THE PEOPLE, Plaintiff and Respondent, v. JOSEPH KEKOA MANIBUSAN, Defendant and Appellant, 58 Cal. 4th 40

Opinion CHIN, J. A jury convicted defendant Joseph Kekoa Manibusan of two counts of first degree murder and one count each of attempted murder, aggravated mayhem, and second degree attempted robbery. It also found true special circumstance allegations of multiple murder, driveby murder, and felony murder, and enhancement allegations of discharging a firearm from a vehicle causing great bodily injury or death, personal use of a firearm, and a prior juvenile conviction of assault with a deadly weapon causing great bodily injury. It returned a verdict of death for the two murder convictions.

After denying the automatic application to modify the verdict (Pen. Code, § 190.4, subd. (e)), the trial court sentenced defendant to death for those murder convictions. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. Facts Defendant’s convictions arise mostly from events in Monterey County on the night of January 31, 1998, and the morning of February 1, 1998, during which Priya Mathews and Frances Olivo were shot dead and Jennifer Aninger was severely injured by a gunshot to the head. A. Guilt Phase Evidence Only the prosecution introduced evidence during the trial’s guilt phase. 1.

The 1998 Shootings On January 30, 1998, defendant attended a party in Seaside with Norman Willover and Adam Tegerdal. They used methamphetamine and stayed awake together through the night and into the next day. Sometime in the late afternoon or early evening of January 31, they drove in Tegerdal’s 1994 Mercury Cougar to a house in Marina, where Willover retrieved a backpack containing a gun. They also used a small additional amount of methamphetamine. Later that evening, they returned to Seaside and picked up Melissa Contreras near the house of Tim Frymire, where defendant and Contreras were staying.

Contreras thought they were going to drink and hang out; she did not know anyone in the car had a gun. As defendant drove the group to a gas station, he and Willover discussed robbing people. About the time the group arrived at the gas station, Contreras learned of the gun and heard defendant and Willover talk about using it to rob people. At defendant’s direction, Contreras took over the car and drove the group around Seaside and Monterey until defendant and Willover, upon spotting a potential robbery victim, told Contreras to park near Jacks Park in Monterey.

Defendant and Willover exited the car with the gun in their possession. They returned 10 to 15 minutes later, having found no one to rob. Contreras drove the group away, but soon turned the driving over to defendant and entered the backseat. Defendant, after discussing with Willover the possibility of finding a victim at Monterey’s wharf area, drove the group to Monterey’s Municipal Wharf II. There, sometime after 11:00 p.m., defendant, Willover, and Tegerdal spotted Aninger and Mathews.

After Tegerdal asked if the women were carrying purses, defendant made a U-tum at the end of the wharf so the group could circle back and observe them. He drove past the women and made another U-tum, putting the women on the passenger side of the car, where Willover, wearing a leather glove on one hand and a bandana over his face, was sitting. Defendant stopped the car five to 10 feet away. Willover stuck his head and hand out of the window and said, “give me your money” or “give me the money.” The women did not respond.

Willover then turned back into the car, toward its other occupants, and said “something like, these bitches are being assholes. They didn’t hear me.” He then turned back toward the women, pointed his gun at them, and started firing. He fired numerous times, hitting Mathews in the back, the arm, and twice in the left thigh, and hitting Aninger once in the head and once in the upper arm. Mathews died from her wounds. Aninger survived, but sustained brain damage that resulted in an impaired ability to concentrate, memory loss, a lost sense of smell, and lost motor function in her left hand.

Immediately after the shooting, defendant made a U-turn and sped away. Willover said, “we couldn’t leave witnesses,” and defendant “just kind of laughed” in response. Willover also “bragg[ed] about how long it [had been] since [he had] done that. He said it was like four years. He hasn’t done that in four years, and it felt good and . . . [defendant] needs to try it.” Defendant, Willover, and Tegerdal agreed they needed to change cars to avoid being caught. Defendant drove to Tegerdal’s house in Salinas, where they exited the Cougar and entered Tegerdal’s Chevrolet Monte Carlo.

As Tegerdal drove away, Willover acted “happy,” “like he was proud of what he” had done. Defendant also seemed “happy,” “like he was proud of’ Willover. They congratulated each other on the shooting, giving each other “props.” Defendant said “he wanted to have his turn.” At some point, defendant took over the driving and headed back to Seaside. He and Willover discussed finding another victim. Defendant said he wanted “to try to show [Willover] up,” because Willover had already shot two people. In Seaside, defendant and Willover spotted Olivo standing at the comer of Fremont Boulevard and Amador Avenue.

Willover asked defendant if he was going “to do her” or “do it to her” or “shoot her.” Defendant nodded, said “watch this,” drove around the block, and maneuvered the car so he was closest to Olivo. He stopped the car about eight feet away and silently gestured for Olivo to approach. Olivo approached and looked inside the car. As she did, defendant put his hand out of the window and began shooting. Olivo cried, “please don’t,” but defendant continued shooting, firing eight or nine shots and hitting Olivo three times. One of the shots passed through her heart. She died of her injuries.

Defendant drove away, “laughing about” the shooting. Willover was “laughing with him.” They were “taking it like kind of a game.” Defendant became upset that he had not fired all of the bullets in the gun’s clip. He saw an occupied car parked along the roadside and, stating that he “might as well get rid of the rest of the bullets,” fired the remaining bullets into it. When the parked car’s occupants began chasing defendant in their car, defendant drove to the Fort Ord home of family friends Anthony and Linda McGuiness, where his father was living. There, Willover and Tegerdal removed shell casings from the car.

Awakened by the group’s arrival, Anthony McGuiness came out of his bedroom and found the group seated in his living room. Defendant said his car had run out of gas and asked for a ride to a friend’s house in Seaside. Anthony agreed and, following defendant’s directions, drove defendant past the scene of the Olivo shooting and on to Tim Frymire’s house in Seaside, where defendant was living. Defendant arrived at Frymire’s house about 3:00 a.m. Upon entering, he indicated he wanted to speak with Frymire privately.

He seemed “real antsy” and “[k]ept looking out the window.” He started saying things Frymire “didn’t want to hear,” and asked Frymire if he still had the .22-caliber shells defendant had given him some months earlier. Frymire replied, “no,” and told defendant that, if he had a gun in his pants, he needed to take it outside. Defendant then briefly left the house. After returning, he continued to look out the windows. Frymire then asked defendant if he would “feel better about putting [the gun] somewhere else,” and offered to let defendant put the gun in the trunk of his car and give defendant the key.

The two exited the house and defendant put a semiautomatic handgun in the trunk of Frymire’s car. A few hours later, defendant left in the car with Frymire’s nephew and another man. The latter two later returned in the car to Frymire’s house, without defendant or the gun. That night, after returning to Frymire’s house, defendant, with “a smile on his face,” repeatedly pointed alternately at his chest and at the television as he watched a television news report about the shootings. A short time later, Frymire contacted Seaside police to report his suspicion that defendant had been involved in the shootings.

On February 4, 1998, Willover asked Joshua Riley to store at his house a dark-colored backpack containing a loaded .22-caliber semiautomatic handgun, some ammunition magazines, and several boxes of bullets. He told Riley the gun was “heated,” meaning it had been involved in some kind of trouble. That night, police went to Riley’s residence, having learned from interviewing Willover about the gun’s possible location. There, they recovered the backpack, a gun, ammunition clips, and some extra ammunition.

Ballistics tests showed the gun matched bullets recovered at the scenes of the shootings and from the victims’ bodies. It was the same type of gun Frymire had earlier seen defendant place in the trunk of Frymire’s car. That same day, police arrested defendant at Frymire’s house. A few days later, defendant called Frymire from prison and asked Frymire if he was “being true.” Frymire understood defendant to be asking whether he was keeping quiet and not “ratting him off.” Defendant made a similar call to Contreras. 2.

