THE PEOPLE, Plaintiff and Respondent, v. KELVYN RONDELL BANKS, Defendant and Appellant, 59 Cal. 4th 1113

Opinion LIU, J. — Defendant Kelvyn Rondell Banks was convicted by a jury in 1998 of two counts of first degree murder (Pen. Code, § 187; all further statutory references are to the Penal Code unless otherwise indicated), one count of attempted murder (§§ 187, subd. (a), 664), one count of forcible rape (§261, subd. (a)(2)), one count of forcible oral copulation (§ 288a, subd. (c)), one count of first degree residential robbery (§211), one count of first degree residential burglary (§ 459), and one count of attempted second degree robbery (§ 211).

The jury also found true the special circumstance allegations of multiple murder, robbery murder, and burglary murder (§ 190.2, subd. (a)(3), (17)(A) & (G)); the allegations that defendant personally used a firearm in the commission of each offense (former § 12022.5, subd. (a)); and the allegation that the attempted murder was committed willfully, deliberately and with premeditation (§ 664, subd. (a)). Defendant was acquitted of a third murder count related to the killing of Michael Haney in a separate incident. The first penalty phase trial ended in a mistrial.

After a penalty phase retrial, a jury returned a verdict of death in 1999. The trial court denied the automatic motion to modify the penalty (§ 190.4, subd. (e)), sentenced defendant on the noncapital counts and enhancements, and imposed a sentence of death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) As explained below, the conviction on count 2 of willful, deliberate, and premeditated attempted murder must be reduced to attempted murder. In all other respects, we affirm the judgment. I. FACTS A. Guilt Phase 1. Prosecution Evidence (

a) Crimes Against Charles Coleman and Latasha W.

(1) Latasha W. Latasha W. testified that during the early morning hours of July 1, 1996, defendant raped her, shot her, and murdered Charles Coleman. At 2:00 a.m., her friend Charles Coleman, a paraplegic confined to a wheelchair but able to drive, was driving her in his car to his house on Halldale Avenue in Los Angeles. Latasha W., who was 17 years old at the time, began taking shopping bags from the car to the house. As she was returning to the car, Latasha W. saw defendant and another man approach Coleman’s car from an alley around the comer of the street. Coleman appeared to know defendant and the other man.

At Coleman’s request, defendant pulled Coleman and his wheelchair up the three or four steps that led to the house. Once inside the house, defendant stood directly behind Coleman and pointed a gun at the back of his head. Defendant pulled the gun trigger twice, but the weapon did not discharge. Defendant pulled the trigger a third time, firing a single bullet into the back of Coleman’s head. The impact caused Coleman to fall to the floor from his wheelchair. Defendant grabbed Latasha W.’s arm and forced her into Coleman’s bedroom where he demanded the location of Coleman’s money and drags.

Latasha W. responded that she did not know where Coleman stored his drugs, but that he kept his money in a hole inside his mattress. Defendant instructed Latasha W. to kneel in the corner of the bedroom; he then threw the mattress on top of her. From underneath the mattress, Latasha W. could hear the two men rummaging through the bedroom. Defendant eventually removed the mattress. He then led Latasha W. by the arm to the laundry room, where he unbuckled his pants while holding his gun in his right hand.

Defendant then ordered Latasha W. to get on her knees and, after placing the gun on top of the washing machine, forced her to orally copulate him. He then ripped off her shorts, forced her onto her hands and knees, and raped her. After ordering Latasha W. to lie down on her back, defendant raped her a second time. Defendant then took Latasha W. into the kitchen, where the second man was standing with a third man. Defendant kept Latasha W. in the kitchen while the other two men rummaged through the house.

Defendant and his accomplices referred to one another as “Blood,” a term Latasha W. believed had gang significance. Although Latasha W. did not know .if Coleman was a gang member at the time of his death, she was aware that he used to be affiliated with the Black Stone gang, a Bloods gang affiliate. Latasha W. was led into the living room and forced to lie facedown on the floor. Using a telephone cord, the second man tied Latasha W.’s hands and legs. The men then searched the house for five to seven minutes until Latasha W. heard one of. the men say they had found what they were looking for.

The two accomplices exited the house, but defendant remained inside. Defendant shot Coleman again, striking him in the head. From a distance of approximately six feet, defendant shot at Latasha W. The bullet struck her ear as she lay facedown on the floor in the living room. Latasha W. remained motionless until she heard the three men drive away in Coleman’s car. After waiting several minutes, Latasha W. ran outside the house to seek help. At trial, Latasha W. identified defendant as the person who shot Coleman and sexually assaulted and shot her.

(2) Los Angeles Police Officer Martin Martinez Los Angeles Police Officer Martin Martinez testified that around 3:00 a.m. on the morning of July 1, 1996, Latasha W. flagged him down in his patrol car on Slauson Avenue. Latasha W. told Officer Martinez that her friend had just been shot and that she had been raped and shot. She described the shooter as an African-American male who was approximately 27 years old, five feet nine inches tall, 180 pounds, and bald. She reported that the shooter was wearing a black jacket, a white T-shirt, and black or dark-colored shoes. The gun he was carrying was made of stainless steel.

(3) Madeline Marini Madeline Marini testified that on July 1, 1996, she performed a sexual assault examination on Latasha W. at California Hospital. Marini collected oral, vaginal, and rectal swab specimens from Latasha W. and drew a blood sample. Latasha W. had physical injuries that were indicative of sexual assault, including redness, abrasions, and small broken vessels in the vagina. Latasha W. described the rape suspect as five feet nine inches tall, 170 pounds, bald, and wearing black clothes.

(4) Los Angeles Police Detective Sal LaBarbera Los Angeles Police Detective Sal LaBarbera testified that on July 1, 1996, about 3:30 a.m., he was notified of a homicide at 5835 South Halldale Avenue. LaBarbera responded to the crime scene with his partner, Officer Christopher Barling. LaBarbera further testified that on August 7, 1996, he presented Latasha W. with a six-pack photographic array. As he was removing the six-pack from his binder and before he could place the photo array on the table, Latasha W. “blurted out that she already sees him, the person that she identified.” Latasha W. then selected defendant’s photograph and identified him as her and Coleman’s assailant.

(5) Deputy Medical Examiner Pedro Ortiz Deputy medical examiner Pedro Ortiz testified that he conducted an autopsy on Coleman’s body on July 3, 1996. Coleman had been shot twice. One bullet entered the back of his head, passed through the back of his skull, and exited through the center of his head. Soot deposits and evidence of gunpowder on the entrance wound suggested that this wound was made at close range. A second bullet entered the left side of his head above the left earlobe and exited through the right temple. This second wound was sustained from a distance of more than two feet.

(6) Criminalist Michael Mastrocovo Michael Mastrocovo, a criminalist employed by the Los Angeles Police Department, testified that he was responsible for analyzing sexual assault evidence for criminal court cases. He testified that he analyzed the items in Latasha W.’s rape kit and found sperm on all three vaginal slides, the vaginal aspirate, and the rectal swab and slide. Sperm was also detected in a stain on the crotch area of Latasha W.’s underwear. On April 30, 1997, Mastrocovo sent the vaginal swab samples from Latasha W.’s rape kit, along with blood samples drawn from Latasha W. and defendant, to Cellmark Diagnostics (Cellmark) for DNA analysis.

(7) Dr Robin Cotton Dr. Robin Cotton, the director of Cellmark, testified that Cellmark conducted a DNA analysis of the vaginal swabs and blood samples submitted by Mastrocovo. The DNA from the sperm fraction of the swabs was compared to the DNA from defendant’s blood sample; the DNA matched at all nine loci tested, meaning that defendant could not be excluded as the donor of the sperm sample. Latasha W. could not be excluded as a match with the DNA in the nonsperm fraction, which is consistent with the swab having been taken from her. Dr.

Cotton testified that the combination of allele types common in the sperm sample and defendant’s blood sample would occur in about one in 17 million people in the African-American population.

