THE PEOPLE, Plaintiff and Respondent, v. RICHARD LUCIO DeHOYOS, Defendant and Appellant, 57 Cal. 4th 79

Opinion CANTIL-SAKAUYE, C. J. A jury found defendant Richard Lucio DeHoyos guilty of the 1989 first degree murder of nine-year-old Nadia Puente. (Pen.

Code, § 187, subd. (a).) The jury determined defendant had kidnapped her in order to commit child molestation and that he raped, sodomized, and committed a lewd and lascivious act upon her. (§§ 207, subd. (b), 261, subd. (a)(2), 288, subd. (a); former § 286, subd. (c), as amended by Stats. 1988, ch. 1243, § 6, p. 4133 (now § 286, subd. (c)(1)).) The jury found true the special circumstances that the murder was committed while engaged in the commission of kidnapping, forcible rape, sodomy and performing a lewd and lascivious act upon a child under the age of 14. (Former § 190.2, subd. (a)(17)(ii)-(v), added by initiative, Prop. 7, approved by voters Nov. 7, 1978 (see now § 190.2, subd. (a)(17)(B)-(E)).) The jury found defendant was sane when he committed the crimes and determined the appropriate penalty to be death.

Prior to sentencing, however, the trial court granted defendant’s motion for a new trial based on juror misconduct.

On retrial, the second jury found defendant guilty of the same charges: first degree murder, kidnapping for child molestation, forcible rape, sodomy, and committing a lewd and lascivious act upon a child under 14. (§§ 187, subd. (a), 207, subd. (b), 261, subd. (a)(2), 288, subd. (a); former § 286, subd. (c).) The jury found true the same special circumstances. (Former § 190.2, subd. (a)(17)(ii)-(v).) The jury again found defendant to be sane at the time he committed the crimes and determined death to be the appropriate penalty.

The trial court denied defendant’s motion for new trial and for modification of the verdict. The trial court imposed a sentence of death, with additional determinate terms of imprisonment totaling 19 years for the nonhomicide offenses. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. Facts A. Introduction As nine-year-old Nadia Puente walked home from her elementary school, defendant approached her in his car, told her he was a teacher, and asked her for help moving some books.

After using this ruse to get Nadia into his car, defendant drove to a motel where he had earlier rented a room for two. There defendant raped, sodomized, and killed Nadia. He put her body in a trash can, which he stuffed into the trunk of his car. He drove to Griffith Park in Los Angeles, waited until after dark, and then left the trash can containing Nadia’s body in the park. Defendant fled to San Antonio, Texas, where he was apprehended about a week later.

When interviewed by investigating officers, defendant eventually admitted killing Nadia, but claimed it was unintentional, that he did not rape her, and that he sodomized her only after she .was dead. At trial, defendant additionally claimed he did not have the required mental state to commit the crimes due to mental illness. He also claimed he was insane at the time he committed the crimes. The jury rejected defendant’s claims and returned a verdict of death. B. Guilt Phase 1. The prosecution’s evidence On March 20, 1989, defendant rented a room at the Ha’Penny Inn in Santa Ana, California.

The inn registration card and receipts indicated he registered for two people to stay in the room. Sandra C., a student in the third grade at Diamond Elementary School in Santa Ana, was walking home from school alone on the afternoon of March 20, 1989, when a gray car pulled up. The driver, a thin Caucasian or Hispanic man, said, “Excuse me” and called her over to the car. The man told Sandra-that he was a teacher and asked her if she would carry some books over to the Carr Intermediate School. Sandra saw some books in the car, but she did not trust the man. She told him “no,” that she could not go with him.

She said that her mother was waiting for her and she had to go. The man said okay and drove away. Sandra later told her mother, the assistant principal of her school, and the police about the incident. Another student from Diamond Elementary School, Jose O., told police he saw Nadia get into a gray car on the afternoon of March 20, 1989, after she briefly talked to the man inside the car. According to the assistant manager of the Ha’Penny Inn, defendant checked out of his room early. Defendant was given the refund of his $10 key deposit when he returned his key on March 20, 1989.

The next day, March 21, 1989, Nadia’s body was found in a plastic trash can liner in an aluminum trash can located in Griffith Park in Los Angeles. She was clothed, but missing her panties, and wrapped in a bedspread from the Ha’Penny Inn. The trash can and the plastic liner were also from the Ha’Penny Inn. An autopsy of Nadia’s body showed that she died from asphyxia due to chest compression. In addition to braising on Nadia’s chest and other parts of her body, the medical examiner found an area of abrasion, bruising, and a laceration near the entry of her vagina.

There was also braising of the lining of the vagina. There was braising around the anus and a small abrasion. There were also injuries in the area of the rectum. The injuries to Nadia’s vagina and in the area of her anus and rectum were consistent with the forcible insertion of an erect human penis. The medical examiner determined that the injuries to her vagina and anus were inflicted before her death, but could not determine whether the injuries to her rectal area were sustained before death.

The medical examiner did not find any clear indications of ingestion of fluid and could not tell if drowning was a factor in Nadia’s death. But when he first examined Nadia, her hair and clothing were wet and the tips of her fingers were wrinkled. Wrinkling is caused only by immersion in water. The medical examiner testified that Nadia’s injuries were consistent with her being bent over the edge of a bathtub during the infliction of the injuries to the vaginal and rectal areas. The medical examiner could not tell whether Nadia was conscious during the infliction of the injuries.

One of the fingerprints on the plastic trash can liner that held Nadia’s body was identified as belonging to defendant. Santa Ana police found defendant’s silver Nissan Sentra in the long-term parking lot of the Los Angeles International Airport. They learned that defendant was in San Antonio, Texas, and that he was trying to find work there at a Taco Bell restaurant. On April 1, 1989, San Antonio police officers arrested defendant on a warrant obtained by the Santa Ana police. San Antonio police officers took defendant to a nearby police office, where he was advised of and waived his constitutional rights.

In a tape-recorded interview, defendant was questioned by' two Santa Ana detectives. Defendant initially denied knowing anything about Nadia’s death and said he thought he had been arrested because of something to do with a car. He admitted checking into the Ha’Penny Inn during the day of March 20, 1989, and said he checked out in the early morning hours of March 21, 1989. Attempting to account for his activities on March 20, defendant told the interviewing detectives that he had quit his job at a Santa Ana Taco Bell restaurant earlier that day after his manager had called him in and criticized his work.

He later returned to the Taco Bell to apologize to the manager. He subsequently checked into the inn because he was relocating after getting into an argument with some of his roommates. Defendant claimed that after he checked into the inn, he went to the area near the Diamond Elementary School because he was hoping to collect a tax refund check from the post office nearby. He then returned to the Taco Bell to socialize and sometime later he went out partying at a club with a friend who had also worked at the Taco Bell. Defendant denied picking up a little girl or anyone else and taking her to his room.

He agreed to give the detective samples of his hair, blood, and saliva. Detectives described to defendant the probable kidnapping of Nadia and the finding of her body wrapped in a “blanket” and in a trash can taken from the laundry room of the Ha’Penny Inn. They told defendant his fingerprints had been found on the trash can liner. Defendant again denied killing anyone, but moments later, said the killing of Nadia was an accident. Assuring the detectives he was telling the “absolute truth,” defendant said he picked up Nadia around 2:30 p.m.

He told her that he was a teacher, that he was being transferred, and that he needed help with some schoolbooks. Nadia agreed to help him and got into his car. He drove to the inn where he had already checked in. Nadia carried a couple of his boxes into the room. Defendant told her to “sort [his] stuff out” and to put it into the dresser drawers; then he would take her home. When Nadia asked to use the phone, defendant told her it was not working. Although defendant did not do anything to her, Nadia started screaming as if she was afraid.

Defendant said he had been getting ready to take a bath and when Nadia started screaming, he “got carried away when she freaked me out.” He got her in the bathtub and held her under the water until she was dead. Defendant subsequently provided a variation of this story. He again said he had not intended to harm Nadia, but he was upset and disgusted about the confrontation he had had with his manager earlier that day and the fact that he had lost his job. He picked up Nadia, just wanting to talk to somebody.