The 1997 Robbery Attempt On October 14, 1997, defendant and Tegerdal were driving around Monterey talking about their lack of money. At a shopping center, defendant got Tegerdal to stop the car, exited, ran up to a woman, and tried to take her purse. The woman, though falling to the ground in the struggle, held on to her purse. Defendant gave up, ran back to the car, and drove away with Tegerdal. B. Penalty Phase Evidence During the penalty phase, the prosecution introduced victim impact evidence from Mathews’s sister and from Olivo’s husband, two of her four children, and her sister-in-law. Pursuant to

section 190.3, factor (b) (factor (b)), it also introduced evidence of the following prior conduct: (1) defendant frequently beat up the mother of his son, including in August 1995 when he punched her in the face and left her with two black eyes, a swollen nose, and a bump under her eye; (2) in January 1995, after becoming enraged during an argument with his twin sister, defendant knocked her to the floor and kicked her, causing her to lose consciousness; (3) defendant, concealing a sawed-off .22-caliber rifle in his waistband and .22-caliber ammunition in his pocket, went looking for his sister at the hospital where she was receiving treatment for the injuries he had inflicted; (4) defendant, having been taken by police to a police station and later released, returned to the hospital and told the security guard who had initially pointed him out to police, “snitches don’t last”; (5) during a traffic stop in January 1997, police found defendant in the backseat of the stopped car with one round of ammunition in his pocket, and found under the driver’s seat in front of him two handguns, one of which used bullets of the same caliber as the bullet found in defendant’s pocket; (6) during a traffic stop in July 1997, police arrested defendant on a warrant and found a knife in a sheath near his leg; (7) during a traffic stop in October 1997, police found two knives, one near defendant; (8) in June 1998, when Willover was placed in a holding cell with defendant, defendant ran over to Willover and began hitting him repeatedly, leaving him with a bloody nose and tom clothing; (9) in August 2000, while a jail inmate, defendant participated in a riot, refused to comply with orders to leave his cell, and charged an officer who had used pepper spray to induce compliance, hitting his protective shield and cracking it; and (10) defendant later wrote a letter to a friend bragging about his role in the riot and stating that he liked to “get rowdy” with the prison guards.

Defendant presented testimony from 23 witnesses regarding (1) his history of drag addiction, including his frequent use of methamphetamine, (2) the effects of methamphetamine, and (3) his family history and upbringing, and the effect of that history and upbringing. In rebuttal, the prosecution called an expert who testified that he had examined various reports and transcripts of witness testimony and had found no evidence defendant was under the influence of drags when he committed the crimes. II. Discussion A.

Juror No. 58 Defendant alleges numerous errors in the trial court’s decision to allow Juror No. 58 to remain on the jury despite her alleged fear for her safety. For reasons set forth below, his claims fail. 1. Background On October 2, 2000, when the jury returned for its second day of guilt phase deliberations, the jury foreperson, Juror No. 58, gave the court a letter, stating: “[I]t has been brought to my attention that my anonymity as a juror for [this case] has been compromised, [¶] On Thursday, September 28th, a person whom I know personally walked into the courtroom to observe the trial.

As you may expect, this came as a shock to me. However, I dismissed the incident as a coincidence. However, this weekend I became aware of this person as a close friend of both the defendant and his family. Additionally, I became aware of the fact that my name has already been revealed to the members of his family. [¶] As you may understand, this does not make me feel comfortable to continue as a juror in this case. My safety and the safety of my family may be in jeopardy because of this incident.

Please accept my request to step down as a juror on this case.” Upon the court’s inquiry out of the other jurors’ presence, Juror No. 58 first explained that (1) the person to whom her letter referred—Christy Page—was a friend of a friend named Jessica, (2) during conversations with Jessica over the weekend, Juror No. 58 learned that Page was a good friend of defendant’s mother, recognized Juror No. 58 when she came to court, and talked about Juror No. 58 with a member of defendant’s family, and (3) upon learning this information, Juror No. 58’s husband expressed concern about their family’s safety and urged Juror No. 58 to ask the court to excuse her from the jury.

Juror No. 58 then added that the information regarding Page would not affect her verdict or impact her ability to be impartial or to consider the evidence objectively, and that she did not want the court to excuse her from the jury; that she was not concerned about the possibility of retribution for her jury service, and became less concerned the more she thought about it; that she had given the letter to the court just so it would be aware of the situation; and that she had not discussed the details of the case with anyone or received any information from Jessica about defendant or his family.

Based on these events, defendant asked the court to replace Juror No. 58 with an alternate, arguing that the information raised substantial doubt as to her ability to be fair.

The trial court denied the request, citing Juror No. 58’s answers and demeanor and finding “no demonstrable reality that she [was] unable to perform her duties as a juror.” Late that afternoon, the court received a note from the jury signed by Juror No. 58 stating; “Can we switch from the original foreperson to the coforeperson for purposes of reading (and signing) the verdict(s).” The court replied that the jury had discretion to change the foreperson during deliberations.

Defendant then moved for a mistrial, arguing that the request was evidence Juror No. 58, despite her earlier assurance, was afraid to serve on the jury and had disclosed her concern to other jurors. The trial court denied the motion, finding defendant’s arguments to be unsupported speculation and commenting that requests for changes in jury forepersons “come up all the time.” The jury returned its verdict shortly thereafter. Defendant then asked the court to remove Juror No. 58 from the penalty phase jury. The trial court denied the motion, noting the absence of any new supporting information.

After the penalty phase, it also denied defendant’s motion for new trial, which he based in part on Juror No. 58’s participation in deliberations. 2. Discussion Defendant first asserts the trial court failed adequately to investigate the possibility of juror bias, incompetence, or misconduct. He concedes the court “proceeded properly at first” in conducting a hearing upon receiving the letter from Juror No. 58.

However, it erred, he argues, in failing to conduct a second inquiry upon receiving the jury’s subsequent request to “switch from the original foreperson to the coforeperson for purposes of reading (and signing) the verdict(s).” This request, he contends, “was an overt demonstration that,” despite Juror No. 58’s earlier assurances, “the fear of reprisal that she had [earlier] articulated . . . was still active in her thought process and affecting her actions as a juror.” By creating a reason to doubt her impartiality, the request “reinvigorated” the court’s duty to investigate possible misconduct.

Defendant’s claim fails. As we have explained, “not every incident involving a juror’s conduct requires or warrants further investigation.” (People v.

Cleveland (2001) 25 Cal.4th 466, 478 [106 Cal.Rptr.2d 313, 21 P.3d 1225].) “The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial. [¶]... [A] hearing is required only where the court possesses information which, if proven to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his duties and would justify his removal from the case. [Citations.]” (People v.

Ray (1996) 13 Cal.4th 313, 343-344 [52 Cal.Rptr.2d 296, 914 P.2d 846].) Here, the note from the jury did not provide the court with any information that, if proven to be true, would constitute good cause to doubt Juror No. 58’s ability to perform her duties. It did not disclose, or even hint at, the reason for the request to change forepersons.

Moreover, even were the note adequate to support an inference that Juror No. 58, because of safety concerns, did not want to sign and announce the verdict as foreperson, that inference did not give the court reason to doubt her unequivocal assurances to the court earlier that day that the information regarding Page would not affect her verdict or impact her ability as a juror to be impartial or to consider the evidence objectively.

As we have explained, deliberating jurors “may be particularly reluctant to express themselves freely in the jury room if their mental processes are subject to immediate judicial scrutiny.

The very act of questioning deliberating jurors about the content of their deliberations could affect those deliberations.” (Cleveland, supra, 25 Cal.4th at p. 476.) Therefore, to ensure the sanctity and secrecy of the deliberative process, a trial court’s inquiry into grounds for discharging a deliberating juror should be as limited as possible, and should cease once the court is satisfied that the juror in question “is participating in deliberations and has not expressed an intention to disregard the court’s instructions or otherwise committed misconduct, and that no other proper ground for discharge exists.” (Id. at p. 485.) Given these principles and Juror No. 58’s assurances, the trial court did not abuse its discretion in failing to conduct a second inquiry upon receiving a request from the jury to change forepersons.

Nor did the court abuse its discretion in failing to conduct further inquiry when, after return of the verdicts, defendant requested Juror No. 58’s removal from the penalty phase jury. As defendant concedes, the only new information he offered as a basis for this request was the fact that the jury had returned its verdicts only about 15 minutes after receiving the court’s response about switching forepersons. That information added nothing to the question of Juror No. 58’s ability to perform her duties. Accordingly, the court did not abuse its discretion in declining to inquire further into the matter.