(8) Stipulation The parties stipulated that a tattoo on defendant’s left arm reads “HPB,” which stands for Harvard Park Bloods or Harvard Park Brims. The Harvard Park Brims are a Bloods gang affiliate operating in an area of Los Angeles roughly bounded by Slauson Avenue, Vermont Avenue, Gage Avenue, and Western Avenue. The word “Blood” is a term commonly used between members of Bloods gangs. (

b) Crimes Against Charles Foster

(1) Sandra Johnson and Yvonne McGill Sandra Johnson and Yvonne McGill testified that on July 26, 1996, around 12:30 a.m., Johnson drove McGill and Charles Foster to the Home Savings Bank located on Vermont Avenue in Los Angeles. Johnson and McGill waited in the car while Foster went to the automated teller machine (ATM). McGill was watching Foster, who was fumbling around with some items, possibly looking for his ATM card. From her side view mirror, Johnson saw a hooded man wearing a red bandana over his face approach the passenger side of the car.

Because the man’s eyes were not concealed, Johnson could tell he was African-American and had brown eyes. McGill turned to look out the passenger side window and saw the man standing with a handgun pointed directly at her. She looked into his eyes and started screaming. Johnson started her car and drove away while the masked man looked at Foster standing about 12 feet away by the ATM. After driving a short distance, they heard two gunshots. Johnson and McGill stopped a nearby police vehicle and reported that someone had shot their friend at the ATM.

The police car responded to the bank followed by Johnson and McGill. When they arrived, Foster was dead, lying facedown in front of the ATM. On August 27, 1996, McGill was shown a photographic six-pack and selected a photograph of defendant as having “eyes [that] look like the guy with the gun.” McGill testified at trial that defendant appeared to be the person whose eyes matched those of the man who killed Foster.

(2) Detective Frank Weber Detective Frank Weber testified that he responded to a crime scene at the Home Savings Bank on July 26, 1996, with his partner, Detective Paul Wright. Detective Weber recovered two firearm casings within five to 10 feet of Foster’s body. A' Sizzler discount card was in the receipt slot of the ATM, which had sustained damage from a bullet strike. Two expended bullets were recovered: one inside the ATM and the other in an alley west of Vermont Avenue. An empty deposit envelope was clenched in Foster’s right hand beneath his body.

Detective Weber further testified that on July 29, 1996, he took statements from both Johnson and McGill. Johnson described the person who approached her car as an African-American male approximately five feet eight inches tall. He was wearing a red hoodie with a red scarf. McGill stated that the gunman had a red sweater wrapped around his head and was wearing a large black jacket. He was African-American and approximately five feet nine inches tall.

(3) Dr. Eugene Carpenter, Jr. Dr. Eugene Carpenter, Jr., a medical examiner working for the Department of Coroner of Los Angeles County, testified that he performed an autopsy on Foster’s body. Dr. Carpenter concluded that Foster had sustained two fatal gunshot wounds. The first bullet entered his right hand and exited the base of his right thumb; it then created a second entrance wound at his throat and exited near his neck on his left shoulder. The second bullet struck the back of Foster’s head and exited through his forehead.

(4) Patricia Manzanares Patricia Manzanares testified that she lived in a ground floor apartment adjacent to the Home Savings Bank parking lot. On the night of the Foster shooting, Manzanares saw two men pass by her window. One man stayed in front of the window in an alley while the other man, whom Manzanares later identified as defendant, walked toward the bank. Defendant was wearing a mask. Defendant approached Foster, who was using the ATM, and shot him. Defendant then returned to the alley near Manzanares’s apartment window and removed his mask. Manzanares was able to see his face.

Defendant laughingly told the other man, who had stayed by the window, “Oh shit” and “Goddamn.” The men left the area in a large green Cadillac with a white top. Manzanares called the police. She described the shooter as an African-American male, 25 to 26 years old, about five feet six or seven inches tall, and about 190 pounds. He had a short “Afro” haircut, a chubby face, and some whiskers around his upper lip and chin. He was wearing a black-and-white checkered shirt, a heavy black jacket, black baggy jeans, and a red mask that extended below his collar.

On August 7, 1996, Manzanares was shown a single photographic six-pack and selected defendant’s photograph as depicting the man who shot Foster. She identified defendant’s photograph from the same six-pack again on August 21, 1996, and again before the grand jury on August 27, 1996. On February 18, 1997, Manzanares identified defendant as the gunman in a live lineup. Manzanares testified at trial that defendant was the person she saw shoot Foster.

(5) Los Angeles Police Officer Marcelo Raffi Los Angeles Police Officer Marcelo Raffi testified that on My 31, 1996, around 12:30 a.m., he and his partner were patrolling the area of Harvard Park near Vermont Avenue in a marked patrol car. Defendant was among a group of people walking southbound on Vermont Avenue. Defendant began running when he saw the police and was detained after a brief pursuit. Before he was stopped, Officer Raffi saw defendant drop an object on a pile of wood. Officer Raffi recovered a loaded blue steel nine-millimeter semiautomatic handgun from the place defendant had dropped the object.

Officer Raffi arrested defendant. The report of defendant’s arrest indicated that defendant was five feet 10 inches tall and weighed 225 pounds. His booking photograph depicted him wearing a black or blue denim jacket that fell somewhere between his thighs and knees.

(6) Detectives Paul Wright and Frank Weber Detectives Paul Wright and Frank Weber testified that on August 21, 1996, they executed a search warrant at defendant’s residence at 1446 West 58th Place in Los Angeles, located about 50 yards from Coleman’s house and about one-half mile from the bank where Foster was murdered. They recovered an extra-large black jacket on the floor inside a bedroom closet. Officer Raffi identified the jacket as the same one defendant had been wearing on My 31, 1996, and Manzanares identified the jacket as the one worn by the man who shot Charles Foster.

The police also recovered four red T-shirts and a pair of black jeans, two ammunition boxes containing live nine-millimeter bullets, and an empty ammunition box.

(7) Stipulations The parties entered several stipulations regarding the ballistics evidence. The nine-millimeter handgun Officer Raffi recovered was operable. The handgun fired both of the Speer cartridge casings and both of the bullets recovered from the Foster and Haney crime scenes. The handgun contained nine-millimeter rounds manufactured by CCI, Norenco, Federal, and Speer. The Speer cartridge casing in the handgun and the Speer cartridge casings from the Foster crime scene bore the same headstamp and shared the same caliber, brand, type, and material composition.

One box of ammunition recovered from defendant’s residence was for Speer nine-millimeter ammunition; the Speer materials from the handgun and the Foster crime scene were commonly packaged in that type of box. The empty ammunition box recovered from defendant’s residence was for CCI ammunition, and the CCI cartridges found in the handgun were of the type commonly packaged in that type of box. 2. Defense Evidence Defendant did not testify on his own behalf. However, he presented testimony from Los Angeles Police Officer Donna Shoates and Detective Sal LaBarbera.

Officer Shoates and her partner transported Latasha W. to California Hospital for the sexual assault examination on July 1, 1996. Officer Shoates testified that Latasha W. described the man who had attacked her as an African-American male who was bald, five feet nine inches tall, and about 175 pounds; he was wearing a large black jacket, a white T-shirt, and black pants. Latasha W. told Officer Shoates that the man who attacked her did not ejaculate and that Coleman was a gang member and known drug dealer.

Detective LaBarbera testified that on July 12, 1996, he showed Latasha W. a binder with over 100 photographs of Six Deuce Brims and Harvard Park Bloods gang members. Defendant’s photograph was not included in that binder. Latasha W. identified the photograph in position No. 11, stating that the person depicted in that photograph “looked like” the person who attacked and shot her. On a copy of the page, Latasha W. circled the photograph in position No. 11, initialed and dated it, and wrote “looks like him.” The man Latasha W. identified was in custody at the time of the incident.

Detective LaBarbera acknowledged that his report indicated defendant weighed 210 pounds, whereas Officer Raffi’s report indicated defendant weighed 225 pounds. On cross-examination, Detective LaBarbera testified that despite writing in his report that the gunman was “clean shaven, possible stubble,” Latasha W. actually described the gunman who raped her as having a mustache and a small goatee. The defense also cross-examined various witnesses called by the prosecution, including Dr. Robin Cotton, Yvonne McGill, and Patricia Manzanares. Dr.

Cotton testified on cross-examination that the Cellmark database used to compute the probability of a specific set of genes occurring in a member of the African-American population contained a sample of 100 African-Americans living across the United States; that the database did not account for interracial or mixed-race ethnic groups; that the database included only samples from Caucasians, African-Americans, and Hispanics (not Asians or Native Americans); and that the true frequency of the combination of genes occurring in a given population could be 10 times greater or 10 times less than the estimated frequency.

