People v. McDaniel

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
DON’TE LAMONT MCDANIEL,
Defendant and Appellant.

S171393

Los Angeles County Superior Court
No. TA074274-01

August 26, 2021

Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Cuéllar,
Kruger, Groban, and Jenkins concurred.

Justice Liu filed a concurring opinion.
 PEOPLE v. MCDANIEL
S171393

Opinion of the Court by Liu, J.

Defendant Don’te Lamont McDaniel was convicted of two
counts of first degree murder for the shootings of Annette
Anderson and George Brooks, two counts of attempted murder
for the shootings of Janice Williams and Debra Johnson, and
possession of a firearm by a felon. (Pen. Code, §§ 187, subd. (a),
664 & 187, subd. (a), former 12021, subd. (a)(1); all
undesignated statutory references are to the Penal Code.) The
jury found true the special circumstance of multiple murder.
(§ 190.2, subd. (a)(3).) The jury also found true the allegations
of intentional discharge and use of a firearm, intentional
discharge resulting in great bodily injury and death, and
commission of the offense for the benefit of, at the direction of,
and in association with a criminal street gang. (§§ 12022.53,
subd. (d), 122022.53, subds. (d) & (e)(1), 186.22, subd. (b)(l).)
After the first penalty phase jury deadlocked, a second jury
delivered a verdict of death on December 22, 2008. This appeal
is automatic. (§ 1239, subd. (b).) We affirm.
I. FACTS
A. Guilt Phase
1. Prosecution Case
The events occurred in and around Nickerson Gardens, a
large public housing complex in Southeast Los Angeles. In 2004,
the Bounty Hunter Bloods gang was active in Nickerson
Gardens, with about 600 members registered in law

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enforcement databases. McDaniel and Kai Harris were
members of the Bounty Hunter Bloods, as was one of the
victims, Brooks.
On April 6, 2004, at 3:30 a.m., officers responded to reports
of gunshots at Anderson’s apartment in Nickerson Gardens.
Entering through the back door, they observed the bodies of
Anderson and Williams. Williams appeared to be alive.
Brooks’s body was slumped against the refrigerator. In the
living room, an officer observed Johnson, who had a gunshot
wound to the mouth and was trying to stand up.
Anderson died at the scene from multiple gunshot wounds.
Stippling indicated that the wound to her face was inflicted at
close range. Cocaine and alcohol were present in Anderson’s
body at the time of her death. Brooks also died at the scene from
multiple gunshot wounds; he suffered five wounds to the face,
and stippling indicated they were fired at close range. Williams
survived gunshot wounds to her mouth, arms, and legs, and she
spent three to four months in the hospital. Johnson also
survived gunshots to the face and chest and underwent multiple
surgeries.
Physical evidence collected at the scene included ten nine-
millimeter and six Winchester .357 magnum cartridge cases.
Investigators found one nine-millimeter cartridge case on
Brooks’s stomach and two .357 magnum cartridge cases on his
neck. Two nine-millimeter cartridge cases were found near
Anderson’s hands. Investigators also recovered drug
paraphernalia, including a metal wire commonly used with a
crack pipe near Anderson’s hand, a glass vial containing a
crystal-like substance, and a plastic bag containing a rock-like
substance in Brooks’s pants.

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Five days later, during a traffic stop, Deputy Sheriff
Marcus Turner recovered a loaded Ruger nine-millimeter gun
and associated ammunition from McDaniel. McDaniel
identified himself as Mitchell Reed. About one month later,
Officer Freddie Piro arrested a member of the Black P-Stone
gang in Baldwin Hills, an area 13 miles away from Nickerson
Gardens. During the arrest, Officer Piro recovered a .375
magnum Desert Eagle handgun.
Ten of the cartridges recovered from the scene matched
the nine-millimeter Ruger recovered from McDaniel. Six of the
cartridges found at the scene matched the .357 magnum Desert
Eagle. The examiner also analyzed projectile evidence
recovered at the scene and concluded that none was fired by the
nine-millimeter gun. The source of other ballistics evidence was
inconclusive.
In addition to this physical evidence, the prosecution
introduced testimony from the survivors of the shooting and
other witnesses who placed McDaniel and Harris at or near the
crime scene. The defense case consisted primarily of exploiting
inconsistencies in these witnesses’ statements and the fact that
many of the witnesses were intoxicated at the time of the
shooting.
Williams testified that she was sitting at the table with
Anderson on the evening of the shooting. Williams heard a
whistle and then a knock on the back door. Elois Garner was at
the backdoor and identified herself. Anderson opened the door,
and Williams saw McDaniel enter the apartment shooting.
After Williams was shot, she fell on the floor and lost
consciousness. Williams had known McDaniel for about 10
years.

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Although Williams had a history of drug use, she denied
using drugs that night, but she testified that she had been
drinking. She did not see Anderson or Brooks doing cocaine, nor
did she see any other drug paraphernalia in the apartment.
Williams did not realize that Johnson was in the living room and
thought Johnson was in jail at the time. At the preliminary
hearing, Williams testified that she had “nodded off”
immediately before the shooting. When confronted with this
prior testimony, she admitted to being “in and out” that night
and that her head was down on the table at the time of the knock
on the back door. Williams first identified McDaniel as the
shooter on April 12, 2004, when officers showed her a six-pack
photo lineup in the hospital.
Johnson died of unrelated causes before trial, so the
prosecutor read her testimony from the preliminary hearing. At
3:00 a.m. on April 6, 2004, Johnson was sleeping on the living
room floor at Anderson’s home. She awoke to the sound of
multiple gunshots coming from the kitchen. Johnson saw
McDaniel enter through the back door then exit the kitchen and
head toward the hallway. She looked up and saw McDaniel in
dark clothes standing over her. He shot her and then crouched
down and moved toward the front door. She heard two male
voices during the shooting, neither of which was Brooks’s.
McDaniel was the only person she saw in the living room.
When Detective Mark Hahn interviewed Johnson at the
hospital on April 9, 2004, she initially said she did not see the
shooter because she was asleep when she was shot. During the
preliminary hearing, she explained that she did not identify
McDaniel because she was afraid. On April 12, the detectives
showed her a six-pack photo lineup. Johnson circled McDaniel’s
photograph but did not tell the police his name; instead, she

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wrote “shorter black boy.” The court attempted to clarify whom
she was comparing McDaniel to since she only saw one shooter
in the house. She explained that Williams had told her at the
hospital a second man was involved: “a tall, light-skinned dude
at the backdoor.”
The prosecution also introduced testimony from various
witnesses recounting the events immediately before and after
the shooting. On the night leading up to the shooting, Derrick
Dillard was with Brooks at Anderson’s apartment in Nickerson
Gardens. Dillard and Brooks left Anderson’s apartment to go to
Harris’s house a half-block away. After 15 minutes, they left to
return to Anderson’s apartment. On the way, Brooks, Harris,
and Dillard ran into McDaniel. Brooks and McDaniel spoke
briefly, and McDaniel asked Brooks “where have he been” and
said that “Billy Pooh’s looking for him.” Detective Kenneth
Schmidt testified that William Carey went by the name “Billy
Pooh.”
Dillard and Brooks proceeded to Anderson’s house along
with Prentice Mills. They went into Anderson’s bedroom and
used cocaine. Dillard testified that Anderson called out that
someone was at the door for Brooks, and Brooks left the room.
Dillard heard the back door open, followed by female screams
and gunshots. After the gunshots stopped, Dillard did not hear
anything and remained under the bed. After 10 minutes, he and
Prentice left the room. Prentice left the house. Dillard called
911 and then left.
That night, Garner was drinking Olde English and
walking in the vicinity of Anderson’s apartment. She was
approached by McDaniel and someone named “Taco,” whom she
later identified as Harris. She had seen both men before in the

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neighborhood. McDaniel put a gun to her head and ordered her
to knock on Anderson’s back door. Both men were wearing
black.
Garner’s testimony diverged from the testimony of
Dillard, Williams, and Johnson in several respects. Garner
testified that she knocked at the back door but did not say
anything. After knocking, she ran to a nearby parking lot.
About five minutes later, she heard two gunshots and then two
more, which conflicted with other witnesses’ testimony that they
heard immediate gunfire. She saw McDaniel and Harris run
out of the back of Anderson’s apartment toward the gym. After
the shooting had ended, she returned to the apartment and
looked inside. She saw Anderson on the ground.
During her first interview on April 15, 2004, Garner said
she had heard the shots, but she did not identify the shooters or
tell the police about knocking on Anderson’s door. During an
interview on May 26, she identified McDaniel and Harris, and
she told police that McDaniel had held a gun to her head.
Angel Hill was Harris’s girlfriend and lived with him at
Dollie Sims’s house a half-block away from Anderson’s
apartment. On April 6, Hill saw McDaniel and Harris sitting on
Sims’s porch. Hill left the house and went to a nearby parking
lot. She heard gunshots. She was supposed to pick up Dillard
from Anderson’s apartment, so she got in her car and drove over.
No one came to the back door when she knocked. After that, she
returned to Sims’s house where she saw McDaniel and Harris
smoking on the porch. Hill, Harris, and McDaniel then went to
the home of Tiffany Hawes, McDaniel’s girlfriend.
Hill testified that at Hawes’s home, McDaniel was
“bragging about” the shooting like it was “a big joke.” They

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watched a news report about the shooting, and McDaniel
explained what had happened in Anderson’s apartment. He
said to Harris, “You disappointed me, man.” At some point,
Carey arrived. McDaniel and Carey discussed what had
happened, and McDaniel again bragged about the shooting.
The defense emphasized that Hill had provided conflicting
testimony throughout the investigation. While Harris was in
jail awaiting trial, he asked Hill to tell the police he had never
left the house that night. Hill wrote Harris a letter saying she
would do anything for him. In her first police interview on April
13, 2004, Hill said she was home with Harris the entire night.
She was using PCP, crystal meth, cocaine, marijuana, and
liquor on the night before the shooting.
Shirley Richardson also lived in Sims’s house. Richardson
testified that on the night of the shooting, she, Hill, and Harris
were home getting high on PCP, crystal meth, and cocaine.
McDaniel came over that night wearing black. He had a long
gun and asked Harris to leave the house with him. Harris did
not want to leave but eventually left. Richardson saw Harris
with a Desert Eagle handgun that night. A few minutes after
Harris left, Richardson heard gunshots. When McDaniel and
Harris returned to Sims’s house, Harris appeared upset.
On the night of the shootings, Sims returned home from
work at 12:30 a.m. and saw Harris, Hill, Richardson, and
Kathryn Washington in Harris’s bedroom. Sims fell asleep for
about 30 minutes and awoke to McDaniel banging on her back
door and asking for Harris. Harris told her not to open the door
and to go back to her room. From inside her room, she heard
McDaniel tell Harris that someone in the projects had been
robbing the places where he “hustled,” and he wanted Harris to

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help him “to go handle this.” Fifteen minutes after McDaniel,
Harris, Richardson, Hill, and Washington left the house, Sims
heard gunshots. Ten minutes after the gunshots, Hill,
Richardson, and Washington returned to the house. Five
minutes later, Harris returned. When McDaniel returned, he
talked about buying tickets for all of them to go to Atlanta,
saying, “We can all take this trip and stuff and everything be
cool. Just everything, keep it under the rock and we keep
pushing.”
On the morning of April 6, 2004, McDaniel asked Hawes
to pick him up near 112th Street and Compton Avenue. She
picked him up first, then picked up Harris and Hill at Sims’s
house. They went back to her house where they watched news
coverage of the shooting. Contrary to Hill’s testimony, Hawes
testified that McDaniel did not say anything while watching the
news and that she did not see Billy Pooh at her house that night.
When police searched Hawes’s house in December 2004,
they found a newspaper article about the shooting at Anderson’s
apartment and an obituary for William Carey (Billy Pooh), who
was killed sometime after the shooting. The police also found
bus tickets to Atlanta in Mitchell Reed’s name.
Myesha Hall lived three doors down from Anderson in a
second-story Nickerson Gardens apartment. Around 3:00 a.m.
on April 6, 2004, she was standing at her window when she
heard four single gunshots. She saw a short Black man wearing
a white T-shirt run out of the back door of Anderson’s
apartment. After that, she heard “a lot of shots, like automatic.”
She then saw two tall Black men wearing dark-colored clothes
run out of Anderson’s back door. She did not hear any more
gunshots after that.

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2. Defense Case
The defense presented one witness, Dr. Ronald Markman,
a psychiatrist familiar with the effects of PCP,
methamphetamine, cocaine, marijuana, and alcohol. He
testified to the effects of each drug on perception when used
individually and the effects when used together. The “slowing”
or “depressant qualities” of marijuana could possibly be
neutralized by the stimulating effect of methamphetamine or
cocaine. The symptoms that are common to the drugs would be
accentuated when those drugs are taken together.
B. Penalty Phase
1. Prosecution Case
After the first jury hung in the penalty phase, the
prosecutor presented the guilt phase evidence described above
concerning the circumstances of the capital offense. The
remainder of the prosecution’s case focused on McDaniel’s prior
bad acts (section 190.3, factors (b), (c)) and victim impact
evidence (section 190.3, factor (a)).
a. Prior Bad Acts
A little after midnight on April 6, 1995, Javier Guerrero’s
car broke down on the 105 freeway. He was given a ride to a
payphone at 112th Street and Central Street in Los Angeles.
While he was calling his family, three men approached him.
One put a gun to his head. All three demanded money. The
three men searched him, took his watch, then ran away.
Guerrero identified a suspect that night in a field lineup but did
not see that suspect in the courtroom. That night, Officer Hill
saw the robbery and apprehended one of the participants, whom
he identified as McDaniel.

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On February 29, 1996, Thomas Tolliver was working as a
campus security aide at Markman Middle School. At noon,
Tolliver encountered McDaniel and two other individuals on the
campus. Tolliver asked them to leave. McDaniel asked Tolliver
if he was strapped. Tolliver again told McDaniel to leave.
McDaniel said, “I’m going to come back and shoot your mother
fucking ass.” The three individuals then ran away.
On December 8, 2001, Officer Shear saw McDaniel and
tried to detain him. As McDaniel ran away, Shear noticed a
large stainless steel handgun in McDaniel’s waistband.
McDaniel fled into the upstairs bedroom of a nearby apartment.
Shear obtained consent to search the apartment. McDaniel
came outside and was handcuffed. Inside the upstairs bedroom,
officers found a .357-caliber handgun containing five hollow
point bullets.
On January 18, 2002, Officer Moreno was on patrol near
Nickerson Gardens. When he observed McDaniel, he got out of
the patrol car. McDaniel ran, and Moreno noticed that
McDaniel had a handgun in his left hand. McDaniel fled into a
nearby apartment. Inside that apartment, officers found
McDaniel. In the stovetop, they found the unloaded TEC-9
handgun that they had previously seen in McDaniel’s
possession. Officer Shear was also pursuing McDaniel that day
and searched the apartment. In an upstairs bedroom, Shear
found an Uzi assault rifle and ammunition. The prosecutor
presented evidence of McDaniel’s conviction on June 27, 2002,
for possession of an assault weapon.
On April 21, 2002, Ronnie Chapman was in his mother’s
backyard in Nickerson Gardens. Chapman’s cousin Jeanette
Geter saw McDaniel and his brother Tyrone approach

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Chapman. She testified that she saw McDaniel shoot Chapman.
Police officers saw McDaniel running less than a block away
wearing a royal blue silk shirt. At trial, an officer testified that
he found “the same blue shirt” at McDaniel’s house in an
unrelated incident.
On January 23, 2004, around midnight, officers responded
to reports of gunfire at an address on East 111th Place. Officer
Davilla secured the area by setting up a perimeter. McDaniel
walked by and sat on the hood of a nearby car. Davilla ordered
McDaniel to leave. McDaniel looked in Davilla’s direction and
said, “Fuck that shit.” Davilla approached McDaniel, grabbed
him, and escorted him away from the secured area. Davilla
released McDaniel and told him he would be arrested if he did
not leave. McDaniel raised his fists and walked toward Davilla,
who pushed McDaniel backward. McDaniel then threw a punch
at the top of Davilla’s head. Davilla hit McDaniel in the face,
and the two fell on the ground. Another officer hit McDaniel in
the legs with a baton.
The defense called Joshua Smith, who witnessed this
incident. Smith testified that this was a case of “police
brutality” and that he had not heard McDaniel yell at the officer
and had not seen him challenge the officer to a fight.
Kathryn Washington testified about the murder of Akkeli
Holley, which occurred on July 4, 2003. Washington denied
witnessing the murder, and the prosecution played a tape of a
previous interview where she discussed witnessing the shooting.
In her taped interview, she discussed seeing a shootout among
Holley, a man named Roebell, and “R-Kelley” (McDaniel’s
moniker). Washington could not tell whether Roebell or R-
Kelley was shooting. She testified that around the time Holley

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was shot, she was using drugs daily, including PCP, cocaine,
marijuana, alcohol, and methamphetamine. The defense again
called Dr. Markman, who discussed the effects of these drugs on
perception, as he had testified in the guilt phase.
On June 27, 2004, officers at the Men’s Central Jail
conducted a search of the cell that McDaniel shared with two
other inmates. The search revealed several shanks that were
concealed from view. Two shanks were found under one
inmate’s mattress. A single shank was found in a mattress that
had McDaniel’s property on top of it. The officer did not know
how long McDaniel had been in that cell and acknowledged it
was a transitional cell.
On June 21, 2006, McDaniel was using one of the phones
in a cell in the Compton Courthouse lockup. A sheriff’s deputy
asked him to move cells, and McDaniel attempted to hit him
with his right hand. The officer hit McDaniel twice in the face.
McDaniel suffered bruising and swelling to his face, and the
officer fractured his own hand.
On November 21, 2006, a sheriff’s deputy was escorting an
inmate from the law library back to his cell at the Men’s Central
Jail. As they passed the cell block, McDaniel and his cellmate
threw several small cartons filled with excrement at the inmate.
b. Victim Impact Evidence
Anderson’s brother testified about the impact of her death
on their family. Anderson was the “backbone of the family” and
“the life of the party. She just kept everybody’s spirits up.” She
was a role model and lived in Nickerson Gardens “pretty much
her whole life.” Their mother took Anderson’s death “real
hard. . . . [H]er health just went down.”

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Anderson’s only child, Neisha Sanford, testified about the
impact of her mother’s death. She described their close
relationship and her mother’s bond with her grandsons.
Sanford discussed her mother’s battle with cancer and the fact
that “she wanted to start spending more time with [her
grandsons] because she was sick.” Anderson was the “core of the
family.” Since her mother’s death, Sanford “[didn’t] have a life
anymore. My life ended four years ago. Him taking my mother’s
life, that was the end of my life.”
Sanford’s son also testified about the impact of his
grandmother’s death. He talked about spending “everyday” at
his “little granny’s home” and holidays like birthdays and
Christmas. Her death “affect [sic] me a lot because me and my
Grandma, we were really close. . . . [I]t make [sic] me sad all the
time.”
2. Defense Case
The defense case in mitigation focused on McDaniel’s
childhood, the pressures of living in Nickerson Gardens, his
cognitive impairment from fetal alcohol syndrome, and his
positive contributions to family members and friends.
McDaniel’s mother testified that she drank while
pregnant with McDaniel. McDaniel’s father, who lived across
the street with another woman, beat McDaniel’s mother once in
front of McDaniel and his brother. His early life was chaotic,
and they frequently moved. At one point when McDaniel was
about seven or eight, they lived on Skid Row. His mother
started using cocaine at this time. She beat McDaniel with a
belt to make him strong. Her brother Timothy was a father
figure to McDaniel. Timothy sold drugs and was killed when
McDaniel was about 12. His death affected McDaniel and made

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him “angry and hostile, he really got involved with the gangs
and stuff.”
McDaniel’s father testified that he and McDaniel’s mother
drank while she was pregnant with McDaniel. He never lived
with McDaniel’s mother and their children. He moved to
Sacramento when McDaniel was two or three and did not return
until he was 11 or 12. By that time, McDaniel had joined a gang.
McDaniel’s father testified that if you don’t join a gang, you had
problems and that Nickerson Gardens was a place people go to
die.
The mother of McDaniel’s two children described how
McDaniel maintains a close relationship with them by sending
cards and calling. She confirmed that McDaniel did “good
things” for her and their children like buying diapers and being
present at the hospital when they were born.
Two of McDaniel’s cousins described Nickerson Gardens
and the impact of Timothy’s death on McDaniel. One explained,
“Growing up in the projects as a young adult, especially a male,
is a hard task. When you stay in it, you are bound to get caught
up. And when I say caught up, that means either you are gonna
die or you’re going to go to jail for a long time.”
McDaniel’s friend testified that she wrote McDaniel from
prison to tell him she was thinking about suicide, and he
contacted the people in charge of the mental health unit to get
her help. She credited McDaniel with saving her life.
Father Boyle is a Jesuit priest and the founder of Homeboy
Industries, the largest gang intervention program in the
country. Father Boyle did not know McDaniel but discussed the
reasons that kids join gangs: “[T]hough the prevailing culture
myth is that kids are seeking something when they join a

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gang, . . . in fact they’re fleeing something always. They’re
fleeing trauma. . . . They’re fleeing sexual, emotional, physical
abuse.” He emphasized the need “to examine with some
compassion the degree of difficulty there is in being free enough
to choose” to join a gang.
Dr. Fred Brookstein is a professor of statistics and a
professor of psychiatry and behavioral sciences. He directs a
research unit that studies fetal alcohol and drug impacts on
children. After analyzing a scan of McDaniel’s brain, Dr.
Brookstein found signs of brain damage caused by prenatal
exposure to alcohol. He testified that people with this kind of
damage have “problems with moral decisions.”
Dr. Nancy Cowardin has a Ph.D. in educational
philosophy and special education and runs a program called
Educational Diagnostics. Based on her assessment of McDaniel
in 2005 and a review of his school records, she opined that
McDaniel has learning disabilities that predate his behavioral
problems. McDaniel had a verbal IQ of 73 and a nonverbal IQ
of 100. This “lopsidedness is what accounts for his learning
disability.”
II. PRETRIAL ISSUES
A. Batson/Wheeler Motion
McDaniel first claims that the prosecutor’s use of a
peremptory strike during jury selection prior to the guilt phase
violated Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
1. Facts
During voir dire, the judge conducted a first round of
questioning to elicit prospective jurors’ views on the death
penalty. The judge asked jurors to rate themselves on a scale of

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one to four based on their ability to impose the death penalty.
Category one jurors “would never ever vote for death regardless
of what the evidence was.” Category two jurors are “proponents
of the death penalty. . . . If he killed someone, he should die.” A
category three juror is “the person who says I’m okay with the
death penalty. . . . But not me. I can’t vote to put somebody to
death.” A category four juror is “comfortable with the fact that
[he or she] can go either way.”
After the court and parties resolved for-cause challenges
based on prospective jurors’ death penalty views, a second round
of questioning on the non-capital portion of the questionnaire
began. Before beginning, the trial court emphasized to counsel
that this round of questioning was to be a “very limited voir dire
to back up the questionnaires if there are responses on, oh,
things, that somebody writes his occupation and you don’t know
what it is that he does and you want some information.” Not
every juror was questioned, and at times the judge interjected
to remind counsel of the limited nature of the questioning. The
prosecutor questioned jurors on their beliefs that police officers
lie, experiences with gangs, law enforcement experience, prior
jury experience, familiarity with Nickerson Gardens, drug
history, and religious beliefs.
After additional for-cause challenges, the parties began
exercising peremptory strikes. After the prosecutor struck
Prospective Juror No. 28, defense counsel made a
Batson/Wheeler motion. At that time, the prosecutor had used
three of his eight peremptory strikes to excuse Prospective
Jurors Nos. 7, 13, and 28, all of whom were Black. Four other
Black jurors were seated in the box.