When defendant had Nadia in the room, he was angry and he wanted “to do something,” but Nadia was too young for him. He took his clothes off and began taking a bath. Nadia became scared and asked to go home. Defendant told her to bring him a towel and that he would take her home. However, when Nadia approached him, defendant grabbed her hand and pulled her to the bathtub. When she started screaming, defendant pushed her over the tub and held her facedown in the water.

He did not want anyone coming from next door to investigate because it would “start a big scene” and he would not be able to “explain all this.” Defendant initially denied sexually molesting Nadia, but then claimed that he did so only after she was dead and he had placed her on the bed, removing her panties. He said he molested her anally and inserted his finger into her vagina. After the sex acts, defendant wrapped Nadia in the bedspread, which also served as the blanket for the motel bed.

He was scared and did not want anyone to see him carry Nadia out of the room, so he brought a motel trash can to his room and put Nadia’s body into it. He put the trash can into the trunk of his car and drove on the freeway while he thought about where to put her body. He proceeded to Griffith Park Observatory, where he waited until it was dark. He then left the trash can about a quarter-mile up the road from the Greek Theatre and drove back to Santa Ana. He checked out of the inn and went back home.

He read the newspapers about Nadia’s murder and knew his car matched the description of the car and that he resembled the composite drawing of the man who approached Sandra C. After he picked up his last paycheck from Taco Bell, defendant flew to San Antonio because he was worried that he would be apprehended. Defendant claimed he had never done anything like this before. 2. The defense evidence Defendant presented testimony from a number of lay witnesses regarding his behavior prior to committing the crimes against Nadia.

Defendant also presented the testimony of eight expert witnesses who testified about defendant’s mental disorders and brain damage. a. Family Members Defendant’s parents testified that defendant had been different from their other children since he was a toddler. Defendant would withdraw from his mother’s hugs and would throw tantrums, even in his crib. As he grew up, he was stubborn and would get angry. He would not listen to or obey directions and refused to do household chores.

He got into a lot more trouble than the other children and his mother disciplined him to “straighten him out.” She hit him with anything nearby, including a belt, a hanger, and a broomstick. One of defendant’s brothers testified defendant had learning problems in school. When defendant was about 12 or 13 years old, his parents began taking him to Mexico to visit a faith healer, a curandero. The curandero acted as a guide or an advisor to the family. He told defendant to pay attention and behave.

On one of these visits, the other children stepped out of the room, leaving defendant and his parents with the curandero. About five minutes later, defendant ran outside. His face was red and his eyes were bulging. He told one of his brothers that they “made [him] see the good side and the bad side of hell.” Defendant’s behavioral problems continued. Defendant’s mother recalled one time when defendant became so enraged with her after she asked him a question about why he did not wear certain clothes that he pushed her against a closet and threw books at her.

When defendant was 17 years old, he jabbed at his mother’s stomach with a broomstick. At the time his mother was several months pregnant. His eyes were bulging and “lit up,” his face was red, and he was cursing. As a result of that incident, defendant’s father told defendant he needed to leave the house. b. Ex-wives Defendant lived with at least 10 different women and was married a number of times. Two of his former wives testified at his trial. Gloria Lara met defendant in high school when she was 14 or 15 years old. Defendant was a few years older than her.

They were married in 1975 when she was 16 years old and in 10th grade. Four days after they were married, defendant heard Lara talking on the phone to a girlfriend. He mistakenly thought Lara was talking about a former boyfriend of hers. He subsequently initiated sex with Lara. As Lara was lying on the floor, defendant tried to cover her face with a towel and stabbed her in the area of her stomach. Defendant seemed scared and surprised by what he did. Lara required surgery and was in the hospital for about two weeks. Defendant was arrested, but later released when Lara “dropped charges” against him.

She lived with defendant for two more years. They had a daughter together. The only other time he was violent was when she left him; he was upset and pulled her hair. On cross-examination, Lara testified defendant called her sometime before Easter week of 1989. Defendant told her he was in California, but said there was nothing left for him there and he was coming to live in Texas. Lara picked defendant up from the San Antonio airport a few days before Easter. During the time between picking defendant up and defendant’s arrest about a week later, Lara had several conversations with defendant.

She told a prosecution investigator that during one of those conversations, defendant said he was enjoying himself at a San Antonio club, that the clubs in California were terrible and that “[o]ver there [California], you could kill somebody and get away with it.” After defendant’s arrest, Lara received a call from defendant from the jail. He told her he had been arrested for killing a nine-year-old girl. He said that he did not mean to kill her.

When Lara asked defendant why he killed the girl, defendant said “she was getting out of hand.” After dating a short time, defendant married Maria Esparza in September. 1984. Esparza and defendant only lived together for the next five months, during which time they had problems due to defendant’s jealousy and anger. Defendant often threatened to leave Esparza. In January 1985, defendant came home and was picking up some clothes. Esparza asked defendant where he was going. Defendant responded by cursing at Esparza. He hit and pushed her into the bathroom and to the edge of the bathtub.

As she was hanging over the bathtub, defendant placed his knee on her chest and his hands around her throat. He choked her. As she was losing consciousness, she heard him say he was going to kill her. He said: “Die, die.” She managed to grab a small teaspoon or fork and jabbed him in the face. Defendant got up, called her a bitch, and ran away. Although the police were contacted, they could not find defendant and Esparza never saw him again. She subsequently filed for divorce. Esparza recalled that something unusual happened during their wedding reception.

Esparza’s brother told defendant to try and make Esparza happy. Defendant did not like the comment and told Esparza’s brother not to butt in. Defendant and her brother then got into a fight. Esparza testified she never saw defendant use cocaine, but she noticed that he bled from his nose onto the pillow at night. She saw defendant drink alcohol, but testified he did not drink excessively and did not arrive home drunk. c. Military Friend, Coworkers Jerry Taylor testified he met defendant in 1979 when they were assigned to the same army unit at Fort Colby in Panama.

According to Taylor, defendant responded disrespectfully to criticism by superior officers, had a reputation for not accepting correction, and went AWOL for at least 30'days during the time he was posted there. Sam Morrison worked with defendant in 1982 for about a year in a telemarketing firm. Morrison described defendant’s odd behavior as including jumping on the top of his desk, running around his desk, and yelling into the phone.

Defendant was the class clown in the office, and bragged that he “had women all over the country, all over the world.” Defendant would visit Morrison’s house and drink pitchers of margaritas with Morrison’s father. Paul Shawhan was defendant’s supervisor in 1988 or early 1989 at USA Aluminum. According to Shawhan, defendant acted “like a self-appointed police officer,” continually reporting other people’s minor infractions. Shawhan said defendant had a bad temper and when something was not going exactly the way he wanted, he would get angry quickly.

Shawhan eventually terminated defendant’s employment because he got into a physical confrontation with another employee. Asked to describe the incident, Shawhan testified the other employee was simply paying for his food at a lunch truck when defendant became upset, “jump[ed] up in his face and start[ed] making all kinds of motions like he [defendant] was going to do something.” Defendant seemed both angry and anxious.

After Shawhan fired defendant, defendant responded that “it was okay” because the Los Angeles Police and Sheriff’s Departments were interested in employing people like him who possessed an “international passport.” Norma Sandoval was an assistant manager at a Taco Bell restaurant where defendant was also an assistant manager. She worked with him for several months in early 1989. Sandoval testified defendant got along reasonably well with others. When he worked, he would joke around and talk about having sex with multiple girls at the same time. Defendant asked her to go out.

Sandoval said he made her feel nervous. Mary Ann Scott was the manager of the Taco Bell restaurant where defendant worked as assistant manager for two months. Scott testified that defendant seemed slow to learn the paperwork portion of his job and that he tried to find an easy way out in other areas of his work. Although Scott spent extra time working with defendant, he never seemed to get his work completed and she had to finish it for him. She talked to him about the problem many times. She said defendant got upset more readily than other employees when he was corrected.