Dr. Cotton further testified that the Cellmark analysts who performed the DNA testing prepared two reports, one on June 2,1997, and one on June 30, 1997. In preparing the first report, Cellmark tested five loci and found that the DNA from the sperm sample and the DNA from defendant’s blood sample was identical at each locus tested. The probability that a member of the African-American population would have the same combination of alleles found in both the sperm sample and blood sample at each of the five loci would be one in 8,000.

In preparing the second report, Cellmark tested an additional four loci and again found a perfect match between the sperm sample and defendant’s blood sample. The probability that a member of the African-American population would have the same combination of alleles found at each of the nine loci tested would be one in 17 million.

Yvonne McGill acknowledged on cross-examination that “most of [defendant’s] face was covered” when she saw him; that she had stated during her grand jury testimony that she had only gotten a “glimpse” of the gunman; and that she had told Officer Weber that the gunman had a dark complexion, whereas she would describe defendant as “[l]ight skinned.” Patricia Manzanares acknowledged on cross-examination that the jacket worn by the gunman is common among African-American men in her neighborhood.

She also acknowledged that she had previously described the gunman as five feet seven inches tall and wearing a black-and-white checkered shirt and a heavy black-and-white jacket. B. First Penalty Phase During the first penalty phase trial, the prosecution presented the testimony of Eddie Candelaria, Armando Quintana, Lashan Thomas, Sandra Hess, Thomas Butler, Richard Bee, Joseph Elloie, Henry Nandino, Bridget R., Sandra Vinning, Chandra Vinning, and Roberto Perovich.

The defense presented the testimony of Linda Allen, Barbara Sparks Mitchell, Brian Keith Mitchell, Carole Sparks, Louis Weisberg, Iraj Mansoori, Michael E. Gold, and Nancy Kaser-Boyd. After a period of deliberation, the court concluded that the jury was unable to reach a unanimous verdict and declared a mistrial. The jury’s vote at the time of the declaration of a mistrial was 11 to one in favor of a death sentence. C. Penalty Phase Retrial 1. Prosecution Evidence (

a) Prior Violent Criminal Activity

(1) Lashan Thomas and Luz Hernandez Lashan Thomas testified that on January 23, 1988, at 8:00 p.m., she and defendant were walking down the street behind Luz Hernandez. Defendant, holding a pipe in his hand, said, “ ‘Watch me rob her.’ ” Defendant approached Hernandez and demanded her money and her purse. When Hernandez refused, defendant struck her across the back of the head with the pipe. She fell to the ground, and defendant took about $20 from her. Thomas and defendant fled but were later apprehended.

Hernandez and her husband were unavailable at the time of the penalty phase trial, but their testimony from the juvenile proceeding held on February 24, 1988, was read to the jury. Hernandez testified that the blow to her head resulted in a hematoma that was swollen for five days. She was three months pregnant when she was struck and miscarried about five days later. Hernandez’s husband testified that he saw defendant and Thomas running from Hernandez after she screamed.

(2) Sandra Hess Defendant was a student in Sandra Hess’s literacy class at the Barry J. Niedorf Juvenile Hall. Hess testified that on March 31, 1988, defendant approached her desk without permission and challenged her refusal to give him a “good gram,” an acknowledgment of a student’s good behavior. While Hess was in the process of removing defendant from the classroom for refusing to return to his seat, defendant put Hess in a “choke hold,” rendering her unable to breathe or talk. As defendant moved Hess across the room in the chokehold, he yelled at another student, “ ‘Come on. You said you’d help me.

We’ll get her.’ ” When the other student instead reached for the emergency telephone, defendant stated, “ ‘Don’t pick up the phone. Don’t do that.’ ” As soon as the other student picked up the phone, defendant sat on the chair beside Hess’s desk and smiled. As a result of the assault, Hess sustained a bruised larynx; her throat was sore for six weeks, and she had to speak in a whisper for a week.

(3) Richard Bee On August 5, 1989, defendant was in the custody of the California Youth Authority (CYA) at Humboldt Hall. Sergeant Richard Bee testified defendant refused to be quiet and go to sleep, so he informed defendant he would be placed in a detention room until the morning. Defendant became argumentative and aggressive. Bee then sprayed defendant with Mace, and as he did so, defendant swung and struck Bee in the chin and chest. Bee sustained a sore jaw and a bruised chest.

(4) Bridget R. Bridget R. testified that she dated defendant for about three months, during which time they lived together with Bridget R.’s sister and three-year-old daughter. On February 21, 1994, defendant accused Bridget R. of cheating on him and became very violent. He struck Bridget R.’s face with his fists multiple times; forced Bridget R. to orally copulate him; hit her on the top of her head with hair clippers, causing her to bleed from her forehead; choked her to the point of unconsciousness three times; and raped her in front of her daughter.

At the time of the attack, defendant was aware that Bridget R. was pregnant with his child or possibly his twins. The attack caused a miscarriage. Defendant eventually tied Bridget R. up with a telephone cord. He then left the house to buy a new telephone cord and took Bridget R.’s daughter with him, telling Bridget R.: “ Tm taking your little girl in case you get loose.’ ” Bridget R. freed herself, ran upstairs to a neighbor’s residence, and asked the neighbor to call the police. When defendant returned, Bridget R. pretended that she had just gotten loose.

When the police arrived, Bridget R. told the police what had happened. Defendant subsequently called Bridget R. from jail and apologized for causing the miscarriage. However, he also threatened to kill Bridget R.’s family members if she testified against him.

(5) Deputy Roberto Perovich Los Angeles County Sherriff’s Deputy Roberto Perovich testified that on December 10, 1996, around 11:00 p.m., he was patrolling the disciplinary cells at East Facility when he heard screaming from one of the cells. Upon responding to the cell with another deputy, Deputy Perovich observed that inmate Sevedo Sanchez was screaming and had redness and swelling on the left side of his face. Defendant was the only other occupant of the cell. Deputy Perovich observed a Bible in the cell toilet.

(6) Deputy Arthur Penate Los Angeles County Sheriff’s Deputy Arthur Penate testified that on January 31, 1999, he was conducting a security check of the seventh floor of the Twin Towers jail facility. The seventh floor housed two types of prisoners in single cells: mentally ill inmates and extremely violent inmates. Deputy Penate understood that defendant fell into the latter category. Deputy Penate opened a small slot in the cell door to give defendant his food. As he received the tray, defendant bent down and threw a carton containing feces and urine at Deputy Penate.

Defendant aimed at Deputy Penate’s face but struck him in the torso. In the days following the incident, defendant laughingly told Deputy Penate, “ ‘See. See. I told you I was going to get you.’ ” Defendant also wrote, “Penate is a bitch” and “Fuck off’ on the interior walls of his cell, along with various gang-related comments. Deputy Penate further testified that a few days before the incident, defendant accused Deputy Penate of “disrespecting” him when Deputy Penate told another inmate that defendant was a troublemaker.

On a separate occasion about two weeks before the incident, defendant complained that his food was late. When Deputy Penate told him to be patient, he replied: “ ‘No. No. No. No. No. Let me tell you who I am and how it is. [j[] Let me tell you who I am and what I am capable of doing. [][] . . . [<][] You know who I am?

HD You better ask your deputy friends and ask who I am.’ ” Finally, Deputy Penate testified that defendant “continuously manipulates and tries to control other deputies” and that defendant would often condition his compliance with orders from prison staff on receiving special items such as extra clothing or blankets. (

b) Circumstances of the Crimes

(1) Crimes Against Coleman and Latasha W. The prosecution presented substantially the same evidence in the penalty retrial that was presented at the guilt phase of the trial, including the testimony of Detective Sal LaBarbera, Latasha W, and Dr. Pedro Ortiz. The parties stipulated to the substance of the DNA evidence testimony provided by Madeline Marini, Michael Mastrocovo, and Dr. Robin Cotton.

(2) Gang Expert Testimony Los Angeles Police Detective Christopher Barling testified as an expert on the Harvard Park Brims gang, also known as the Six Deuce Brims gang. The Harvard Park Brims gang was an African-American Bloods gang affiliate that was associated with the color red. It was not uncommon for members of the Harvard Park Brims gang to refer to themselves as “Blood.” The Coleman and Foster crime scenes were within the territory of the Harvard Park Brims gang. Defendant had the letters HPB, short for Harvard Park Brims, tattooed on his left arm.