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In support of his motion, defense counsel noted that
Prospective Juror No. 28 “seemed fairly strong on the death
penalty. There was nothing obvious in his questionnaire that I
could see. . . .” The trial court noted that “[h]e is a 73-year-old
man. He is a retired electrician. His nephew was arrested and
charged with a crime that was not specified.” The court found
no prima facie case: “There are a lot of African Americans on
this panel. There are a number that are seated in the box as we
speak. I will be mindful of it but I am not going to find a prima
facie case at this time.”
The prosecutor later used his 11th and 12th peremptory
strikes to remove Prospective Jurors Nos. 40 and 46, both of
whom were Black. At that time, three other Black jurors were
seated in the box. Defense counsel made a Batson/Wheeler
motion. The court noted the prosecutor’s three previous strikes
against Black jurors, then found “a prima facie case of excusals
based on race,” and excused the jury for a hearing on the motion.
The court told the prosecutor: “I am concerned about the fact
that of the twelve peremptory challenges the People have
exercised, five have been to African Americans.” The court
asked the prosecutor to explain his reasons for the strikes.
As to Prospective Juror No. 7, the prosecutor explained
that her responses that she would always vote against death
were such that “[he] had initially hoped to actually dismiss [her]
for cause. . . .” The court agreed with this justification: “My
notes reflect she said she would not always vote for death
penalty. Always vote for life. Death would not bring back the
victims. That she thought life without parole was more severe.”
The prosecutor gave three reasons to excuse Prospective
Juror No. 13. First, he was concerned that Prospective Juror

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No. 13’s response that “police officers lie . . . if it suits the needed
outcome . . . indicated an anti-police bias.” Her questionnaire
suggested “concern about the effectiveness of the death penalty”
and that “the death penalty is appropriate for a child victim,”
but the case did not involve child victims. Her husband was also
a criminal defense attorney. The court made no comments about
this juror and asked the prosecutor to continue to Prospective
Juror No. 28.
The prosecutor offered three reasons to excuse Prospective
Juror No. 28. “My primary problem with this juror was the fact
that he, along with many others, . . . indicated that life without
parole is a more severe sentence, which I don’t think is a good
instinct to have on a death penalty jury.” The prosecutor offered
additional reasons for the strike. Prospective Juror No. 28 also
stated in his questionnaire that he did not want to serve on the
trial because it would be too long. “I try not to have jurors on
death penalty cases that don’t want to be here. . . .” Finally, the
prosecutor explained that he was “also trying, to the extent
possible with the jurors available to me, to have a jury with as
much formal education as possible. And this juror I think just
completed 12th grade. . . .”
Defense counsel responded: “There were many jurors —
those particular reasons, the education, L-WOP is more severe,
the uncomfortable — you know, the time issue with regard to
the jury, there are a lot of people on this panel that have
reflected — and you corrected them in your opening remarks
and they all backed off of any problem in that regard. As far as
education goes, I haven’t gone through it particularly but there
are lots of jurors —.”

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The court interjected to confirm whether Prospective
Juror No. 28 answered “no” to the question about whether he
could impose the death penalty if he thought it was appropriate.
Defense counsel confirmed that Prospective Juror No. 28
responded no, but that during voir dire he said he had made a
mistake. “Yeah I don’t remember that one way or the other. I
just have a blank on that,” the court said. “All right, let me hear
your next excuse number.”
As to Prospective Juror No. 40, the prosecutor explained
that he challenged her due to her response that “[she didn’t]
want the responsibility of deciding anyone’s guilt or innocence
and possibly being wrong.” The court did not comment on this
justification and asked, “What about 46?”
The prosecutor explained that Prospective Juror No. 46
did not believe the death penalty was a deterrent, “which is not
an attitude that I considered to be a fair attitude.” He was also
concerned that Prospective Juror No. 46 listened to a “very
liberal political radio station where they frequently have
specials and guest speakers and interviews that are anti-death
penalty advocates.”
Turning to the merits of the defense motion, the court said:
“I have a great deal of respect for the attorney in this case, Mr.
Dhanidina. And I hold him in high regard. He has tried many
cases before me. I have always found him to be an utmost
professional. I have never thought that he was trying to do
anything underhanded. I believe peremptory challenges should
have some flexibility in the way the judge looks at them. I am
accepting of the articulated reasons that have been advanced
here. I suppose the defense is arguing that we should — that
this court should not allow 46 to be excused or are you arguing

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that this — that Mr. Dhanidina is making false representations
to the court and that this panel should be dismissed and we
should start all over again? I would just like to know what the
defense is saying.”
Defense counsel replied that he was “not asking that the
panel be dismissed and start all over. I am just asking that
Juror Number 46 not be excused.” After a pause in the
proceedings, the court granted the request. “I am going to strike
the peremptory. I feel that the radio station that somebody
listens to is not a valid reason.”
The prosecutor emphasized that the radio station was only
one of the justifications that he offered. “And the juror works
for a nonprofit. Volunteers. Works for an organization of urban
possibilities. Just throughout the questionnaire there are a
number of race-neutral reasons.” He asked for a brief recess to
“consult with [his] supervisors about what to do in this situation.
Because this is highly unusual.”
“I don’t like the Wheeler law,” the court said. “I am trying
to apply it the best I can. I think that he looked like an
acceptable juror. . . . I am not going to give you more time to
research it. We’re going to seat him and let’s go on with it.”
After the prosecutor exercised an additional five peremptory
strikes, both sides accepted the jury. The final jury contained
four Black, three Hispanic, three White, and two Asian jurors.
On April 29, 2008, the jury hung in the penalty phase of
deliberations, and the court declared a mistrial. On May 28, the
prosecutor filed a motion for reconsideration of the
Batson/Wheeler ruling on the ground that the court improperly
applied the for-cause standard for dismissal. Specifically, the
motion argued that the court’s stated acceptance of “the reasons

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articulated here” should have been enough to shift the burden
back to McDaniel, and that the court’s follow-up comment that
“the radio station that somebody listens to is not a valid reason”
showed that the court was applying the standard “reserved for
for-cause challenges, when a judge is to determine whether or
not actual bias has been shown.”
The court heard the motion in July 2008, before beginning
jury selection for the second penalty trial. The court asked
defense counsel whether he felt the court erred. Defense counsel
replied, “I have talked to Mr. Dhanidina and I have seen how
the jury came out racial-wise and in terms of how many African
Americans there were on the jury at the end of it. And I told Mr.
Dhanidina that I would submit it to the court.”
Denying the motion, the court said, “[T]his is a motion
brought that really has nothing to do with this trial. It has
something to do with the prosecutor’s perception of his record as
a prosecutor. . . . And I am a little reluctant to get into this
because I just feel that this is something we shouldn’t be doing.”
The court continued, “I don’t think that I was wrong and I stand
by my ruling. . . . I still don’t think they [the prosecutor’s
reasons for striking Prospective Juror No. 46] were valid under
the circumstances because I think there were other jurors who
said similar statements as this juror. I just felt that in an
abundance of caution and since this was a capital case that I had
to do what I did.”
2. Analysis
The Attorney General argues that in accepting the
reseating of Prospective Juror No. 46, McDaniel waived his
right to a new trial, which is the remedy he seeks in this appeal.
McDaniel argues that because the court never found a

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Batson/Wheeler violation as to Prospective Juror No. 28, it
follows that he never waived a remedy for that violation. We
need not decide this issue because, as we explain, McDaniel’s
claim fails on the merits.
The Fourteenth Amendment to the United States
Constitution prohibits a party from using peremptory
challenges to strike a prospective juror because of his or her
race. (See Batson, supra, 476 U.S. at p. 89.) The high court set
forth a three-step framework in Batson to determine whether a
litigant has violated this right. First, the moving party must
establish a prima facie case of discrimination “by showing that
the totality of the relevant facts gives rise to an inference of
discriminatory purpose.” (Id. at p. 94.) Second, once the moving
party “makes a prima facie showing, the burden shifts to the
[striking party] to come forward with a neutral explanation for
challenging” the prospective juror in question. (Id. at p. 97.)
Third, if the proffered justification is race-neutral, then the
court must consider whether the movant has proved it was more
likely than not that the peremptory challenge was based on
impermissible discrimination. (Id. at p. 98.)
The present case involves Batson’s third-stage
requirement that the opponent of the strike prove purposeful
discrimination. Beginning our review at the third stage is
appropriate in the circumstances presented here. (See People v.
Scott (2015) 61 Cal.4th 363, 392 (Scott).) After the trial court
found no prima facie case with respect to Prospective Juror
No. 28, the court later asked the prosecutor to explain his
reasons for the strikes — including the strike of Prospective
Juror No. 28 — in connection with McDaniel’s subsequent
Batson/Wheeler motion following the strike of Prospective Juror
No. 46. McDaniel thus renewed his challenge to the excusal of

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Prospective Juror No. 28 at that time, and the court rejected this
renewed motion before discussing the requested remedy for the
violation found regarding Prospective Juror No. 46.
At step three, courts look to all relevant circumstances
bearing on the issue of discrimination. (See Snyder v. Louisiana
(2008) 552 U.S. 472, 478.) Relevant circumstances may include
the race of the defendant, the ultimate racial composition of the
jury, the pattern of strikes, and the extent or pattern of
questioning by the prosecutor during voir dire. (See Miller-El v.
Cockrell (2003) 537 U.S. 322, 240–241, 245 (Miller-El); Batson,
supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at p. 281.) A
court may also consider the fact that the prosecutor
impermissibly struck other jurors “for the bearing it might have
upon the strike” of the challenged juror. (Snyder, at p. 478.) The
high court has also held that comparative juror analysis may be
probative of purposeful discrimination at Batson’s third stage.
(Miller-El, at p. 241.) We defer to a trial court’s ruling only if
the court has made a “ ‘sincere and reasoned effort to evaluate
the nondiscriminatory justifications offered’ ” by the prosecutor.
(People v. Gutierrez (2017) 2 Cal.5th 1150, 1159 (Gutierrez).)
Here we find that the trial court made a sincere and
reasoned attempt to evaluate the prosecutor’s justifications
based on the court’s observations regarding the circumstances
of the strike and its active participation in voir dire. In
evaluating the justifications, the court asked the prosecutor
questions and referred to its own notes, at times interjecting its
own observations that confirmed the prosecutor’s justifications.
The record from the motion to reconsider the Batson/Wheeler
ruling reveals that the court was also testing the applicability of
the prosecutor’s justifications against other jurors. In rejecting
the prosecutor’s reasons for striking Prospective Juror No. 46,

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the court said: “I still don’t think they were valid under the
circumstances because I think there were other jurors who said
similar statements as this juror.” Throughout the process, the
court made clear that it was cognizant of the prosecutor’s rate of
strikes and the current composition of the jury, which shows
that the court considered the circumstances of the strikes.
Nor did the trial court overlook “powerful evidence of
pretext,” as McDaniel’s briefing suggests, in declining to find a
Batson/Wheeler violation as to Prospective Juror No. 28 when it
granted McDaniel’s Batson/Wheeler motion as to Prospective
Juror No. 46. The parties dispute whether the court applied the
correct standard in ruling on Prospective Juror No. 46. (See
People v. Baker (2021) 10 Cal.5th 1044, 1076–1077 [focus is on
the “ ‘genuineness’ ” of the proffered reasons, not their
“analytical strength,” though the latter may shed light on the
former]; People v. Cruz (2008) 44 Cal.4th 636, 660; see also
Miller-El, supra, 537 U.S. at pp. 338–339.) We can assume,
without deciding, that it did. Although a prior Batson violation
is a relevant circumstance for a court to consider in determining
whether there was purposeful discrimination (see Snyder,
supra, 552 U.S. at p. 478), the trial court here was well aware of
the violation when it ruled on all five strikes at the same time.
McDaniel argues that under Gutierrez, a trial court is
obligated to make specific findings “when the circumstances are
so suspicious that follow-up and individualized analysis is the
only way to create a record of ‘solid value.’ ” In Gutierrez, we
distinguished “neutral reasons for a challenge [that] are
sufficiently self-evident, if honestly held, such that they require
little additional explanation” from situations where “it is not
self-evident why an advocate would harbor a concern.”
(Gutierrez, supra, 2 Cal.5th at p. 1171.) In the latter instances,

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particularly where “an advocate uses a considerable number of
challenges to exclude a large proportion of members of a
cognizable group,” the court must “clarif[y] why it accepted the
. . . reason as an honest one.” (Id. at p. 1171.) But unlike in
Gutierrez, the prosecutor’s justifications here did not require
additional explanation. (See People v. DeHoyos (2013)
57 Cal.4th 79, 111 [“It is reasonable to desire jurors with
sufficient education and intellectual capacity”]; People v. Cash
(2002) 28 Cal.4th 703, 725 [“possible reluctance to vote for
death” and “seeming reluctance to serve” are race-neutral
justifications].)
McDaniel also suggests that deference is inappropriate
here because the court denied the motion regarding Prospective
Juror No. 28 based on a reason not offered by the prosecution.
But we do not agree with McDaniel’s reading of the record in
this regard. Even though, as McDaniel notes, the trial court
brought up a potential reason from Prospective Juror No. 28’s
questionnaire, it is not apparent that the trial court relied on it
in denying the motion. Applying deference to the trial court’s
ruling, we conclude that substantial evidence supports the race-
neutral reasons given by the prosecutor for his strike of
Prospective Juror No. 28.
McDaniel is Black, and at the time of the second Batson
motion, the prosecutor had used five of twelve peremptory
challenges to strike Black jurors. As discussed below, this strike
rate is significantly higher than the share of prospective jurors
who were Black and higher than the percentage of prospective
jurors then seated in the jury box who were Black. However, at
the time the prosecutor struck Prospective Juror No. 46, three
other Black jurors were seated in the box who would eventually
serve on the jury. Juror Nos. 8 and 10 had been sitting in the

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box since the beginning of jury selection. The prosecutor had
also declined three times to strike Juror No. 7, who was seated
in the box at that time.
Despite the relatively high rate of strikes against Black
jurors at the time of the motion, the final racial composition of
the jury was diverse and contained more Black jurors than
jurors of any other race. Comparing the final composition of the
jury to the overall pool reveals that Black jurors were
overrepresented on the jury, even factoring in the disallowed
strike of Prospective Juror No. 46. Black jurors comprised 16
percent of the total juror pool. The final jury was 33 percent
Black. Even without Prospective Juror No. 46, Black jurors
would have comprised 25 percent of the empaneled jury. To be
sure, the fact that the final jury contained four Black jurors is
not conclusive since the “[e]xclusion of even one prospective
juror for reasons impermissible under Batson and Wheeler
constitutes structural error.” (People v. Krebs (2019) 8 Cal.5th
265, 292.) But the fact that the prosecution accepted a panel
with three Black jurors when it had enough remaining
peremptory challenges to strike them suggests that the
prosecutor did not harbor bias against Black jurors. (See id. at
p. 293.)
The same trend holds true when we compare the final jury
to the composition of jurors who reached the box. Among the
jurors who reached the box, 19 percent were Black. Although
Black jurors comprised 42 percent of the prosecutor’s strikes at
the time of the Batson/Wheeler motion, the fact that Black jurors
also comprised a disproportionate share (33 percent) of the
empaneled jury compared to the Black percentage among jurors
who reached the box tends to weigh against a finding of
purposeful discrimination. (Cf. People v Fuentes (1991)

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54 Cal.3d 707, 711–712 [finding Batson violation where
prosecutor used 14 of 19 peremptory challenges to strike Black
jurors and the sworn jury contained three Black jurors and three
Black alternates].) At the same time, the fact that the trial court
found the prosecutor violated Batson/Wheeler in striking
Prospective Juror No. 46 is also a relevant consideration. (See
Snyder, supra, 552 U.S. at p. 478.)
Although Prospective Juror Nos. 7, 13, and 40 were also
the subject of peremptory challenges, McDaniel only challenges
the strike of Prospective Juror No. 28. McDaniel urges us to find
pretext in the fact that the prosecutor’s voir dire of Prospective
Juror No. 28 consisted of only one question, which was
unrelated to his primary reason for the strike. In this case, after
resolving the parties’ challenges to prospective jurors for cause,
the trial court urged both sides to limit voir dire. We have said
that “trial courts must give advocates the opportunity to inquire
of panelists and make their record. If the trial court truncates
the time available or otherwise overly limits voir dire, unfair
conclusions might be drawn based on the advocate’s perceived
failure to follow up or ask sufficient questions.” (People v. Lenix
(2008) 44 Cal.4th 602, 625.) Given the limitations on voir dire
imposed by the trial court, as well as the fact that the prosecutor
struck five non-Black jurors without asking them a single
question, the observation that the prosecutor asked Prospective
Juror No. 28 only one question is not by itself evidence of
pretext.
McDaniel next argues that the prosecutor’s education
justification itself is a circumstance of pretext in that it
disproportionately excluded Black jurors. “ ‘ “[A]n invidious
discriminatory purpose may often be inferred from the totality
of the relevant facts, including the fact, if it is true, that the

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[classification] bears more heavily on one race than another.”
[Citation.] If a prosecutor articulates a basis for a peremptory
challenge that results in the disproportionate exclusion of
members of a certain race, the trial judge may consider that fact
as evidence that the prosecutor’s stated reason constitutes a
pretext for racial discrimination.’ ” (People v. Melendez (2016)
2 Cal.5th 1, 17–18, quoting Hernandez v. New York (1991)
500 U.S. 352, 363 (Hernandez).) Educational disparities in the
seated jurors fell across racial lines. None of the Black seated
jurors had attended college. Of the three White jurors who
served, two had graduate degrees and one was pursuing a
graduate degree. But the fact that the jury ultimately included
four Black jurors lessens the inference that the prosecutor used
this criterion to exclude Black jurors.
Nor do we infer pretext from the fact that other Black
jurors served who had comparable education levels to
Prospective Juror No. 28. The prosecutor did not couch the
education criterion in categorical terms; he explained that he
was trying “to the extent possible with the jurors available to
me, to have a jury with as much formal education as possible.”
In addition to these qualified terms, the education justification
was, by the prosecutor’s own account, not the primary reason for
striking Prospective Juror No. 28. Finding pretext because the
prosecutor did not uniformly deploy this criterion to exclude
Black jurors would perversely incentivize litigants to use
“subjective criterion [that] hav[e] a disproportionate impact” to
uniformly exclude jurors of certain racial groups. (Hernandez,
supra, 500 U.S. at p. 370.)
We next compare Prospective Juror No. 28 with similarly
situated non-Black panelists whom the prosecutor did not
strike. (See Miller-El, supra, 545 U.S. at p. 241.) The

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individuals compared need not be identical in every respect
aside from ethnicity: “A per se rule that a defendant cannot win
a Batson claim unless there is an exactly identical white juror
would leave Batson inoperable; potential jurors are not products
of a set of cookie cutters.” (Id. at p. 247, fn. 6.)
Prospective Juror No. 28 was a 73-year-old Black man.
Before retiring, he was an electrician at an aircraft company.
He had served in the military. He marked his education level
as “12 years.” He believed that LWOP was a more severe
penalty than death. He indicated that he would not be open to
considering evidence of mitigation in the penalty phase. He
answered “no” to the question of whether regardless of his views,
he would be able to vote for death if he believed, after hearing
all the evidence, that the death penalty was appropriate. He
said he would not like to serve on a jury because it was “to [sic]
long.” During voir dire, Prospective Juror No. 28 put himself in
category 4, and the court asked no other questions except to
remark that “you don’t want to serve because this case is going
to be too long. I appreciate you being here.” The prosecutor’s
“primary concern” about Prospective Juror No. 28 was his views
on the severity of life without the possibility of parole. One non-
Black seated juror, Juror No. 4, expressed the same view on the
questionnaire, as did three alternate jurors.
Juror No. 4 was a 30-year-old Hispanic man who worked
as an office services coordinator. Like Prospective Juror No. 28,
he answered that life without the possibility of parole was a
more severe penalty because “in prison you have someone telling
you when to sleep; wake; etc. In death you are done. So in prison
it makes you like a kid again and no grown person likes that.”
During voir dire, he clarified that he saw himself as belonging
to category 4. During voir dire, Juror No. 4 indicated that he

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understood that death was the more severe penalty. Because
Juror No. 4 clarified that he understood death was the more
severe penalty, he was materially different from Prospective
Juror No. 28.
McDaniel urges us not to consider Juror No. 4’s
rehabilitation because neither the prosecutor nor the judge
questioned Prospective Juror No. 28 on this point. As described
above, the judge encouraged the parties to limit voir dire; many
prospective jurors were not asked any questions. The
prosecutor’s practice of asking jurors to raise their hands in
response to questions also impeded the development of a full
record on this point. But in a Batson/Wheeler motion, the
burden is on the defendant to prove purposeful discrimination.
(Batson, supra, 476 U.S. at p. 90.) Faced with a record that is
silent in this way, we have no basis to infer that Prospective
Juror No. 28, upon questioning, would have given an answer
similar to Juror No. 4’s.
Three alternate jurors also thought LWOP was the more
severe penalty. Alternate Juror No. 2, a 48-year-old White man,
believed LWOP was a more severe penalty because “[t]here’s a
long time to think about what you have done and pay for it every
day.” Alternate Juror No. 4, a 53-year-old Hispanic woman
believed that LWOP was the more severe penalty because
“[t]hey need to think about what they did for the rest of their
life.” Alternate Juror No. 5, a 32-year-old Hispanic woman,
believed that LWOP was the more severe penalty because “[y]ou
live the rest of your life in prison without freedom.” During voir
dire, these jurors confirmed they were category 4 jurors but were
not asked any other questions about their death penalty views.