Scott’s supervisor, Dennis Burkhart, testified that once when he was visiting the Taco Bell where defendant worked, defendant asked Burkhart to evaluate defendant’s performance. When Burkhart relayed to defendant some of Scott’s criticisms of him, defendant claimed Scott was picking on him. Defendant seemed angry, like he was boiling inside, and appeared frustrated. Defendant was perspiring, his eyes bulged out, his face was red and he glared at Burkhart. Burkhart was afraid that defendant was going to physically assault him. On March 20, 1989, Scott called defendant at home around 6:30 or 7:00 a.m.

She was upset and told him to come immediately to the Taco Bell because he had not cleaned the store properly when he closed the previous night. Defendant arrived about 10 minutes later and was angry. They got into a heated argument with raised voices. Defendant said Scott was always complaining and that if he could not do the job the way Scott wanted, then “I guess I am out of here.” Scott told him that was stupid, but defendant threw his keys into the office on the desk and stomped out the door. Scott denied telling defendant that he was fired.

A few days later, defendant came to the Taco Bell for his paycheck and said he was leaving California. Scott subsequently received a phone call from someone at a Taco Bell in San Antonio, Texas, asking about defendant because defendant was there and applying for a job. Scott relayed the information to the police, who had previously interviewed her. d. Expert Witnesses Dr. Monte Buchsbaum, a professor of psychiatry and a director and supervisor of positron-emission tomography (PET) at Mt. Sinai School of Medicine, and Dr.

Stephen Lottenberg, a nuclear medicine physician working with Buchsbaum, both testified about a PET scan administered to defendant in June 1991. The scan of defendant’s brain showed abnormality or damage on the right side in the areas associated with emotional behavior, planning and organization. Buchsbaum testified he would expect defendant to have problems controlling impulsivity and rage. He believed the damage had existed for at least a decade, and specifically on the date defendant raped and killed Nadia.

Lottenberg testified he could not determine whether the test results would have been the same had the scan been administered on the day of the crimes. Dr. Arthur Kowell, a specialist in clinical neurology, conducted a brain electrical activity mapping (BEAM) scan on defendant in 1992. A BEAM scan measures the electrical response of the brain after a visual and auditory stimulus is given. Out of the four subparts of the scan, defendant tested normal on three parts and abnormal on one part—the visual test.

The areas that showed abnormal results were from the portions of the brain that involve sensory motor strips, the integration of sensory processes and spatial relationships, and an area that concerns language, speech, memory, and emotion. With respect to the portion of defendant’s scan that showed abnormality in both temporal lobes, Kowell stated that individuals with such problems may experience rage attacks. However, Kowell explained, he could not correlate defendant’s scan to an inability to control his temper or a tendency to be violent because the results of a single scan are not predictive of behavior.

Although Dr. Kowell could not say what a BEAM scan of defendant would have shown on March 20, 1989, his experience with the records of patients over a period of time indicated there is general consistency regarding test results, assuming there is no intervening pathologic process. Dr. Paul Berg, a licensed psychologist and a marriage, family, and child counselor, evaluated defendant in November 1990 and in December 1992. He was asked to conduct a general psychological profile of defendant and to determine whether defendant was a sexual pedophile.

Berg interviewed defendant and three members of defendant’s family, administered a number of psychological tests to defendant, and reviewed multiple reports from other doctors and investigators. Dr. Berg testified that defendant was “hypersexualized,” but he did not fit the clinical definition of a pedophile. Although defendant reported he had sexually molested a younger sister, defendant was too young at the time for his conduct to support a diagnosis of pedophilia. Berg formed the opinion that defendant was suffering from a mental illness on March 20, 1989.

Berg determined that the diagnostic possibilities for defendant were, in descending order: “schizophrenic disorder, major depression, alcohol abuse, and dependency.” Berg found that defendant also had personality disorders, including paranoid personality and schizotypal personality. Berg stated that individuals with such severe disorders cannot handle stress. Dr.

Berg believed that a number of stressors occurred on March 20, 1989, which defendant could not handle, including the confrontation with his manager, his perception that he was fired, his feeling that he had to do something about it, his resulting rage and desire to kill Scott, his inability to earn money, and his attempt to obtain drugs to remediate how he was feeling. Berg opined that defendant sought Nadia’s company because he was desperate, depressed, and seeking any source of reassurance.

Berg surmised that when Nadia came into the bathroom and saw defendant naked, it reminded defendant of feeling humiliated and shamed by his mother. He was unable to control his rage and the killing resulted. Berg testified he did not think defendant knew he was killing a child when he pressed Nadia against the bathtub; he thought he was killing Scott.

Berg considered defendant’s sexual activity with Nadia after her death, which defendant had told Berg was his method of finding out whether Nadia was alive or feigning dead, to be extraordinarily bizarre and “the idea only of a mentally ill person.” Defendant called Dr. Seawright Anderson, a board-certified psychiatrist who had been appointed by the court to render a professional opinion as to whether defendant was sane on the date he killed Nadia, to testify on behalf of the defense. Anderson conducted a mental status examination of defendant in August 1991.

He diagnosed defendant with schizoaffective disorder, a history of polysubstance abuse, and a history of multiple head injuries. Based on subsequent reports, he also felt defendant had an organic personality disorder. According to Anderson, defendant’s schizoaffective disorder made him frustrated, suicidal, and depressed. It impaired his judgment, insight, and ability to control his inner impulses and frustrations. Dr. Anderson believed that on the day defendant raped and murdered Nadia, he was under stress related to his contact with Scott and the failure of his income tax refund check to arrive.

He also was under the influence of controlled substances. Noting defendant’s inconsistent accounts of the events surrounding his crimes, Anderson felt defendant was not lying, but was experiencing misconceptions over which he had no conscious control. Anderson believed defendant did perceive Nadia as a little girl, but at the time of the crimes he “actually did not perceive her fully as a little girl.” His visual perception was distorted by his extreme anger, such that he believed he was killing Scott, not Nadia. Dr. Jose J.

LaCalle, a clinical psychologist, was appointed by the court as an expert for the defense. In order to evaluate defendant’s mental health, LaCalle conducted multiple clinical interviews with defendant, reviewed defendant’s medical, psychiatric, and criminal histories, interviewed family members, spouses and others, administered multiple psychological tests, and consulted with other defense experts.

According to LaCalle, defendant’s psychological testing produced mainly inconsistent or invalid results, but based on the remaining tests, his interviews with defendant, and defendant’s medical and social histories, LaCalle concluded that defendant suffered from the following mental illnesses on March 20, 1989: organic personality syndrome, explosive type; borderline personality disorder, severe; and organic impairment, a medical condition.

LaCalle believed that both of defendant’s psychological disorders were in operation when defendant killed Nadia because both conditions were chronic and were developed in defendant’s early life. According to LaCalle, defendant experienced uncontrollable rage and his thinking processes were impaired because of his illness. LaCalle opined that when defendant lost his job at Taco Bell, something inside him “broke,” provoking an extraordinary reaction and emotional outburst. Dr. Susan Possum, another licensed clinical psychologist appointed by the court as an expert for the defense, examined defendant in late 1992.

She diagnosed defendant with organic personality syndrome, explosive type, with overlapping chronic schizophrenia of the paranoid type, and narcissistic personality disorder with features of borderline personality disorder and sociopathic personality disorder. She also concluded that defendant’s right frontal lobe, right and left temporal lobes, and right parietal lobe were marked by extensive dysfunction.

She believed defendant had these diagnoses at the time he raped and murdered Nadia and that as a result of his disorders, defendant was unable to control his emotions, had poor self-monitoring, poor impulse control, poor judgment, and poor ability to distinguish or perceive reality. Possum testified that defendant’s difficulty with abstract thinking, his socially inappropriate behavior, naivety, and lack of self-critical ability were indicators of his brain damage.