(3) Crimes Against Foster The prosecution presented substantially the same evidence in the penalty retrial that was presented at the guilt phase, including the testimony of Detective Frank Weber, Yvonne McGill, Patricia Manzanares, and Officer Marcelo Raffi.

The parties also stipulated to the following facts: (1) the gun recovered by Officer Raffi was the murder weapon in the Foster shooting; (2) the recovered gun contained six live rounds, including two CCI brand rounds and one Speer brand round; (3) the Speer round in the recovered gun and the Speer cartridge casings recovered from the Foster crime scene were the same types of rounds that were found in the ammunition box recovered from defendant’s residence; (4) police executed a search warrant at defendant’s residence and recovered four red T-shirts, an empty nine-millimeter Huger ammunition box, and a jacket;

(5) Dr. Steve Scholtz performed an autopsy on Foster and determined the cause of death was gunshot wounds to the head; and (6) a blood screening revealed cocaine metabolite in Foster’s system. (

c) Victim Impact Testimony — Chandra Vinning Coleman was survived by his elder sister, Chandra Vinning (Chandra), his mother, Sandra Vinning (Sandra), and his daughter. Because Sandra suffered from a medical disability that made it difficult for her to write, Chandra wrote a letter that summarized Sandra’s feelings about losing her son. Chandra testified that Coleman had been a great help to Sandra, ensuring that she went to her numerous doctor’s appointments by driving her or giving her cab fare. Sandra’s health had deteriorated since Coleman’s death.

Chandra further testified that Coleman’s daughter was “the joy of his life.” She identified a photograph depicting Coleman with his daughter, who was then four years old. On the night of his murder, Coleman had taken his daughter to an amusement park. 2. Defense Case (

a) Defendant’s Mental Health

(1) Dr. Louis W. Weisberg Dr. Louis W. Weisberg, a board-certified psychiatrist, testified that he evaluated defendant at the CYA in 1988. Although Dr. Weisberg had no independent recollection of the evaluation, he had written a report about it.

The report indicated that defendant had made the following statements with respect to his attack on Sandra Hess: (1) “he felt very frightened of what he had done because Hess was older”; (2) “he was afraid that he might really hurt someone”; and (3) “[h]e feels frightened about his behavior.” The report also indicated that defendant’s mother had a history of alcohol and drug abuse. Dr. Weisberg diagnosed defendant with severe conduct disorder “[u]ndifferentiated” type. Conduct disorder is characterized by disruptive conduct, a disregard for law and authority, and an avoidance of consequences.

Conduct disorder also refers to a pattern of antisocial behavior in persons under the age of 18. In adults, antisocial personality disorder is characterized by an unstable employment history, frequent arrests due to unlawful behavior, aggressiveness, impulsiveness, a tendency to lie, and an absence of remorse. Dr. Weisberg also diagnosed defendant with intermittent explosive disorder, a disorder characterized by outbursts of violent or aggressive behavior. He noted that defendant had reported a history of blackouts associated with violence. In his report, Dr.

Weisberg recommended that defendant be evaluated to rule out organic brain disorder and a seizure disorder. Defendant required “an intensive treatment program.”

(2) Dr Michael Gold Dr. Michael Gold, a medical doctor specializing in neurology, testified that he performed a neurological examination on defendant for purposes of the penalty phase trial. The examination included an interview with defendant and a general physical examination.

It also included the following diagnostic tests to evaluate defendant’s brain characteristics and function: (1) a brain wave or electroencephalogram (EEG) test; (2) a magnetic resonance imaging (MRI) brain scan; and (3) a single photon emission computed tomography (SPECT) scan, a nuclear imaging test that employs glucose injected with radioactive material to measure brain activity. The physical examination revealed that defendant’s general physical health was normal. The neurological test, however, suggested that defendant perceived less sensation on the left side of his body.

The left side of defendant’s body also demonstrated different reflexes than the right side. The results of these tests indicated to Dr. Gold that something was affecting the right side of defendant’s brain. Defendant’s EEG test and MRI scans were normal. The SPECT scan, however, revealed an abnormality: a decrease in the utilization of the radioactively laced glucose in the temporal lobes. Based on the “complimentary [sic]” results of defendant’s physical exam and the SPECT scan, Dr. Gold diagnosed defendant with malfunction or abnormal function of both of his temporal lobes.

The left temporal lobe is responsible for understanding, reading, speaking, and writing language, and the right temporal lobe is responsible for behavior, impulse control, and emotions.

(3) Dr Carl Osborne Dr. Carl Osborne, a forensic psychologist, testified that he was engaged by the defense in 1998 to interview and diagnose defendant. Dr. Osborne spent about 18 hours with defendant over eight visits. He reviewed extensive records pertaining to defendant, including previous psychological and psychiatric reports, records from the State Department of Social Services and Child Protective Services, interviews with defendant’s family members, and some of defendant’s own writings. Dr.

Osborne also performed three psychological tests on defendant: (1) the Wechsler Adult Intelligence Scale Third Edition, an IQ test comprised of 14 separate subtests measuring different areas of functioning; (2) the Validity Indicator Profile, a test designed to measure whether the test taker is malingering; and (3) the Wechsler Memory Scale, a test used to assess the test taker’s memory. Defendant was cooperative during the interviews and testing. Defendant scored a 94 on the Wechsler Adult Intelligence Scale, indicating normal intelligence. However, Dr.

Osborne found that defendant seemed to have significant difficulty with three tasks that comprise “working memory,” which is the ability to store information in one’s brain and manipulate that information on a short-term basis. Defendant appeared eager to do the best he could on the Validity Indicator Profile test, but the results of that test suggested that defendant was not paying close attention to what he was doing. Dr. Osborne concluded that defendant suffered from several severe and chronic mental illnesses. He diagnosed defendant as suffering from intermittent explosive disorder.

Individuals suffering from this disorder experience periods during which tensions or emotions build up until they “explode” in the form of aggressive or violent behavior. An explosive episode is followed by a period of quiescence, during which the pressure builds anew. Dr. Osborne also opined that defendant probably suffers from substance dependence. According to Dr. Osborne, defendant’s test results were consistent with Dr. Gold’s theory of underlying brain damage.

In particular, a diagnosis of intermittent explosive disorder would be consistent with temporal lobe damage because the temporal lobe affects impulse control and intermittent explosive disorder is an impulse control disorder. Similarly, a problem with working memory would be consistent with Dr. Gold’s diagnosis of temporal lobe damage. Dr.

Osborne opined that defendant’s behavior throughout his life was influenced by the following factors: (1) his mother was a drug addict who neglected him; (2) his early life was very chaotic; (3) his mother took him away from his aunt’s home where he was happy; (4) his father was absent from his life and very violent toward his mother; (5) he suffered extreme intrauterine trauma caused by a car accident that occurred when his mother was pregnant; and (6) he had deficient working memory, which is consistent with brain damage and an impaired ability to reason. Dr.

Osborne testified that medications exist that could control defendant’s behavior, but that these medications must be taken on a very regular basis over a long period of time to be effective. On cross-examination, Dr. Osborne stated that defendant will likely remain as violent as he has ever been but that his violent behavior might remit as he aged.

(4) Dr. Iraj Mansoori Dr. Iraj Mansoori, a psychologist with a Ph.D. in clinical psychology, testified that in 1991 he counseled defendant for approximately 12 to 15 hours over the course of six months while defendant was a ward at the CYA. Dr. Mansoori got along well with the defendant. On May 14, 1991, Dr. Mansoori wrote a parole evaluation report on defendant. Defendant was found not suitable for parole. In response to being informed by Dr. Mansoori that he would not be paroled, defendant stated simply, “That’s okay.” Dr. Mansoori interpreted defendant’s response as indicating a preference for the CYA over what defendant was offered at home. (

b) Defendant’s Childhood

(1) Mary Goldie Mary Goldie testified that on January 21, 1977, she was a detective with the Pasadena Police Department assigned to the juvenile section. On that day, a woman by the name of Mrs. Berkins came in with defendant, who was three years old at the time. Berkins was not a relative, and no relative could be located. Goldie took defendant into protective custody and transported him to a shelter care home arranged through McClaron Hall, a facility for abused and neglected children.

(2) Juanita Terry Juanita Terry testified that in 1978 she was working as a protective services employee in the “Metro Office” of the Los Angeles County Department of Public Social Services. Terry was assigned to defendant’s case on March 31, 1978. By that time, defendant had been placed with his aunt, Barbara Mitchell. He had been removed from his mother’s care because she was mentally unstable, had been beating him, and had not provided him consistent care and supervision.