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It is significant that these alternate jurors shared the
same LWOP views as Prospective Juror No. 28 and that the
prosecutor said his “primary concern” about Prospective Juror
No. 28 was his views on LWOP compared to the death penalty.
As discussed, however, there are circumstances here that dispel
suspicion. McDaniel relies on Snyder to contend that once the
prosecution’s LWOP justification fails comparative analysis, the
inquiry into discriminatory intent must end. But in Snyder, the
high court’s finding of a Batson violation flowed not simply from
comparative analysis, but also from the fact that the
prosecutor’s justification was “highly speculative” and
untethered to the record. (Snyder, supra, 552 U.S. at p. 482; see
id. at pp. 482–483.) That is not the case here. All of the
prosecutor’s stated reasons were supported by the record. (See
People v. Reynoso (2003) 31 Cal.4th 903, 924.) Moreover, in
Snyder, the prosecutor struck all the Black jurors on the panel.
(Synder, at p. 476.) At the time of the second Batson/Wheeler
motion in this case, two Black jurors — Juror Nos. 8 and 10 —
had been sitting in the box since the beginning of jury selection.
The prosecutor had also declined three times to strike Juror
No. 7, another Black juror who was seated in the box at that
time. Finally, even excluding Prospective Juror No. 46, the jury
would have contained the same number of Black jurors as it did
White and Hispanic jurors, despite the fact that Black jurors
comprised a lower percentage of both the overall jury pool and
the prospective jurors who reached the jury box.
Ultimately, having considered the totality of the
circumstances, including the fact that the judge found a
Batson/Wheeler violation for Prospective Juror No. 46, we
conclude that the trial court’s ruling was supported by
substantial evidence.

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3. Motion for Judicial Notice
McDaniel urges us to take judicial notice of the
Batson/Wheeler proceedings in his codefendant Kai Harris’s
trial. A reviewing court may take judicial notice of records of
“any court of this state” provided that the moving party provides
the adverse party notice of the request. (Evid. Code, § 452,
subd. (d)(1); see also Evid. Code, §§ 459, 453.) Yet even when
these criteria are met, the reviewing court retains some
discretion to deny judicial notice. Without deciding whether
such information is generally relevant to an appellate court’s
review of a trial court’s Batson/Wheeler ruling on direct review,
we exercise our discretion to deny the request here. We do so
without prejudice to McDaniel presenting such information on a
fuller record in connection with a petition for habeas corpus if
he so chooses. (See Foster v. Chatman (2016) 578 U.S. __
[136 S.Ct. 1737]; Miller-El, supra, 537 U.S. 322.)
B. Denial of Motion to Suppress Firearm
McDaniel next challenges the trial court’s denial of his
motion to suppress the gun discovered during the April 11, 2004,
traffic stop. McDaniel argues that because the officer lacked
reasonable suspicion of criminal activity, he could not order
McDaniel to remain in the car against his will. Because the gun
would not have been discovered if he had been permitted to leave
the scene, it should have been suppressed. McDaniel argues its
admission was prejudicial error under the state and federal
Constitutions.
1. Facts
Five days after the shooting, Los Angeles County Sheriff’s
Deputies Marcus Turner and Eric Sorenson were on vehicle
patrol at 120th Street and Central Avenue near Nickerson

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Gardens. Deputy Turner noticed a blue Toyota without a license
plate and activated the lights to pull the car over. The car
continued driving for about 10 seconds. Deputy Turner noticed
the passenger’s head moving back and forth “like he was
conversating [sic] with the driver” but did not notice other
suspicious movements. A few seconds after Deputy Turner
activated the sirens, the car pulled over.
As soon as the car stopped, the passenger door opened, and
a man later identified as McDaniel began to exit the vehicle.
Deputy Sorenson had just begun to exit the police car. Deputy
Turner, who was still in the driver’s seat, testified on direct
examination that “the passenger door came open and the
passenger at the door stepped out and made a motion and tried
to run out of the vehicle.” On cross-examination, Deputy Turner
acknowledged that McDaniel was standing up in the door well
but had not stepped beyond the door. He acknowledged that it
was not unusual for passengers to exit vehicles during traffic
stops. Deputy Turner testified that his partner yelled, “ ‘Get
back in the car,’ ” and McDaniel complied.
Deputy Turner arrested the driver of the Toyota for not
having a driver’s license and placed him in the police car.
Because the driver had no driver’s license, the deputies decided
to impound the vehicle. Deputy Turner returned to the car to
pull out the passenger so that he could inventory the car. As he
extended his hand to McDaniel, he noticed a bulge in McDaniel’s
right pocket that resembled a gun. Deputy Turner patted him
down and retrieved a loaded Ruger semiautomatic handgun and
a separate loaded magazine.
After argument, the judge denied McDaniel’s motion to
suppress, saying, “I think the officer had every right to do what

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he did under the circumstances and I was particularly
persuaded by the fact that he had decided to inventory the car
once he determined that the driver did not have a license. And
I found his testimony to be credible.”
2. Analysis
The Attorney General argues that McDaniel’s claim is
forfeited because defense counsel never explicitly stated that
“the deputies violated his Fourth Amendment rights when they
ordered him to return to the car” and did not cite any of the
authorities relied on in this appeal. Because we can resolve
McDaniel’s claim on the merits, we need not decide whether it
was forfeited.
For purposes of the Fourth Amendment, both the driver
and passenger are seized when an officer pulls over a vehicle for
a traffic infraction. (Brendlin v. California (2007) 551 U.S. 249,
251 (Brendlin).) Following a lawful traffic stop, a police officer
may order the driver out of the vehicle pending completion of the
stop. (Pennsylvania v. Mimms (1997) 434 U.S. 106, 111
(Mimms).) In Maryland v. Wilson (1997) 519 U.S. 408, 410
(Wilson), the high court extended the Mimms rule to the
passengers of legally stopped vehicles. The high court observed
that “traffic stops may be dangerous encounters,” and the “same
weighty interest in officer safety is present regardless of
whether the occupant of the stopped car is a driver or
passenger.” (Wilson, at p. 413.) The court reasoned that the
“ ‘risk of harm to both the police and the occupants is minimized
if the officers routinely exercise unquestioned command of the
situation.’ ” (Id. at p. 414, quoting Michigan v. Summers (1981)
452 U.S. 692, 702–703.) The case for the passenger’s personal
liberty is “stronger than that for the driver,” but as a practical

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matter, since the passenger is already stopped, “[t]he only
change in their circumstances which will result . . . is that they
will be outside of, rather than inside of, the stopped car.”
(Wilson, at p. 414.) The court characterized this additional
intrusion as “minimal” given that the presence of “more than
one occupant of the vehicle increases the possible sources of
harm to the officer.” (Id. at pp. 413, 415.)
Wilson left open whether an officer may order a passenger
of a legally stopped vehicle to remain in the car after the
passenger has attempted to exit. (Wilson, supra, 519 U.S. 408,
415, fn. 3.) McDaniel argues that Terry v. Ohio (1968)
392 U.S. 1 governs, requiring “articulable suspicion” to detain
the passenger of a lawfully stopped vehicle. (Id. at p. 31; see
also id. at p. 21, fn. omitted [officer must point to “specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant” the stop].) Yet the high
court in Arizona v. Johnson (2009) 555 U.S. 323 (Johnson)
observed that Mimms, Wilson, and Brendlin “cumulatively
portray Terry’s application in a traffic-stop setting” and
“confirm[ed]” that “the combined thrust” of those three decisions
is “that officers who conduct ‘routine traffic stop[s]’ may ‘perform
a “patdown” of a driver and any passengers upon reasonable
suspicion that they may be armed and dangerous.’ ” (Johnson,
at pp. 331–332.)
Johnson further elaborated that “[a] lawful roadside stop
begins when a vehicle is pulled over for investigation of a traffic
violation. The temporary seizure of driver and passengers
ordinarily continues, and remains reasonable, for the duration
of the stop. Normally, the stop ends when the police have no
further need to control the scene, and inform the driver and
passengers they are free to leave. [Citation.] An officer’s

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inquiries into matters unrelated to the justification for the
traffic stop . . . do not convert the encounter into something
other than a lawful seizure, so long as those inquiries do not
measurably extend the duration of the stop.” (Johnson, supra,
555 U.S. at p. 333.) Indeed, “the tolerable duration of police
inquiries in the traffic-stop context is determined by the
seizure’s ‘mission’ — to address the traffic violation that
warranted the stop, [citation] and attend to related safety
concerns.” (Rodriguez v. United States (2015) 575 U.S. 348,
354.) Although “certain unrelated checks” by an officer may be
tolerated, absent reasonable suspicion a traffic stop “ ‘can
become unlawful if it is prolonged beyond the time reasonably
required to complete th[e] mission.’ ” (Id. at p. 354; see id. at
pp. 354–355.)
McDaniel’s detention here complied with high court
precedent. Under Johnson, his temporary seizure was
reasonable for the duration of the stop, and Deputy Sorenson
“surely was not constitutionally required to give [McDaniel] an
opportunity to depart the scene after he exited the vehicle
without first ensuring that, in so doing, [the officer] was not
permitting a dangerous person to get behind [him].” (Johnson,
supra, 555 U.S. at p. 334, fn. omitted.) There is no indication
that the officers did anything more than that or otherwise
prolonged the stop beyond the time reasonably required to
complete the mission. Deputy Turner processed the driver for
the Vehicle Code violation while Deputy Sorenson stood next to
the passenger side of the vehicle with his gun drawn. Because
the driver had no license, the deputies decided to impound and
inventory the vehicle. The officers then promptly investigated
whether McDaniel posed a threat. When Deputy Turner
directed his attention to McDaniel, who was still sitting in the

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passenger seat, he observed a bulge in his pocket that resembled
the shape of a gun. A reasonable officer observing the outline of
a gun in a passenger’s pocket would perceive an ongoing safety
threat that justifies a pat down search. Under these
circumstances, admission of the gun was not error.
C. Admission of Kanisha Garner’s Hearsay
McDaniel argues that the trial court improperly admitted
hearsay evidence that was the basis for the gang enhancement
under section 186.22, subdivision (b)(1). He claims that the
admission of the hearsay evidence, in addition to being error
under the Evidence Code, also violated his rights under the state
and federal Constitutions to a fair and reliable capital
sentencing hearing and due process.
1. Facts
Before trial, the prosecutor filed a motion in limine to
introduce hearsay statements made by George Brooks to his
sister Kanisha Garner concerning how he obtained the drugs he
sold as a declaration against interest. In support he attached
Kanisha’s testimony from the trial of Kai Harris. (We refer to
the witness by first name to avoid confusion with Elois Garner.)
The court held a brief hearing during which defense counsel
objected to the admission of the statements on federal
constitutional grounds. The court asked whether Brooks’s
statement was testimonial, and defense counsel conceded that it
was “probably not testimonial.” The court admitted the
statement “over objection.”
The Attorney General urges us to find the argument
forfeited because defense counsel did not object to Kanisha’s
testimony at trial. The Attorney General points to our decisions
holding that a motion in limine does not always preserve the

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issue if the party fails to object once the evidence is offered.
(People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on
other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830,
fn. 1.) Because we can resolve McDaniel’s claim on the merits,
however, we need not decide whether it was forfeited.
The parties also dispute which version of the hearsay
statements should be considered: Kanisha’s statements from
Kai Harris’s trial that the prosecutor proffered during the pre-
trial motion or the statements that she actually made at trial.
We need not decide which statements are the proper focus of
review. Although cross-examination of Kanisha at McDaniel’s
trial yielded a more forceful declaration that Brooks did not
intentionally steal the drugs, Kanisha’s statements at Harris’s
trial were substantially similar. Both statements contain the
admission that Brooks was dealing drugs. Both statements
recount how he obtained the drugs, who gave him the drugs, as
well as the fact that he did not pay for them and that Billy Pooh
was looking for him.
2. Analysis
A declaration against interest is an exception to the
general rule that hearsay statements are inadmissible under
California law. (Evid. Code, §§ 1200, subd. (b), 1230.) “Evidence
Code section 1230 provides that the out-of-court declaration of
an unavailable witness may be admitted for its truth if the
statement, when made, was so far against the declarant’s
interests, penal or otherwise, that a reasonable person would
not have made the statement unless he or she believed it to be
true.” (People v. Westerfield (2019) 6 Cal.5th 632, 704.) The
focus of the declaration against interest exception to the hearsay
rule is the basic trustworthiness of the declaration. (People v.

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Frierson (1991) 53 Cal.3d 730, 745.) “ ‘ “In determining whether
a statement is truly against interest within the meaning of
Evidence Code section 1230, and hence is sufficiently
trustworthy to be admissible, the court may take into account
not just the words but the circumstances under which they were
uttered, the possible motivation of the declarant, and the
declarant’s relationship to the defendant.” ’ ” (People v. Masters
(2016) 62 Cal.4th 1019, 1055–1056.) We review a trial court’s
decision whether a statement is admissible under Evidence
Code section 1230 for abuse of discretion. (People v. Grimes
(2016) 1 Cal.5th 698, 711 (Grimes).)
McDaniel does not dispute that Brooks’s admission that
he was dealing drugs was a declaration against his penal
interest. He argues that the statements detailing how he
obtained the drugs and from whom should be excluded as a
collateral statement because they were not against his penal or
social interest, and they lack indicia of trustworthiness.
The Attorney General argues that the collateral
statements were sufficiently against Brooks’s social interest
because “Brooks’s statement regarding whom he had stolen the
drugs from and the circumstances surrounding the theft would
most certainly subject Brooks to retaliation by Carey and
appellant, and possibly the Bounty Hunters.” McDaniel in turn
argues that the statements were designed to enhance Brooks’s
social status because claiming “that he had obtained a few
ounces of cocaine from a top level distributor in the projects . . .
is clearly suggestive of ‘an exercise designed to enhance his
prestige.’ ” (See People v. Lawley (2002) 27 Cal.4th 102, 155
(Lawley) [a hearsay declarant seeking admission in Aryan
Brotherhood who claims to be carrying out the organization’s

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will in killing victim might have been an exercise designed to
enhance prestige].)
Unlike in Lawley, where the declarant was seeking full
membership in the Aryan Brotherhood, the record does not
suggest that Brooks, who was already a Bounty Hunter Blood,
was seeking a higher social status in that gang. To the contrary,
Kanisha testified that Brooks had recently been released from
prison, and Carey “was trying to give him some stuff to make
money with out of jail.” Her responses to his description of the
“incident” in which he did not pay for the drugs indicate that she
feared for him and that she expected he would face retaliation
from Carey and his associates who had “status in the projects.”
In light of this evidence, we conclude that the trial court did not
abuse its discretion in admitting the statements as a declaration
against social interest.
D. Pitchess Motion
McDaniel requests that we independently review the
sealed record of the trial court discovery rulings pursuant to
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) in
order to determine whether the in camera review process
complied with the law.
Before trial, McDaniel filed several Pitchess motions
seeking to discover documents related to incidents that the
prosecution planned to use in the penalty phase. McDaniel
initially sought discovery into “complaints of dishonesty, lying,
falsifying or fabricating evidence, committing perjury, and the
like” for two Los Angeles County Sheriff’s Department deputies.
The trial court ruled McDaniel had not made a sufficient
showing for an in camera hearing.

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McDaniel subsequently sought discovery into “incidents of
fabrication, lying, assaultive conduct, and excessive force” and
“harassment” on the part of 14 Los Angeles Police Department
officers. He additionally sought discovery into “assaultive
behavior, mistreatment of people in custody, [and] dishonesty”
for four Los Angeles County Sheriff’s Department deputies. The
judge found good cause and, due to the volume of the requests,
conducted four in camera hearings.
“ ‘When a defendant shows good cause for the discovery of
information in an officer’s personnel records, the trial court
must examine the records in camera to determine if any
information should be disclosed. [Citation.] The court may not
disclose complaints over five years old, conclusions drawn
during an investigation, or facts so remote or irrelevant that
their disclosure would be of little benefit. [Citations.] Pitchess
rulings are reviewed for abuse of discretion.’ ” (People v. Rivera
(2019) 7 Cal.5th 306, 338 (Rivera).) Although Evidence Code
section 1045, subdivision (b)(1) excludes from disclosure
“[i]nformation consisting of complaints concerning conduct
occurring more than five years before the event or transaction
that is the subject of the litigation in aid of which discovery or
disclosure is sought,” disclosure of such information may still be
required under Brady v. Maryland (1963) 373 U.S. 83 (Brady).
(See City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1,
13–15 & fn. 3.)
In this case, the record includes sealed transcripts of the
in camera hearings and copies of all the documents that the trial
court reviewed. With respect to Los Angeles County Sheriff’s
Department records, the custodian of records made all
potentially relevant documents available to the trial court for
review, was placed under oath at the in camera hearing, and

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stated for the record “ ‘what other documents (or category of
documents) not presented to the court were included in the
complete personnel record, and why those were deemed
irrelevant or otherwise nonresponsive to the defendant’s
Pitchess motion.’ ” (Rivera, supra, 7 Cal.5th at p. 339.) The trial
court found information for two deputies that it deemed
discoverable. However, because the trial was about to start, the
court, instead of disclosing this information to the defense, ruled
that the prosecution could not use the incidents that involved
these deputies.
With respect to the Los Angeles Police Department
records, the custodian of records made available to the trial
court for review all potentially relevant information from the
relevant Pitchess periods and the time since. The record in this
case also shows that defense counsel waived any right to have
the custodian or the court review any older records that might
have been available. Accordingly, this is not an appropriate case
to further consider the handling of confidential records more
than five years old. (City of Los Angeles, supra, 29 Cal.4th at
p. 15, fn. 3; see People v. Superior Court (Johnson) (2015)
61 Cal.4th 696, 715–722 [resolving issue regarding prosecutors’
Brady obligations based on the premise that defendants can
ensure production of Brady material through the Pitchess
process]; see also Association for Los Angeles Deputy Sheriffs v.
Superior Court (2019) 8 Cal.5th 28, 55 [discussing Johnson’s
reasoning].)
In sum, based on our review of these records, we conclude
that the trial court examined all the relevant information and
otherwise complied with applicable law.