She believed that early in the morning of March 20, 1989, defendant’s narcissistic personality structure began to undergo a disintegrative process caused by Scott’s castigation of him. In a confused, fearful, and raging state, defendant lost control of himself and reached out to Nadia for reassurance and company. Possum believed defendant was confused about what he was physically doing when he raped, sodomized, and killed Nadia. Dr.

Arnold Purisch, a clinical psychologist specializing in clinical neuropsychology, performed a comprehensive neuropsychological evaluation of defendant in 1992 at the request of the defense. Purisch interviewed defendant for nine hours over two days, administered a battery of 21 neuropsychological tests, reviewed numerous records and reports detailing defendant’s family, academic, military and work histories, and considered the reports prepared by other defense experts in the case.

Purisch testified that he was impressed that, despite differences, when taken as a whole, there was a marked convergence among the experts who evaluated defendant concerning the types of mental conditions from which defendant was suffering at the time of the crimes. Purisch agreed that defendant’s PET scan and BEAM study showed abnormalities in defendant’s brain, conditions that could be chronic. The battery of neuropsychological tests administered by Purisch showed that defendant had cognitive and other neuropsychological problems consistent with his brain impairment.

Purisch concluded defendant suffered from organic personality syndrome of the explosive type, accounting for the long-term behavioral problems he demonstrated. He believed defendant had the disorder on the date of the crimes against Nadia, but because of defendant’s many different versions of the events of that day, Purisch could not determine what defendant’s state of mind was at the time of the crimes.

Purisch did opine that with so many personality disturbances, defendant’s defenses and intentions would get overwhelmed when he was under stress and that he would explosively “act out” in nondeliberated ways that he could not control. He concluded that defendant was under a great deal of stress, including from his job termination, on the day of the crimes. A number- of defendant’s expert witnesses acknowledged on cross-examination that defendant could be malingering, that is, falsifying or exaggerating his psychological symptoms. Dr.

LaCalle concluded that defendant was malingering, but testified he still had confidence in his expert opinions of defendant’s mental illnesses. Dr. Berg did not diagnose defendant as a malingerer, but he did not rule it out. He found indications that could be considered malingering. Berg testified that defendant’s bizarre actions during his trials—barking like a dog, turning counsel’s table over, shaving his head—may have been calculated conduct by defendant, but that did not contradict the fact that defendant was also very mentally ill. Dr.

Possum did not diagnose defendant as a malingerer, although she had information in a report by a nontestifying expert, Dr. Edwards, that Dr. Edwards diagnosed defendant as a malingerer. Dr. Possum noted in her report indications that were consistent with malingering. Dr. Purisch testified that defendant met the criteria for being a malingerer. He explained that although there was no evidence defendant malingered in his neurological testing, there was evidence he malingered on his personality testing and there were also other indications of malingering. 3.

The prosecution’s rebuttal evidence Dalila Flores testified that when she was 15 years old and in high school, she met defendant at a Taco Bell where he was the manager. Deféndant asked her if she wanted a job. She said she did and gave him her name and phone number. Approximately a week later, defendant called and said he had a job application for her. They arranged to meet at another Taco Bell the next day. Flores testified that when she met defendant, he told her she needed to accompany him to his “apartment” to get the application. Defendant took her to a motel room after stopping to buy some wine coolers.

Defendant never gave her a job application or discussed a job application. He told Flores that when he had previously taken girls to the motel, he had stripped naked and they had photographed him before going to bed and doing “a blow job.” When defendant asked Flores if she wanted to do the same, she said no. Defendant asked if she wanted him to show her a magazine like Playgirl or Playboy and she said no. Defendant then pushed her on the bed and tried to kiss her. Flores became frightened.

She pushed defendant off, grabbed the wine cooler bottle defendant had been drinking, and told him: “Hey mother fucker, if you touch me you are dead.” Flores told defendant she had cousins that were in gangs and they knew where she was, as did her brother and boyfriend. She told defendant that if he messed with her, they would mess with him. Flores left the room and defendant followed her. She told him she was going home. Defendant apologized and offered to drive Flores home. Flores agreed, but asked to get out when they were about halfway to her house because she did not want defendant to know where she lived.

She never saw defendant again. C. Sanity Phase Defendant testified on his own behalf in the sanity phase of his trial, as follows. Defendant explained that on March 20, 1989, he had only three hours of sleep before Scott called him back into work. When he arrived, Scott complained about defendant’s work and told him she was going to have to replace him. Defendant thought he was fired. He left the Taco Bell restaurant and drove away upset because he thought this job had been his final opportunity. He bought and drank some beer. He thought about killing himself.

He bought some drugs, including cocaine, and checked into a motel around 11:00 a.m. He used the drugs and drank some more beer. Defendant returned to the Taco Bell restaurant about an hour later, intending to “get back at” Scott, but there were too many people around her. He decided to go to the post office to see if his income tax refund check had arrived. It had not. As he walked back to his car, he had a conversation with a girl, who turned out to be Nadia. Defendant testified that he thought she was 19 or 20 years old. Nadia got into defendant’s car.

Defendant said he did not know why he took Nadia to the inn, but denied it was for the purpose of sexual conduct. When Nadia was cleaning up his room, defendant took a bath and snorted more cocaine. About 20 minutes later, defendant got out of the bathtub. As he reached for a towel, Nadia came in without knocking and saw him naked. This angered defendant, who grabbed Nadia. When Nadia kicked him, defendant became even angrier. They had a scuffle and ended up falling over the edge of the bathtub into the water. Defendant stayed on top of Nadia.

Defendant claimed he did not have the power to get off of her, that he did not know what he was trying to do to her, and that he just did it. It was Scott he saw, not Nadia. When defendant rolled onto the floor, he saw Nadia was not moving and was hanging over the edge of the bathtub. She slipped into the water facedown. He turned out the lights and sat in the living room for five or 10 minutes. When defendant went back into the bathroom, he knew something was wrong. He grabbed the mattress off the bed and placed Nadia onto it.

Nadia had defecated and it smelled, so defendant pulled down her underwear and cleaned her off. Defendant wondered if Nadia was playing dead and to find out, he sodomized her. He testified he thought it was the right thing to do to see if she was alive. Defendant claimed he thought he had killed Scott. He did not want to kill Nadia. Defendant testified that the statements he made to the police when questioned were lies. He told them what they wanted to hear because they said they were going to shoot him.

Defendant denied making up stories when he spoke to the doctors, but later admitted he was not truthful with Dr. Ronald Siegal because he wanted Siegal to leave him alone. He probably lied to Dr. LaCalle because he was angry with him. Defendant claimed Flores lied during her testimony. Dr. LaCalle and Dr. Berg testified again at the sanity phase of defendant’s trial. LaCalle concluded defendant’s personality disorder severely impaired his ability to make proper decisions.

Defendant’s impairment was so extreme that he fell within the parameters of legal insanity at the time of Nadia’s death and when he sodomized her. Berg also opined that defendant was unable to distinguish right from wrong and did not recognize the nature and quality of his actions at the time he committed the crimes against Nadia. Defendant called two additional expert witnesses. Dr. Consuelo Edwards, a physician who specialized in psychiatry, testified defendant had multiple personality disorders and suffered from frontal and temporal lobe dysfunction for most of his life.

She concluded defendant was legally insane when he committed the crimes against Nadia in an uncontrollable rage and without consideration of what he was doing. Dr. John Reid Meloy, a licensed psychologist specializing in forensic psychology, testified that he believed defendant did not understand the quality of his act of kidnapping Nadia and that when defendant raped and murdered Nadia he was incapable of distinguishing right from wrong. The sole witness called by the prosecution at the sanity phase was Sergeant Gary Bruce of the Santa Ana Police Department.

Bruce, who participated in the interrogation of defendant in San Antonio following his arrest there, testified regarding the circumstances of defendant’s interrogation to rebut defendant’s testimony that he was threatened and intimidated during the questioning. Otherwise, the prosecution took the position that the jurors did not need the opinion of an expert on the specific issue of insanity and accordingly did not call its own experts to testify at the sanity phase.