Terry’s notes indicated that on several occasions, defendant’s mother had attempted to remove him from nursery school or had interfered with his care in Mitchell’s home. In October 1978, defendant’s mother regained custody of defendant against Terry’s recommendation.

(3) Ms. Emery The parties stipulated to the testimony that would have been provided by a certain Ms. Emery, who was defendant’s and his mother’s neighbor in 1978. Emery would have testified that during January and February of 1978, she witnessed defendant’s mother speaking to people who were not there and “scream[ing] and yell[ing] and act[ing] strange.” Emery also witnessed defendant’s mother striking him. As a result of these observations, Emery called the Los Angeles Department of Public Social Services. (

c) Defendant’s Family

(1) Linda Allen Linda Allen is defendant’s maternal aunt; defendant’s mother, Carole Sparks, is her older sister. Allen testified that Sparks was a heavy drug user and stripper. Sparks discovered she was three months pregnant with defendant after she was hit by an automobile while exiting a nightclub. She sustained serious injuries and was in a full body cast for a “long time.” Allen took care of Sparks while she was injured, and Sparks told her that she did not want to keep the baby. While pregnant, Sparks took prescribed medication and illegal drugs.

She gave birth to defendant while her pelvis and legs were still in casts. Allen testified that defendant’s father, Melvyn Banks (Melvyn), was very abusive. Melvyn burned Sparks with cigarettes and beat her with golf clubs. Allen recalled one time when she went in an ambulance with Sparks after finding Sparks on the floor of her apartment with bums to her chest. Allen could not remember whether this incident occurred before or after defendant was born because there were so many similar incidents. Melvyn died two or three years before defendant’s trial. Sparks attempted suicide many times. Once she drank Drano.

Allen could not recall if that incident occurred before or after defendant’s birth. After she got married in 1975, Allen did not see defendant until 1978 when he was three or four years old and living with Allen’s and Sparks’s sister, Barbara Mitchell. When defendant was returned to his mother’s custody, Allen again lost contact with him. Sparks prohibited Allen from having contact with defendant and, at one point, attempted to attack Allen and threatened to kill her and burn down her house because she thought Allen had picked up defendant from a foster home where he was living.

Although defendant was affectionate towards Sparks, Sparks never reciprocated his affection. Allen saw defendant at a grocery store when he was six or seven years old. Defendant was trying to make money for his mother by taking customers’ grocery bags to their cars. Allen prepaid a grocery store to provide defendant food because he complained that he was hungry. She did not give defendant money directly because he would give it to his mother. During the period when defendant was not in custody from November 30, 1993, through February 21, 1994, Allen saw defendant frequently at family gatherings.

She was “setting him up on programs, taking him [to job] interviews, getting his I.D. and birth certificate” in an attempt to help him become a better person. Defendant was always respectful in Allen’s presence and never exhibited any violence towards her or others. Allen loved defendant and wanted him to live.

(2) Barbara Mitchell Barbara Mitchell is defendant’s maternal aunt; Carole Sparks is her younger sister. Mitchell testified that she took care of Sparks after Sparks was injured in a car accident. Sparks took prescribed pain medication while she was pregnant with defendant but, to Mitchell’s knowledge, did not take any illegal drugs. At some point after defendant was bom, Sparks and defendant went to live with defendant’s father, Melvyn. Melvyn beat Sparks, choked her, pushed her down stairs, slammed car doors on her, and pulled her hair. Mitchell sporadically cared for defendant during this time.

When defendant was two years old, Sparks dropped him off at the daycare attended by Mitchell’s children with a note pinned to his jacket stating, “Take him. I don’t want him.” Mitchell took defendant and obtained legal custody of him. Defendant lived with Mitchell for about three years, during which time Mitchell cared for defendant as her own. Defendant was an affectionate child. Mitchell believed that defendant loved Sparks, but that he was afraid of Sparks at the same time.

Sparks would tell defendant: “ ‘You’re a man child, [¶] You have to fend for yourself.’ ” Mitchell testified that Sparks was a dmg addict who had used PCP, marijuana, and cocaine. She swallowed Drano one time. Mitchell believed Sparks was crazy. Sparks eventually told Mitchell she wanted to take defendant back because she was getting child assistance money from the county, and the county had discovered that defendant was not living with Sparks. After a hearing, a court returned custody of defendant to Sparks. Mitchell had no further contact with defendant until he was about nine years old.

At that time, defendant was living in a halfway house because he had been “bad.” Mitchell visited him there, and defendant cried during her visits. Defendant was moved from one foster home to another. Mitchell had never seen defendant act in a violent manner. She loved defendant and did not want him to die.

(3) Carole Sparks Carole Sparks, defendant’s mother, testified. She admitted that she had refused to speak with defense counsel and the defense investigator when they contacted her. The two penalty phase trials were the only times she had been willing to speak with defense counsel. Sparks testified that the accident in which she was seriously injured occurred before she knew she was pregnant with defendant. Sparks admitted to smoking marijuana before the accident but denied ever using heroin, cocaine, or PCP. However, she was on pain medication during her pregnancy. According to Sparks, defendant was bom in 1972.

But the parties stipulated that defendant was bom on April 3, 1973. Sparks denied that Mitchell and Allen took care of her after her accident or that they cared for defendant when he was an infant. She denied that defendant ever lived with Mitchell. She did not get along with either Allen or Mitchell, and referred to them as her mother’s daughters, not her sisters. Sparks denied having been a stripper. She claimed she had been a beauty school student, a bartender, and a waitress.

Sparks denied drinking Drano but acknowledged drinking a mixture of peroxide, sugar, water, and a few other ingredients to clear out her system from suspected PCP in her home’s ventilation system. She testified that defendant’s father lived with her from 1969 through 1971 but denied that defendant’s father beat her or that she was accompanied by her sisters to the hospital after any such beatings. Sparks denied that she dropped defendant off at a daycare center with a note stating she did not want him.

Although defendant was in foster homes and a group home for some time, whenever he ran away his probation officer released him to live with her. Sparks recalled an incident when defendant was nine or 10 years old and he came home with stolen property (possibly a bicycle); she made him return it. 3. Prosecution Rebuttal Case At the behest of the prosecution, Dr. Ronald Markman, a forensic psychiatrist, conducted a personal interview with defendant for about one and one-half hours in the lockup area of the courthouse on September 2, 1998. Dr.

Markman asked defendant questions about the crimes defendant had committed. He also reviewed defendant’s handwritten notes regarding his past. Dr. Markman testified that defendant denied committing the crimes he was convicted of in the guilt phase. Dr. Markman declined to label defendant manipulative but opined that defendant’s responses appeared to be carefully thought through and self-serving. Dr. Markman found defendant’s written notes about his childhood memories to be unconvincing.

Defendant wrote, for example, that at two years old he was concerned that his mother was being physically abused by his father and that she would die and leave him. Dr. Markman testified it was highly unlikely that defendant would remember an event that occurred when he was two years old. A child typically does not develop the concept of death until he or she is about eight or nine years old. Dr. Markman opined that several of defendant’s violent acts demonstrated premeditation and therefore were not caused by temporal lobe disorder. Dr.

Markman further testified that he is familiar with EEGs, MRIs, and SPECT imaging. Defendant’s normal MRI indicated the absence of physical abnormalities. Defendant’s normal EEG test suggested that the electrical function in his brain was normal. SPECT imaging, upon which Dr. Gold relied for his diagnosis, shows whether all areas of the brain are getting proper blood perfusion, but cannot be used to make a diagnosis or predict behavior. Dr. Markman accepted Dr. Gold’s

interpretation that defendant’s SPECT scan showed there was some blood flow impairment in defendant’s temporal lobes, but he rejected Dr. Gold’s conclusion that defendant had brain damage. II. DISCUSSION A. Guilt Phase Issues 1. Jury Selection: Batson/Wheeler Challenge Defendant, who is black, contends that the trial court erred in overruling his objection to the prosecutor’s use of peremptory challenges against three black prospective jurors. We disagree. (

a) Factual Background The prosecutor exercised five of his first 11 peremptory challenges against black prospective jurors. Defense counsel did not object to the first four of those challenges. After the prosecution exercised a preemptory challenge against a fifth black prospective juror, defense counsel made a motion under People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler). She pointed out that the prosecutor had struck five black jurors.