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III. GUILT PHASE ISSUE
Sufficiency of the Evidence for Gang Enhancement
McDaniel argues that there was insufficient evidence of
collaborative activities or collective organizational structure to
support the gang enhancement conviction under section 186.22,
subdivision (b)(l).
To prove the existence of a criminal street gang, we
explained in People v. Prunty (2015) 62 Cal.4th 59 (Prunty) that
section 186.22, subdivision (f) requires: an “ ‘ongoing
organization, association, or group of three or more persons’ that
shares a common name or common identifying symbol; that has
as one of its ‘primary activities’ the commission of certain
enumerated offenses; and ‘whose members individually or
collectively’ have committed or attempted to commit certain
predicate offenses.” (Prunty, at p. 66.) McDaniel challenges
the sufficiency of the prosecution’s evidence connecting the
predicate offenses to the Bounty Hunter Bloods and the evidence
connecting himself to the Bounty Hunter Bloods.
Detective Kenneth Schmidt testified that between 1998
and 2006 he worked as a gang detective in Nickerson Gardens
gathering intelligence on the Bounty Hunter Bloods. He
described the signs and symbols particular to the Bounty
Hunter Bloods, like hats and hand signs with the letter “B” and
red clothing. Their turf was “predominately in and around
Nickerson Gardens.” Primary activities of the gang included
“narcotics, street robberies and a lot of crimes involving
shootings and murder.”
Schmidt identified McDaniel in court and described his
gang tattoos: a tattoo across his back that read “Nickerson,” and
the letters “B” and “H” on the back of his arms that stood for

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“Bounty Hunter.” McDaniel also had tattoos of “A” and “L” for
Ace Line, “C” and “K” for Crip Killer, “BIP” for Blood in Peace,
and “BHIP” for Bounty Hunter in Peace.
Schmidt also described a tattoo of “111,” which stood for
111th Street, “the north end of the Nickerson Gardens, also
known as Ace Line.” Ace Line refers to “one of the clicks [sic]
inside Bounty Hunters itself.” Schmidt described the various
cliques within the Bounty Hunters in Nickerson Gardens and
the lack of “structured hierarchy other than O.G., old gangsters
that have been around longer.” The cliques “all grow up
together. They live together. It could be at anyone [sic] point in
time, they’ll say they’re Ace Line or Five Line.” Sometimes there
was “inner gang fighting” over turf for drug sales. He testified
that he had seen William Carey (Billy Pooh), a known narcotics
trafficker, with McDaniel on fewer than 10 occasions. He
identified Carey, George Brooks, Derek Dillard, Prentice Mills,
and Kai Harris as Bounty Hunter Bloods.
Schmidt described predicate crimes committed by Ravon
Baylor, who “admitted to [him] that he was a Bounty Hunter
Blood,” and Lamont Sanchez, whom he “knew as a Bounty
Hunter Blood also.” This knowledge was based on statements
and wiretaps overheard during an investigation for murder and
attempted murder. The prosecutor introduced the certified
records of Baylor and Sanchez’s convictions.
“ ‘We review the sufficiency of the evidence to support an
enhancement using the same standard we apply to a conviction.’
[Citation.] ‘We presume every fact in support of the judgment
the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted

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simply because the circumstances might also reasonably be
reconciled with a contrary finding.’ ” (Rivera, supra, 7 Cal.5th
at p. 331.)
McDaniel argues that under Prunty, the prosecution had
to prove that McDaniel knew Baylor and Sanchez because these
two gang members belonged to “an unidentified clique of the
umbrella gang the Bounty Hunter Bloods.” Prunty held that a
showing of an associational or organizational connection is
required when the prosecution, in seeking to prove that a
defendant committed a felony to benefit a given gang,
establishes the commission of the required predicate offenses
with evidence of crimes committed by members of the gang’s
alleged subsets. (Prunty, supra, 62 Cal.4th at p. 67.)
In this case, there were no allegations that Baylor and
Sanchez were members of a subset of the Bounty Hunter Bloods.
The prosecution relied on McDaniel’s membership in the
umbrella organization of the Bounty Hunter Bloods to prove the
organizational nexus with the predicate offenses committed by
two documented Bounty Hunter Bloods. In closing, the
prosecutor argued that the shooting “benefitted the Bounty
Hunters because it sent the message of what happens to you
when you mess with one of the higher members of the gang.”
Defense counsel was free to cross-examine the gang expert as to
the basis of his classification of the predicate offenders and
establish their allegiance to a particular subset of the umbrella
organization. McDaniel did not do so. Moreover, Schmidt’s
testimony established that, whatever their cliques, the Bounty
Hunter Bloods gang members “all grow up together,” “live
together,” and “at anyone [sic] point in time, they’ll say they’re
Ace Line or Five Line,” thus evidencing “fluid or shared
membership among the subset or affiliate gangs” (Prunty,

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supra, 62 Cal.4th at p. 78). And although McDaniel contends
that the different cliques of the Bounty Hunter Bloods “feuded”
like “Hatfields and McCoys,” Prunty also observed that “evidence
that subset gangs have periodically been at odds does not
necessarily preclude treating those gangs collectively under the
STEP Act [California Street Terrorism Enforcement and
Prevention Act of 1988].” (Prunty, at p. 80.) We conclude that
substantial evidence supports the enhancements.
To the extent we construe McDaniel’s claims to challenge
the sufficiency of an organizational nexus between himself and
the Bounty Hunter Bloods, we find this claim unpersuasive.
Unlike Prunty, where the defendant admitted he was a “ ‘Norte’
and a ‘Northerner’ ” but claimed identification with the Detroit
Boulevard subset (Prunty, supra, 62 Cal.4th at p. 68), the
evidence that McDaniel was a Bounty Hunter Blood includes
more than the fact that he had Bounty Hunter Bloods tattoos.
While the Norteños’ gang turf encompassed the “broad
geographic area” of Sacramento (Prunty, at p. 79), the Bounty
Hunter Bloods’ turf was limited to the area in and around
Nickerson Gardens. Schmidt’s testimony also revealed an
association between McDaniel and Carey, a Bounty Hunter
Blood. (See Prunty, at p. 73, [“long-term relationships among
members of different subsets” and “behavior demonstrating a
shared identity with one another or with a larger
organization”].) And Schmidt testified that Kai Harris was a
Bounty Hunter Blood, and six witnesses placed McDaniel and
Harris together on the night of the murders. Angel Hill testified
that McDaniel told Harris, “You disappointed me, man,” and
bragged about the shooting to Carey. From these facts, the jury
could have inferred relationships, “shared goals,” and the fact
that these Bounty Hunter Bloods members “ ‘back up each

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other.’ ” (Prunty, at p. 78.) These facts are sufficient to establish
an organizational link between McDaniel and the Bounty
Hunter Bloods.
IV. PENALTY PHASE ISSUES
A. Anderson’s Cancer Diagnosis
McDaniel contends that the court erred in admitting
evidence of Anderson’s cancer diagnosis during the penalty
phase, in violation of his rights to a fair penalty trial and a
reliable penalty determination.
At the penalty trial, Anderson’s daughter, Neisha Sanford,
testified that her mother was diagnosed with cancer in 1989
and, from that point on, was “back and forth” in treatments like
chemotherapy that caused her to lose her hair. Sanford testified
that the treatments made her mother ill and “affected her a lot.”
“She drank, you know, she had on and off ongoing problems with
drugs and stuff. Yeah. She dealt with it pretty rough,” Sanford
said. Anderson had a recurrence of cancer prior to her death
and wanted to spend more time with her grandchildren.
Before the start of the penalty retrial, the trial court held
an Evidence Code section 402 hearing to determine the
admissibility of this evidence and to reconsider its prior ruling
that the defense could not introduce evidence that Anderson had
drugs in her system at the time of her death. The prosecutor
argued that the cancer evidence was relevant to show Anderson
was a vulnerable victim, which was a circumstance of the crime
under section 190.3, subdivision (a). He argued that the
evidence also contextualized the other victim impact testimony
and mitigated evidence that Anderson had drugs in her system
at the time of her death. The court noted that the cancer
evidence and the toxicology report “kind of tie together” and

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admitted both, reasoning that “[o]ne approach to take, is throw
up my hands and let it all come in and let the jury there sort it
out, which will probably be the safest way from an appellate
review standpoint.”
Under the Eighth Amendment to the federal Constitution,
evidence relating to a murder victim’s personal characteristics
and the impact of the crime on the victim’s family is relevant to
show the victim’s “ ‘uniqueness as an individual human being’ ”
and thereby “the specific harm caused by the defendant.” (Payne
v. Tennessee (1991) 501 U.S. 808, 823, 825.) The federal
Constitution bars this evidence only if it is so unduly prejudicial
as to render the trial fundamentally unfair. (Ibid.) In
California, such evidence is generally admissible as a
circumstance of the crime pursuant to section 190.3,
subdivision (a). “ ‘On the other hand, irrelevant information or
inflammatory rhetoric that diverts the jury’s attention from its
proper role or invites an irrational, purely subjective response
should be curtailed.’ ” (People v. Edwards (1991) 54 Cal.3d 787,
836 (Edwards), overruled on other grounds in People v. Diaz
(2015) 60 Cal.4th 1176.)
In People v. Clair (1992) 2 Cal.4th 629, 671, evidence of a
victim’s cerebral palsy was a relevant circumstance of the crime
because it “could tend to show that defendant mounted and
executed his fatal attack without significant resistance — and
therefore with unnecessary brutality.” Here, by contrast, the
shooting occurred moments after Anderson opened the door, and
the prosecution did not introduce evidence that linked her
cancer with her vulnerability to this type of attack.
The Attorney General argues that this evidence was
properly admitted and showed Anderson’s uniqueness and the

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impact of her death on family members. Yet we need not resolve
the issue because even assuming admission of the cancer
evidence was error, we find no prejudice. The mere reference to
the fact that Anderson was ill at the time of her death was not
likely to “divert[] the jury’s attention from its proper role or
invite[] an irrational, purely subjective response.” (Edwards,
supra, 54 Cal.3d at p. 836.) The court had already ruled that
the prosecution could not use more inflammatory evidence of
Anderson’s cancer, such as photos of her undergoing
chemotherapy. In light of other circumstances of the murders —
such as the fact that Anderson was shot multiple times at close
range — and the other acts of violence adduced during the
penalty phase, there is no reasonable possibility that the cancer
testimony affected the penalty phase verdict. (People v. Abel
(2012) 53 Cal.4th 891, 939 [“[I]n light of the nature of the crime
and the other aggravating factors, including defendant’s
criminal history, there is no reasonable possibility [victim’s
mother’s testimony] affected the penalty verdict.”])
B. Lingering Doubt Instruction
McDaniel next argues that the trial court erred in refusing
to instruct the penalty phase jury on lingering doubt. He urges
us to reconsider our holdings that a lingering doubt instruction
is not constitutionally required. (People v. Streeter (2012)
54 Cal.4th 205, 265 (Streeter); People v. Hamilton (2009)
45 Cal.4th 863, 948 (Hamilton).) Even if not constitutionally
required in all cases, McDaniel argues that the circumstances
warrant an instruction.
During the penalty-phase instructional conference, the
trial court considered defense counsel’s request for an
instruction that the jury “may, however, consider any lingering

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doubt you have about the evidence in deciding penalty.” The
trial court denied the request, explaining “I am not going to give
a lingering doubt instruction since this a retrial of the penalty
phase. I don’t want the jury speculating about the crime.” After
closing argument, defense counsel proposed two slightly
different instructions related to lingering doubt. The trial court
again rejected the instruction, explaining that “the problems I
have with that is, that this jury did not hear the evidence in the
guilt phase and I think it would be inappropriate. [¶] I allowed
Mr. Brewer to make somewhat [sic] I thought was far ranging
comments about the crime. . . .”
McDaniel argues that specific circumstances in this case
warranted a lingering doubt instruction. The first circumstance
is that he had requested a lingering doubt instruction. But an
objection alone does not warrant an instruction. (E.g., Streeter,
supra, 45 Cal.4th at p. 265 [trial court properly refused request
for lingering doubt instruction]; People v. Brown (2003)
31 Cal.4th 518, 567 [same].)
McDaniel also argues that a lingering doubt instruction is
warranted where the penalty phase jury is not the jury that had
rendered the guilt verdicts. We have repeatedly held that a
lingering doubt instruction for a second penalty-phase jury is
not required where that jury is “ ‘steeped’ ” in the nuances of the
capital crimes. (People v. Gonzales and Soliz (2011) 52 Cal.4th
254, 326; People v. DeSantis (1992) 2 Cal.4th 1198, 1239–1240.)
In the penalty phase, the prosecution and defense introduced
the guilt-phase eye-witness testimony and ballistics evidence
that McDaniel asserts is relevant to lingering doubt. In closing
argument, defense counsel emphasized the ballistics evidence
from the gun linked to Harris to suggest that McDaniel did not
cause the “mayhem” alone. Defense counsel also referenced

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inconsistencies and gaps in the testimony of Angel Hill and
Derrick Dillard to argue there was insufficient evidence that
McDaniel himself created all the “carnage.”
Next, McDaniel argues that the trial court repeatedly
instructed the jury that it “must accept” the guilt phase jury’s
finding that McDaniel had personally killed Anderson, which
left no room for them to consider lingering doubt. Compounding
the error of this instruction, he claims, was the prosecutor’s
argument that McDaniel had personally killed Anderson, which
relied heavily on an appeal to the findings of the prior jury.
McDaniel’s reliance on People v. Gay (2008) 42 Cal.4th 1195,
1224, where the trial court instructed the jury that the
defendant’s responsibility had been “conclusively proven and
that there would be no evidence presented in this case to the
contrary,” is inapposite. In Gay, the error that the trial court’s
statements compounded was the trial court’s limitation of
evidence related to lingering doubt in the penalty phase. (Ibid.)
As discussed above, ample evidence of this lingering doubt was
introduced. Moreover, a statement that the jury “must” accept
the guilt-phase findings is qualitatively different than a
statement that the defendant’s guilt has been “conclusively
proven” and that no evidence would be introduced to the
contrary. (Ibid.) Nor did the prosecutor’s statements that “the
verdicts have significance in this case, ladies and gentleman,”
preclude the jury from considering lingering doubt. These
comments merely conveyed the fact that the prior jury found
McDaniel to be the actual shooter.
In sum, the circumstances of this case do not warrant
departure from our precedent holding that the lingering doubt
instruction is not constitutionally required. (Streeter, supra,
54 Cal.4th at p. 265; Hamilton, supra, 45 Cal.4th at p. 948.)

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C. California Jury Trial Right
McDaniel contends that Penal Code section 1042 and
article I, section 16 of the California Constitution require the
penalty phase jury to unanimously determine all “issues of fact,”
including factually disputed aggravating circumstances. He
further contends that these provisions require the penalty phase
jury to determine the ultimate penalty verdict beyond a
reasonable doubt. Because numerous instances of aggravating
evidence, including ten instances of past crimes, were
introduced in the penalty phase, McDaniel contends that the
failure to instruct on unanimity was prejudicial. McDaniel also
argues that the failure to instruct on the reasonable doubt
standard requires reversal. We asked the Attorney General for
supplemental briefing to address these issues in greater detail,
as well as a reply from McDaniel.
In light of our request for supplemental briefing, a number
of amici curiae also sought leave to file briefs informing the court
of their positions. These amici present a range of perspectives
on the relevant issues before us. Some amici focus on the
historical understanding of the California Constitution’s jury
trial right. Others argue that there is no binding precedent
because this case presents issues that our cases have not
carefully considered. Many amici focus on issues and arguments
adjacent to the core questions posed by our briefing order, which
specifically concerned Penal Code section 1042 and California
Constitution article I, section 16. For example, some arguments
are grounded principally in the federal jury trial right, including
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its
progeny. These arguments are distinct from the state law issues
before us, and we address McDaniel’s arguments related to the
federal jury trial right separately below. Several amici,

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including Governor Gavin Newsom, advance views of history
and social context that link capital punishment with racism.
These claims sound in equal protection, due process, or the
Eighth Amendment’s prohibition on cruel and unusual
punishment, and do not bear directly on the specific state law
questions before us. Finally, two amici support respondent and
argue that neither the California Constitution nor the Penal
Code requires unanimity or a reasonable doubt standard at the
penalty phase.
With these perspectives before us, we examine (1) whether
unanimity is required for factually disputed aggravating
circumstances during the penalty phase and (2) whether
reasonable doubt applies to the jury’s ultimate penalty
determination. At oral argument, the Attorney General
acknowledged that McDaniel and amici advance “persuasive
arguments . . . that imposing” the requirements “that the jury
unanimously determine beyond a reasonable doubt factually
disputed aggravating evidence and the ultimate penalty verdict
. . . would improve our system of capital punishment and make
it even more reliable.” The Attorney General also noted that
“statutory reforms to impose those requirements deserve serious
consideration, particularly in light of the important policy
concerns that McDaniel and his amici have raised.”
Nevertheless, the Attorney General contends, state law as it
stands does not require jury unanimity on factually disputed
aggravating circumstances or application of the reasonable
doubt standard to the ultimate penalty determination. Having
carefully considered these claims, we conclude that the Attorney
General is correct.

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1. Unanimity
Article I, section 16 provides: “Trial by jury is an inviolate
right and shall be secured to all, but in a civil cause three-
fourths of the jury may render a verdict. A jury may be waived
in a criminal cause by the consent of both parties expressed in
open court by the defendant and the defendant’s counsel.” (Cal.
Const., art. I, § 16.) Penal Code section 1042 provides: “Issues
of fact shall be tried in the manner provided in Article I, Section
16 of the Constitution of this state.” Together these provisions
codify a right to juror unanimity on issues of fact in criminal
trials.
We have previously held that jury unanimity on the
existence of aggravating circumstances is not required under
the state Constitution. (See, e.g., People v. Hartsch (2010)
49 Cal.4th 472, 515.) McDaniel urges us to reconsider this
precedent because those cases rested on “ ‘uncritical’ analysis”
of the state jury trial right and did not discuss the applicability
of section 1042. Various amici likewise suggest that there is no
binding precedent on this issue or that we should depart from
any such precedent. McDaniel appears correct that these
decisions, while speaking generally of California constitutional
provisions, did not rest on any considered analysis of our state
constitutional or statutory guarantee. (See, e.g., People v.
Griffin (2004) 33 Cal.4th 536, 598 [summarily rejecting
challenges under “the Sixth Amendment’s jury trial clause, the
Eighth Amendment’s cruel and unusual punishment clause, the
Fourteenth Amendment’s due process and equal protection
clauses, and the analogous provisions of, apparently, article I,
sections 7, 15, 16, and 17”], disapproved on other grounds in
People v. Riccardi (2012) 54 Cal.4th 758.) McDaniel also
observes that although our decisions have primarily considered

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application of the federal Sixth Amendment jury trial right to
our capital punishment scheme (see, e.g., People v. Snow (2003)
30 Cal.4th 43, 126, fn. 32; People v. Rangel (2016) 62 Cal.4th
1192, 1235, fn. 16), the federal right is not coextensive with the
state jury trial right (see Mitchell v. Superior Court (1989) 49
Cal.3d 1230, 1241).
We are mindful that McDaniel’s “state constitutional . . .
claim cannot be resolved by a mechanical invocation of current
federal precedent.” (People v. Chavez (1980) 26 Cal.3d 334, 352;
see also People v. Ramos (1984) 37 Cal.3d 136, 153 [death
penalty instruction was “incompatible with this [state
constitutional] guarantee of ‘fundamental fairness’ ” although it
did not violate federal due process principles]; People v. Engert
(1982) 31 Cal.3d 797, 805 (Engert) [former death penalty statute
violates state due process clause although it likely did not
violate Eighth Amendment].) As we explain, however,
McDaniel does not persuade us that there is an independent
state law principle grounded in Article I, Section 16 requiring
unanimity among the penalty jury in order to find the existence
of aggravating circumstances in the face of disputed evidence.
As an initial matter, we note that although McDaniel
raises a question of state constitutional and statutory law with
applicability to a wide range of factual determinations beyond
the context of capital sentencing, his arguments also rest to a
significant degree on the analytical underpinnings of the United
States Supreme Court’s Sixth Amendment jurisprudence.
Apprendi and its progeny fundamentally concern sentencing
and require any fact, other than the fact of a prior conviction,
that increases the penalty for a crime beyond the prescribed
statutory maximum to be found by a unanimous jury and proved
beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at

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p. 490.) The statutory maximum in this context means the
maximum sentence permissible based solely on the facts
reflected in the jury’s verdict or admitted by the defendant.
(Blakely v. Washington (2004) 542 U.S. 296, 303.)
We have rejected arguments that the Sixth Amendment
requires unanimity with respect to aggravating circumstances
because “the jury as a whole need not find any one aggravating
factor to exist” under the statute and the penalty determination
“is a free weighing of all the factors relating to the defendant’s
culpability.” (People v. Snow, supra, 30 Cal.4th at p. 126, fn. 32;
see People v. Capers (2019) 7 Cal.5th 989, 1014; People v.
Rangel, supra, 62 Cal.4th at p. 1235.) Even if we were to revisit
that conclusion, it is a discrete Sixth Amendment issue, not a
general issue concerning the scope of the jury trial right with
implications beyond the sentencing context. (See, e.g., Evid.
Code, §§ 1101, subds. (b) & (c), 1108, subds. (a) & (b).) And we
have not adopted Apprendi’s reasoning as our own independent
understanding of article I, section 16 of the California
Constitution, nor has McDaniel asked us to.
Separate and apart from Sixth Amendment principles,
McDaniel argues that aggravating factors — in particular,
factually disputed evidence of past criminal acts under factor (b)
or factor (c) of section 190.3 — are “issues of fact” within the
meaning of section 1042. Courts have described the state
constitutional guarantee as attaching to “the trial of issues that
are made by the pleadings.” (Dale v. City Court of City of Merced
(1951) 105 Cal.App.2d 602, 607; see also Koppikus v. State
Capitol Commissioners (1860) 16 Cal. 249, 254 [state jury trial
right is a “right . . . which can only be claimed in actions at law,
or criminal actions, where an issue of fact is made by the
pleadings”].) Section 1041 specifies that an “issue of fact” arises