As for the denial of his new trial motion, defendant relies on three sworn declarations he filed with the motion. In one, a defense investigator stated that Juror No. 58 said that, while she was at a youth soccer game sometime in October 2000—she could not recall whether trial was in progress at the time—her husband told another parent she was a juror in the case, and the other parent, who was a deputy sheriff, replied that he knew defendant.

In a second, another juror in the case stated that, on the day of the verdicts, Juror No. 58 “told [the other jurors] that she did not want to read the verdict because she knew someone who had a connection with the Manibusan family and she feared for her safety.” The declarant juror understood this statement to mean that Juror No. 58 “feared that she might be in danger later on if she read the verdict.” In the third declaration, Christy Page stated (1) two to four weeks after appearing in court, she had a conversation with Jessica, who was Juror No. 58’s best friend, (2) during that conversation, Jessica told Page about a conversation Juror No. 58 said she had had with a deputy sheriff at a youth baseball game, and

(3) Juror No. 58 told Jessica that, at the game, the deputy sheriff told Juror No. 58 that, during a conversation with defendant, defendant said “he had killed that woman,” he “would do it again” if “he was out of jail,” and he “had no remorse and did not care” and “would not change a thing.” Defendant also relies on the unsworn statement his counsel made in the new trial motion that, sometime after trial, Juror No. 58 “spoke[] to” a defense investigator and “told” him “that during deliberations on the morning of the day that the guilty verdicts were rendered she told the other jurors that she did not want to sign the verdict and she probably mentioned that she was concerned for her personal safety.” In the trial court, defendant’s counsel explained he was arguing, not that the declarations warranted granting a new trial, but only that they were sufficient to compel the court to conduct further inquiry.

Similarly, on appeal, defendant does not argue the declarations necessarily warranted Juror No. 58’s dismissal. Rather, he argues that, in light of the new information the declarations presented, the trial court erred in failing to conduct further inquiry.

In his view, “[w]ith the new facts showing that Juror No. 58 did inform the jury that she was afraid of retaliation and why, and also that she discussed the case outside the jury room, with her husband and friend, and possibly even with a sheriff’s deputy, the totality of the circumstances showed that the possibility of misconduct was based on more than mere speculation and thus demanded further investigation.” Defendant’s argument fails. The declarations of Page and the defense investigator, and the statements of counsel in the motion, contain hearsay.

Hearsay evidence offered in support of a new trial motion that is based on alleged jury misconduct ordinarily is insufficient to establish an abuse of discretion in either denying the motion or declining to conduct an evidentiary hearing. (People v. Dykes (2009) 46 Cal.4th 731, 810 [95 Cal.Rptr.3d 78, 209 P.3d 1]; People v. Avila (2006) 38 Cal.4th 491, 605 [43 Cal.Rptr.3d 1, 133 P.3d 1076]; People v. Carter (2003) 30 Cal.4th 1166, 1216-1217 [135 Cal.Rptr.2d 553, 70 P.3d 981]; People v. Hayes (1999) 21 Cal.4th 1211, 1256 [91 Cal.Rptr.2d 211, 989 P.2d 645]; People v.

Cox (1991) 53 Cal.3d 618, 696-700 [280 Cal.Rptr. 692, 809 P.2d 351] (Cox).) Defendant offers no persuasive basis for deviating from this general rule. Counsel’s statements are insufficient for the additional reason that they are unsworn. (People v. Dykes, supra, 46 Cal.4th at pp. 810-811.) The juror’s declaration, though admissible to the extent it references overt acts—i.e., statements, conduct, conditions, or events that are open to sight, hearing, and the other senses—is inadmissible to the extent it indicates what the juror “understood” Juror No. 58’s statement during deliberations to mean. (Evid.

Code, § 1150; People v. Steele (2002) 27 Cal.4th 1230, 1261 [120 Cal.Rptr.2d 432, 47 P.3d 225] [jurors’ statements about “their understanding of the meaning of a life sentence” inadmissible]; Steele, at p. 1266.) Insofar as the juror’s declaration purports to recount what Juror No. 58 “told” the other jurors about not wanting to read the verdict, it fails to establish error. A court must hold an evidentiary hearing on alleged jury misconduct only when the defendant shows “a strong possibility that prejudicial misconduct has occurred.

Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties’ evidence presents a material conflict that can only be resolved at such a hearing.” (People v.

Hedgecock (1990) 51 Cal.3d 395, 419 [272 Cal.Rptr. 803, 795 P.2d 1260] (Hedgecock).) These restrictions are necessary because allowing routine postverdict juror examinations “ ‘would open the door to harassment of jurors and . . . ultimately damage the jury process and the administration of justice.’ [Citation.] . . . [0]nce aware that after sitting through a lengthy trial he himself may be placed on trial, only the most courageous prospective juror will not seek excuse from service.’ [Citation.]” (Cox, supra, 53 Cal.3d at p. 699.) Moreover, “[t]o the extent jurors might seek to guard against intrusive posttrial inquiry by counsel or the court, thorough and penetrating discussion of the merits of the case might suffer.” (Id. at p. 700.) Given these principles and Juror No. 58’s assurances to the court during deliberations that the information regarding Page would not affect her verdict or impact her ability as a juror to be impartial or to consider the evidence objectively, the trial court did not err in finding the information about Juror No. 58’s reluctance to read the verdict as foreperson insufficient to warrant further inquiry.

Indeed, in his new trial motion, defendant did not even cite Juror No. 58’s declaration in support of his argument regarding Juror No. 58. On this issue, the motion cited only his counsel’s unsworn statements about the posttrial conversation the defense investigator purportedly had with Juror No. 58. It cited the juror’s declaration only in support of other, unrelated arguments. Accordingly, defendant has not established that the trial court abused its discretion in declining to inquire further regarding Juror No. 58’s ability to serve.

Finally, defendant’s claim fails because the premise underlying it—that a juror’s fear of a defendant establishes bias or other grounds for discharge—is faulty. In People v. Navarette (2003) 30 Cal.4th 458, 500 [133 Cal.Rptr.2d 89, 66 P.3d 1182], we held that the trial court had not abused its discretion in declining to discharge a juror who had expressed fear of the defendant, explaining; “Defendant assumes that, because the juror had concerns about his family’s safety and the safety of his property, he was therefore biased against defendant, requiring his removal. The record belies this assumption.

The court specifically asked the jurors to report if they could no longer be fair and unbiased, and [the juror in question] did not pursue the matter further . . . .” Again, given Juror No. 58’s earlier verbal assurances to the court about her ability as a juror to deliberate impartially notwithstanding any fear of serving on the jury, the trial court did not abuse its discretion in concluding that the declarations did not warrant further inquiry into the issue. (See People v.

Brown (2003) 31 Cal.4th 518, 581-582 [3 Cal.Rptr.3d 145, 73 P.3d 1137] [trial court did not abuse its discretion in declining to conduct evidentiary hearing, notwithstanding declarations stating that “[a]ll 12 jurors expressed concern that defendant’s gang would retaliate against them as a result of the verdict” and that one juror thought he might “have been followed by a gang member or a member of defendant’s family”].) B.

Jurors’ Consideration of Prison Conditions Defendant asserts the trial court should have granted a new penalty phase trial in light of evidence that, during the penalty phase, the jurors improperly solicited and received information regarding prison conditions. He relies on the sworn declarations of a defense investigator and Juror A.G. In the latter, Juror A.G. stated that

(1) Juror R.M. worked at a prison and provided “a lot of information about what fife in prison was like for inmates,” (2) this information “showed me that while life in prison isn’t much of a life, it is still a life,” and (3) this information was “[o]ne of the most compelling arguments that may have convinced the jury to vote for death.” In the former, a defense investigator reported the following about his posttrial conversations with jurors:

(1) Jurors D.S. and No. 58 said that Juror R.M. was asked questions about prison life when it became known he worked in state prison and (2) according to Juror No. 58, Juror R.M. said that prison was hard for some inmates, but not for others, and that inmates received cable television. Defendant asserts that the jury’s consideration of this information during deliberations “constituted grave misconduct” because, pursuant to the trial court’s order, the parties presented at trial no evidence of conditions in prison. Defendant’s argument fails.

