty.” When the court noted that D.G. had circled “NO” in response to written questions about rejecting death or life imprisonment without parole in appropriate cases, she exclaimed, “Oh, I can vote for life.” The court next asked whether there were “any circumstances you can imagine that you think death might be appropriate.” D.G. replied—again, tracking her questionnaire—“no.” An exchange then occurred in which the trial court explored possible exceptions to D.G.’s apparent refusal to impose death in any case.

When the trial court mentioned “Charlie Manson, serial killer,” D.G. acknowledged hearing about the case on television, but twice said, “I don’t know” in response to the court’s question about the appropriate punishment. D.G. was also asked whether she could vote to impose the death penalty on Jeffrey Dahmer, another notorious serial killer who sexually assaulted and tortured his victims, among other things. D.G. indicated that she was familiar with the Dahmer case, but replied, “No, I couldn’t [impose death].

I am just one that don’t [sz'c] believe in the death penalty.” The court then posed its final inquiry along these lines, asking whether it was “possible” to reject life imprisonment without parole and vote for death if the aggravating evidence substantially outweighed the mitigating evidence. D.G. essentially answered in the negative, as follows: “It would be hard for me to, you know, vote that way. But again, I just don’t believe in the death penalty. That is just my belief.

I believe that we are put here on this earth to remain here unless otherwise, you know, from an illness or some other act we are taken away from here. I just can’t see it. I just don’t believe in it.” Defense counsel’s followup examination consisted of a series of “yes” or “no” questions. At the outset, D.G. answered affirmatively when asked if she understood that defendant was entitled to jurors who held a diversity of views, that the law did not require any juror to vote for death in a given case, and that jurors must set aside their personal views and apply the law consistent with the court’s instructions.

Thereafter, D.G. continued to say “yes” when counsel asked whether she could follow the court’s instructions to set aside her personal opinions and render an impartial verdict under the law, and whether she could consider the death penalty and follow the law if instructed to do so in certain cases. However, midway through this exchange, D.G. interjected the following remark: “I would follow the law, although I still would—don’t believe in the death penalty.” The prosecutor posed only a few questions.

All of them confirmed D.G.’s personal feelings that she could not vote for the death penalty regardless of the circumstances of the case. At a sidebar conference, the prosecutor challenged D.G. for cause. Defense counsel objected on the ground D.G. gave appropriate answers to, i.e., “walked through,” counsel’s questions about following the law and instructions, and considering the death penalty. The trial court disagreed, saying, “I don’t think she walked through it. She was carried through it ... .

Even [so], she slipped out a little burst of independent thought there that she was not in favor of the death penalty. [(J[] I think her feelings are clearly strong enough to interfere with following the court’s instruction.” The challenge for cause to D.G. was granted as a result.

Based on the foregoing developments, defendant contends that D.G. showed no disqualifying bias, and should not have been excused for cause, because her personal opposition to the death penalty would not have prevented her from imposing death “under any circumstances.” Defendant relies heavily here, as below, on defense counsel’s examination of D.G. In Witherspoon v.

Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], the high court held that a death sentence cannot constitutionally be imposed by a tribunal “organized to return a verdict of death” (id. at p. 521), that is, by a jury that excluded veniremen for cause “simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction” (id. at p. 522 & fn. 21 [suggesting it must be “unmistakably clear” the person would “automatically” reject death]).

In Witt, supra, 469 U.S. 412, 424, the court “clarified]” Witherspoon, and held that a prospective juror may be excluded for cause because his views on capital punishment would either “ ‘prevent or substantially impair’ ” the performance of his duties under the instructions and the oath. Thus, under Witt, persons opposed to the death penalty may serve as jurors only if they “state clearly that they are willing to temporarily set aside their own beliefs and follow the law.” (People v. Avila (2006) 38 Cal.4th 491, 529 [43 Cal.Rptr.3d 1, 133 P.3d 1076], citing Lockhart v.

McCree (1986) 476 U.S. 162, 176 [90 L.Ed.2d 137, 106 S.Ct. 1758].) In other words, such persons must “persuasively demonstrate an ability to put aside personal reservations, properly weigh and consider the aggravating and mitigating evidence, and make that very difficult determination concerning the appropriateness of a death sentence.” (People v. Stewart (2004) 33 Cal.4th 425, 447 [15 Cal.Rptr.3d 656, 93 P.3d 271].) In a related vein, trial court findings regarding a prospective juror’s views on capital punishment are entitled to substantial deference on appeal. (People v.

Avila, supra, 38 Cal.4th 491, 529.) Hence, where answers given on voir dire are “equivocal or conflicting,” the trial court’s evaluation of the person’s state of mind is generally binding on the reviewing court. (People v. DePriest (2007) 42 Cal.4th 1, 21 [63 Cal.Rptr.3d 896, 163 P.3d 896], and cases cited.) The trial court is in the “unique position of assessing demeanor, tone, and credibility firsthand—factors of ‘critical importance in assessing the attitude and qualifications of potential jurors.’ ” (Ibid., quoting Uttecht v.