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“[u]pon a plea of not guilty.” McDaniel relies on section 190.3,
which states that “no evidence may be presented by the
prosecution in aggravation unless notice of the evidence to be
introduced has been given to the defendant within a reasonable
period of time as determined by the court, prior to trial.” He
argues that “[t]o the extent that aggravating factors and the
punishment of death are required to be raised in pleadings,” the
aggravating evidence is an “issue of fact” within the meaning of
section 1042. In response, the Attorney General argues that
because a defendant cannot plead to a particular sentence
during the penalty phase, the notice of aggravating
circumstances is not within the scope of sections 1041 and 1042.
The focus of a capital penalty proceeding differs from the
guilt trial. (See People v. Lenart (2004) 32 Cal.4th 1107, 1136
[“Choosing between the death penalty and life imprisonment
without possibility of parole is not akin to ‘the usual fact-finding
process’ ”].) In the guilt trial, the statutory special circumstance
establishes a factual predicate of the capital offense. We have
characterized the statutory special circumstance as the
eligibility factor that “narrow[s] the class of death-eligible first
degree murderers.” (People v. Sapp (2003) 31 Cal.4th 240, 287.)
The “fact or set of facts” that undergird the special circumstance
must be “found beyond a reasonable doubt by a unanimous
verdict” in order to “change[] the crime from one punishable by
imprisonment of 25 years to life to one which must be punished
either by death or life imprisonment without possibility of
parole.” (Engert, supra, 31 Cal.3d at p. 803, fn. omitted; see
§ 190.4, subd. (a).)
In the penalty trial, aggravating and mitigating
circumstances aid the jury in selecting the appropriate penalty.
After a true finding on the special circumstance, the penalty

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phase jury must determine “whether the aggravating
circumstances, as defined by California’s death penalty law
(§ 190.3), so substantially outweigh those in mitigation as to call
for the penalty of death, rather than life without parole.” (People
v. Anderson (2001) 25 Cal.4th 543, 589.) Aggravating
circumstances, such as section 190.3, factor (b) or factor (c)
evidence, “enable the jury to make an individualized assessment
of the character and history of a defendant to determine the
nature of the punishment to be imposed.” (People v. Grant
(1988) 45 Cal.3d 829, 851.)
Although section 190.3 requires notice of aggravating
circumstances, this notice does not establish that an
aggravating circumstance comes within the meaning of section
1041 or 1042. (See People v. Mayfield (1997) 14 Cal.4th 668, 799
[contrasting notice requirement of section 190.3 with offenses
charged in an information], abrogated on other grounds in Scott,
supra, 61 Cal.4th 363.) As a matter of state law, the factual
assessments for aggravating circumstances at the penalty phase
are akin to the determinations jurors make in considering prior
uncharged crimes in the guilt phase of a trial. (Evid. Code,
§ 1101, subd. (b) [evidence of prior misconduct relevant in
determining motive, opportunity, and intent]; id., subd. (c)
[prior misconduct relevant for impeachment].) In some
circumstances, admission of these prior acts also requires notice.
For example, when a criminal defendant is accused of a sexual
offense, evidence of the defendant’s commission of another
sexual offense may be admissible under certain circumstances
provided that notice is served on the defendant before trial.
(Evid. Code, § 1108, subds. (a) & (b); see also § 1054.7.) Jury
unanimity has not been held to be a prerequisite to individual
jurors considering this evidence (see CALCRIM No. 1191A); the

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mere requirement of notice, without more, does not transform
these prior criminal acts into “issues of fact” within the meaning
of sections 1041 and 1042.
Moreover, jury unanimity does not normally extend to
subsidiary or foundational factual issues in other contexts. As
McDaniel observes, the jury in a typical guilt trial must be
unanimous in its verdict and must agree on the specific crime of
which the defendant is guilty. (See People v. Russo (2001) 25
Cal.4th 1124, 1132 (Russo); People v. Diedrich (1982) 31 Cal.3d
263, 281.) But the jury need not unanimously agree on
subsidiary factual issues, such as specific details of the act. (See
Russo, at p. 1132 [“[W]here the evidence shows only a single
discrete crime but leaves room for disagreement as to exactly
how that crime was committed or what the defendant’s precise
role was, the jury need not unanimously agree on the basis or . . .
the ‘theory’ whereby the defendant is guilty.”]; People v. Mickle
(1991) 54 Cal.3d 140, 178, fn. omitted [“[T]he unanimity rule
does not extend to the minute details of how a single, agreed-
upon act was committed.”].) We have said that aggravating
factors for purposes of section 190.3 are such “foundational”
matters that do not require jury unanimity. (People v. Miranda
(1987) 44 Cal.3d 57, 99 [“Generally, unanimous agreement is not
required on a foundational matter. Instead, jury unanimity is
mandated only on a final verdict or special finding.”],
disapproved on another ground in People v. Marshall (1990)
50 Cal.3d 907, 933, fn. 4; People v. Hines (1997) 15 Cal.4th 997,
1067 [“Jury unanimity on such ‘foundational’ matters is not
required.”].) We see no basis in section 1042 or article I, section
16 for the unanimity rule that McDaniel urges here.
McDaniel focuses specifically on factor (b) and factor (c)
evidence and, relying on Russo, argues that because these

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factors require consideration of multiple discrete crimes, they
implicate section 1042. We explained in Russo that in a
standard criminal guilt trial, “when the evidence suggests more
than one discrete crime, either the prosecution must elect
among the crimes or the court must require the jury to agree on
the same criminal act.” (Russo, supra, 25 Cal.4th at p. 1132.)
To hold otherwise would create a “ ‘danger that the defendant
will be convicted even though there is no single offense which all
the jurors agree the defendant committed.’ ” (Ibid.) But the
jury’s consideration of factor (b) or factor (c) evidence in a capital
penalty trial does not present the same concern. The finding of
a prior offense under factor (b) or factor (c) alone is not sufficient
under the statute for the jury to return a death verdict, nor does
it automatically lead to such a result. Accordingly, neither
factor (b) nor factor (c) evidence implicates section 1042.

This is not to say there are no limits on the introduction of
aggravating evidence. The creation in 1957 of a bifurcated guilt
and penalty trial in capital cases “broaden[ed] the scope of
relevant evidence admissible on the issue of penalty,” including
evidence of other crimes, provided that its admission was
consistent with other evidentiary rules. (People v. Purvis (1959)
52 Cal.2d 871, 883, disapproved on another ground in People v.
Morse (1964) 60 Cal.2d 631, 637, fn. 2, 648–649 (Morse); see
Purvis, at pp. 883–884 [evidence of other crimes cannot be
proven with hearsay]; People v. Hamilton (1963) 60 Cal.2d 105,
134, disapproved on another ground in Morse, at pp. 637, fn. 2,
648–649 and People v. Daniels (1991) 52 Cal.3d 815, 866
[“flimsy, speculative testimony should not have been admitted”
in penalty trial].) As evidence of past crimes became
increasingly integrated into the penalty phase, this court has

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expressed concerns that “in the penalty trial the same
safeguards should be accorded a defendant as those which
protect him in the trial in which guilt is established.” (People v.
Terry (1964) 61 Cal.2d 137, 149, fn. 8.) Evidence of prior
criminal acts “may have a particularly damaging impact on the
jury’s determination whether the defendant should be
executed.” (People v. Polk (1965) 63 Cal.2d 443, 450 (Polk).)
Recognizing the need for safeguards in the capital
sentencing context, our cases have departed from the rule,
applicable at guilt trials, that the preponderance of the evidence
standard generally applies to proof of prior crimes before the
jury may consider them. (See People v. Carpenter (1997)
15 Cal.4th 312, 381; see also, e.g., People v. Foster (2010)
50 Cal.4th 1301, 1346 [in a guilt trial (1) the jury cannot
“consider the evidence of defendant’s prior crimes unless it
found those crimes proven by a preponderance of the evidence;
(2) it [can]not find defendant guilty unless the prosecution
proved the charged offenses beyond a reasonable doubt; and (3)
if the evidence of prior crimes was necessary to prove an
essential fact, the jury [can]not rely upon that evidence unless
the prosecution proved the prior crimes beyond a reasonable
doubt”].) At capital penalty trials, before jurors can consider
evidence of past crimes as an aggravating factor, “they must be
convinced beyond a reasonable doubt” that the defendant
committed the crime. (Polk, supra, 63 Cal.2d at p. 451; see
People v. McClellan (1969) 71 Cal.2d 793, 804–806.) Relying on
this precedent, we have read the same requirement into
subsequent iterations of the death penalty statute. (See People
v. Robertson (1982) 33 Cal.3d 21, 53–55 [applying this rule to
the 1977 death penalty statute]; Miranda, supra, 44 Cal.3d at
p. 97 [current death penalty statute]; see also People v. Williams

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(2010) 49 Cal.4th 405, 458–459 [applying rule to factor (b)
evidence].) We have since emphasized that “the rule is an
evidentiary one and is not constitutionally mandated.”
(Miranda, at p. 98.)
McDaniel does not press a due process justification for the
unanimity requirement, nor does he offer an evidentiary
justification that would require unanimity on aggravating
evidence. When trial courts have given a unanimity instruction
on aggravating circumstances, we have said that requiring “a
unanimous special finding in that regard actually provided
greater protection than that to which defendant was entitled
under the statute.” (People v. Caro (1988) 46 Cal.3d 1035, 1057.)
“As to the possibility that jurors who were not convinced of
defendant’s guilt in the uncharged crimes might have been
influenced by the prejudicial effect of the evidence, such a risk
is inherent in the introduction of any evidence of prior criminal
activity under factor (b), and . . . ‘the reasonable doubt standard
ensures reliability.’ ” (Ibid.)
To the extent some amici argue that a constitutional right
to unanimity also attaches to the ultimate penalty
determination, we express no view on that issue as McDaniel
does not advance this argument and the statute already
contains such a requirement. (§ 190.4, subd. (b).)
In sum, while this court has previously imposed additional
reliability requirements on the jury’s consideration of
aggravating evidence in the penalty phase, we hold that neither
article I, section 16 of the California Constitution nor Penal
Code section 1042 provides a basis to require unanimity in the
jury’s determination of factually disputed aggravating
circumstances.

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2. Reasonable Doubt
McDaniel also asks us to reconsider our prior holding that
the state Constitution does not require the degree of certainty
attached to the jury’s ultimate decision to impose the death
penalty to be “ ‘beyond a reasonable doubt.’ ” (People v. Hartsch,
supra, 49 Cal.4th at p. 515.) His arguments also seem to require
the jury to be instructed that in order to choose a death verdict,
it must find that aggravating circumstances outweigh
mitigating circumstances beyond a reasonable doubt; various
amici explicitly argue as much. McDaniel is correct that our
prior decisions have not fully considered the state jury trial right
or section 1042 in this context.
Pointing to People v. Hall (1926) 199 Cal. 451, McDaniel
and various amici argue that the state jury trial right was
historically understood to apply to the capital sentencing
decision as a constitutional matter. Hall said: “Under the law
the verdict in such a case must be the result of the unanimous
agreement of the jurors and the verdict is incomplete unless, as
returned, it embraces the two necessary constituent elements;
first, a finding that the accused is guilty of murder in the first
degree, and, secondly, legal evidence that the jury has fixed the
penalty in the exercise of its discretion.” (Id. at p. 456.) There,
the jury returned a guilty verdict but made no penalty
determination and specifically disclosed in its verdict that it
could not reach a “unanimous agreement as to degree of
punishment.” (Id. at p. 453.) The trial court nonetheless
entered judgment and imposed the death penalty. We viewed
this as error and reasoned that “[i]n legal effect th[e jury trial]
right was denied to the defendant in the case at bar,” rejecting
the government’s argument that “the defect in the form of the

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verdict constitute[d] no more than ‘matter of procedure.’ ” (Id.
at pp. 457–458.)
For further support, McDaniel points to People v. Green
(1956) 47 Cal.2d 209 (Green), which overruled a line of our cases
beginning with People v. Welch (1874) 49 Cal. 174 (Welch), and
to Justice Schauer’s dissenting opinion in People v. Williams
(1948) 32 Cal.2d 78, 89–100, 101–104 (dis. opn. of Schauer, J.)).
In Welch, a case predating Hall, this court interpreted the
language in section 190 “as if it read” that a defendant convicted
of first degree murder “ ‘[s]hall suffer death, or (in the discretion
of the jury) imprisonment in the State prison for life.’ ” (Welch,
at p. 180.) Welch understood the jury’s discretion to be
“restricted” such that it “is to be employed only where the jury
is satisfied that the lighter penalty should be imposed,” and thus
the lesser punishment of life imprisonment could be imposed
only where the jury unanimously found it appropriate. (Id. at
p. 179.) Under Welch, jury unanimity as to a judgment of death
was not required, and a jury verdict of first degree murder that
was silent as to punishment would result in a sentence of death.
After Welch, a line of our cases criticized its holding yet
refused to find error in jury instructions following it. (Green,
supra, 47 Cal.2d at pp. 227–229 [collecting cases].) In some
cases, however, we adopted a different construction of
section 190, holding that “the Legislature ‘confided the power to
affix the punishment within these two alternatives to the
absolute discretion of the jury, with no power reserved to the
court to review their action in that respect.’ ” (Id. at p. 229,
quoting People v. Leary (1895), 105 Cal. 486, 496). Hall partially
receded from Welch’s holding and required jury unanimity for a
sentence of death to be imposed, at least where the verdict was
not completely silent on the matter. (Hall, supra, 199 Cal. at

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pp. 456–458.) Yet it was not until 1956 that this court formally
overruled Welch and its progeny by holding in Green that
section 190 “indicates no preference whatsoever as between the
two equally fixed alternatives of penalty” and that it would be
“error to instruct contrary to the terms of the statute.” (Green,
at pp. 231–232.)
McDaniel points out that Green stated “it is for the jury —
not the law — to fix the penalty” (Green, supra, 47 Cal.2d at
p. 224) and cited with approval language from the high court’s
opinion in Andres v. United States (1948) 333 U.S. 740 that the
Sixth Amendment’s “requirement of unanimity extends to all
issues — character or degree of the crime, guilt and
punishment — which are left to the jury.” (Green, at p. 220,
quoting Andres, at p. 748.) Moreover, Justice Schauer’s dissent
in Williams explained his view that the state jury trial right
“and the statutes (Pen. Code, §§ 190, 1042, 1157) give to a
defendant charged with murder the right, where he does not
waive a jury trial, to have the jury determine not only the
question of his guilt or innocence and the question of the class
and degree of the offense, but also, if the offense be murder of
the first degree, the penalty to be imposed. The law does not
give any preference to either penalty but leaves such selection
solely to the jury, and it requires that the jury be unanimous in
its determination of the penalty as it must be unanimous on the
questions of guilt and class or degree of the crime.” (Williams,
supra, 32 Cal.2d at p. 102 (dis. opn. of Schauer, J.).)
Yet none of these authorities specifically discuss a
reasonable doubt standard for the capital penalty
determination; at most, they could support the conclusion that
a defendant has the right to a determination by a unanimous
jury. Because section 190.4, subdivision (b) already contains

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such a requirement, we need not reach this question as a
constitutional matter. If anything, the authorities cited by
McDaniel and amici suggest that the ultimate penalty
determination is entirely within the discretion of the jury,
without any preference for either of the two available
punishments, not necessarily that the jury may choose the death
penalty only if it believes the punishment is warranted beyond
a reasonable doubt.
The crux of McDaniel’s argument is that article I,
section 16 encompasses the protections of the common law right
to a jury trial, including the right to factual findings by a jury
beyond a reasonable doubt, and that article I, section 16 applies
to the capital penalty determination, thereby requiring the jury
to select the appropriate punishment using a reasonable doubt
standard. For present purposes, we assume without deciding
that McDaniel’s foundational premise is correct — i.e., that the
right to a reasonable doubt standard governing factfinding by a
jury in criminal cases is secured by article I, section 16 and not
solely grounded in due process (see In re Winship (1970) 397 U.S.
358, 364; People v. Flood (1998) 18 Cal.4th 470, 481). Even so, we
conclude that the jury’s ultimate decision selecting the penalty in
a capital case does not constitute “factfinding” in any relevant
sense.
We have consistently described the penalty jury’s
sentencing selection in terms that eschew a traditional factual
inquiry. We have emphasized that the penalty verdict
“ ‘constitute[s] a single fundamentally normative assessment’ ”
(People v. Duff (2014) 58 Cal.4th 527, 569) and “is inherently
normative, not factual” (People v. Lightsey (2012) 54 Cal.4th
668, 731). Indeed, we have rejected applying the harmlessness
standard under People v. Watson (1956) 46 Cal.2d 818 because

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a “capital penalty jury . . . is charged with a responsibility
different in kind from . . . guilt phase decisions: its role is not
merely to find facts, but also — and most important — to render
an individualized, normative determination about the penalty
appropriate for the particular defendant — i.e., whether he
should live or die.” (People v. Brown (1988) 46 Cal.3d 432, 448;
see also Watson, at p. 836.)
We also have cited Kansas v. Carr (2016) 577 U.S. 108 to
support our conclusion that capital “sentencing is an inherently
moral and normative function.” (People v. Winbush (2017)
2 Cal.5th 402, 489.) Carr considered whether “the Eighth
Amendment requires capital-sentencing courts . . . ‘to
affirmatively inform the jury that mitigating circumstances need
not be proven beyond a reasonable doubt.’ ” (Carr at pp. 118–119.)
In rejecting such a requirement, the high court explained that
whereas the statutory “facts justifying death . . . either did or did
not exist[,] . . . [w]hether mitigation exists . . . is largely a judgment
call (or perhaps a value call)” and “what one juror might consider
mitigating another might not.” (Ibid.)
As Carr and our precedent explain, the jury’s selection of the
penalty in a capital case under existing law is not a traditional
factfinding inquiry. Even if the jury trial right under article I,
section 16 is applicable to the penalty phase of a capital trial and
encompasses the right to factual findings beyond a reasonable
doubt, we do not understand it to require the penalty phase jury
to select the appropriate punishment beyond a reasonable
doubt.
As McDaniel and various amici note, at one time during
the era of unitary guilt and penalty trials, our court expressed a
preference for a reasonable doubt standard for the penalty

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verdict. In People v. Cancino (1937) 10 Cal.2d 223 (Cancino),
the court reasoned that “it would be more satisfactory in death
penalty cases if the court would instruct the jurors that if they
entertain a reasonable doubt as to which one of two or more
punishments should be imposed, it is their duty to impose the
lesser.” (Id. at p. 230.) Cancino nevertheless upheld an
instruction that omitted a burden of proof for the penalty
verdict; the court found dispositive the fact that the instructions
“fully informed” the jury “as to its discretion.” (Ibid.)
In People v. Perry (1925) 195 Cal. 623 (Perry), the trial
court apparently gave the jury three instructions related to the
penalty determination. The defendant challenged one
instruction that, consistent with Welch, said (1) “while the law
vests [the jury] with a discretion as to whether a defendant shall
suffer death or confinement in the state prison for life, this
discretion is not an arbitrary one, and is to be employed only
when the jury is satisfied that the lighter penalty should be
imposed.” (Id. at p. 640.) This was given alongside two other
instructions: (2) “ ‘[i]f the jury should be in doubt as to the
proper penalty to inflict the jury should resolve that doubt in
favor of the defendant and fix the lesser penalty, that is,
confinement in the state prison for life,’ ” and (3) “[i]n the
exercise of your discretion as to which punishment shall be
inflicted, you are entirely free to act according to your own
judgment.” (Ibid.) We stated the law as follows: “It is the jury’s
right and duty to consider and weigh all the facts and
circumstances attending the commission of the offense, and
from these and such reasons as may appear to it upon a
consideration of the whole situation, determine whether or not
in the exercise of its discretion, life imprisonment should be
imposed rather than the infliction of the death penalty.” (Ibid.)