The information on this subject in the defense investigator’s declarations was hearsay, which, as earlier explained, ordinarily is insufficient to establish an abuse of discretion in denying a motion for new trial that is based on alleged jury misconduct. (People v. Dykes, supra, 46 Cal.4th at p. 810.) Again, defendant offers no persuasive basis for deviating from this general rule.

Regarding Juror A.G.’s declaration, it was inadmissible—and thus insufficient to establish an abuse of discretion—insofar as it purported to state, or speculate on, the effect of the information on his own and other jurors’ subjective reasoning processes. (Evid. Code, § 1150; People v.

Steele, supra, 27 Cal.4th at pp. 1261, 1266 [statements about the effect on deliberations of certain jurors’ comments are inadmissible].) Thus, the trial court could not consider the statement that the information showed Juror A.G. “that while life in prison isn’t much of a life, it is still a life,” and was “[o]ne of the most compelling arguments that may have convinced the jury to vote for death.” All, then, that is left to support defendant’s argument is Juror A.G.’s statement that Juror R.M. provided “a lot of information about what life in prison was like for inmates.” In People v.

Pride (1992) 3 Cal.4th 195 [10 Cal.Rptr.2d 636, 833 P.2d 643], we rejected a similar jury misconduct claim where a juror known by other jurors to be a prison cook “volunteered that prisoners sentenced to death are ‘watched’ 23 hours a day and ‘allowed to exercise’ only 1 hour a day, whereas life prisoners are housed in a ‘mainline setting’ and have a ‘far greater opportunity to escape.’ ” (Id. at p. 267.) We explained: “[L]ay jurors are expected to bring their individual backgrounds and experiences to bear on the deliberative process. ‘That they do so is one of the strengths of the jury system.

It is also one of its weaknesses .... Such a weakness, however, must be tolerated.’ [Citations.] Otherwise, few verdicts would stand, [¶] These principles were not offended here. The average juror undoubtedly worries that a dangerous inmate might escape. While [the juror’s] statements elaborating on this theme were purportedly based on his experience inside the prison system, he only said what any citizen might assume was true—that inmates sentenced to death are subjected to the tightest form of security and that they have fewer opportunities to escape than other inmates.

No misconduct or presumption of prejudice appears.” (Id. at p. 268.) Similarly, the average juror undoubtedly wonders what life in prison is like for inmates. To the extent Juror R.M. provided information about this subject based on his own experience inside the prison system, nothing suggests he provided information that any citizen might not either assume to be true or already know from the many available sources of information about life in prison, including television, the Internet, and other media.

No misconduct or presumption of prejudice appears. (See In re Boyette (2013) 56 Cal.4th 866, 893 [157 Cal.Rptr.3d 163, 301 P.3d 530] [had jurors told other jurors what they had learned about prison life from watching movie, “no issue of misconduct or prejudice would have arisen”]; People v.

Yeoman (2003) 31 Cal.4th 93, 162 [2 Cal.Rptr.3d 186, 72 P.3d 1166] [“ ‘[j]urors cannot be expected to shed their backgrounds and experiences at the door of the deliberation room’ ” and, given “common knowledge among laypersons” about the effect of drugs, jurors recounting their personal experiences involving drugs did not commit misconduct].) Nor, contrary to defendant’s assertion, did the trial court abuse its discretion in not holding an evidentiary hearing on the alleged misconduct of Juror R.M.

As we have explained, an evidentiary hearing on alleged jury misconduct “should not be used as a ‘fishing expedition’ to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred.” (Hedgecock, supra, 51 Cal.3d at p. 419.) For reasons detailed above, defendant failed to make this showing.

Moreover, even had he done so, because the evidence did not “present[] a material conflict that [could] only be resolved at [an evidentiary] hearing,” the trial court’s decision not to hold such a hearing would not have been an abuse of discretion. (Ibid.; see People v. Jones (1997) 15 Cal.4th 119, 195 [61 Cal.Rptr.2d 386, 931 R2d 960] [even had the defendant made adequate showing of misconduct, “an evidentiary hearing would not have been necessary, because the offer of proof did not present ‘a material conflict that [could] only be resolved at such a hearing’ ”]; People v.

Hardy (1992) 2 Cal.4th 86, 174 [5 Cal.Rptr.2d 796, 825 P.2d 781] [“Because no material factual dispute was presented to the trial court, it did not abuse its discretion in declining to hold a hearing . . . .”].) C. Jurors’ Discussion of Defendant’s Failure to Testify Defendant next asserts the trial court should have granted a new trial, or at least conducted further inquiry into possible misconduct, in light of evidence the jurors discussed during deliberations his failure to testify at trial.

He relies on Juror A.G.’s sworn declaration, which stated in relevant part: (1) “The fact that the defendant did not testify came up during deliberations” and (2) “It was the general consensus of the jury that if the defendant testified he would subject himself to damage by the prosecutor’s questions.” He also relies on a defense investigator’s sworn declaration, which stated in relevant part:

(1) Juror No. 58 “told [the investigator] that jurors talked about the fact the defendant did not testify” and

(2) Juror D.S. “stated that jurors discussed the fact that defendant . . . did not testify.” According to defendant, the jurors’ discussion of this circumstance violated several of his constitutional rights. Defendant’s argument is unpersuasive. The defense investigator’s declaration is hearsay, which, as earlier explained, ordinarily is insufficient to establish an abuse of discretion in denying a motion for new trial or conducting an evidentiary hearing based on alleged jury misconduct. (People v.

Dykes, supra, 46 Cal.4th at p. 810.) Again, defendant offers no persuasive basis for deviating from this general rule. Juror A.G.’s declaration, insofar as it indicates that defendant’s failure to testify played a role in the jury’s deliberations, is entitled to no consideration, because declarations regarding alleged misconduct may not refer to jurors’ subjective reasoning processes. (Evid. Code, § 1150; People v.

Allen and Johnson (2011) 53 Cal.4th 60, 75 [133 Cal.Rptr.3d 548, 264 P.3d 336]; In re Stankewitz (1985) 40 Cal.3d 391, 398 [220 Cal.Rptr. 382, 708 P.2d 1260].) The juror’s ambiguous and nonparticularized statement about the “general consensus of the jury” appears to fall in this category. It does not relate a specific comment that any particular juror made or offer direct quotes or statements of a factual nature, but appears to be Juror A.G.’s subjective characterization of and opinion about what he heard. (See Sard v.

Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1214 [85 Cal.Rptr.3d 506] [“The absence of any supporting detail about the jurors having supposedly ‘agreed’ to do something contrary to an instruction supports the reasonable inference that the affidavits were mere conclusions about the jurors’ mental processes.”].) Insofar as the declaration indicates the jurors discussed defendant’s failure to testify, it is admissible to establish misconduct that raises a presumption of prejudice. (People v.

Leonard (2007) 40 Cal.4th 1370, 1424-1425 [58 Cal.Rptr.3d 368, 157 P.3d 973].) However, an independent review of the record shows no substantial likelihood the misconduct caused actual harm. As we have previously noted, “[i]t is natural for jurors to wonder about a defendant’s absence from the witness stand. [Citation.]” (People v. Loker (2008) 44 Cal.4th 691, 749 [80 Cal.Rptr.3d 630, 188 P.3d 580]; see People v.

DeShannon (1970) 11 Cal.App.3d 982, 988 [90 Cal.Rptr. 300] [“Every lawyer, indeed anyone with common sense, knows that . . . individual jurors do wonder why a presumably innocent defendant does not testify.”].) “ ‘Transitory comments of wonderment and curiosity’ about a defendant’s failure to testify, although technically misconduct, ‘are normally innocuous . . . .’ [Citation.]” (People v.

Avila (2009) 46 Cal.4th 680, 727 [94 Cal.Rptr.3d 699, 208 P.3d 634].) The statement that defendant’s failure to testify “came up” suggests that any comments about this subject were merely brief and passing observations, and the record offers no basis for concluding otherwise. Moreover, because defendant showed neither “a strong possibility” that prejudicial misconduct occurred nor “a material conflict” that could only be resolved at a hearing, the trial court did not abuse its discretion in declining to hold an evidentiary hearing on this issue. (Hedgecock, supra, 51 Cal.3d at p. 419.) D.