Brown (2007) 551 U.S. 1, 9 [167 L.Ed.2d 1014, 127 S.Ct. 2218].) As noted in Witt itself, the trial judge may be left with the “definite impression” that the person cannot faithfully and impartially apply the law even though he has not expressed his views with absolute clarity. (Witt, supra, 469 U.S. 412, 425-126.) Applying this deferential standard here, we find ample evidence to support the trial court’s determination that D.G.’s opposition to the death penalty would, at the very least, “ ‘substantially impair’ ” the performance of her duties as a juror. (Witt, supra, 469 U.S. 412, 424.) At every phase of voir dire, whether her answers were given orally or in writing, and whether they were solicited by the court or counsel, D.G. repeatedly stated, in almost talismanic form, that she did “not believe in the death penalty.” She also communicated with remarkable clarity in her questionnaire and during voir dire that the death penalty was inappropriate in all cases, and that she could conceive of no case in which she could or would reach a different result.

The latter principle evidently held true no matter how vile the circumstances of the crime or how strong the evidence in aggravation. Contrary to what defendant implies, D.G. never “state[d] clearly,” in her own words, that she wa.s willing or able to set aside these personal views and reject a sentence of life imprisonment without parole. (People v. Avila, supra, 38 Cal.4th 491, 529.) Nor does the record otherwise “persuasively demonstrate” an ability to follow the law and consider imposing a death sentence. (People v.

Stewart, supra, 33 Cal.4th 425, 447.) Rather, after counsel led her through a series of “yes” or “no” questions on sentencing, and she seemed to accept the notion of following the law and instructions, D.G. lapsed into her repeated refrain, “I still . . . don’t believe in the death penalty.” Upon hearing D.G.’s voice and seeing her demeanor, the trial court found this view to be sincere, strong, and unyielding.

As in prior cases, where the prospective jurors’ answers arguably seemed more equivocal and less absolute than those at issue here, we decline to second-guess the trial court’s finding on appeal. (See, e.g., People v. Solomon (2010) 49 Cal.4th 792, 831 [112 Cal.Rptr.3d 244, 234 P.3d 501] [upholding excusal for cause based on prospective juror’s statements that though she “ ‘[theoretically’ ” opposed the death penalty, she could “ ‘probably’ ” vote for death in some cases, but would find it “ ‘extremely difficult’ ” to do so]; People v.

Friend (2009) 47 Cal.4th 1, 61 [97 Cal.Rptr.3d 1, 211 P.3d 520] [same result where one prospective juror admitted being “ ‘slightly schizophrenic’ ” and unsure about voting for death, while another prospective juror apologized for “ ‘vacillating’ ” on penalty and likewise did not know whether she could impose death].) Accordingly, in our view, no error in excusing D.G. for cause occurred. 3.

Wheeler/Batson Claim Defendant insists the trial court erred in denying his motion for a mistrial after the prosecutor allegedly displayed gender bias by using her first three peremptory challenges against female prospective jurors. He argues here, as below, that such conduct violated the state constitutional right to a representative jury (People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler)), and the federal constitutional guaranty of equal protection of the laws. (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson); see J. E. B. v. Alabama ex rel. T.

B. (1994) 511 U.S. 127, 129 [128 L.Ed.2d 89, 114 S.Ct. 1419]; People v. Jurado (2006) 38 Cal.4th 72, 104 [41 Cal.Rptr.3d 319, 131 P.3d 400].) As noted, after the 75 members of the jury pool completed their questionnaires, the court called 18 of them into the jury box. During the ensuing voir dire, the parties stipulated to excuse one woman, K.M., based on her past experience with violent crime and the court system. The prosecutor also dismissed another woman for cause, D.G., as discussed above. The parties then took turns exercising peremptory challenges against the 16 prospective jurors left on the panel.

Critical here is the prosecution’s use, at that time, of peremptory challenges against M.E., T.B., and N.F.—all three of whom were women. Defense counsel, in turn, struck one male and one female prospective juror. Seven more people were called into the box. The court and counsel questioned one of them, G.C., who answered mostly at the bench, outside the hearing of other jurors. Immediately after G.C. returned to the jury box, and shortly before the court session ended for the day, defendant moved for a mistrial.

Citing Wheeler, supra, 22 Cal.3d 258, defense counsel simply said, “The three peremptories that were exercised by [the prosecutor] were all women.” However, as urged by the prosecutor, the trial court denied the motion because “no prima facie showing” had been made. The court noted that while it usually “invite[d] the People to state their reasons for the r

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