The prosecution closely cross-examined defendant’s experts and in closing argument highlighted the fact that the defense experts’ testimony was not always consistent regarding defendant’s insanity. The prosecution also emphasized the testimony that defendant was a malingerer and an unreliable source of information. The jury concluded defendant was sane at the time of the crimes. D. Penalty Phase 1. The prosecution’s evidence At the penalty phase of trial, the prosecution called only one witness—Sara Puente, Nadia’s mother, who provided victim impact testimony.

The prosecution relied on the circumstances of the crime, including the victim impact testimony of Mrs. Puente, the incidents of violence against Lara and Esparza, and defendant’s courtroom behavior during the sanity phase (defendant got out of his chair and advanced toward the prosecutor while uttering threats) as aggravating circumstances warranting the death penalty. 2. The defense evidence Defendant presented the testimony of 10 friends and family members regarding defendant’s behavior when he was with them and their belief that his life should be spared.

Defendant also presented the testimony of a sentencing consultant who testified defendant could adjust to life in prison if he was sentenced to life without the possibility of parole. Finally, defendant presented the testimony of a psychiatrist who testified to nine psychiatric factors regarding defendant that he thought the jury should consider in determining defendant’s sentence. II. Discussion A. Asserted Errors Affecting the Guilt Phase of Trial 1.

The prosecutor’s use of peremptory challenges—defendant’s Wheeler/Batson claim Defendant contends the trial court erred in denying his motion for mistrial brought under People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson). In the trial court, defendant asserted the prosecutor impermissibly used peremptory challenges to remove three Hispanic prospective jurors, one African-American prospective juror, and one prospective juror who described himself as “Mex-Blk” (Mexican-Black), based on their race.

On appeal, defendant claims that the prosecutor’s reasons for exercising his peremptory challenges against the five prospective jurors are not supported by the record and that the trial court failed to make .a serious attempt to evaluate the genuineness of the prosecutor’s explanation. Defendant contends his federal and state constitutional rights were violated and that reversal of the entire judgment is required. We reject defendant’s claims.

A prosecutor’s use of peremptory challenges to excuse prospective jurors on the basis of group bias, including on grounds of race or ethnicity, violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under

article I,

section 16 of the state Constitution. (People v. Clark (2011) 52 Cal.4th 856, 903-904 [131 Cal.Rptr.3d 225, 261 P.3d 243]; Wheeler, supra, 22 Cal.3d 258.) Under Batson, supra, 476 U.S. 79, such practice also violates the defendant’s right to equal protection under the Fourteenth Amendment. (People v. Clark, supra, at p. 904; People v.

Davis (2009) 46 Cal.4th 539, 582 [94 Cal.Rptr.3d 322, 208 P.3d 78].) “In mling on a motion challenging the exercise of peremptory strikes, the trial court follows a three-step procedure. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ (Johnson v.

California (2005) 545 U.S. 162, 168, fn. omitted [162 L.Ed.2d 129, 125 S.Ct. 2410] (Johnson).)” (People v. Clark, supra, 52 Cal.4th at p. 904.) “A prosecutor asked to explain his conduct must provide a ' “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges.’ [Citation.] ‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.” (People v.

Lenix (2008) 44 Cal.4th 602, 613 [80 Cal.Rptr.3d 98, 187 P.3d 946].) “[B]ut race-based decisions are not constitutionally tolerable.” (Id. at p. 621; accord, Rice v. Collins (2006) 546 U.S. 333, 338 [163 L.Ed.2d 824, 126 S.Ct. 969].) Therefore, “[a]t the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible.

Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court’s own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her. [Citation.]” (People v. Lenix, supra, 44 Cal.4th at p. 613, fn. omitted, quoting Miller-El v.

Cockrell (2003) 537 U.S. 322, 339 [154 L.Ed.2d 931, 123 S.Ct. 1029].) “ ‘Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] “We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges ‘ “with great restraint.” ’ [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]” ’ [Citation.]” (People v.

Vines (2011) 51 Cal.4th 830, 848 [124 Cal.Rptr.3d 830, 251 P.3d 943].) “ ‘ “[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.” ’ ” (People v.

Stanley (2006) 39 Cal.4th 913, 936 [47 Cal.Rptr.3d 420, 140 P.3d 736].) “ ‘ “All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.” [Citation.] A reason that makes no sense is nonetheless “sincere and legitimate” as long as it does not deny equal protection. [Citation.]’ [Citation.]” (Ibid.) “ ‘As part of our analysis, we consider as “bearing on the trial court’s factual finding regarding discriminatory intent” [citation] the comparisons of prospective jurors challenged and unchallenged that defendant expounds in his briefs, though few if any of these comparisons were made in the trial court.

At the same time, “we are mindful that comparative juror analysis on a cold appellate record has inherent limitations.” [Citation.] In addition to the difficulty of assessing tone, expression and gesture from the written transcript of voir dire, we attempt to keep in mind the fluid character of the jury selection process and the complexity of the balance involved. “Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable.

These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.” [Citation.]’ [Citation.]” (People v. Booker (2011) 51 Cal.4th 141, 165-166 [119 Cal.Rptr.3d 722, 245 P.3d 366].) With these principles in mind, we turn to the circumstances in this case. Defendant moved for a mistrial pursuant to Wheeler/Batson after the prosecutor exercised a peremptory challenge to exclude Prospective Juror M.L., who described herself as Hispanic.

Defendant argued that the prosecutor was impermissibly excusing prospective jurors who were Hispanic or African-American. Defendant initially identified four such prospective jurors—M.L. and E.V., who were Hispanic, L.M., who was African-American, and R.M, who was both Hispanic and African-American. Defendant later added Prospective Juror A.M.-E, who identified himself as “Latin-American.” . The trial court found a prima facie case was stated.

It noted that of the 16 peremptory challenges exercised by the prosecution, the prosecutor had used five of them to exclude people who were either African-American or Hispanic. The trial court stated that it was not obvious why the prosecutor excluded each of the identified persons. The court later explained that its statement was based on its lack of recall of the voir dire specific to these jurors at that time. Under the circumstances, the court concluded it would require the prosecution to justify its use of its peremptory challenges.

After a hearing, at which the prosecutor stated his reasons for excusing each of the five identified prospective jurors, the trial court found that the prosecutor had not used any of its peremptory challenges in order to excuse prospective jurors based on their race and denied defendant’s motion. We examine defendant’s claims of error. a. The excusal of Prospective Juror L.M. Prospective Juror L.M. identified herself in her jury questionnaire as “Black.” She stated that she was 42 years old, a high school graduate, married, with two children in their early 20’s and was employed as an office associate.

The prosecutor justified his peremptory challenge to her based on her responses to oral voir dire. The prosecutor stated that his first concern was Prospective Juror L.M.’s statement that she was looking forward to sitting on a capital case. He stated that because of the enormity of the decision in a capital case, he was skeptical or suspicious of anyone who was looking forward to sitting as a juror in such a case. He questioned whether L.M. might have a specific reason or agenda for wanting to be seated on the jury.

Second, the prosecutor noted L.M.’s claim that she was not apprehensive about making a life-and-death decision in a capital case. The prosecutor said that, considered with the statement that she was looking forward to the decision, this comment raised the concern that L.M. did not fully understand the gravity of a juror’s personal responsibility in a capital case. Third, in response to questioning by defense counsel, L.M. said her daughter was taking psychology in college, but denied that she ever discussed any of her daughter’s classwork with her.

The prosecutor expressed skepticism that a woman who has a college-age daughter living with her and who has knowledge of her daughter’s career plans would never talk to her about classwork. In light of the statements indicating she wanted to serve on the jury, the prosecutor inferred L.M. might be trying to avoid a challenge based on her having discussed psychology or psychiatry with her daughter. Fourth, the prosecutor noted L.M.’s inconsistent statements about the death penalty.