Removal for Cause of Prospective Jurors Defendant next asserts the trial court erred in excusing for cause Prospective Jurors Nos. 24, 199, and 232, based on their views about the death penalty. For reasons explained below, his claim fails. A trial court may excuse a prospective juror for cause if no reasonable possibility exists the prospective juror could consider imposing the death penalty. (People v. Schmeck (2005) 37 Cal.4th 240, 262 [33 Cal.Rptr.3d 397, 118 P.3d 451].) The trial court has broad discretion in mating this determination. (People v.

Moon (2005) 37 Cal.4th 1, 14 [32 Cal.Rptr.3d 894, 117 P.3d 591].) On appeal, we will uphold the trial court’s ruling if the record “fairly supports]” it, “accepting as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous. [Citations.]” (People v.

Mayfield (1997) 14 Cal.4th 668, 727 [60 Cal.Rptr.2d 1, 928 P.2d 485].) Prospective jurors often cannot give unmistakably clear answers as to their ability to impose the death penalty, and the trial court, aided by its assessment of demeanor, is in the best position to assess state of mind. (People v. Jones (2012) 54 Cal.4th 1, 41 [140 Cal.Rptr.3d 383, 275 P.3d 496].) Under these principles, defendant fails to show error.

In response to questions from the court, from the prosecution, and from defendant’s counsel, Prospective Juror No. 24 consistently said that, “as a moral issue,” she was “unsure” about both her right and ability to vote for a death sentence. When the trial court explored this subject by asking if there was a reasonable possibility she could consider the death penalty, she replied, “I don’t know.

I really don’t know if I could.” Upon the prosecution’s questioning, Prospective Juror No. 199, who initially indicated she could consider voting for the death penalty, reversed her position and said she would be unable to return a death verdict in a case of this nature. She again reversed position when defendant’s counsel questioned her, explaining that she could consider the death penalty but was likely leaning towards a life sentence.

When the trial court said it needed to question her about her answers, the prospective juror burst into tears and interjected, “I’m in conflict.” She explained she was having “trouble seeing” the “reality of [defendant’s] life out on the street” and twice told the court she did not know whether she could vote for the death penalty. Prospective Juror No. 232, upon questioning, said she did not believe there was a reasonable possibility she could vote for a death sentence and she doubted her ability to base a decision solely upon what she heard from the witness stand.

She based these doubts on her religious concerns about the death penalty and the following circumstances: she knew about the case and had discussed it extensively, she knew some of the background information, and she knew some of the witnesses. These responses justified the court’s decision to excuse these prospective jurors. (See People v. Friend (2009) 47 Cal.4th 1, 61 [97 Cal.Rptr.3d 1, 211 P.3d 520].) Defendant points to nothing in the prospective jurors’ other responses requiring a different conclusion. E.

Failure to Remove Prospective Jurors for Cause Defendant next asserts the trial court prejudicially erred in denying his request to excuse for cause Prospective Jurors Nos. 6, 50, 139, 230, and 234. According to defendant, the trial court should have excused these prospective jurors because they were impermissibly biased in favor of voting for a death sentence. For two reasons unrelated to the merits, defendant’s argument fails. First, by using only 19 of his 20 peremptory challenges, defendant forfeited his claim. (See People v.

Williams (1997) 16 Cal.4th 635, 667 [66 Cal.Rptr.2d 573, 941 P.2d 752] [“To preserve a claim of trial court error in failing to remove a juror for bias in favor of the death penalty, a defendant must either exhaust all peremptory challenges and express dissatisfaction with the jury ultimately selected or justify the failure to do so.”].) Defendant asks us to abandon this forfeiture rule, asserting that it presents criminal defendants with “an ‘intolerable’ dilemma”: the “unconscionable choice” between using the final challenge and facing a jury even more likely to vote for death due to the answers given by the next jurors to be called into the box, or preventing this by accepting the jury as constituted.

In People v. Hoyos (2007) 41 Cal.4th 872, 904 [63 Cal.Rptr.3d 1, 162 P.3d 528], we rejected a similar argument, explaining: “Even assuming this argument could justify [the defendant’s] failure to exhaust his peremptory challenges, it is mere speculation on this record. [The] [defendant’s contentions of erroneous jury inclusion are therefore forfeited.” A similar conclusion is appropriate here. (See People v.

Mills (2010) 48 Cal.4th 158, 186 [106 Cal.Rptr.3d 153, 226 P.3d 276] [“acceptance of this excuse would swallow the [exhaustion] rule entirely, for a defense attorney might in every case wish to hold challenges in reserve for strategic reasons”].) The second reason defendant’s claim fails is that, even were we to reach the merits and find error, defendant would be unable to show prejudice.

Defendant used his peremptory challenges to excuse all of the prospective jurors in question, so none of them actually sat on his jury. “[BJecause [he] did not challenge any sitting juror for cause, he cannot show the court’s rulings affected his right to an impartial jury. [Citations.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1099 [40 Cal.Rptr.3d 118, 129 P.3d 321], italics added.) Accordingly, even were his argument sound on the merits, defendant would not be entitled to relief.

In a related claim, defendant argues the trial court was not “even-handed” in its treatment of prospective jurors who favored the death penalty and those who had reservations about it. In his view, the court “spen[t] time and effort attempting to rehabilitate” the former, but “ma[de] no such efforts” with the latter. It also, he asserts, used different standards in applying the governing rules, refusing to excuse “equivocal” prospective jurors who favored the death penalty while excusing “equivocal” prospective jurors who had reservations about the death penalty.

Defendant unsuccessfully raised this claim several times at trial, including through a motion to quash the venire. For several reasons, this claim, though apparently cognizable on appeal notwithstanding defendant’s failure to exhaust his peremptory challenges or the fact that none of the pro-death-penalty prospective jurors he discusses actually served on his jury (see People v. Whalen (2013) 56 Cal.4th 1, 42-43 [152 Cal.Rptr.3d 673, 294 R3d 915] (Whalen)), fails on its merits.

Initially, we observe that, although the court questioned more than 125 prospective jurors about their death penalty views, defendant premises his claim on a comparison of only nine: four the court disqualified for cause because of their anti-death-penalty views and five the court refused to disqualify for cause despite their pro-death-penalty views. “The examination of such a small number of prospective jurors constitutes an extremely limited sample of the trial court’s overall performance, thereby diminishing the probative value of the examples proffered by defendant to support the inference he would have us draw.” (People v.

Martinez (2009) 47 Cal.4th 399, 447 [97 Cal.Rptr.3d 732, 213 P.3d 77] (Martinez)', see Whalen, supra, 56 Cal.4th at p. 39, fn. 15 [trial court’s treatment of single prospective juror “cannot establish a pattern of discriminatory questioning in violation of defendant’s rights”].) In addition, as to two of the four anti-death-penalty prospective jurors defendant discusses, the record belies his claim that the trial court made no effort to “rehabilitate” them when they expressed views putting their ability to serve in doubt.

The trial court began its voir dire of Prospective Juror No. 232 by noting that, on her questionnaire, she indicated she had “a religious affiliation that takes a stance on the death penalty” and explained, “life should be cherished.” The prospective juror interjected, “I think that life is sacred and should not be taken.” The court asked whether this view would “prevent” her “from voting for the death penalty in a case.” She responded, “It possibly could.” The court asked her to “elaborate,” at the same time reminding her that, on her questionnaire, she “indicated” she “would not automatically vote for either” the death penalty or life without possibility of parole.

The prospective juror answered: “No, I wouldn’t.