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We ultimately held in Perry that there was no error with the
challenged instruction and that if “there was any vice . . . it was
rendered harmless” by the third instruction quoted above.
(Ibid.)
As McDaniel notes, People v. Coleman (1942)
20 Cal.2d 399 characterized Perry as having “held” that “if any
doubt be engendered as to the punishment to be imposed, the
jury should not impose the extreme penalty.” (Id. at p. 406.) But
this was not Perry’s holding, and we have instead cited Perry
repeatedly for the proposition that it is the jury’s “duty to
consider and weigh all the facts and circumstances” and then to
“exercise . . . its discretion” in selecting the penalty. (Perry,
supra, 195 Cal. at p. 640; see Hall, supra, 199 Cal. at p. 455;
People v. Leong Fook (1928) 206 Cal. 64, 69; People v.
Pantages (1931) 212 Cal. 237, 271; see also Green, supra,
47 Cal.2d at p. 227 [describing Perry as a case where we
“affirmed judgments imposing the death sentence where
instructions based on the Welch decision . . . were given” but
“disapproved the giving of such instructions”].) Today
CALCRIM No. 766 and CALJIC No. 8.88 apprise the jury of its
sentencing discretion. (See CALCRIM No. 766 [“Determine
which penalty is appropriate and justified by considering all the
evidence and the totality of any aggravating and mitigating
circumstances.”]; CALJIC No. 8.88 [“To return a judgment of
death, each of you must be persuaded that the aggravating
circumstances are so substantial in comparison with the
mitigating circumstances that it warrants death instead of life
without parole.”]; People v. Leon (2020) 8 Cal.5th 831, 849–850.)
Contrary to McDaniel’s contention, Cancino and Perry
neither hold nor suggest there is a constitutional requirement
that a jury make the capital penalty determination using a

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reasonable doubt standard. Those cases, decided in the context
of unitary capital trials, found that giving such an instruction
was not error under the statutes then in force when
accompanied by an instruction explaining the jury’s ultimate
discretion in selecting the appropriate penalty. It is not clear
that decisions like Cancino and Perry have any further
significance to the constitutional question at hand. Rather, we
think those cases must be understood in the context of this
court’s conflicting decisions regarding the jury’s role in capital
sentencing under section 190 following Welch and before that
decision was finally overruled in Green. Green made clear that
“[t]he law . . . indicates no preference whatsoever as between the
two equally fixed alternatives of penalty.” (Green, supra,
47 Cal.2d at p. 231.) And following Green, this court repeatedly
rejected the argument that a reasonable doubt instruction as to
punishment is required. (See, e.g., People v. Purvis (1961)
56 Cal.2d 93, 96 (Purvis), disapproved on another ground in
Morse, supra, 60 Cal.2d at pp. 637, fn. 2, 648–649.)
McDaniel and amici also point to language in the 1957
death penalty statute, which bifurcated the guilt and penalty
trials for the first time. That statute provided that
“determination of the penalty . . . shall be in the discretion of the
. . . jury trying the issue of fact on the evidence presented, and
the penalty fixed shall be expressly stated in the decision or
verdict.” (Stats. 1957, ch. 1968, § 2, p. 3510.) They argue that
this statutory language treats the “determination of the
penalty” as an “issue of fact” within the meaning of section 1042
and thus the reasonable doubt standard, as required by article I,
section 16, applies.
But, as explained, the penalty jury’s ultimate sentencing
decision is not a traditional factual determination in any

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relevant sense. Moreover, whatever the Legislature understood
“issue of fact” to mean within the context of the 1957 death
penalty statute does not control the meaning of “issue of fact” in
section 1042, which far predates the 1957 law. Section 1042 was
first enacted in 1872, when the death penalty was hardly an
obscure or hidden feature for felony convictions. As amicus
curiae Criminal Justice Legal Foundation noted in its brief,
“Nearly all felonies were nominally capital offenses at common
law. (See 4 W. Blackstone, [Commentaries (1st ed. 1769)]
p. 98.)” (See Tennessee v. Garner (1985) 471 U.S. 1, 13 & fn. 11.)
Section 1042’s companion provision, section 1041, was also
enacted in 1872 and specifies circumstances that give rise to an
issue of fact under section 1042: “An issue of fact arises: [¶]
1. Upon a plea of not guilty. [¶] 2. Upon a plea of a former
conviction or acquittal of the same offense. [¶] 3. Upon a plea of
once in jeopardy. [¶] 4. Upon a plea of not guilty by reason of
insanity.” (§ 1041.) Even if section 1041 does not provide an
exhaustive list, it is notable that the penalty determination is
not an enumerated “issue of fact.” Indeed, when section 1041
was last amended by the Legislature in 1949, California law
specified the death penalty as an appropriate punishment for
six separate crimes, ranging from first degree murder to perjury
in a capital case and kidnapping for ransom. (See Subcom. of
the Judiciary Com., Rep. on Problems of the Death Penalty and
its Administration in California (Jan. 18, 1957) Assembly
Interim Committee Reports 1955–1957, Vol. 20, no. 3, p. 22.)
Our early construction of the 1957 statute further
confirms that the penalty determination is not an “issue of fact”
under section 1042. The 1957 law set forth three phases of a
capital trial with separate determinations: guilt, penalty, and
sanity at the time of the commission of the offense. Consistent

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with then-existing law, the penalty phase included an
exemption from the death penalty for “any person who was
under the age of 18 years at the time of the commission of the
crime” (Stats. 1957, ch. 1968, § 2, p. 3510), which previously had
been construed to “impose[] the burden of proof by a
preponderance of evidence on the defendant . . . on the issue of
under-age” (People v. Ellis (1929) 206 Cal. 353, 358). This
structure appeared to recognize that burdens of proof can apply
to certain determinations in the post-guilt phases, such as
minority or insanity. But the statute did not specify a burden of
proof for the penalty determination itself. To the contrary, the
statute, consistent with Green, Perry, and Hall, entrusted the
penalty determination entirely to “the discretion of the court or
jury.” (Stats. 1957, ch. 1968, § 2, p. 3510.) And, for whatever
reason, the Legislature and the electorate chose not to retain
this reference to “issue of fact” in subsequent iterations of the
death penalty scheme.
Shortly after enactment of the 1957 statute, Justice
Traynor, writing for the court, reiterated that “the jury has
absolute discretion in fixing the penalty and is not required to
prefer one penalty over another” and upheld the trial court’s
rejection of an instruction “that if [the jury] entertained a
reasonable doubt as to which of the penalties to impose, the
lesser penalty should be given.” (Purvis, supra, 56 Cal.2d at
p. 96, fn. omitted.) Despite the language in the 1957 statute now
relied on by McDaniel and amici, Purvis rejected the argument
that a reasonable doubt standard applies to the penalty
determination and gave no indication that section 1042 had any
bearing on the matter. Instead, Purvis construed the 1957
statute in a manner consistent with Green’s holding that the
prior version of section 190 “indicate[d] no preference

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whatsoever as between the two equally fixed alternatives of
penalty.” (Green, supra, 47 Cal.2d at p. 231.) Although Purvis’s
discussion of this issue was brief, this court reaffirmed and
applied Purvis’s holding in several cases. (See In re
Anderson (1968) 69 Cal.2d 613, 622–623; People v. Smith (1966)
63 Cal.2d 779, 795; People v. Hines (1964) 61 Cal.2d 164,
173, disapproved of on another ground in People v.
Murtishaw (1981) 29 Cal.3d 733, 774, fn. 40; People v. Hamilton,
supra, 60 Cal.2d at p. 134; People v. Harrison (1963) 59 Cal.2d
622, 633–634; People v. Howk (1961) 56 Cal.2d 687, 699.) We
see no basis in section 1042 or in the 1957 statute or its
legislative history to revisit Purvis’s holding, and we have
rejected arguments that the current capital punishment scheme
statutorily requires a reasonable doubt standard at the penalty
phase. (See People v. Virgil (2011) 51 Cal.4th 1210, 1278.)
McDaniel also notes that Colorado, New Jersey,
Nebraska, and Utah have read the reasonable doubt standard
into their death penalty statutes based in part on concerns
grounded in due process, the Eighth Amendment, and
fundamental fairness. As the New Jersey Supreme Court
explained, “[i]f anywhere in the criminal law a defendant is
entitled to the benefit of the doubt, it is here. We therefore hold
that as a matter of fundamental fairness the jury must find that
aggravating factors outweigh mitigating factors, and this
balance must be found beyond a reasonable doubt.” (State v.
Biegenwald (N.J. 1987) 524 A.2d 130, 156; see also People v.
Tenneson (Colo. 1990) 788 P.2d 786, 797 [“[T]he jury still must
be convinced beyond a reasonable doubt that the defendant
should be sentenced to death.”]; State v. Wood (Utah 1982)
648 P.2d 71, 83 [“Furthermore, in our view, the reasonable
doubt standard also strikes the best balance between the

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interests of the state and of the individual for most of the
reasons stated in In re Winship [(1970)] 397 U.S. 358”]; State v.
Simants (Neb. 1977) 250 N.W.2d 881, 888, disapproved on
another ground in State v. Reeves (Neb. 1990) 453 N.W.2d 359
[reading reasonable doubt burden into silent statute].) At least
one state has imposed this requirement for the penalty verdict
by statute. (Ark. Code Ann. § 5-4-603, subd. (a)(3).)
To the extent the Attorney General argues that
implementation of the reasonable doubt standard and jury
unanimity with regard to the ultimate penalty verdict would be
unworkable, practice from other states suggests otherwise.
Moreover, as noted, the Attorney General has acknowledged
that requiring the penalty jury to “unanimously determine
beyond a reasonable doubt factually disputed aggravating
evidence and the ultimate penalty verdict . . . would improve our
system of capital punishment and make it even more reliable,”
and that statutory reforms “deserve serious consideration.”
Nevertheless, to date our Legislature and electorate have not
imposed such requirements by statute, and the out-of-state
holdings above are based at least in part on due process or
Eighth Amendment grounds. McDaniel does not ask us to
reconsider our precedent that has concluded otherwise as a
matter of due process.
In sum, having examined our case law and relevant
history, we are unable to infer from the jury trial guarantee in
article I, section 16 of the California Constitution or Penal Code
section 1042 a requirement of certainty beyond a reasonable
doubt for the ultimate penalty verdict.

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D. Additional Challenges to the Death Penalty
McDaniel raises a number of challenges to the
constitutionality of California’s death penalty statute that we
have previously rejected, and we decline to revisit those holdings
in this case.
“Penal Code sections 190.2 and 190.3 are not
impermissibly broad, and factor (a) of Penal Code section 190.3
does not make imposition of the death penalty arbitrary and
capricious.” (People v. Sánchez (2016) 63 Cal.4th 411, 487
(Sánchez).)
As described above, “ ‘[e]xcept for evidence of other crimes
and prior convictions, jurors need not find aggravating factors
true beyond a reasonable doubt; no instruction on burden of
proof is needed; the jury need not achieve unanimity except for
the verdict itself; and written findings are not required.’ ”
(Sánchez, supra, 63 Cal.4th at p. 487.)
Likewise, we have held that the high court’s decision in
Hurst v. Florida (2016) 577 U.S. 92 does not alter our conclusion
under the federal Constitution or under the Sixth Amendment
about the burden of proof or unanimity regarding aggravating
circumstances, the weighing of aggravating and mitigating
circumstances, or the ultimate penalty determination. (People
v. Capers, supra, 7 Cal.5th at p. 1014; People v. Rangel, supra,
62 Cal.4th at p. 1235.) And we have concluded that Hurst does
not cause us to reconsider our holdings that imposition of the
death penalty does not constitute an increased sentence within
the meaning of Apprendi, supra, 530 U.S. 466, or that the
imposition of the death penalty does not require factual findings
within the meaning of Ring v. Arizona (2002) 536 U.S. 584.
(People v. Henriquez (2017) 4 Cal.5th 1, 46.) As McDaniel

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acknowledges, neither Ring nor Hurst decided the standard of
proof that applies to the ultimate weighing consideration.
“Use in the sentencing factors of such adjectives as
‘extreme’ (§ 190.3, factors (d), (g)) and ‘substantial’ (id.,
factor (g)) does not act as a barrier to the consideration of
mitigating evidence in violation of the federal Constitution.”
(People v. Avila (2006) 38 Cal.4th 491, 614–615.) “By advising
that a death verdict should be returned only if aggravation is ‘so
substantial in comparison with’ mitigation that death is
‘warranted,’ ” CALJIC No. 8.88 “clearly admonishes the jury to
determine whether the balance of aggravation and mitigation
makes death the appropriate penalty.” (People v. Arias (1996)
13 Cal.4th 92, 171.) “[T]he phrase ‘ “so substantial” ’ in CALJIC
No. 8.88 is not unconstitutionally vague.” (People v. Henriquez,
supra, 4 Cal.5th at p. 46.)
A trial court need not delete inapplicable statutory
sentencing factors in CAJIC No. 8.85 from the jury instructions
(People v. Cook (2006) 39 Cal.4th 566, 610) or instruct that the
jury can consider certain statutory factors only in mitigation.
(People v. Beck and Cruz (2019) 8 Cal.5th 548, 671 (Beck and
Cruz).)
CALJIC 8.88 “clearly stated that the death penalty could
be imposed only if the jury found that the aggravating
circumstances outweighed mitigating. There was no need to
additionally advise the jury of the converse . . . .” (People v.
Duncan (1991) 53 Cal.3d 955, 978.)
We decline to reconsider our precedent holding that a jury
cannot consider sympathy for a defendant’s family in mitigation.
(People v. Rices (2017) 4 Cal.5th 49, 88; People v. Ochoa (1998)
19 Cal.4th 353, 456.) The trial court need not instruct that there

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is a presumption of life. (Beck and Cruz, supra, 8 Cal.5th at
p. 670.)
“The absence of a requirement of intercase proportionality
review does not violate the Eighth Amendment.” (People v.
Amezcua and Flores (2019) 6 Cal.5th 886, 929.) “The California
sentencing scheme does not violate the equal protection clause
of the Fourteenth Amendment by denying capital defendants
certain procedural safeguards afforded to noncapital
defendants.” (Ibid.) “California law does not violate
international norms, and thus contravene the Eighth and
Fourteenth Amendments, by imposing the death penalty as
regular punishment for substantial numbers of crimes.” (Ibid.)
E. Cumulative Error
McDaniel contends that the cumulative effect of errors at
the guilt and penalty phase requires reversal. While we
assumed that admission of Anderson’s cancer was error, we
concluded there was no reasonable possibility that the victim
impact testimony affected the verdict. There are no other errors
to cumulate.
CONCLUSION
We affirm the judgment.
LIU, J.

We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.

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 PEOPLE v. MCDANIEL
S171393

Concurring Opinion by Justice Liu

Over the years, this court has repeatedly rejected the
claim that California’s death penalty scheme violates the jury
trial right guaranteed by the Sixth Amendment to the United
States Constitution as interpreted in Apprendi v. New Jersey
(2000) 530 U.S. 466 (Apprendi) and related cases. We do so
again today, adhering to precedent. (Maj. opn., ante, at pp. 76–
77.) I write separately, however, to express doubts about the
way our case law has resolved a key facet of this claim. There
is a serious question whether our capital sentencing scheme is
unconstitutional in light of Apprendi, and I have come to believe
the issue merits reexamination by this court and other
responsible officials.
In Apprendi, the United States Supreme Court held that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at
p. 490.) This holding spawned a major shift in Sixth
Amendment jurisprudence, and the high court has been
continually elaborating its far-reaching ramifications over the
past 20 years. (See Ring v. Arizona (2002) 536 U.S. 584 (Ring);
Blakely v. Washington (2004) 542 U.S. 296 (Blakely); U.S. v.
Booker (2005) 543 U.S. 220 (Booker); Cunningham v. California
(2007) 549 U.S. 270 (Cunningham); Alleyne v. United States
(2013) 570 U.S. 99 (Alleyne); Hurst v. Florida (2016) 577 U.S. 92

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 PEOPLE v. MCDANIEL
Liu, J., concurring

(Hurst).) Many decisions, including several of the high court’s
own precedents, have been overruled in Apprendi’s wake.
Our case law has held that the Apprendi rule does not
disturb California’s death penalty scheme. Yet our decisions in
this area consist of brief analyses that have largely addressed
high court opinions one by one as they have appeared on the
books. In my view, we have not fully grappled with the
analytical underpinnings of the Apprendi rule and the totality
of the high court’s 20-year line of decisions.
The high court has made clear that “the ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” (Blakely, supra, 542
U.S. at p. 303, italics in original.) Our precedent has repeatedly
asserted that a defendant becomes eligible for the death penalty
upon a conviction for first degree murder and a jury’s true
finding of one or more special circumstances. (See, e.g., People
v. Anderson (2001) 25 Cal.4th 543, 589–590, fn. 14 (Anderson)
[“[U]nder the California death penalty scheme, once the
defendant has been convicted of first degree murder and one or
more special circumstances has been found true beyond a
reasonable doubt, death is no more than the prescribed
statutory maximum for the offense . . . .”]; People v. Ochoa
(2001) 26 Cal.4th 398, 454 (Ochoa) [“[O]nce a jury has
determined the existence of a special circumstance, the
defendant stands convicted of an offense whose maximum
penalty is death. . . . Accordingly, Apprendi does not restrict the
sentencing of California defendants who have already been
convicted of special circumstance murder.”].)
But this assertion, in the context of Apprendi, appears
incorrect. Under our death penalty scheme, “the maximum

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Liu, J., concurring

sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant”
(Blakely, supra, 542 U.S. at p. 303) upon a conviction for first
degree murder and special circumstance true finding — with
nothing more — is life imprisonment without parole. A death
verdict is authorized only when the penalty jury has
unanimously determined that “the aggravating circumstances
outweigh the mitigating circumstances” (Pen. Code, § 190.3; see
People v. Brown (1985) 40 Cal.3d 512, 541–542, fn. 13, revd. on
other grounds sub nom. California v. Brown (1987) 479 U.S.
538) — which necessarily presupposes that the penalty jury has
found at least one section 190.3 circumstance to be aggravating.
(All undesignated statutory references are to the Penal Code.)
Our cases have not satisfactorily explained why this additional
finding of at least one aggravating factor, which is a necessary
precursor to the weighing determination and is thus required
for the imposition of a death sentence, is not governed by the
Apprendi rule.
This issue is not a mere technicality. The Apprendi rule
states what the Constitution requires in the context of criminal
sentencing, and it has particular significance in cases where the
special circumstance findings by the guilt jury are not
necessarily aggravating. In such cases, the prosecution may
rely on a bevy of prior criminal conduct under section 190.3,
factors (b) and (c), some of which may be disputed, to show
aggravation during the penalty trial. For example, the
prosecution here introduced evidence of 10 prior criminal acts
by McDaniel under factor (b), ranging from threatening a school
official and instances of weapon possession to battery of peace
officers and prior instances of robbery, shooting, and killing.
Some of the evidence was vigorously contested by McDaniel, and

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Liu, J., concurring

only one prior act — possession of an assault weapon — was
accompanied by documentary evidence of a conviction under
factor (c).
Especially where it is not clear that any special
circumstance findings by the guilt jury are aggravating at the
penalty phase, section 190.3, factor (b) or (c) evidence may prove
critical to the sentencing decision. It is true that each penalty
juror may consider evidence of prior criminal activity as an
aggravating factor only if the juror is “convinced beyond a
reasonable doubt” that the defendant committed the prior crime.
(People v. Polk (1965) 63 Cal.2d 443, 451; see People v.
McClellan (1969) 71 Cal.2d 793, 804–806.) Yet the penalty jury
“as a whole need not find any one aggravating factor to exist.”
(People v. Snow (2003) 30 Cal.4th 43, 126, fn. 32 (Snow).)
To illustrate: Suppose the prosecution introduces
evidence of three prior criminal acts (A, B, and C). Some jurors
may find that A was proven beyond a reasonable doubt, but not
B and C; other jurors may find B proven, but not A and C; others
may find C proven, but not A and B; and still others may find
none proven at all and instead find some other circumstance to
be aggravating. Or the jurors may find various prior crimes
proven beyond a reasonable doubt but differ as to which one or
ones are aggravating. There is little downside for the
prosecution to provide a broad menu of aggravating evidence for
the penalty jury to consider, since we presume on appeal that
“any hypothetical juror whom the prosecution’s evidence might
not have convinced beyond a reasonable doubt . . . followed the
court’s instruction to disregard the evidence.” (People v. Yeoman
(2003) 31 Cal.4th 93, 132–133.) Our capital sentencing scheme
allows the penalty jury to render a death verdict in these
circumstances. But I am doubtful the Sixth Amendment does.