L.M. indicated, in response to a question about whether she had ever taken a position with respect to the death penalty, that she recalled an instance where she had spoken with friends about the death penalty and she had taken the position that it was “wrong.” When asked whether she had ever read anything about the death penalty, she said no. She did not recall the specifics of the situation in which she took the position that the death penalty was wrong. Asked how she felt about the death penalty, whether it was used too seldom, too often or just right, she stated that she had no opinion.

This comment concerned the prosecutor because she had just stated that in one instance she had taken the position that it was wrong. The trial court noted preliminarily that it is not improper for a prosecutor to use a peremptory challenge to excuse prospective jurors who are reluctant to impose or have reservations about imposing the death penalty even if they are not excusable for cause under Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844], The trial court also observed that both sides approach prospective jurors from different perspectives.

When there are two possible ways to interpret a juror’s response to questioning, it does not mean that the prosecutor’s

interpretation is necessarily unreasonable. The trial court noted that each side might interpret a response differently in light of its perspective. With that in mind, the court observed that Prospective Juror L.M. never previously had been required to make any decision regarding life or death. She had no opinion as to whether the death penalty was used too often or too infrequently.

The trial court found it significant that L.M. said she did not remember the Robert Alton Harris case, even though his execution the previous year was the first execution in California for 35 years and the case had received massive amounts of publicity. The trial court found the prosecutor was justified in having doubts about L.M.’s ability to deal with the death penalty and to give it serious consideration in this case. According to the trial court, L.M.’s answers regarding this responsibility reflected a lower level of concern compared to the average juror.

In addition, the trial court found the prosecutor’s reservations regarding L.M. were justified in light of her seeming lack of involvement and thought about the issue in the past, which the trial court found hard to believe. It determined that the prosecutor had stated a nonrace-related reason for excusing her. The record supports the trial court’s conclusion that the prosecutor’s explanation of his excusal of Prospective Juror L.M. was race neutral and not pretextual.

The trial court expressly considered the prosecutor’s stated con-' cem that L.M. did not completely understand the gravity of a juror’s personal responsibility in a capital case and specifically discussed portions of L.M.’s voir dire responses that established a basis for the prosecutor’s concern. We find no inconsistencies in the trial court’s comments, which demonstrate “a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered,” and therefore, “are entitled to deference on appeal.” (People v.

Burgener (2003) 29 Cal.4th 833, 864 [129 Cal.Rptr.2d 747, 62 P.3d 1].) A failure of a juror to appreciate the gravity of his or her responsibility in a capital case may be an adequate race-neutral basis for a peremptory challenge. (See People v.

Salcido (2008) 44 Cal.4th 93, 140 [79 Cal.Rptr.3d 54, 186 P.3d 437].) With respect to the prosecutor’s skepticism regarding L.M.’s claim to have never read anything about the death penalty and to have formed no opinion on whether it was used too often or too infrequently, the prosecutor relied on evidence in the record that L.M. specifically recalled an occasion on which she had taken the position that the death penalty had been imposed wrongfully. The prosecutor could reasonably view L.M.’s statements as inconsistent and indeed, the trial court itself doubted her veracity on this point.

The trial court’s comments reflect that it found the prosecutor’s concern to be reasonable. The trial court did not separately address on the record the prosecutor’s other two stated grounds for his excusal of L.M., but it did not have to do so. (People v. Stanley, supra, 39 Cal.4th at p. 936.) Defendant contends, however, that the prosecutor’s statement of reasons is undermined by a comparative analysis of Caucasian jurors who expressed views similar to L.M.’s, but who were not excused by the prosecutor. Defendant contends that Prospective Juror E.C. was at least as willing or eager to serve as a juror.

A number of Caucasian prospective and seated jurors or alternate jurors, including C.S., R.D., G.J., G.P., A.S., M.H., M.W., and M.B., acknowledged that they had friends or loved ones with whom they did not discuss their work. Three Caucasian jurors, including seated Jurors T.B. and J.R., acknowledged they had never had to make any decisions concerning the welfare, health or life of another.

Nine Caucasian prospective or seated jurors or alternate jurors, G.P., J.R., S.M., R.D., M.B., E.C., K.T., T.S., and C.F., were unfamiliar with the execution of Robert Alton Harris or had not considered the issue of capital punishment in any depth. We consider defendant’s argument despite his failure to make it in the trial court, “but ‘we are mindful that comparative juror analysis on a cold appellate record has inherent limitations.’ ” (People v. Elliott (2012) 53 Cal.4th 535, 561 [137 Cal.Rptr.3d 59, 269 P.3d 494], quoting People v.

Lenix, supra, 44 Cal.4th at p. 622.) “One of the problems of comparative juror analysis not raised at trial is that the prosecutor generally has not provided, and was not asked to provide, an explanation for nonchallenges.” (People v. Jones (2011) 51 Cal.4th 346, 365 [121 Cal.Rptr.3d 1, 247 P.3d 82].) Here an explanation is readily apparent from our review of the proposed comparative jurors: In many instances the other jurors’ responses were materially distinguishable from the responses of L.M.

Furthermore, the prosecutor expressly stated that his challenge to each of the identified prospective jurors was based on the cumulative or combined effect of all of his expressed reasons. None of the jurors brought to our attention by defendant expressed a substantially similar combination of responses to the responses provided by L.M. (People v.

Watson (2008) 43 Cal.4th 652, 675-676 [76 Cal.Rptr.3d 208, 182 P.3d 543] [none of the comparative jurors shared the combined characteristics relied upon by the prosecutor in excusing the juror].) In order for a comparison to be probative, jurors need not be identical in all respects (Miller-El v. Dretke (2005) 545 U.S. 231, 247, fn. 6 [162 L.Ed.2d 196, 125 S.Ct. 2317]), but they must be materially similar in the respects significant to the prosecutor’s stated basis for the challenge.

Defendant’s proposed comparative juror analysis does not establish that the prosecutor’s reasons for excusing L.M. were pretextual. b. The excusal of Prospective Juror E.V. In his jury questionnaire, Prospective Juror E.V. identified himself as “Spinish [sic\.” He stated that he was married, 27 years old, a high school graduate, and had attended one year of community college studying art. He was employed by a supermarket as a meatcutter. Responding to the question asking for the ages, level of education, and occupation of any children, E.V. stated that he had one child who was seven years old and in first grade.

He made the mistake of entering his own occupation—meatcutter—as his child’s occupation. The prosecutor stated the following reasons why he excused Prospective Juror E.V. with a peremptory challenge. He noted that E.V. was 27 years old. He had been working as a meatcutter for six and a half years. He had a son who was seven years old. Thus, from a relatively young age, E.V. had been absorbed by work and family. The prosecutor also noted E.V.’s level of education and that E.V. listed only “Hot V.W.” when asked about the books he read for pleasure.

The prosecutor explained that this was significant to him because the defense had 14 doctors appointed as experts and he anticipated that some of their testimony would discuss the most sophisticated brain-scanning techniques that currently existed. The prosecution did not intend to call any experts of its own in this area, but would be cross-examining and challenging the defense experts. The prosecutor felt it was important that jurors have a broader level of life experience than E.V., in terms of socialization, work history and level of education.

The prosecutor also was concerned about E.V.’s ability to analyze, evaluate, and make independent judgments regarding massive amounts of psychological and psychiatric testimony. E.V. appeared somewhat deferential and the prosecutor thought that E.V. could very easily be overwhelmed by the kind and amount of testimony expected in this case. Finally, the prosecutor noted that when E.V. was asked whether he felt that some people have committed crimes that are so bad, so aggravated and so serious that the person has given up their right to live in our society, E.V. said, no, he did not feel that way.

This response concerned the prosecutor. The trial court found the prosecutor’s justification race neutral and nonpretextual, based in part on E.V.’s responses regarding his life experience and ability to grapple properly with the issues. The court stated that it had made its own note that E.V. was not able to spell even his own ethnic origin correctly, that he made several other misspellings on the questionnaire, and that he answered the question regarding his child’s occupation with his own occupation. The court observed that E.V. appeared particularly susceptible to being led by the form of voir dire questions.