I guess my personal feeling is the death penalty should be used for crimes where there—it has been long term like multiple murders, where, you know, children are tortured, heinous crimes, versus more of a simple—I guess no murder is simple but just a—” The court interrupted and, in an apparent effort to qualify the prospective juror for service, stated, “Well, there’s a reasonable possibility in your mind that you could vote for the death penalty?” Rather than agree with the court, the juror ambiguously responded, “Possibly.” Following up, the court asked, “And the religious affiliation, does that get in the way of you voting for or against the death penalty?” The prospective juror responded, “It would probably get in the way of voting for the death penalty.” When the court asked, “How?” the prospective juror responded, “Because I would really have to weigh my religious beliefs about not taking a life.” Still apparently trying to qualify the prospective juror for service, the court asked, “But under some circumstances you can take a life?” Again, rather than agree with the court, the prospective juror responded, “I would prefer not to take a life.” The court continued its effort to qualify the prospective juror, explaining, “The question, though, is in your state of mind, do you think you could make that vote, if you thought the—that it was an appropriate sentence in a case?” The prospective juror replied, “From what I have read, unfortunately, I have read a lot about this case and have talked a lot about it, I don’t know if it would justify a death sentence.” The court probed still further, responding: “So if I were to tell you that you were to assume that the defendant was convicted of first degree murder and the special circumstances which involve multiple murders and so on and so forth, you understand all those special circumstances?

You are saying that under that situation, you could not vote for the death penalty?” The prospective juror answered, “I think I would have a hard time voting for the death penalty.

So I can’t say a hundred percent now, but I think I would have a hard time.” The court then asked, “Is it a reasonable possibility that you could?” The prospective juror replied, “No.” Probing further, the court asked, “For all practical purposes, could you impose the death penalty on anyone in this situation?” The prospective juror responded, “I don’t think so.” Focusing on the ambiguity in the juror’s answers, the court made yet another effort to get her to agree there was at least a possibility she could impose the death penalty: “Well, we here in courtrooms play with words.” “It’s one thing for you to say I can’t, it’s another thing for you to say I don’t think so.

That leaves open the possibility that you could. Can you tell me about that?” The prospective juror responded, “Like I said before, I feel that the death penalty, you know, taking a person’s life is something that I, because of my religious beliefs, of not killing, would be very hard for me to vote for.” The court then explained it was “having difficulty with” the inconsistency between the prospective juror’s comments during voir dire and her indication in her questionnaire that she “would not automatically vote for either” the death penalty or life without possibility of parole.

The prospective juror responded: “Right. I understand.

But I also was sitting there that morning I realized later that I thought about some of the questions.” The court then asked, “Tell me as you sit there now what your frame of mind is in terms of being able to vote for the death penalty.” The prospective juror replied, “unfortunately, I’m not sure if I can separate what I have heard before and from what I have heard, I don’t think I could vote for the death penalty.” During later questioning by the prosecution, the prospective juror answered, “No,” when asked, “Do you believe you are able to vote for the death of this defendant?” The court’s questioning of Prospective Juror No. 24 featured similar efforts to establish her ability to serve after she expressed views against the death penalty that put her ability to serve in question.

On her questionnaire, this prospective juror indicated that, if she thought “a particular provision of the law should be different than what [the court] instructed,” she would have “hesitation or reluctance about following the law as instructed.” (Original underscoring.) The court asked her about this answer during voir dire, and she confirmed that she “[p]ossibly” would have a problem following the law as the court explained it.

The court then attempted to educate her regarding the duty of a juror, explaining that jurors “have to follow the law” when they “take that oath.” After the prospective juror interjected, “I realize that,” the court continued its effort: “I noticed in one of the answers one of the jurors said, . . . I’ll follow the law if I don’t agree with it because the proper way is through the legislature. I would see my legislature. . . . And that’s really what this is about. ... It’s not your job as a juror to determine what the law should be in this courtroom.

Your job and your oath as a juror is to follow the law that I instruct you with, and our job is to say can you do that thoroughly. If you can’t, we need to know that. That’s where I’m at.” Rather than indicate she could do what the court was asking, the prospective juror responded, “Well, I hope I would be able to do that, but I can’t guarantee that I would.” Later, the court made another, more successful, attempt to address a problematic response on the prospective juror’s questionnaire.

The prospective juror had indicated that, because of the potential for the death penalty, she would hold the prosecution during the guilt phase to a standard of proof higher than beyond a reasonable doubt.

During voir dire, the court asked the prospective juror whether she had heard its discussion about this subject with other prospective jurors, and whether that discussion would “change [her] answer in any way.” The prospective juror responded, “I think the reason that I said that is it might be easier for me to help—since I would have a hard time passing judgment on somebody’s life for the death penalty, I would think that, if they were able to prove it even more, then I might be able to, if that makes sense.” The court replied, “But the question is, if the law says that proof beyond a reasonable doubt is the standard, would you require more than the law requires?” The prospective juror answered, “No.” The court later explored a questionnaire response in which the prospective juror indicated that background factors the law allowed her to consider, like defendant’s upbringing or possible substance abuse, would not be “helpful” in deciding “whether the death penalty or life in prison without the possibility of parole is the appropriate sentence,” and that she would “reject” those factors “automatically in deciding on a sentence.” The court asked, “does that mean that you wouldn’t take those factors into consideration in weighing whether or not the sentence was appropriate, being death or life without possibility of parole?” The prospective juror answered, “I guess maybe what I was trying to say was, if I couldn’t put judgment—judge somebody else’s life, then those other factors wouldn’t come into play anyway because I’m not sure I could, um, convict somebody to death.” The court made another effort to establish the prospective juror’s ability to serve, noting that her comment in court was “a little bit different” from her indication in the questionnaire that she “would consider the death penalty.” The prospective juror responded, “Well, I thought about it over the weekend, and I’m not quite sure if I could.” The court explored the issue further, asking the prospective juror to explain what she meant on her questionnaire when she said the death penalty was a “moral[] issue” for her.

The prospective juror responded, “Well, I’m not sure that I should sit in judgment of somebody else’s life.

I’m not sure that I have that right to do that.” The court probed further, asking, “do you think that you could make decisions of guilt or innocence.” The prospective juror responded that, although she thought she “could make a decision on somebody’s guilt or innocence for the crime they committed,” she was “not sure” she could “make a decision on the punishment.” Explaining that it “need[ed] to question” the prospective juror about her uncertainty, the court asked, “could you envision in your mind whether there is a reasonable possibility that you could vote for the death penalty?” The prospective juror answered, “I don’t know.

I really don’t know if I could.” After determining that the prospective juror could vote for life without the possibility of parole, the court stated, “So then it’s not necessarily the sentence, voting for a particular sentence, it’s the death penalty that concerns you.” The prospective juror answered, “yes,” and the court followed up by asking, “So it is the sentence, being able to say I could vote to enforce the death penalty, you have some problems with that?” The prospective juror answered, “yes.” The court concluded by asking, “For all practical purposes, could you impose the death penalty on anyone?” The prospective juror responded, “I don’t know.

I really don’t know.” The preceding discussion shows that, as to these two prospective jurors, the record refutes defendant’s claim that the trial court “swiftly” accepted their disqualifying remarks and discharged them without making any effort at rehabilitation. The court conducted extensive inquiries into remarks that raised doubts about the ability of these prospective jurors to serve, at times asking leading questions that offered them opportunities to change or clarify problematic answers.

It may be, as defendant argues, that the questions the court asked these prospective jurors in its effort to establish their ability to serve notwithstanding their expressed views against the death penalty were not identical to the questions the court asked the pro-death-penalty jurors defendant discusses.

However, the requirement of evenhandedness in questioning prospective jurors about their views on the death penalty does not mandate that trial courts ask every prospective juror identical questions. (Martinez, supra, 47 Cal.4th at pp. 446-447.) Trial courts have broad discretion regarding the manner of conducting voir dire, including the number and nature of questions about the death penalty. (Whalen, supra, 56 Cal.4th at pp. 29-30; People v.

Stitely (2005) 35 Cal.4th 514, 540 [26 Cal.Rptr.3d 1, 108 P.3d 182].) Pursuant to this discretion, courts may conduct questioning “based on the individual characteristics of each [prospective] juror, including the juror’s questionnaire answers and in-court demeanor.” (People v.

Mills, supra, 48 Cal.4th at p. 190.) Here, the record shows that, notwithstanding any differences in questioning, there was no meaningful difference in the trial court’s effort to establish the ability to serve of Prospective Jurors Nos. 24 and 232 and its effort to establish the ability to serve of the pro-death-penalty prospective jurors defendant discusses.