Defense counsel argued: “It appeared to me that certain jurors were very neutral on everything.” The trial court noted that it was “an interesting time to bring the motion” because the last prospective juror, Prospective Juror A.I., had been excused for an obvious reason, i.e., she had said that she was not sure she could be fair because defendant was so young.

Defense counsel replied that youth is a mitigating factor and added that she “couldn’t see the reason for the peremptory on the first woman who was excused which was Juror [J.R.]” Defense counsel then listed the specific prospective African-American jurors whom the prosecutor had excused.

When the trial court inquired if there was “anything else that [defense counsel] wish[ed] to add,” defense counsel responded: “Nothing at this time.” Shortly thereafter, defense counsel acknowledged that the challenged prospective jurors had expressed “some degrees of hesitation” about their ability to impose the death penalty, but suggested that other prospective jurors who had not been challenged had expressed some degree of hesitation as well. The prosecutor at first declined to comment because no prima facie case of discrimination had been shown. He took the opportunity, however, to clarify the record.

The prosecutor noted that he had exercised 11 peremptory challenges: six against women, five against men, five against black jurors, two against white jurors, three against Hispanic jurors, and one against an Asian-American juror. The trial court added that defense counsel had peremptorily struck 10 prospective jurors, comprised of two Hispanics, three Asian Americans, three whites, one black, and one man from the Philippines. The prosecutor said the current panel included four blacks, two white men, an Armenian man, two white women, an Asian-American woman, and a man of uncertain racial background.

Defense counsel agreed that there were four blacks on the jury panel but classified the Armenian man as white and the man of uncertain race as Hispanic. The trial court concluded that no prima facie showing had been made. It noted that defense counsel had exercised 10 peremptory challenges, only one of which was against a black prospective juror.

Defense counsel’s strikes were relevant, the trial court reasoned, “not because there is anything impermissible, but [because] it artificially skews things.” “[W]hen the defense does not excuse jurors of a particular sex or race, or what have you, the other side is left in a situation where mathematically as a matter of probability the chances will rise dramatically that the prosecution will exercise challenges [against members of the group in question].” “If you take ... the green socks out of the drawer and leave the blue ones in,” the trial court explained, “any challenge will be made to a blue sock.” The trial court further observed that each of the challenged black prospective jurors “gave answers in their questionnaire that presented] an ample ground in this case for the prosecution to exercise peremptories.” While it was true that all the prospective jurors had “passed the cause muster, which is not that difficult to do,” the trial court found that there were “things in the questionnaire” that could legitimately “bother” the prosecution.

The trial court then informed the prosecutor that he was permitted, but not required, to indicate his reasons for striking the five black prospective jurors.

The prosecutor responded, “I think it is creating a problem for me to justify when there is no prima facie showing. [][] I would say that the questionnaires speak for themselves in terms of the answers written there. [][] The number of answers they provided while they were seated in the box either caused me discomfort or concern on their ability to impose the death penalty. [][] That is why I excused all of these people was for inability to impose the death penalty.” Asked if she had anything to add, defense counsel noted that although blacks comprised about one-third of the entire panel of 150 jurors, the prosecution had exercised almost half of its peremptory challenges against black jurors.

The trial court reiterated that, under the circumstances, it was difficult to draw any inference from the number of challenges alone because “when you don’t exclude jurors of a particular race, that means by the nature of math and counting that more of that group will be excluded from the other side because that is what is left when the side makes its challenges.” The trial court also said: “Given the answers of those jurors that you complain of, and many other jurors, not just those, other jurors that were excused in this case by the prosecution, it is obvious to the court that the reason the jurors were being excused has to do with answers given in the questionnaire. [][] . . . [][] Each of those jurors expressed problems with the concept of the death penalty and its imposition and doubts about their ability and confusion in some cases. [|] Many I don’t know answers and things of that nature, [¶] Many other things that would certainly give pause to a reasonable opponent in a criminal case.” The seated jury consisted of six black and six white jurors. (

b) Analysis “ ‘The prosecution’s use of peremptory challenges to remove prospective jurors based on group bias, such as race or ethnicity, violates a defendant’s right to trial by a jury drawn from a representative cross-section of the community under

article I,

section 16 of the California Constitution and his right to equal protection under the Fourteenth Amendment to the United States Constitution.’ ” (People v. McKinzie (2012) 54 Cal.4th 1302, 1319 [144 Cal.Rptr.3d 427, 281 P.3d 412]; see Batson v. Kentucky (1986) 476 U.S. 79, 89 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson); Wheeler, supra, 22 Cal.3d at pp. 276-277.) Although defense counsel invoked only Wheeler, a Wheeler objection preserves a Batson claim. (People v.

Yeoman (2003) 31 Cal.4th 93, 117-118 [2 Cal.Rptr.3d 186, 72 P.3d 1166].) A Batson/Wheeler objection triggers a three-step inquiry. “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 [162 L.Ed.2d 129, 125 S.Ct. 2410], fn. omitted; see People v. Thomas (2011) 51 Cal.4th 449, 473 [121 Cal.Rptr.3d 521, 247 P.3d 886].) Here, the trial court first found that there was no prima facie case with respect to any of defendant’s Batson/Wheeler claims. Nonetheless, after initially hesitating, the prosecutor accepted the court’s invitation to explain his strikes and stated that all three jurors were struck because of what he perceived to be their reluctance to impose the death penalty.

The trial court agreed with the prosecution that the challenged jurors had demonstrated reluctance about the death penalty. “We have characterized such a circumstance as a ‘first stage/third stage Batson hybrid,’ which renders ‘ “moot” ’ whether defendant established a prima facie showing of a discriminatory purpose. [Citation.] ‘Accordingly, we express no opinion on whether defense counsel established a prima facie case of discrimination and instead skip to Batson’s third stage to evaluate the prosecutor’s reasons for dismissing [the] African-American prospective jurors.’ ” (People v.

Riccardi (2012) 54 Cal.4th 758, 786-787 [144 Cal.Rptr.3d 84, 281 P.3d 1].) At the third stage of Batson, the “critical question ... is the persuasiveness of the prosecutor’s justification for his peremptory strike.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 338-339 [154 L.Ed.2d 931, 123 S.Ct. 1029].) Usually, “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.” (Id. at' p. 339.) “ ‘As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.” ’ ” (Ibid.) Thus, in reviewing a trial court’s reasoned determination that a prosecutor’s reasons for striking a juror are sincere, we typically defer to the trial court and consider only “whether substantial evidence supports the trial court’s conclusions.” (People v.

Lenix (2008) 44 Cal.4th 602, 627 [80 Cal.Rptr.3d 98, 187 P.3d 946] (Lenix).) In this case, defendant challenges the trial court’s rulings with respect to three of the five black jurors struck by the prosecutor; J.R., R.W., and A.I. Defendant first argues that the trial court erred in considering the fact that defendant’s decision to strike only one black juror rendered it statistically more probable that the prosecutor would strike black jurors at a higher rate than the rate at which such jurors were represented in the venire. We disagree.

In deciding whether substantial evidence supports a trial court’s determination that a peremptory challenge was not motivated by race, we must consider the “entire record” before the court. (Lenix, supra, 44 Cal.4th at p. 621.) In this case, as the trial court explained, the manner in which defense counsel exercised her peremptory challenges provided relevant context.

Because black jurors comprised roughly a third of the venire, the fact that defense counsel had exercised only one of her 10 peremptory challenges against a black juror increased the percentage of blacks remaining on the panel, thus increasing the likelihood that the prosecutor would exercise a disproportionate share of his peremptory challenges against black jurors for entirely permissible reasons. Moreover, the disparity between the percentage of blacks in the entire jury pool and the percentage of peremptory challenges the prosecutor exercised against black prospective jurors is not very significant.

The prosecutor used about 45 percent of his peremptory challenges to remove black jurors. Had he removed one fewer black juror, that percentage would have fallen to about 36 percent, almost equal to the percentage of blacks in the entire jury pool. And at the time defendant made his Wheeler motion, four of the 12 prospective jurors on the panel — exactly one-third — were black. Given the small sample size at issue, the trial court reasonably refused to infer a discriminatory intent on the basis of these statistics. (See People v.