E.V. was initially confused by the court’s reading of the penalty phase instructions and it took some time for him to understand what was being discussed. The trial court wrote that E.V. was “not too bright, but seems fair.” The trial court found that the prosecutor had a reasonable basis for concluding E.V. was not a strong person and might be overwhelmed by the anticipated mental health testimony and that this had nothing to do with E.V.’s race.

Defendant claims the prosecution’s stated reasons are inherently implausible in light of the whole record because, he asserts, the record makes clear that E.V.’s life experience was broad enough that he would have made a suitable juror. Defendant contends the prosecutor did not challenge Caucasian Prospective Jurors and Jurors R.D., T.S., C.B., N.W., C.A., and S.S., who had similar levels of education, limited activities outside of work and light reading interests.

The record supports the trial court’s evident view that the prosecutor had race-neutral and nonpretextual reasons for challenging E.V., including on the basis of his limited life experience, which constitutes a race-neutral explanation for a peremptory challenge. (People v. Sims (1993) 5 Cal.4th 405, 429 [20 Cal.Rptr.2d 537, 853 P.2d 992]; People v. Perez (1994) 29 Cal.App.4th 1313, 1328 [35 Cal.Rptr.2d 103].) Importantly, as the trial court noted, the prosecutor combined the reservation about 27-year-old E.V.’s limited life experience with a concern about E.V.’s intellectual capacity.

A concern with a juror’s ability to understand the proceedings and anticipated testimony is another proper basis for a challenge. (People v. Turner (1994) 8 Cal.4th 137, 169 [32 Cal.Rptr.2d 762, 878 P.2d 521]; People v. Muhammad (2003) 108 Cal.App.4th 313, 322 [133 Cal.Rptr.2d 308].) That E.V.’s responses and demeanor also suggested he would be unable to independently reach a judgment on the issues is a further permissible race-neutral ground for a challenge. (See People v.

Jones, supra, 51 Cal.4th at pp. 363-364 [a juror’s demeanor may be a valid basis for a challenge, provided the demeanor-based reason is not pretextual].) And a prosecutor could be properly concerned by a juror’s statement that he did not feel there were any crimes so aggravated and serious that a person had given up their right to live in our society. Defendant contends a comparison of Caucasian seated and Prospective Jurors R.D., T.S., C.B., N.W., C.A., and S.S. with E.V. reveals that the prosecutor’s stated reasons for excusing E.V. were nevertheless pretextual.

The rationale for comparative juror analysis is that a side-by-side comparison of a prospective juror struck by the prosecutor with a prospective juror accepted by the prosecutor may provide relevant circumstantial evidence of purposeful discrimination by the prosecutor. (Miller-El v. Dretke, supra, 545 U.S. at p. 241; People v. Lenix, supra, 44 Cal.4th at pp. 621-622.) In this case, S.S. was called into the jury box after the prosecutor and the defense had each exercised two peremptory challenges.

At the next opportunity to exercise peremptory challenges, the defense excused S.S. immediately after the prosecutor excused E.V. The prosecution had remaining peremptory challenges at the time S.S. was excused, but never had an opportunity to excuse or accept S.S. as a juror before he was stmck by the defense. Therefore, a comparison of E.V. to S.S. under these circumstances lacks any probative value concerning the issue of intentional discrimination by the prosecutor.

Turning to the remaining Caucasian seated and prospective jurors identified by defendant, only Prospective Juror T.S. (29 years old) was of a similar age and had somewhat similar life experience to E.V. But nothing suggested T.S. lacked the capacity to understand the anticipated expert testimony in this case or the ability to make an independent decision on the issues. In addition, T.S. never expressed a belief similar to E.V.’s regarding the consequences of serious crimes.

Moreover, as the Attorney General points out, T.S. possessed other qualities that the prosecutor may have felt offset his youth and any lack of breadth in his life experience. For example, T.S. had a neighbor and friend who was a police officer. He had at one time wanted to be a police officer and he had been on two police ride-alongs. A comparative juror review of T.S., R.D., C.B., N.W., and C.A., who were accepted by the prosecutor as potential jurors, does not establish that the prosecutor’s excusal of E.V. was racially motivated. c. The excusal of Prospective Juror A.M.-F.

Prospective Juror A.M.-F. identified himself in his jury questionnaire as “Latin-American.” He stated he was a 28-year-old sales associate. He had a bachelor’s degree in psychology and had taken postgraduate classes or seminars on developmental psychology. He listed his three favorite books as I, Claudius and Claudius the God by Robert Graves and “Legitimacy Crisis for Liberal Democracy” by Habermas. He identified the most recent book he read for pleasure as Mein Kampf by Adolf Hitler.

The prosecutor prefaced his statement of reasons for excusing Prospective Juror A.M.-F with the comment that A.M.-F “did not appear” Hispanic nor did he have a surname that would indicate such heritage.

The only thing indicating he belonged to such an ethnic group was the fact that he identified himself on his questionnaire as “Latin-American.” The prosecutor then stated that he excused A.M.-F. because he had been a psychology major in college; he indicated on voir dire that he had taken 25 courses in the area of psychology; he had recently taken some postgraduate classes in psychology; and he was thinking of getting a master’s degree in psychology. A.M.-F had helped administer the Minnesota Multiphasic Personality Inventory (M.M.P.I.) and had taken classes with respect to that psychological test.

The prosecutor felt A.M.-F. would have a predisposition toward accepting defense psychological evidence in this case as a valid and legitimate approach to answering questions that would be presented to the jury. He was concerned that other jurors might use him as a source of information during deliberations. The prosecutor stated that he also excused A.M.-F. because A.M.-F indicated he had a sister who had been in and out of incarceration. Further, A.M.-F had driven on a suspended license in violation of a court order or directive from the Department of Motor Vehicles.

Finally, the prosecutor was uncomfortable with a person who derived pleasure from reading books by Adolf Hitler. The trial court found that the prosecutor’s fear that A.M.-F. might have a predisposition to accept the testimony of psychologists as an explanation for defendant’s actions was justified in light of A.M.-F.’s major, the number of classes he had taken and the fact that he had administered the M.M.P.I. himself. The court concluded that A.M.-F.’s education in psychology, “which was far beyond the norm,” provided a reasonable basis for the challenge.

We agree that A.M.-F.’s educational background, interest, and experience in the field of psychology was a race-neutral reason justifying his excusal. (People v. Clark, supra, 52 Cal.4th at p. 907 [prospective juror’s college courses in psychology and view that someone who commits murder must have “ ‘something wrong with them in their mind’ ” justified peremptory challenge]; People v.

Landry (1996) 49 Cal.App.4th 785, 790-791 [56 Cal.Rptr.2d 824] [that a prospective juror’s educational background and experience in psychiatry or psychology might cause him to favor the defense constituted a valid explanation for his excusal].) Such excusal was not inconsistent with the prosecutor’s expressed desire to seat jurors with the ability to understand and evaluate the anticipated mental health testimony.

It is reasonable to desire jurors with sufficient education and intellectual capacity to thoughtfully consider anticipated expert testimony, but to reject jurors who have so much interest, education, and experience in the same field as the anticipated testimony that they are likely to have established views and predispositions regarding the testimony, which they might share with the other jurors.

Defendant contends the prosecutor’s failure to excuse Caucasian Prospective Jurors and Jurors T.B., D.H., G.P., C.S., and D.B., who each had studied psychology, shows the prosecutor’s excusal of A.M.-F. was not genuinely based on this factor. As defendant acknowledges, none of these jurors had studied psychology as intensively as A.M.-F. Jurors T.B., G.P., C.S., and Prospective Juror D.B had each taken a single psychology course in college. Juror D.H. listed psychology as her major when she attended a two-year college.

But when questioned about it, she stated that she took a psychology course for only one year of her two years. These levels of background and interest do not compare to A.M.-F.’s 25 college courses, postgraduate classes and interest in a master’s degree in psychology.