Regarding the other two anti-death-penalty prospective jurors defendant discusses, defendant’s claim of unequal treatment fails because their voir dire responses left the trial court with “little or no cause to believe that extensive questioning would render them eligible to serve.” (Whalen, supra, 56 Cal.4th at p. 38.) In his questionnaire, Prospective Juror No. 36, on whom defendant’s argument mainly focuses, answered in the affirmative when asked if he had “religious or personal beliefs or opinions that would prevent [him] from sitting in judgment of another person.” (Original underscoring.) Explaining his answer, he wrote: “I am opposed to the death penalty.” Later in the questionnaire, he indicated he “[s]trongly [o]pposed” the death penalty and explained: “I have opposed the death penalty since the time I have voted.

My mother and her family are Quakers and I was taught to oppose it.

I am Catholic and my religion also leads me to oppose the taking of a life.” He also indicated he would (1) “hold” the People to a standard of proof higher than beyond a reasonable doubt during the trial’s guilt phase because of the potential for the death penalty, (2) “regardless of the evidence,” “automatically vote for something other than murder with special circumstances in order to avoid the penalty phase of the trial,” and (3) “[allways vote for life without possibility of parole” for someone “convicted of multiple murders, murder during an attempted robbery, and shooting from a car, as special circumstances.” (Original underscoring.) The court began its voir dire of this prospective juror by noting that his questionnaire responses expressed “strong convictions against the death penalty” and indicated “there was no way [he] could ever vote for the death penalty.” The court then asked, “Do you still feel that way?” The prospective juror replied, “Yes, I do.” The court probed further, asking, “Is there in your mind any reasonable possibility that you could ever vote for a death penalty, put someone to death?” The prospective juror replied, “I don’t think so.

My beliefs are that I’m opposed to the death penalty.” Not yet satisfied that disqualification for cause was required, the court probed further: “I just want to make sure that we are both talking about the same thing. Some people are opposed to the death penalty but would find it to be an appropriate sentence in certain circumstances. Could you find that to ever be an appropriate [sentence] given your belief?” The prospective juror responded emphatically and unambiguously, “No.

No, I could not.” Given the prospective juror’s consistent and unequivocal answers on the questionnaire and in response to the court’s three attempts to examine his anti-death-penalty views during voir dire, and “ ‘aided as it undoubtedly was by its assessment of [the prospective juror’s] demeanor,’ ” nothing—including the prospective juror’s indication in his questionnaire that he could follow the law as instructed by the court—required the court to make further inquiry. (Whalen, supra, 56 Cal.4th at pp. 48-50 [given prospective juror’s statements during voir dire that she could, under no circumstances, impose the death penalty, dismissal was proper despite indication on questionnaire that she could set aside her opposition to the death penalty and follow the law and the court’s instructions].) Moreover, given these responses, defendant is simply incorrect in arguing that Prospective Juror No. 36 was “similarly situated” to the pro-death-penalty prospective jurors defendant discusses, Prospective Jurors Nos. 6, 50, 139, 230, and 234.

In her questionnaire, Prospective Juror No. 50 indicated she strongly supported the death penalty, but also indicated she would follow the law as set forth by the court and, for a defendant “convicted of multiple murders, murder during an attempted robbery, and shooting from a car, as special circumstances,” “would not automatically vote for either life without possibility of parole or the death penalty,” but “would consider all evidence and decide accordingly.” (Original underscoring.) During voir dire, the court, noting the prospective juror’s support for the death penalty, asked whether there was “a reasonable possibility” she “could under certain circumstances vote for life without possibility of parole.” She replied, “In some cases, yes.

But just hearing about this in the beginning, before I was ever called to be a juror, I felt very strongly about what had happened.” After explaining that what the prospective juror had heard was not evidence in a courtroom, and that jurors “are supposed to just decide this case from the evidence here,” the court asked, “Can you set [your] opinion aside and decide only from what happens here in this courtroom?” The prospective juror replied, “Yes.” The court then asked, “Do you see it as a reasonable possibility that you could ever vote for life without possibility of parole?” The prospective juror replied, “I think so.” Defendant’s counsel later asked, “based on the questions that you have in here, it seems to me that,” if you found first degree murder and special circumstances, “you would automatically vote for death, based on the way you think about these crimes, is that true?” The prospective juror replied, equivocally, “I believe so.” Attempting to clarify this response, the court interjected, “you mean to tell me you would, after the guilt phase is over, before you heard anything else, you would vote for the death penalty, is that what you are saying.” The prospective juror responded, “No.

I’m saying that I would choose death if I have the right information.” The court inteqected, “Okay, but you would need some information, wouldn’t you?” The prospective juror replied, “Right.” The court then added, “And you would listen to aggravating and mitigating circumstances, would you not?” The juror answered, “Absolutely.” The court then concluded its questioning by asking, “Before you decided?” The prospective juror replied, “Before I decided.” In her questionnaire, Prospective Juror No. 6 indicated she supported the death penalty, but also indicated she would follow the law as set forth by the court and, for a defendant “convicted of multiple murders, murder during an attempted robbery, and shooting from a car, as special circumstances,” “would not automatically vote for either life without possibility of parole or the death penalty,” but “would consider all evidence and decide accordingly.” (Original underscoring.) She also indicated that background factors the law allowed her to consider, like defendant’s upbringing or possible substance abuse, would not be “helpful” in deciding “whether the death penalty or life in prison without the possibility of parole is the appropriate sentence,” and that she would “reject” those factors “automatically in deciding on a sentence.” During voir dire, the court asked the prospective juror to explain her answers regarding background factors, and she replied, “Well, because I would be sympathetic to and feel bad for his upbringing, but I think what he did is a separate thing and he needs to be accountable for his actions regardless of that.” The court then asked, “If I were to tell you the law says you need to consider certain things, would you say I’m not going to consider them, no matter what, Judge?” The prospective juror replied, “Well, no.

If that’s the law, then I would consider it.

But that’s just off the top of my head.” To confirm the prospective juror’s position, the court asked, “Then you would follow that law?” The prospective juror replied, “Yeah.” In her questionnaire, Prospective Juror No. 139 indicated that she “believe[d] in the death penalty for certain crimes, including murder,” that the reason she felt this way was that the death penalty “is Biblically sound,” and that she would consider the death penalty, would follow the law as set forth by the court, would base punishment on the evidence and would not automatically vote for either life without possibility of parole or the death penalty, and would not automatically reject background factors in determining sentence.

The relevant voir dire focused on the court’s effort to clarify her statement that the death penalty was “Biblically sound.” Upon the court’s initial questioning, the prospective juror explained: “Well, it’s called for in Leviticus, actually. So that’s why I believe that it can be imposed.” “[I]t’s a command [that] is given Biblically and I believe in that. And that’s the only—that’s as far as it goes.

That the death penalty is sound—is a sound matter.” The court followed up by asking, “Does that mean you would always impose the death penalty?” The prospective juror replied, “No.” During questioning on this subject by defendant’s counsel, the prospective juror stated that the death penalty is “a Biblical truth” and added, “it is indicated in the Bible that as part of the law that, yes, if a man’s life is taken, it should be redeemed with another man’s life.” Defendant’s counsel then asked whether, if she found first degree murder and special circumstances, “which gives you by law the right to vote for the death penalty, would your belief system as to the religion kick in at that point in time and say, well, now I must vote for the death penalty at this point?” The prospective juror replied, “I believe I would have to do that.

Yes.” The court then had an exchange with the prospective juror “to clarify” her answers.

It began by asking, “You had indicated to [defense counsel] . . . that if you got to the penalty phase, . . . your Biblical something would kick in and you would vote for the death penalty, did I understand that, what you said?” The prospective juror replied, “Yes, I would vote for the death penalty and he also said with—was it with extenuating circumstances was that the—” The court interjected, “Special circumstances.” The prospective juror then continued, “Special circumstances, beyond a shadow of a doubt, if he was found guilty, with special circumstances, I believe I would stand for the death penalty.” The court responded, “Okay.

I want to make sure I understand this clearly.” After explaining that the applicable standard was beyond a reasonable doubt, not shadow of a doubt, the court continued, “So can you explain to me what you meant when you said that your Biblical views would kick in? That’s what I’m not understanding.” The prospective juror responded, “Well, if we went through the trial and the defendant was found guilty, according to your instructions, and then we went into the penalty phase—” The court interjected, “[a]nd there would be further instructions there also.” The prospective juror continued, “Right.