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Liu, J., concurring

In the case before us, McDaniel raises some Sixth
Amendment and Apprendi arguments, but this portion of his
briefing focuses primarily on his state law claims. His Apprendi
arguments mostly mirror his state law arguments or emphasize
that the penalty jury’s weighing determination is a factual issue
subject to Apprendi. Those arguments are different from my
focus here: the finding by the penalty jury of at least one
aggravating factor relevant to the sentencing determination.
Although today’s decision does not revisit this issue, I believe
the issue should be reexamined in a case where it is more fully
developed. The constitutionality of our death penalty scheme in
light of two decades of evolving Sixth Amendment jurisprudence
deserves careful and thorough reconsideration.
I.
“The Sixth Amendment provides that those ‘accused’ of a
‘crime’ have the right to a trial ‘by an impartial jury.’ This right,
in conjunction with the Due Process Clause, requires that each
element of a crime be proved to the jury beyond a reasonable
doubt.” (Alleyne, supra, 570 U.S. at p. 104.) To convict a
defendant of a serious offense, the jury’s verdict must be
unanimous. (See Ramos v. Louisiana (2020) 590 U.S. __, __
[140 S.Ct. 1390, 1397].)
In the 20 years since Apprendi, the high court’s precedents
in this area, individually and as a whole, have underscored how
robust and far-reaching the Apprendi rule is. As noted,
Apprendi held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” (Apprendi, supra,
530 U.S. at p. 490.) Apprendi involved a plea agreement for
multiple felonies arising from the defendant’s “fir[ing of] several

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Liu, J., concurring

.22-caliber bullets into the home of an African-American family
that had recently moved into a previously all-white
neighborhood.” (Id. at p. 469.) To evaluate a hate crime
sentencing enhancement that carried an extended term of
imprisonment, the trial judge held an evidentiary hearing on the
defendant’s intent and “concluded that the evidence supported
a finding ‘that the crime was motivated by racial bias.’ ” (Id. at
p. 471.) Because this subsequent factfinding by the judge under
a preponderance of the evidence standard increased the
maximum sentence, the high court held that this scheme
violated the Sixth Amendment. (Id. at p. 491.) The high court’s
inquiry into whether a particular fact increases the penalty for
a crime beyond the prescribed statutory maximum was
functional in nature; it disregarded whether the fact is formally
considered an element of the crime or a sentencing factor, since
“[m]erely using the label ‘sentence enhancement’ . . . surely does
not provide a principled basis for” distinction. (Id. at p. 476.)
Apprendi also preserved “a narrow exception to the general rule”
for the fact of a prior conviction but noted “it is arguable” that
allowing the exception is “incorrect[]” based on Apprendi’s
reasoning, at least “if the recidivist issue were contested.”
(Apprendi, at pp. 489–490; see id. at pp. 487–490 [declining to
overrule Almendarez-Torres v. U.S. (1998) 523 U.S. 224, the
source of the exception].)
A few years later, the high court clarified in Blakely “that
the ‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.
[Citations.] In other words, the relevant ‘statutory maximum’ is
not the maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose without any

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Liu, J., concurring

additional findings.” (Blakely, supra, 542 U.S. at pp. 303–304.)
This is so because “[w]hen a judge inflicts punishment that the
jury’s verdict alone does not allow, the jury has not found all the
facts ‘which the law makes essential to the punishment.’ ” (Id.
at p. 304.) Blakely found a Sixth Amendment violation because
the defendant “was sentenced to more than three years above
the 53-month statutory maximum of the standard range
because he had acted with ‘deliberate cruelty,’ ” and the judge
“could not have imposed” that “sentence solely on the basis of
the facts admitted in the guilty plea.” (Id. at pp. 303–304.)
In Booker, the Supreme Court applied Apprendi to the
federal sentencing guidelines, holding that the trial judge’s
additional factfinding violated the Sixth Amendment when it
resulted in “an enhanced sentence of 15 or 16 years [under the
guidelines] instead of the 5 or 6 years authorized by the jury
verdict alone.” (Booker, supra, 543 U.S. at p. 228; see id. at
pp. 233–235.)
In Cunningham, the high court considered California’s
determinate sentencing law, which “assign[ed] to the trial judge,
not to the jury, authority to find the facts that expose a
defendant to an elevated ‘upper term’ sentence.” (Cunningham,
supra, 549 U.S. at p. 274.) The scheme specified three precise
terms (lower, middle, and upper) and directed the trial court “to
start with the middle term, and to move from that term only
when the court itself finds and places on the record facts —
whether related to the offense or the offender — beyond the
elements of the charged offense” and “ ‘established by a
preponderance of the evidence.’ ” (Id. at pp. 277, 279.) Because
“[t]he facts so found are neither inherent in the jury’s verdict nor
embraced by the defendant’s plea, and they need only be
established by a preponderance of the evidence, not beyond a

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Liu, J., concurring

reasonable doubt,” the high court held that this scheme violated
the Sixth and Fourteenth Amendments. (Id. at p. 274.)
The Supreme Court has also applied the Apprendi rule to
capital sentencing. In Ring, the high court considered Arizona’s
scheme, in which a defendant “could not be sentenced to death,
the statutory maximum penalty for first-degree murder, unless
further findings were made.” (Ring, supra, 536 U.S. at p. 592.)
State law required the trial judge “to ‘conduct a separate
sentencing hearing to determine the existence or nonexistence
of [certain enumerated] circumstances . . . for the purpose of
determining the sentence to be imposed’ ” and permitted “the
judge to sentence the defendant to death only if there [wa]s at
least one aggravating circumstance and . . . ‘no mitigating
circumstances sufficiently substantial to call for leniency.’ ” (Id.
at pp. 592–593.) The high court, before Apprendi, had upheld
Arizona’s scheme under the Sixth and Eighth Amendments
(Walton v. Arizona (1990) 497 U.S. 639 (Walton)), and the high
court in Apprendi left Walton’s Sixth Amendment holding
undisturbed (Apprendi, supra, 530 U.S. at pp. 496–497). “The
key distinction, according to the Apprendi Court, was that a
conviction of first-degree murder in Arizona carried a maximum
sentence of death. ‘Once a jury has found the defendant guilty
of all the elements of an offense which carries as its maximum
penalty the sentence of death, it may be left to the judge to
decide whether that maximum penalty, rather than a lesser one,
ought to be imposed.’ ” (Ring, at p. 602.) But two years after
Apprendi, the high court reversed itself, holding in Ring that
this distinction was untenable and inconsistent with the
Arizona Supreme Court’s own construction of the state’s capital
sentencing law. (Id. at p. 603.) Ring thus overruled Walton’s
Sixth Amendment holding. (Id. at p. 609.)

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In Ring, the state argued that because “Arizona law
specifies ‘death or life imprisonment’ as the only sentencing
options” for a first degree murder conviction, “Ring was
therefore sentenced within the range of punishment authorized
by the jury verdict.” (Ring, supra, 536 U.S. at pp. 603–604.) The
high court rejected this argument, explaining that it
“overlook[ed] Apprendi’s instruction that ‘the relevant inquiry is
one not of form, but of effect.’ ” (Id. at p. 604.) The “first-degree
murder statute ‘authorize[d] a maximum penalty of death only
in a formal sense,’ ” Ring explained, because the finding of at
least one aggravating circumstance at the sentencing phase is
required for a death sentence. (Ibid.) “In effect, ‘the required
finding [of an aggravated circumstance] expose[d] [Ring] to a
greater punishment than that authorized by the jury’s guilty
verdict’ ” alone. (Ibid.) Ring thus made clear that if “a State
makes an increase in a defendant’s authorized punishment
contingent on the finding of a fact, that fact — no matter how
the State labels it — must be found by a jury beyond a
reasonable doubt.” (Id. at p. 602.) Further, “[a]ggravators
‘operate as statutory “elements” of capital murder . . . [when,] in
their absence, [the death] sentence is unavailable.’ ” (Id. at
p. 599, quoting Walton, supra, 497 U.S. at p. 709, fn.1 (dis. opn.
of Stevens, J.).) Ring also recognized that Walton’s distinction
“between elements of an offense and sentencing factors” was
“untenable” in light of Apprendi. (Ring, at p. 604.)
More recently, in Hurst, the high court applied Apprendi
and its progeny to a state capital sentencing scheme it had twice
upheld under the Sixth Amendment. (Hurst, supra, 577 U.S. at
p. 101, overruling Hildwin v. Florida (1989) 490 U.S. 638
(Hildwin) and Spaziano v. Florida (1984) 468 U.S. 447
(Spaziano).) Under Florida’s death penalty scheme at the time,

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a defendant convicted of a capital felony could receive a
maximum sentence of life imprisonment based on the conviction
alone. (Hurst, at p. 95.) A sentence of death required “an
additional sentencing proceeding ‘result[ing] in findings by the
court that such person shall be punished by death.’ ” (Ibid.)
Florida used a “hybrid” model “ ‘in which [a] jury renders an
advisory verdict but the judge makes the ultimate sentencing
determinations.’ ” (Ibid., quoting Ring, supra, 536 U.S. at
p. 608, fn. 6.) The high court found Ring’s analysis to “appl[y]
equally to Florida’s” scheme because, “[l]ike Arizona at the time
of Ring, Florida does not require the jury to make the critical
findings necessary to impose the death penalty” — instead
“requir[ing] a judge to find these facts” — and “the maximum
punishment [the defendant] could have received without any
judge-made findings was life in prison without parole.” (Hurst,
at pp. 98–99.) Focusing again on function over form, the high
court found Florida’s “advisory jury verdict” to be “immaterial”
for purposes of satisfying the Sixth Amendment because the jury
“ ‘does not make specific factual findings with regard to the
existence of mitigating or aggravating circumstances and its
recommendation is not binding on the trial judge.’ ” (Hurst, at
pp. 98–99.)
Just last year, in an Eighth Amendment case, the high
court again confirmed that “[u]nder Ring and Hurst, a jury must
find the aggravating circumstance that makes the defendant
death eligible.” (McKinney v. Arizona (2020) 589 U.S. __, __
[140 S.Ct. 702, 707] (McKinney).) At the same time, the court
reaffirmed its prior decisions holding that the Constitution does
not require “a jury (as opposed to a judge) . . . to weigh the
aggravating and mitigating circumstances or to make the
ultimate sentencing decision” in a capital proceeding. (Ibid.)

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McKinney also rejected the claim that it was error for the trial
judge in that case, as opposed to a jury, to find the aggravating
circumstance that raised the statutory maximum penalty to
death; that claim could not succeed because the “case became
final . . . long before Ring and Hurst” and those decisions “do not
apply retroactively on collateral review.” (Id. at p. __ [at
p. 708].)
In sum, under Apprendi and its progeny, the Sixth
Amendment requires any fact, other than the fact of a prior
conviction, that increases the penalty for a crime beyond the
statutory maximum to be found by a unanimous jury and proved
beyond a reasonable doubt. The statutory maximum means the
maximum sentence permissible based solely on the facts
reflected in the jury’s verdict or admitted by the defendant,
without any additional factfinding. (Blakely, supra, 542 U.S. at
p. 303.) It does not matter if the additional fact to be found is
termed an “aggravating circumstance,” a “sentencing factor,” or
a “sentencing enhancement”; the high court has emphasized
that “ ‘the relevant inquiry is one not of form, but of effect.’ ”
(Ring, supra, 536 U.S. at p. 604.)
II.
True to its word, the high court has consistently elevated
function over form in applying Apprendi. (Apprendi, supra, 530
U.S. at p. 494; see also Ring, supra, 539 U.S. at p. 602; id. at
p. 610 (conc. opn. of Scalia, J.) [“[T]he fundamental meaning of
the jury-trial guarantee of the Sixth Amendment is that all facts
essential to imposition of the level of punishment that the
defendant receives — whether the statute calls them elements
of the offense, sentencing factors, or Mary Jane — must be found
by the jury beyond a reasonable doubt.”]; Southern Union Co. v.
U.S. (2012) 567 U.S. 343, 358–359 [“Apprendi and its progeny

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 PEOPLE v. MCDANIEL
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have uniformly rejected” the argument “that in determining the
maximum punishment for an offense, there is a constitutionally
significant difference between a fact that is an ‘element’ of
the offense and one that is a ‘sentencing factor.’ ”].) The high
court has repeatedly looked past statutory labels to determine
the substantive role that a fact or factor plays in the sentencing
decision.
As noted, this approach has led the high court to overrule
several of its precedents. Walton upheld capital sentencing
schemes that “requir[e] judges, after a jury verdict holding a
defendant guilty of a capital crime, to find specific aggravating
factors before imposing a sentence of death.” (Apprendi, supra,
530 U.S. at p. 496.) Apprendi reaffirmed Walton, but in Ring,
the high court found Walton untenable in light of Apprendi and
overruled it. (Ring, supra, 536 U.S. at pp. 604–605, 609.) In
Hurst, the high court overruled Spaziano and Hildwin as
inconsistent with Apprendi. (Hurst, supra, 577 U.S. at p. 102.)
And in Alleyne, the high court held that any fact that increases
the statutory minimum penalty must also be found by a jury
beyond a reasonable doubt, overruling Harris v. U.S. (2002) 536
U.S. 545, 557 and McMillan v. Pennsylvania (1986) 477 U.S. 79.
(Alleyne, supra, 570 U.S. at p. 103; see United States v.
Haymond (2019) 588 U.S. __, __ [139 S.Ct. 2369, 2378].) These
overrulings indicate the breadth and force of the Apprendi rule.
The high court’s decisions have also made clear that the
requirements of the Sixth and Eighth Amendments are distinct.
After initially holding in Walton that Arizona’s capital
sentencing scheme complied with both the Sixth and Eighth
Amendments, and then overruling Walton’s Sixth Amendment
holding in Ring, the high court left intact Walton’s Eighth
Amendment holding that “the challenged factor . . . furnishes

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 PEOPLE v. MCDANIEL
Liu, J., concurring

sufficient guidance to the sentencer” and thus did not violate the
Eighth Amendment. (Walton, supra, 497 U.S. at p. 655; see
Kansas v. Marsh (2006) 548 U.S. 163, 169.) The high court has
understood the Eighth Amendment to be fundamentally
concerned with narrowing a sentencer’s discretion to ensure
that punishment is commensurate and proportional to the
offense. (See Graham v. Florida (2010) 560 U.S. 48, 59;
Maynard v. Cartwright (1988) 486 U.S. 356, 362.) The Sixth
Amendment, by contrast, ensures that the facts necessary for a
criminal punishment are found by a unanimous jury and proved
beyond a reasonable doubt. In light of these different inquiries
under the Sixth and Eighth Amendments, a scheme that
satisfies one does not necessarily satisfy the other. (See Ring,
supra, 539 U.S. at p. 606 [“The notion ‘that the Eighth
Amendment’s restriction on a state legislature’s ability to define
capital crimes should be compensated for by permitting States
more leeway under the Fifth and Sixth Amendments in proving
an aggravating fact necessary to a capital sentence . . . is
without precedent in our constitutional jurisprudence.’ ”].)
The high court’s evolving jurisprudence has also caused
state courts to reexamine earlier decisions. “Following
Apprendi,” the Hawaii Supreme Court “repeatedly considered
whether Hawaii’s extended term sentencing scheme comported
with Apprendi. Until 2007, [the court] concluded that it did so,
on the ground that Hawaii’s scheme only required the judge to
determine ‘extrinsic’ facts, rather than facts that were ‘intrinsic’
to the offense. [Citations.] It was not until Maugaotega II, that
th[e] court acknowledged that the United States Supreme
Court, in Cunningham, rejected the validity of [Hawaii’s]
intrinsic/extrinsic distinction, which formed the basis of these
decisions. [State v. Maugaotega (Hawaii 2007) 168 P.3d 562,

13
 PEOPLE v. MCDANIEL
Liu, J., concurring

572–577].” (Flubacher v. State (Hawaii 2018) 414 P.3d 161,
167.)
The Delaware Supreme Court had repeatedly held that
the state’s death penalty scheme complied with Apprendi and
its progeny. (See McCoy v. State (Del. 2015) 112 A.3d 239, 269–
271; Swan v. State (Del. 2011) 28 A.3d 362, 390–391; Brice v.
State (Del. 2003) 815 A.2d 314, 321–322.) After Hurst, the court
changed course and held that Delaware’s law violates the Sixth
Amendment’s requirement that “the existence of ‘any
aggravating circumstance,’ statutory or non-statutory, that has
been alleged by the State for weighing in the selection phase of
a capital sentencing proceeding must be made by a jury, . . .
unanimously and beyond a reasonable doubt.” (Rauf v. State
(Del. 2016) 145 A.3d 430, 433–434; see id. at p. 487, fn. omitted
(conc. opn. of Holland, J.) [Hurst squarely “invalidated a judicial
determination of aggravating circumstances” and “also stated
unequivocally that the jury trial right recognized in Ring now
applies to all factual findings necessary to impose a death
sentence under a state statute”].)
The Florida Supreme Court, on remand after Hurst,
concluded that the Sixth Amendment requires the jury to “be
the finder of every fact, and thus every element, necessary for
the imposition of the death penalty.” (Hurst v. State (Fla. 2016)
202 So.3d 40, 53.) “These necessary facts include . . . find[ing]
the existence of the aggravating factors proven beyond a
reasonable doubt, that the aggravating factors are sufficient to
impose death, and that the aggravating factors outweigh the
mitigating circumstances.” (Ibid., fn. omitted.) Noting that
“Florida law has long required findings beyond the existence of
a single aggravator before the sentence of death may be
recommended or imposed,” the court “reject[ed] the State’s

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 PEOPLE v. MCDANIEL
Liu, J., concurring

argument that Hurst v. Florida only requires that the jury
unanimously find the existence of one aggravating factor and
nothing more.” (Id. at p. 53, fn. 7.) The court “also conclude[d]
that, just as elements of a crime must be found unanimously by
a Florida jury, all these findings . . . are also elements that must
be found unanimously by the jury.” (Id. at pp. 53–54.)
More recently, the Florida Supreme Court “partially
recede[d]” from its holding on remand from Hurst. (State v.
Poole (Fla. 2020) 297 So.3d 487, 501 (Poole).) In Poole, the court
distinguished between the two findings required during the
state’s sentencing phase: (a) “[t]he eligibility finding . . . ‘[t]hat
sufficient aggravating circumstances exist’ ”; and (b) “[t]he
selection finding . . . ‘[t]hat there are insufficient mitigating
circumstances to outweigh the aggravating circumstances.’ ”
(Id. at p. 502, quoting Fla. Stat. § 921.141.) The court
determined that the selection or weighing finding “ ‘is mostly a
question of mercy’ ” and “ ‘is not a finding of fact [to which the
jury trial right attaches], but a moral judgment.’ ” (Poole, at
p. 503; cf. McKinney, supra, 589 U.S. at pp. __–__ [140 S.Ct. at
pp. 707–708].) However, and most relevant here, the court did
not disturb its prior holding that the jury must find “one or more
statutory aggravating circumstances” unanimously and beyond
a reasonable doubt. (Ibid.)
Moreover, many state legislatures have responded to
Apprendi and its progeny in the capital context and, especially
after Blakely, more broadly in criminal sentencing. (See Stemen
& Wilhelm, Finding the Jury: State Legislative Responses to
Blakely v. Washington (2005) 18 Fed. Sentencing Rep. 7
[providing an overview of state reforms].) Immediately after
Ring, Arizona enacted statutory changes conforming its death
penalty scheme to Ring’s requirements. Arizona law now

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 PEOPLE v. MCDANIEL
Liu, J., concurring

provides for two phases of the capital sentencing proceeding:
(1) the aggravation phase, in which “the trier of fact . . .
determine[s] whether one or more alleged aggravating
circumstances have been proven” (Ariz. Rev. Stat., § 13-752(C));
and (2) the penalty phase, in which “the trier of fact . . .
determine[s] whether the death penalty should be imposed” (id.,
subd. (D)). In the aggravation phase, the jury must “make a
special finding on whether each alleged aggravating
circumstance has been proven” (id., subd. (E)); “a unanimous
verdict is required to find that the aggravating circumstance has
been proven” (ibid.); and “[t]he prosecution must prove the
existence of the aggravating circumstances beyond a reasonable
doubt” (id. § 13-751(B)). Then, in the penalty phase, the jury
considers “any evidence that is relevant to the determination of
whether there is mitigation that is sufficiently substantial to
call for leniency” (id. § 13-752(G)), and the defendant has the
burden of “prov[ing] the existence of the mitigating
circumstances by a preponderance of the evidence” (id. § 13-
751(C)). Jurors “do not have to agree unanimously that a
mitigating circumstance has been proven to exist”; “[e]ach juror
may consider any mitigating circumstance found by that juror
in determining the appropriate penalty.” (Ibid.)
Likewise, Florida enacted statutory reforms to its capital
sentencing regime following Hurst. Florida law now requires
that the jury find, “beyond a reasonable doubt, the existence of
at least one aggravating factor” in order for the defendant to be
eligible for the death penalty. (Fla. Stat., § 921.141(2)(a); see
id., subd. (2)(b)1.) The jury must also “unanimous[ly]” “return
findings identifying each aggravating factor found to exist” (id.,
subd. (2)(b)) and “[u]nanimously” recommend a sentence of
either life without parole or death “based on a weighing of . . .

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 PEOPLE v. MCDANIEL
Liu, J., concurring

[¶] . . . [w]hether sufficient aggravating factors exist[,] . . . [¶]
[w]hether aggravating factors exist which outweigh the
mitigating circumstances found to exist[,] . . . [¶] [and, based on
that], whether the defendant should be sentenced to life
imprisonment without the possibility of parole or to death” (id.,
subd. (2)(b)2.; see id., subd. (c)). Only if the jury unanimously
recommends a sentence of death can the court then decide
whether to “impose a sentence of life imprisonment without the
possibility of parole or a sentence of death” (id., subd. (3)(a)(2))
“after considering each aggravating factor found by the jury and
all mitigating circumstances” (id., subd. (3)(b)).
In sum, the high court’s Apprendi jurisprudence has
prompted significant reexamination and reform of capital
sentencing schemes in many states. Yet California is not among
them, and our precedent is in conflict with decisions from other
states. (See Poole, supra, 297 So.3d at pp. 501–503 [recognizing
that the state law requirement of at least one aggravating factor
in order to impose death is subject to the Apprendi rule]; Rauf
v. State, supra, 145 A.3d at pp. 433–434 [any aggravating
circumstance used in a capital sentencing proceeding must be
found by a unanimous jury beyond a reasonable doubt].)
III.
We first confronted the impact of Apprendi on California’s
death penalty scheme in Anderson, supra, 25 Cal.4th 543. In a
footnote, we found Apprendi inapplicable to the penalty phase
because “under the California death penalty scheme, once the
defendant has been convicted of first degree murder and one or
more special circumstances has been found true beyond a
reasonable doubt, death is no more than the prescribed
statutory maximum for the offense; the only alternative is life

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 PEOPLE v. MCDANIEL
Liu, J., concurring

imprisonment without possibility of parole.” (Id. at pp. 589–
590, fn. 14.)
We elaborated on this distinction in Ochoa, reasoning that
“Apprendi itself excluded from its scope ‘state capital sentencing
schemes requiring judges, after a jury verdict holding a
defendant guilty of a capital crime, to find specific aggravating
factors before imposing a sentence of death.’ ” (Ochoa, supra, 26
Cal.4th at p. 453, quoting Apprendi, supra, 530 U.S. at p. 496.)
In Ochoa, we specifically relied on Apprendi’s reaffirmation of
Walton and noted similarities between the California and then-
current Arizona schemes. (Ochoa, at pp. 453–454.)
But our reliance on Walton was soon undercut by Ring.
After Ring overruled Walton and found Arizona’s scheme
unconstitutional, we reverted to rejecting the argument that
Apprendi “mandates that aggravating circumstances necessary
for the jury’s imposition of the death penalty be found beyond a
reasonable doubt . . . for the reason given in People v. Anderson,
supra, 25 Cal.4th at pages 589–590, footnote 14” (quoted above).
(Snow, supra, 30 Cal.4th at p. 126, fn. 32.) We concluded that
Ring “does not change this analysis” because “[u]nder
California’s scheme, in contrast [to Arizona’s], each juror must
believe the circumstances in aggravation substantially outweigh
those in mitigation, but the jury as a whole need not find any
one aggravating factor to exist” since “[t]he final step . . . is a
free weighing of all the factors relating to the defendant’s
culpability, comparable to a sentencing court’s traditionally
discretionary decision to, for example, impose one prison
sentence rather than another.” (Ibid.) We insisted that
“[n]othing in Apprendi or Ring suggests the sentencer in such a
system constitutionally must find any aggravating factor true
beyond a reasonable doubt.” (Ibid.)