Cleveland (2004) 32 Cal.4th 704, 734 [11 Cal.Rptr.3d 236, 86 P.3d 302] (Cleveland) [where the jury’s minority composition is ultimately “either slightly higher or slightly lower” than the venire’s, such statistics are “probative” although not necessarily “dispositive” of a lack of discriminatory intent].) Second, defendant argues that the prosecutor’s stated reason for excusing each of the three prospective jurors — their “inability to impose the death penalty” — is belied by the record.

He further argues that the prosecutor’s initial reluctance to explain the reasons for his challenges is “suspect.” If the prosecutor “had valid, race-neutral reasons for challenging each of the jurors,” defendant argues, “then logically it would create no problem for him to justify those challenges in a succinct statement to the court.” As an initial matter, the prosecutor was not obliged to state his reasons for challenging any prospective juror because the trial court concluded that defendant had not made a prima facie case of discrimination. (People v.

Carasi (2008) 44 Cal.4th 1263, 1292 [82 Cal.Rptr.3d 265, 190 P.3d 616].) Thus, there is nothing suspect about any reluctance the prosecutor may have had to state his reasons. In any event, the trial court’s conclusion that defendant did not carry his burden of demonstrating that the prosecutor acted with discriminatory intent is supported by substantial evidence. The prosecutor offered valid race-neutral reasons for excusing each of the three prospective jurors.

All three prospective jurors answered the written questionnaire in a manner that suggested a significant degree of confusion or hesitation regarding their ability to impose the death penalty. Prospective Juror J.R. circled both “yes” and “no” in response to question 31(

f) of the questionnaire, which asked: “Regardless of your views on the death penalty, would you as a juror, be able to vote for the death penalty on another person if you believe after hearing all the evidence, that the penalty was appropriate?” During voir dire, J.R. explained that the question “didn’t have an T don’t know’ so I put a yes and no.” When asked if “don’t know” was her answer, J.R. stated, “Well, I understood it, but my answer to that is I don’t know anything much about the death penalty.” Similarly, J.R. selected “don’t know” in answer to questions 33 and 34.

Question 33 asked, “In this penalty phase would you automatically, in every case, regardless of the evidence, vote for life in prison without the possibility of parole?” And question 34 asked, “Do you have any conscientious objections to the death penalty which you believe might impair your ability to be fair and impartial in a case in which the prosecution is seeking the death penalty?” Prospective Juror R.W. responded to question 30 of the questionnaire by writing: “I have never given a serious thought to the death penalty I would have to say I honestly don’t know if I could vote on putting some one to death.” Question 31(

e) of the questionnaire asked, “Do you feel California should have the death penalty?” to which Prospective Juror R.W. responded, “I don’t know. I don’t see it as a way to stop crime because we don’t kill everybody who commits a crime.” She also wrote, in answer to a later question: “I don’t know what the purpose [of the death penalty] is because it still doesn’t stop crime!” In response to question 34, she selected “don’t know” as to whether she had any conscientious objections to the death penalty.

During voir dire, when questioned by the court about her answers to these questions, R.W. twice stated only that she “th[ought]” she would be able to impose the death penalty if she found the aggravating factors to outweigh the mitigating factors. Prospective Juror A.i.’s written and oral answers also revealed that she had qualms about the death penalty and was not sure she could serve as an impartial juror because of defendant’s age.

In response to question 33, A.I. selected, “don’t know.” When asked at voir dire if she could “think of any reason [she] would tend to favor one side or the other,” A.I. hesitated to answer and then at the court’s urging replied, “I don’t know. He seems very young. I might hesitate.” Prospective Juror A.I. also told the trial court that she would have difficulty looking at pictures of “autopsies” and the “murder scene.” Defendant correctly observes that none of these three prospective jurors would have been excusable for cause because each expressed a willingness to follow the law if selected for the jury.

However, “[a] prosecutor’s reasons for exercising a peremptory challenge ‘need not rise to the level justifying exercise of a challenge for cause.’ ” (People v.

Hamilton (2009) 45 Cal.4th 863, 901 [89 Cal.Rptr.3d 286, 200 P.3d 898] (Hamilton)) “Moreover, even when jurors have expressed neutrality on the death penalty, ‘neither the prosecutor nor the trial court [i]s required to take the jurors’ answers at face value.’ [Citation.] If other statements or attitudes of the juror suggest that the juror has ‘reservations or scruples’ about imposing the death penalty, this demonstrated reluctance is a race-neutral reason that can justify a peremptory challenge, even if it would not be sufficient to support a challenge for cause.” (People v.

Lomax (2010) 49 Cal.4th 530, 572 [112 Cal.Rptr.3d 96, 234 P.3d 377].) In sum, substantial evidence supports the trial court’s determination that the prosecutor’s strikes of Prospective Jurors J.R., R.W., and A.I. were motivated by the answers on their juror questionnaires indicating ambivalence about the death penalty. Our determination is additionally supported by the fact that at the time defendant made his Batson motion, the jury’s racial composition exactly matched the venire’s and by the fact that half of the jurors ultimately seated were black, a higher ratio than in the venire.

This is a significant “ ‘indication of the prosecutor’s good faith in exercising his peremptories.’ ” (People v. Huggins (2006) 38 Cal.4th 175, 236 [41 Cal.Rptr.3d 593, 131 P.3d 995]; see Cleveland, supra, 32 Cal.4th at p. 734.) For the first time on appeal, defendant identifies over two dozen unchallenged prospective jurors, three of whom ultimately served on the jury, who circled at least one “don’t know” answer to questions 32, 33, and 34.

Assuming that defendant has not forfeited this argument by waiting until his reply brief to raise it, the comparative juror analysis he urges does not demonstrate that the strikes at issue were based on the jurors’ race. First, the answers of the prospective jurors who never made it into the jury box are irrelevant because they do not prove that the prosecutor would have accepted such jurors. Nor is it relevant whether a prospective juror circled “don’t know” with respect to question 32, which asked whether a juror would always vote to impose the death penalty.

Second, with respect to the three jurors who ultimately served on the jury, none circled “don’t know” in answer to both questions 33 and 34, and none took the step of indicating uncertainty in response to question 31(f), as Prospective Juror J.R. did. None wrote explicit comments akin to R.W.’s indicating that he or she doubted the efficacy of the death penalty, nor did any give repeated equivocal answers akin to R.W.’s at voir dire.

To the contrary, each of the three seated jurors indicated strong support for the death penalty and a clear willingness to impose such a sentence in both their juror questionnaires and their voir dire. Similarly, none came close to demonstrating the type of reservations expressed by A.I. about imposing the death sentence on this particular defendant because of his youthful appearance.

Third, the trial court had the opportunity to see the demeanor of all of the relevant jurors, and it stated on the record that the challenged jurors had demonstrated more reluctance to impose the death penalty than other jurors whom the prosecution did not challenge. Thus, even considering the comparative juror analysis urged by defendant, substantial evidence supported the trial court’s determination that the prosecutor’s peremptory challenges against Jurors J.R., R.W., and A.I. were proper. 2. Whether Defendant Was Properly Convicted of Willful, Deliberate, and Premeditated Attempted Murder of Latasha W.

Defendant argues that the trial court erred by permitting the jury to convict him of the willful, deliberate, and premeditated attempted murder of Latasha W, a crime with which he was not expressly charged in the indictment. We do not decide whether defendant consented to be tried for willful, deliberate, and premeditated attempted murder because we agree with defendant that the jury was not properly instructed on the meaning of the terms “willful,” “deliberate,” and “premeditated” in any event. We therefore order a reduction of defendant’s conviction on count 2 to a conviction for regular attempted murder.

We conditionally impose a lower term sentence on that count, but permit the prosecution to seek resentencing should it wish to do so. (

a) Factual Background In count 2 of the indictment, defendant was charged with attempted murder, in violation of sections 664 and 187, subdivision (a). Count 2 alleged that “On or about July 1, 1996, in the County of Los Angeles, the crime of attempted murder, in violation of Penal Code

section 664/187(A), a felony, was committed by [defendant], who did willfully, unlawfully and with malice aforethought attempt to murder Latasha [W], a human being.” (Some capitalization omitted.) The indictment did not allege that the attempted murder was “deliberate” or “premeditated.” That omission is significant because the sentence for regular attempted murder is a determinate term of “five, seven, or nine years” of imprisonment. (§ 664, subd. (a).) The sentence for attempted “willful, deliberate, and premeditated murder,” by contrast, is “life with the possibility of parole.” (Ibid.) Nor was the jury instructed on a theory of attempted willful, deliberate, and premeditated murder.