That other Caucasian prospective jurors, who were not excused by the prosecutor, may have violated criminal laws or had family members who had criminal histories similar to A.M.-F. (two of the other reasons stated by the prosecutor for excusing A.M.-F.) does not make them comparable to A.M.-F. when none of those jurors possessed A.M.-F’s elevated level of education, interest, and experience in psychology. The record supports the conclusion that the prosecutor excused A.M.-F. on a race-neutral basis. d. The excusal of Prospective Juror R.M.

Prospective Juror R.M. identified himself in his jury questionnaire as “Mex-Blk.” He wrote that he was 37 years old, married, and employed as a manager of a retail store. He stated that he previously taught mentally handicapped children. When asked to explain his reasons for excusing R.M., the prosecutor noted that R.M. initially stated that he had been a victim of crime and that because of that and the nature of this case, the prosecutor had a serious doubt whether he could be fair.

The prosecutor pointed out that R.M. himself repeatedly indicated he might not be able to be fair and that he vacillated in his responses to questioning about his ability to handle the issues in this case. The prosecutor discussed R.M.’s responses to questioning about his prior victimization and questioned whether R.M. had resolved the issue with sufficient finality that it would play no

part in his decisionmaking. The prosecutor also observed that R.M. was obviously very anxious, that he had a concerned and pained expression on his face, that at one point he seemed emotionally upset, and that he described himself as an emotional person. The prosecutor was concerned that R.M. would not be able to reach a decision at the penalty phase and that he might not be able to make a definite decision with respect to the psychological and psychiatric testimony.

The prosecutor stated that he was also concerned with R.M.’s statements that he was not a strong advocate of the death penalty and that human life was the most precious thing, no matter what the person had done. Finally, the prosecutor was surprised by R.M.’s response that he had never had occasion to contact or call medical staff for a medical emergency during the six years he taught extremely handicapped children in a facility in Arizona. The trial court agreed with the prosecutor that Prospective Juror R.M. vacillated considerably.

The court noted that R.M. said several times that he had serious doubts whether he could be a fair juror, but said he would try. Later, R.M. seemed more inclined to believe he could be fair, but still not without reservation. The court recalled R.M. saying that human life is most precious “no matter what this person has done.” According to the trial court, although R.M. was not being asked about this case, his use of the term “this person” may have indicated he was improperly considering the question as it applied to defendant.

The court felt that the prosecutor could rightfully be concerned by R.M.’s comment and that combined with R.M.’s vacillation, the prosecutor’s challenge was justified—that is, race neutral and not pretextual. Defendant argues the prosecutor’s excusal of R.M. must have been racially motivated because R.M. consistently affirmed that he could set aside his feelings and judge the case fairly despite his initial concern about being able to be fair.

Defendant also claims R.M.’s voir dire responses suggest that the prosecutor should have wanted him as a juror, but for his race, because R.M. made comments suggesting he was inclined to place the burden of proof on the defense. Although R.M. ultimately claimed to have resolved his doubts concerning his ability to be fair, the record supports the prosecutor’s reservations on this point. In fact, the statements referenced by defendant support the prosecutor’s doubt even if they suggest a possible orientation in favor of the prosecution.

The statements certainly do nothing to call into question the prosecutor’s stated concern regarding R.M.’s statements regarding his ability to be fair. Moreover, the prosecutor also justified the challenged excusal on R.M.’s emotional state, which, as the prosecutor suggested, might indicate an inability to cope with the trial and deliberations. Concern that a prospective juror is extremely emotional and overwhelmed by outside stresses is a proper race-neutral ground for a peremptory challenge. (People v.

Gutierrez (2002) 28 Cal.4th 1083, 1124 [124 Cal.Rptr.2d 373, 52 P.3d 572].) Defendant again argues that the credibility of the prosecutor’s statement of reasons is undercut by a comparative juror analysis. Defendant complains that the prosecutor did not challenge several Caucasian prospective jurors who expressed reservations about the death penalty. Defendant identifies Jurors T.B., J.R., and W.S., as well as Prospective Juror R.S., as being in this category. None of these jurors, however, questioned his or her own ability to be fair or appeared emotionally upset.

Finally, we note that, as part of his reason for excusing R.M., the prosecutor stated his surprise regarding R.M.’s claim to have never called for emergency medical services during the time, he worked with disabled children. The prosecutor may have been questioning R.M.’s memory or his forthrightness. Either way, his concern was not so implausible as to reveal that the other reasonable grounds stated for his challenge constituted shams. e. The excusal of Prospective Juror M.L.

Prospective Juror M.L. identified herself in her jury questionnaire as “Hispanic.” She stated that she was 22 years old, married, a high school graduate, and had a two-month-old child. She was employed as an office assistant at a county health care agency. The prosecutor stated that he had a number of reasons for excusing M.L., but two were primary. First, M.L. answered “no” to the question on the jury questionnaire asking whether she or anyone close to her had ever been the victim of a crime against person or property.

However, during individual voir dire, it was revealed that M.L.’s cousin in San Diego, with whom she was close, had been murdered. This caused the prosecutor serious concern because M.L. had answered the written question under penalty of perjury, and she did not disclose the information even when the court asked whether the jurors wanted to change anything in their questionnaires after listening to the questioning in court. The information came out only as a result of direct questioning.

Second, M.L. wrote “no” to the question asking whether she or any relative or friend had been charged, arrested, indicted or convicted of any criminal offense. During voir dire, M.L. stated she understood the question, but she forgot to mention that her older brother had been arrested a number of times for what she considered to be minor offenses. This, coupled with M.L.’s failure to mention the murder of her cousin, caused the prosecutor to be concerned whether she was paying enough attention to the process and to her responsibilities.

The prosecutor observed that it would be one thing to forget something that occurred long ago, but M.L. was only 22 years old, and these events affected immediate members of her family. The prosecutor wondered whether she had made a decision, that she wanted to be seated on this jury. Finally, the prosecutor was concerned by M.L.’s statement on voir dire that she did not think it was right to impose the death penalty. The trial court found the prosecutor’s statement of reasons to be reasonable and credible.

The court noted there was a basis for the prosecutor to be skeptical of M.L.’s explanation for the omission on her juror questionnaire. The trial court also confirmed that M.L. at one point stated she did not think it right to impose the death penalty, even though she later expressed a seemingly different view. According to the court, M.L. seemed like a person who vacillates and can be led by a questioner. The court concluded the prosecutor did not excuse M.L. on the basis of racial or group bias.

Defendant contends the record does not support the prosecutor’s argument that M.L.’s responses suggested she was not paying enough attention to the process or her responsibilities in the case. Defendant argues M.L. satisfactorily explained her failure to mention her cousin and brother in the jury questionnaire, and complains that a fair reading of the record shows M.L. supported the death penalty and could vote for it if she believed it appropriate.

Moreover, as defendant previously argued, a number of Caucasian prospective jurors expressed some resistance to the death penalty, but were not excused by the prosecutor by way of peremptory challenges. M.L.’s failure to disclose information in response to the jury questionnaire and her later claim of forgetfulness in explanation supply a factual basis for the prosecutor’s concern that she was not paying enough attention to the process and to her responsibilities.

A genuine concern that a prospective juror is not forthcoming or is not paying sufficient attention to the proceedings is a race-neutral basis for a peremptory challenge (People v. Lenix, supra, 44 Cal.4th at pp. 614, 628), as is a concern that a prospective juror may be substantially opposed to the death penalty. (People v. Salcido, supra, 44 Cal.4th at pp. 139-140; People v.

Pride (1992) 3 Cal.4th 195, 229-230 [10 Cal.Rptr.2d 636, 833 P.2d 643].) Here both were stated as grounds for the prosecutor’s challenge, and defendant points to no other Caucasian prospective or seated juror or alternate juror who possessed these combined characteristics and who was not excused by the prosecutor. (People v. Watson, supra, 43 Cal.4th at p. 676.) f

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