Which I would of course listen to because I feel it’s my duty to be as fair as humanly possible. I would have to know as other people in this courtroom would, without a doubt there was a reason to take a life but I believe I could do that.

I mean I believe I could vote for the death penalty, if there were no doubt.” “No reasonable doubt and the instructions led me to the point where I had to make that decision.” The court then asked, “Well, you would follow the law that I give you; is that correct?” The prospective juror replied, “That’s absolutely correct.” Concluding its inquiry, the court asked, “Would your view of the law be clouded, however, in your vote in determining penalty by your Biblical views?” The prospective juror responded, “No.” In her questionnaire, Prospective Juror No. 230 indicated she supported the death penalty, explaining that “certain crimes definitely warrant” that punishment and that “[s]ome crimes are so unforgiveable that the guilty party deserves to be removed from society.” She also indicated she would follow the law as set forth by the court, would base punishment on the evidence, and would not automatically vote for either life without possibility of parole or the death penalty.

Finally, she indicated that background factors the law allowed her to consider would not be “helpful” in deciding between the death penalty and life without the possibility of parole, and that she would “reject” those factors “automatically in deciding on a sentence.” During the relevant voir dire, the court asked the prospective juror what she meant by an “unforgiveable crime.” The prospective juror responded, “I think taking an innocent person’s life.

Somebody who is probably age, young ages.” When a young person’s life is taken away, “I think it needs to be punished.” The court responded, “Well, do you see as a reasonable possibility of punishment not being the death penalty in that situation that you’ve just described?” The prospective juror responded, “Yes.

If I’m presented with the evidence that says that they shouldn’t be put to death, yes, I could.” She then answered in the affirmative when the court asked whether she “could listen to that” and “weigh the good factors and the bad factors and then make a decision.” The court then asked, “In some of these situations that you’ve talked about with young people and that, could you see in your own mind imposing life without possibility of parole?” The prospective juror responded, “It would depend on the circumstances.

I don’t feel that—I know the questions you’ve asked is previous experience, things that have happened in the person’s past life, would I consider that as an excuse and have that being life imprisonment as opposed to death. I don’t think so. I think that whatever the crime is is what the punishment should be. Not really based on if they’ve had a hard time in their history.” The court responded, “Well, the law doesn’t allow that. The law says after this crime, there’s a second phase.

Jurors can’t just say based on that crime and those special circumstances, the death penalty or life without the possibility of parole. They have to listen to other factors under the law of aggravation, mitigation and then make a determination. Weigh those and come up with a decision one way or the other for one choice or the other.

Can you do that?” The prospective juror replied, “Yes.” In his questionnaire, Prospective Juror No. 234 indicated he strongly supported the death penalty, explaining, “If the person did the crime he or she should pay for it.” He also indicated he would base punishment on the evidence, would not automatically vote for either life without possibility of parole or the death penalty, and would follow the law as instructed by the court, even if the court’s instruction were different from his previous understanding of the law.

He also indicated he would have “hesitation or reluctance about following the law” if he thought a particular provision of the law “should be different than what [he was] instructed.” (Original underscoring.) Exploring these answers, the court asked during voir dire whether the prospective juror would “hesitate in following the law as I tell you?” The prospective juror replied, “follow what you say.” The court then asked the prospective juror to explain his expressed view on the death penalty. The prospective juror replied, “Well, if they did it, they need to pay for it.

And sir, I will tell you, if they shoot somebody that’s how they die. If they hang somebody, that’s how they should die. How they commit the murder is how they should go.” The court responded, “You understand that the law doesn’t allow that.” The prospective juror replied, “I know that. That’s how I feel.” The court continued, “But the law does allow for two choices, if we get to a penalty phase, and only two choices.” The prospective juror interjected, “True.” The court continued, “One is the death penalty and the other is life without the possibly of parole.

When you say a person should pay for it, can you tell me what you mean within those two choices?” The prospective juror answered, “Well, if he [is] proven to have done it without no doubt, the death penalty. If there is a waiver, could be, may not, then it’s imprisonment for life.” Understandably confused by this answer, the court asked, “Can you explain to me that latter part that you were just saying?

I didn’t quite catch it.” The prospective juror replied, “If the jury votes on life imprisonment, then I will go along with it.” The court responded, “Would that be just because the others are going along with that.” The prospective juror answered, “No.

Not really.” The court explained, “You do understand that both sides have a right to [the] individual view of each juror.” The prospective juror answered, “Yes.” The court then turned to the issue of background factors, asking the prospective juror to explain why he had indicated on his questionnaire that such factors would not be helpful in determining punishment. The prospective juror responded, “Well, it depends on how they treat people is what I meant.

If they treat people wrong constantly, then that could be a factor, as far as I’m concerned.” The court then asked, “Did you hear my explanation earlier about good and bad factors?” The prospective juror replied, “Yes. I go along with it.” The court concluded its inquiry by asking, “Would you listen to those before you make up your mind as to what to do.” The prospective juror replied, “Yes.” The preceding discussion shows that, contrary to defendant’s assertion, the responses of these pro-death-penalty jurors were not similar to those of Prospective Juror No. 36.

Unlike Prospective Juror No. 36, who repeatedly, consistently, and unequivocally declared his inability to impose the death penalty, these pro-death-penalty prospective jurors gave conflicting, equivocal, and/or ambiguous answers that called for further inquiry. The extent of the court’s questioning properly reflects this difference, not unequal treatment of similarly situated prospective jurors.

Thus, the record confirms the People’s view that “[a]ny difference in the number and the nature of questions” the court asked these prospective jurors “was based on the need to gain a definitive understanding of the potential juror’s position.” The record likewise shows that Prospective Juror No. 199, who is the last anti-death-penalty prospective juror defendant discusses, is not similar to the pro-death-penalty jurors discussed above.

In her questionnaire, Prospective Juror No. 199 indicated she (1) had no beliefs that would prevent her from judging another, (2) would follow the law as stated in the court’s instructions, (3) both “supported]” and would “consider” the death penalty, (4) had no religious affiliation that took a stance on the death penalty, (5) would not, “regardless of the evidence,” “automatically vote for something other than murder with special circumstances in order to avoid the penalty phase of the trial,” and (6) would not automatically vote for either life without possibility of parole or the death penalty, but “would consider all evidence and decide accordingly.” (Original underscoring.) She also indicated she would “hold” the People to a standard of proof higher than beyond a reasonable doubt in the trial’s guilt phase because of the potential for the death penalty.

In explaining her position on the death penalty, she wrote: “I have some religious conflicts but too many men and gangsters feel prison is a status symbol, a part of being in a gang. We probably need the threat of the Death Penalty.” Asked to explain how her death penalty views had changed over time, she responded, “I was stronger for it than I am now.” The court began its inquiry regarding this prospective juror’s death penalty views by asking about the “religious conflicts” her questionnaire mentioned.

The prospective juror responded, “If I’m responsible for sending someone to his death, is that going to reflect on me or on God when I go.” The court asked, “do you have some concerns about that?” The prospective juror answered, “Little bit of concern. I’m in conflict over it, you know. If the person is truly guilty and they’ve done some terrible things, then maybe they deserve to die.” The court ended its initial inquiry by asking whether there was “a reasonable possibility” the prospective juror could vote for either the death penalty or life without the possibility of parole.

The prospective juror answered, “Yes.” The prosecution later asked the prospective juror whether, “in a case such as this, you are able to vote for death against this defendant.” The prospective juror answered, “I don’t think so. I don’t think I could.” Defendant’s counsel then pursued the issue as follows: “[N]obody is going to tell you you have to vote for death in this case .... The only question here is will you be able to consider death and life if you got to that portion of the trial in which you had to make a determination.

Could you do that?” The prospective juror responded, “I could consider death but I would probably lean towards the life imprisonment.” The court told the prospective juror it “need[ed] to ask [her] a couple questions, based on” her responses to the attorneys’ questions. The prospective juror interjected, “Pm in conflict.” The court continued; “I can see that. On the one hand you have stated that I could consider death, and on the other h

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