When discussing CALJIC No. 8.20, which is the instruction regarding the

definitions of the terms “willful,” “deliberate,” and “premeditated,” in the context of one of the first degree murder charges, the parties informed the court that they had agreed that the instruction would be given only with respect to the Michael Haney murder, of which defendant was acquitted. The parties did not discuss giving CALJIC No. 8.67, the analogous instruction pertaining to willful, deliberate, and premeditated attempted murder, with respect to count 2.

When orally instructing the jury regarding the elements of count 2, the trial court described the count only as alleging “attempted murder.” The court said nothing suggesting that defendant was charged with attempted willful, deliberate, and premeditated murder of Latasha W., and it did not give CALJIC No. 8.67 or otherwise define those terms with respect to count 2. The court did define the terms “deliberate” and “premeditated” when it read CALJIC No. 8.20 to the jury in connection with count 7, the Haney murder.

Immediately before doing so, however, the court explicitly told the jury that the instruction “applies to the Haney homicide charge only.” The word “HANEY” is handwritten at the top of the copy of CALJIC No. 8.20 that was given to the jury. Nonetheless, during closing argument the prosecution asserted that defendant’s actions demonstrated that defendant’s attempt to kill Latasha W. was willful, deliberate, and premeditated. The prosecution had argued a similar theory to the grand jury when securing the indictment.

There was no discussion between the parties and the court regarding the jury verdict form for count 2. That form first asked the jury to find whether defendant attempted to murder Latasha W. It then asked the jury to find true or not true the allegation that the attempted murder was “willful, deliberate and premeditated.” The jury found the allegation to be true. (

b) Analysis Defendant contends that because he was not charged in the indictment with willful, deliberate, and premeditated attempted murder, it was statutory and constitutional error for the court to permit the jury to consider whether he acted with deliberation and premeditation and then to sentence him on that basis rather than for having committed regular attempted murder.

Alternatively, he says that the trial court’s failure to instruct the jury on the meanings of “willful,” “deliberate,” and “premeditated” deprived him of his right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution. He therefore urges that his life sentence on count 2 for attempted willful, deliberate, and premeditated murder be reduced to a determinate sentence for regular attempted murder. The Attorney General responds that defendant forfeited his claim that he was not properly charged in the indictment by failing to raise it at trial.

Alternately, defendant impliedly consented to being tried with that enhancement by not objecting to the jury verdict form. The Attorney General also argues that the indictment reflects a mere “technical inadequacy” because defendant was on notice of the prosecution’s intent to charge him with willful, deliberate, and premeditated murder, both because count 2 alleged that defendant acted “willfully” and because the grand jury transcript revealed the prosecutor’s theory.

As to the trial court’s failure to properly instruct the jury, the Attorney General concedes the error but argues that the error was harmless beyond a reasonable doubt. Because we find that the trial court prejudicially erred in failing to instruct the jury on the meanings of “willful,” “deliberate,” and “premeditated,” we do not address whether defendant consented to having those allegations placed before the jury. Assuming without deciding that defendant was properly charged with willful, deliberate, and premeditated murder, the trial court was required to instruct the jury on what those terms mean.

The willful, deliberate, and premeditated nature of an attempted murder is “ ‘the functional equivalent of an element’ ” of the offense insofar as it increases the punishment for an attempted murder. (People v. Seel (2004) 34 Cal.4th 535, 548 [21 Cal.Rptr.3d 179, 100 P.3d 870].) As such, it must be submitted to a jury and proved beyond reasonable doubt. (Id. at p. 549; see Apprendi v.

New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348].) In turn, because the willful, deliberate, and premeditated nature of an attempted murder is the functional equivalent of an element of the offense, the trial court was required to instruct the jury on those elements even though defendant did not request such an instruction. (See, e.g., People v.

Montoya (1994) 7 Cal.4th 1027, 1047 [31 Cal.Rptr.2d 128, 874 P.2d 903] [“It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.”].) Thus, the trial court erred in permitting the jury to consider the charge of attempted willful, deliberate, and premeditated murder without a proper instruction on what those terms mean.

The failure to instruct the jury on an element of an offense is federal constitutional error because it violates the defendant’s due process and Sixth Amendment rights to have a jury adjudicate guilt beyond a reasonable doubt. (People v. Gonzalez (2012) 54 Cal.4th 643, 662-663 [142 Cal.Rptr.3d 893, 278 P.3d 1242]; People v.

Bolden (2002) 29 Cal.4th 515, 560 [127 Cal.Rptr.2d 802, 58 P.3d 931].) Such error is “harmless only if, after conducting a thorough review of the record, the court determines beyond a reasonable doubt that the jury verdict would have been the same absent the error.” (Bolden, at p. 560; see Gonzalez, at p. 663; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].) On the facts here, we cannot be certain beyond a reasonable doubt that the jury would have found defendant guilty of attempted willful, deliberate, and premeditated murder had it been properly instructed.

In order to find defendant guilty of that charge, the jury would have had to conclude that his acts were the result of “ “ “careful thought and weighing of considerations” ’ ” ’ ” rather than an “ ‘ “ ‘unconsidered or rash impulse.’ ” ’ ” (People v. Manriquez (2005) 37 Cal.4th 547, 577 [36 Cal.Rptr.3d 340, 123 P.3d 614] (Manriquez); see People v.

Anderson (1968) 70 Cal.2d 15, 26-27 [73 Cal.Rptr. 550, 447 P.2d 942]; see also CALJIC No. 8.67.) That standard is not met by showing only that a defendant acted willfully and with specific intent to kill. “By conjoining the words ‘willful, deliberate, and premeditated’ in its definition and limitation of the character of killings falling within murder of the first degree the Legislature apparently emphasized its intention to require as an element of such crime substantially more reflection than may be involved in the mere formation of a specific intent to kill.” (People v.

Thomas (1945) 25 Cal.2d 880, 900 [156 P.2d 7], italics added.) Latasha W. testified that defendant shot Coleman in the head at point-blank range shortly after entering Coleman’s house and again before departing. But defendant did not take equally deliberate steps toward killing Latasha W. Instead, one of his confederates tied her up with a telephone cord. Then, only as defendant was on the verge of leaving the house, did he fire a shot at Latasha W. that grazed her ear. No doubt there is sufficient evidence from which a rational factfinder could infer that defendant acted with deliberation and premeditation.

But the pertinent question here is whether there is no reasonable possibility that the jury could have concluded otherwise had it been properly instructed. The manner in which defendant shot Coleman and later, for good measure, shot him a second time plainly indicates that defendant killed him with deliberation and premeditation.

But the manner in which defendant shot at Latasha W., while sufficient to support a finding of intent to kill, does not necessarily compel a finding that defendant fired the single shot at her as a result of “ ‘ “ ‘ “careful thought and weighing of considerations” ’ ” ’ ” as opposed to an “ ‘ “ ‘unconsidered or rash impulse’ ” ’ ” just before exiting the home as his two accomplices waited outside. (Manriquez, supra, 37 Cal.4th at p. 577.) On these facts, we cannot say it would have been unreasonable for the jury, had it been properly instructed, not to find deliberation and premeditation.

The Attorney General’s argument that the jury likely relied upon the definition of the terms “willful,” “deliberate,” and “premeditated” contained in the instructions regarding the murder of Haney is not persuasive. The court specifically instructed the jury to consider that instruction as “to the Haney homicide charge only.” (Italics added.) We “presume the jury followed the court’s instructions.” (People v.

Letner and Tobin (2010) 50 Cal.4th 99, 172 [112 Cal.Rptr.3d 746, 235 P.3d 62].) Furthermore, because the jury found defendant not guilty of the Haney murder, in which defendant was charged with both first degree and second degree murder, the jury would have had little cause to consider what the critical terms “deliberate” and “premeditated” mean in connection with that charge.

Thus, when the jury was deliberating on the attempted murder charge, the only instructions it likely would have considered are the ones the court gave regarding regular attempted murder, which did not explain the standard for a finding of deliberation and premeditation. The Attorney General is similarly unpersuasive in her contention that the court’s instructional error was harmless because the jury verdict form told the jurors that they should only find willfulness, deliberation, and premeditation if they could do so beyond a reasonable doubt.

This contention simply begs the question as to what legal question the

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