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 PEOPLE v. MCDANIEL
Liu, J., concurring

In People v. Prieto (2003) 30 Cal.4th 226, we further
explained that because the penalty “jury merely weighs the
factors enumerated in section 190.3 and determines ‘whether a
defendant eligible for the death penalty should in fact receive
that sentence . . .’ [citation] [n]o single factor therefore
determines which penalty — death or life without the possibility
of parole — is appropriate. [¶] . . . [And] [b]ecause any finding
of aggravating factors during the penalty phase does not
‘increase[ ] the penalty for a crime beyond the prescribed
statutory maximum’ [citation], Ring imposes no new
constitutional requirements on California’s penalty phase
proceedings.” (Id. at p. 263.)
We reaffirmed this reasoning after Blakely (see People v.
Morrison (2004) 34 Cal.4th 698, 731 (Morrison)), Booker (see
People v. Lancaster (2007) 41 Cal.4th 50, 106), Cunningham (see
People v. Prince (2007) 40 Cal.4th 1179, 1297 (Prince)), and
Hurst (People v. Rangel (2016) 62 Cal.4th 1192, 1235). But in
each instance, our analysis was brief, ranging from a few
sentences to a short paragraph or two. And we relied more on
grounds for distinguishing the sentencing schemes at issue in
the high court’s opinions than on any thorough examination of
the analytical underpinnings of the Apprendi line of decisions.
For instance, despite Blakely’s clarification of what “the
‘statutory maximum’ for Apprendi purposes” means — i.e., “the
maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant”
(Blakely, supra, 542 U.S. at p. 303) — we concluded that Blakely
“d[id] not undermine our analysis” because it “simply relied on
Apprendi and Ring to conclude that a state noncapital criminal
defendant’s Sixth Amendment right to trial by jury was violated
where the facts supporting his sentence, which was above the

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 PEOPLE v. MCDANIEL
Liu, J., concurring

standard range for the crime he committed, were neither
admitted by the defendant nor found by a jury to be true beyond
a reasonable doubt” (Morrison, supra, 34 Cal.4th at p. 731). We
distinguished Cunningham on the ground that it “involve[d]
merely an extension of the Apprendi and Blakely analyses to
California’s determinate sentencing law and has no apparent
application to the state’s capital sentencing scheme.” (Prince,
supra, 40 Cal.4th at p. 1297.)
And we distinguished Hurst on the ground that under
California’s sentencing scheme, unlike Florida’s, “a jury weighs
the aggravating and mitigating circumstances and reaches a
unanimous penalty verdict” and “this verdict is not merely
‘advisory.’ ” (Rangel, supra, 62 Cal.4th at p. 1235, fn. 16,
quoting Hurst, supra, 577 U.S. at p. 98.) We explained that “[i]f
the jury reaches a verdict of death, our system provides for an
automatic motion to modify or reduce this verdict to that of life
imprisonment without the possibility of parole,” but the trial
court “rules on this motion . . . simply [to] determine[] ‘whether
the jury’s findings and verdicts that the aggravating
circumstances outweigh the mitigating circumstances are
contrary to law or the evidence presented.’ ” (Rangel, at p. 1235,
fn. 16, quoting § 190.4; see People v. Capers (2019) 7 Cal.5th
989, 1014 [reaffirming this same reasoning to distinguish
Hurst].)
These analyses in our case law appear to rest on the
observation that under California’s capital sentencing scheme,
“the jury as a whole need not find any one aggravating factor to
exist.” (Snow, supra, 30 Cal.4th at p. 126, fn. 32.) Thus, when
the prosecution offers evidence of multiple instances of prior
criminal conduct as aggravating evidence in support of a death
verdict, the jury need not agree on which prior crimes, if any,

20
 PEOPLE v. MCDANIEL
Liu, J., concurring

have been proven beyond a reasonable doubt. Two jurors may
find the existence of one prior crime, while three other jurors
may focus on another prior crime, a single juror may fixate on
still another or none at all, and so on. Yet our case law deems
the jury as a whole to have found the existence of at least one
aggravating factor so long as each juror finds one (any one) prior
crime proven beyond a reasonable doubt — or none at all so long
as the juror finds another section 190.3 factor to be aggravating.
The observation that this is how California’s sentencing
scheme works is not an argument for its constitutionality under
Apprendi. Under section 190.3, the penalty jury may not return
a death verdict unless it has found at least one aggravating
circumstance. It is not clear why that finding is not governed by
the Apprendi rule. We have compared the jury’s “free weighing”
of aggravating and mitigating circumstances in the penalty
determination to “a sentencing court’s traditionally
discretionary decision.” (Snow, supra, 30 Cal.4th at p. 126,
fn. 32.) But it is precisely the sentencing court’s traditional
discretion that the Apprendi rule upends, cabining it to a
prescribed statutory range supported by proper jury findings.
(See Cunningham, supra, 549 U.S. at p. 292; McKinney, supra,
589 U.S. at pp. __–__ [140 S.Ct. at pp. 707–708].) To say that
California law does not require the jury to agree on any one
aggravating factor does not answer the Apprendi claim; it
simply states the problem.
Our repeated insistence that death is no more than the
statutory maximum upon a first degree murder conviction and
a true finding of a special circumstance also cannot carry the
day. The same argument — made by this court in the analogous
context of determinate sentencing — was considered and
rejected in Cunningham. Before Cunningham, we upheld

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 PEOPLE v. MCDANIEL
Liu, J., concurring

California’s determinate sentencing law under Apprendi,
Blakely, and Booker. (See People v. Black (2005) 35 Cal.4th
1238, 1254 (Black), judg. vacated and cause remanded for
further consideration in light of Cunningham, supra, 549 U.S.
270, sub nom. Black v. California (2007) 549 U.S. 1190.) In
Black, we rejected the argument that “a jury trial [wa]s required
on the aggravating factors on which an upper term sentence is
based, because the middle term is the ‘maximum sentence a
judge may impose solely on the basis of the facts reflected in the
jury verdict . . . .’ ” (Black, at p. 1254, italics omitted, quoting
Blakely, supra, 542 U.S. at p. 303.) We explained that “the
California determinate sentence law simply authorize[s] a
sentencing court to engage in the type of factfinding that
traditionally has been incident to the judge’s selection of an
appropriate sentence within a statutorily prescribed sentencing
range.” (Ibid.) We held that the “the upper term is the
‘statutory maximum’ ” and viewed the statutory “requirement
that the middle term be imposed unless an aggravating factor is
found” as “merely a requirement that the decision to impose the
upper term be reasonable,” “preserv[ing] the traditional broad
range of judicial sentencing discretion.” (Id. at pp. 1254–1255,
fn. omitted.) We also analogized the determinate sentencing law
to “the post-Booker federal sentencing system.” (Id. at p. 1261.)
Notwithstanding our understanding of California’s
determinate sentencing law, the high court in Cunningham
rejected our reasoning in Black. The high court concluded that
“[i]f the jury’s verdict alone does not authorize the sentence, if,
instead, the judge must find an additional fact to impose the
longer term, the Sixth Amendment requirement is not
satisfied.” (Cunningham, supra, 549 U.S. at p. 290.)
Cunningham also rejected Black’s comparison to the advisory

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 PEOPLE v. MCDANIEL
Liu, J., concurring

federal sentencing guidelines because under California’s
sentencing scheme “judges are not free to exercise their
‘discretion to select a specific sentence within a defined range.’ ”
(Id. at p. 292, quoting Booker, supra, 543 U.S. at p. 233.)
Rather, by “adopt[ing] sentencing triads, three fixed sentences
with no ranges between them,” judges have “no discretion to
select a sentence within a range.” (Cunningham, at p. 292.)
Instead, a judge must impose the middle term absent
“[f]actfinding to elevate a sentence,” and Cunningham
concluded that the high court’s “decisions make plain” that such
factfinding “falls within the province of the jury employing a
beyond-a-reasonable-doubt standard, not the bailiwick of a
judge determining where the preponderance of the evidence
lies.” (Ibid.)
Our reasoning distinguishing Apprendi and its progeny in
the capital context appears analogous to the reasoning in Black
that Cunningham rejected. We have said that “death is no more
than the prescribed statutory maximum” upon a special
circumstance first degree murder conviction (Anderson, supra,
25 Cal.4th at pp. 589–590, fn. 14), and we have emphasized the
jury’s “free weighing” penalty determination to conclude that it
is equivalent to “a sentencing court’s traditionally discretionary
decision” (Snow, supra, 30 Cal.4th at p. 126, fn. 32). But just as
the determinate sentencing law in Cunningham prescribed
“sentencing triads” with three discrete options as opposed to
allowing a judge to select “ ‘within a defined range’ ”
(Cunningham, supra, 549 U.S. at p. 292), California’s capital
sentencing scheme similarly provides for two discrete options in
the case of a conviction for first degree murder with a special
circumstance finding — “death or imprisonment in the state
prison for life without the possibility of parole” (§ 190.2,

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 PEOPLE v. MCDANIEL
Liu, J., concurring

subd. (a)). And like the requirement to impose the middle term
absent factfinding in aggravation, in the capital context “a
sentence of confinement in state prison for a term of life without
the possibility of parole” is required unless the jury finds one or
more aggravating circumstances and “concludes that the
aggravating circumstances outweigh the mitigating
circumstances.” (§ 190.3.)
After the high court vacated Black and remanded for
further consideration in light of Cunningham, we decided People
v. Black (2007) 41 Cal.4th 799 (Black II). We rejected the
argument that there is a “right to jury trial on all aggravating
circumstances that may be considered by the trial court, even if
one aggravating circumstance has been established in
accordance with Blakely.” (Id. at p. 814.) Instead, we held that
“as long as a single aggravating circumstance that renders a
defendant eligible for the upper term sentence has been
established in accordance with the requirements of Apprendi
and its progeny, any additional fact finding engaged in by the
trial court in selecting the appropriate sentence among the three
available options does not violate the defendant’s right to jury
trial.” (Id. at p. 812.)
We reasoned that “Cunningham requires us to recognize
that aggravating circumstances serve two analytically distinct
functions in California’s current determinate sentencing
scheme. One function is to raise the maximum permissible
sentence from the middle term to the upper term. The other
function is to serve as a consideration in the trial court’s exercise
of its discretion in selecting the appropriate term from among
those authorized for the defendant’s offense. Although the
[determinate sentencing law] does not distinguish between
these two functions, in light of Cunningham it is now clear that

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 PEOPLE v. MCDANIEL
Liu, J., concurring

we must view the federal Constitution as treating them
differently. Federal constitutional principles provide a criminal
defendant the right to a jury trial and require the prosecution to
prove its case beyond a reasonable doubt as to factual
determinations (other than prior convictions) that serve the first
function, but leave the trial court free to make factual
determinations that serve the second function. It follows that
imposition of the upper term does not infringe upon the
defendant’s constitutional right to jury trial so long as one
legally sufficient aggravating circumstance has been found to
exist by the jury, has been admitted by the defendant, or is
justified based upon the defendant’s record of prior
convictions.” (Black II, supra, 41 Cal.4th at pp. 815–816.)
The continued applicability of this part of Black II is not
clear in light of statutory changes to the determinate sentencing
law made in response to Cunningham. (See Stats. 2007, ch. 3,
§ 2; § 1170, subd. (b).) Even so, and despite our conclusion that
Cunningham “has no apparent application to the state’s capital
sentencing scheme” (Prince, supra, 40 Cal.4th at p. 1297), there
is an argument for extending Black II’s reasoning to the jury’s
consideration of aggravating and mitigating circumstances in
the capital context under section 190.3. But, as I explain, the
argument is not convincing.
Under Black II, one could argue that our death penalty
scheme comports with Apprendi as follows: A jury must find at
least one special circumstance under section 190.2 for the
defendant to be death-eligible and for the proceeding to continue
into a penalty phase, and that special circumstance must be
found unanimously and beyond a reasonable doubt. (§ 190.1.)
Then, any such special circumstance found true by the guilt
phase jury automatically becomes a consideration for the

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 PEOPLE v. MCDANIEL
Liu, J., concurring

penalty phase jury under section 190.3, factor (a), since that
factor includes “[t]he circumstances of the crime of which the
defendant was convicted in the present proceeding and the
existence of any special circumstances found to be true pursuant
to Section 190.1.” Thus, in light of the guilt phase jury’s special
circumstance finding(s), the structure of our death penalty
scheme arguably ensures at least “one legally sufficient
aggravating circumstance has been found to exist by the jury,
has been admitted by the defendant, or is justified based upon
the defendant’s record of prior convictions.” (Black II, supra,
41 Cal.4th at p. 816.)
However, nothing in our case law has applied Black II’s
reasoning in this manner, and we have not characterized a
special circumstance finding as an aggravating factor or
specifically cited section 190.3, factor (a) in this context.
Instead, we have reasoned (unpersuasively in my view) that the
special circumstance finding means “death is no more than the
prescribed statutory maximum for the offense” upon conviction
at the guilt phase, and “[h]ence, facts which bear upon, but do
not necessarily determine, which of the[] two alternative
penalties [i.e., death or life imprisonment without the possibility
of parole] is appropriate do not come within the holding
of Apprendi.” (Anderson, supra, 25 Cal.4th at pp. 589–590,
fn. 14, italics omitted; see Ochoa, supra, 26 Cal.4th at p. 454.)
We have also observed that “[t]he literal language of [factor] (a)
presents a theoretical problem . . . , since it tells the penalty jury
to consider the ‘circumstances’ of the capital crime and any
attendant statutory ‘special circumstances[,]’ . . . [and] the latter
are a subset of the former, [so] a jury given no clarifying
instructions might conceivably double-count any ‘circumstances’
which were also ‘special circumstances.’ ” (People v. Melton (1988)

26
 PEOPLE v. MCDANIEL
Liu, J., concurring

44 Cal.3d 713, 768.) In Melton, we held that when requested “the
trial court should admonish the jury not to do so.” (Ibid.; see People
v. Monterroso (2004) 34 Cal.4th 743, 789–790.) Applying Black II’s
rationale in the manner described above would conceive of the
special circumstance finding as serving multiple functions, in
tension with our holding in Melton.
Moreover, the structure of our death penalty statute
presents a problem for extending Black II in the manner above.
Whereas states like Arizona and Florida statutorily enumerate
a specific list of factors that, if found to exist by the jury, have
been deemed per se aggravating, section 190.3 takes a different
approach: It enumerates a combined list of potentially relevant
factors and leaves it to the penalty phase jury to determine
whether, in a given case, each individual factor is aggravating,
mitigating, or irrelevant for sentencing selection. (See § 190.3
[the penalty jury “shall take into account any of the following
factors if relevant” (italics added)].) Nothing in our death
penalty scheme deems a special circumstance to be per se
aggravating. Instead, section 190.3 leaves it to the penalty jury
to determine whether “the existence of any special
circumstances found to be true” is an aggravating factor
“relevant” to the penalty determination. (§ 190.3, factor (a).)
The penalty jury’s finding in this regard — i.e., whether
the existence of a special circumstance is aggravating and thus
“relevant” to the penalty determination (§ 190.3) — is not
dissimilar from other determinations that, though arguably
normative or moral in nature as opposed to purely factual, are
nonetheless governed by the Apprendi rule. For example,
Blakely involved a finding in aggravation of “ ‘deliberate
cruelty’ ” to support the more severe sentence that was imposed.
(Blakely, supra, 542 U.S. at p. 303.) The high court concluded

27
 PEOPLE v. MCDANIEL
Liu, J., concurring

that “[w]hether the judge’s authority to impose an enhanced
sentence depends on finding a specified fact (as in Apprendi),
one of several specified facts (as in Ring), or any aggravating
fact (as here [in Hurst]), it remains the case that the jury’s
verdict alone does not authorize the sentence.” (Id. at p. 305.)
Hurst likewise applied the Apprendi rule to an aggravating
circumstance finding that the capital crime was “ ‘heinous,
atrocious, or cruel’ ” (Hurst, supra, 577 U.S. at p. 96) — a
common aggravating factor in many state statutes (see, e.g.,
Clemons v. Mississippi (1990) 494 U.S. 738, 743, fn. 1; Ala. Code,
§ 13A-5-49(8); N.C. Gen. Stat. Ann., § 15A-2000(e)(9); Okla.
Stat. Ann., tit. 21, § 701.12(4)).
Thus, in contrast to the statutory regimes in other states,
a special circumstance finding under our scheme does not mean
the jury has found the existence of the special circumstance to
be aggravating — and that is the crucial determination needed
at the penalty phase. By expressly leaving this determination
to the penalty jury, our statutory scheme does not treat a special
circumstance found true at the guilt phase to be a per se
aggravating factor relevant to the sentencing decision. If the
existence of a special circumstance forms no part of the jury’s
calculus in weighing aggravating and mitigating circumstances,
then it cannot satisfy Black II’s requirement that at least “one
legally sufficient aggravating circumstance has been found to
exist by the jury.” (Black II, supra, 41 Cal.4th at p. 816; see
Ring, supra, 536 U.S. at p. 604 [“ ‘the relevant inquiry is one not
of form, but of effect’ ”].)
This concern is hardly speculative. The list of special
circumstances in section 190.2 is broad and includes a number
of circumstances, such as commission of murder during a
burglary or robbery, that do not seem necessarily aggravating

28
 PEOPLE v. MCDANIEL
Liu, J., concurring

in every case. As just one example, consider People v. Yeoman,
supra, 31 Cal.4th 93, which involved a first degree murder
conviction and a robbery-murder special circumstance true
finding arising from the robbery and killing of an elderly female
motorist whose car had broken down. At the penalty phase, the
prosecution’s “evidence in aggravation consisted of the
circumstances of the capital offense (§ 190.3, factor (a)), three
prior felony convictions (id., factor (c)) and five incidents of
criminal activity involving violence or a threat of violence (id.,
factor (b)).” (Yeoman, at p. 108.) The defendant contested some
of this aggravating evidence, including an earlier robbery and
attempted kidnapping of another female motorist, which the
prosecution also introduced at the guilt phase under Evidence
Code section 1101, subdivision (b) to show intent, as well as
another killing not charged in the proceeding and used only as
factor (b) evidence. Can it be said that the special circumstance
finding comprised the “one legally sufficient aggravating
circumstance . . . found to exist by the jury” that the Apprendi
rule requires? (Black II, supra, 41 Cal.4th at p. 816.) Or did the
jury instead predicate its sentencing decision on findings with
regard to contested evidence under factors (b) and (c)?
There are many other cases involving robbery-murder or
burglary-murder special circumstance findings where the
prosecution relied on extensive evidence of prior criminal
activity to show aggravation at the penalty phase. (See, e.g.,
People v. Grimes (2016) 1 Cal.5th 698; People v. Jackson (2014)
58 Cal.4th 724; People v. Abel (2012) 53 Cal.4th 891; People v.
Friend (2009) 47 Cal.4th 1.) In such cases, it is hardly clear —
because our death penalty scheme does not require clarity —
that the jury found the existence of a special circumstance to be
a “relevant” aggravating factor. (§ 190.3.) If the jury made no

29
 PEOPLE v. MCDANIEL
Liu, J., concurring

such finding, then it is quite possible that individual jurors
seized on different items in the prosecution’s proffered menu of
aggravating circumstances and that no single aggravating
circumstance was found beyond a reasonable doubt by a
unanimous jury. The Apprendi rule appears to foreclose a death
judgment in such cases because life imprisonment without the
possibility of parole is “the maximum sentence” authorized
under California law at the penalty phase absent a jury finding
of at least one aggravating circumstance. (Blakely, supra,
542 U.S. at p. 303.)
* * *
In sum, the 20-year arc of the high court’s Sixth
Amendment jurisprudence raises serious questions about the
constitutionality of California’s death penalty scheme. There is
a world of difference between a unanimous jury finding of an
aggravating circumstance and the smorgasbord approach that
our capital sentencing scheme allows. Given the stakes for
capital defendants, the prosecution, and the justice system, I
urge this court, as well as other responsible officials sworn to
uphold the Constitution, to revisit this issue at an appropriate
time.

LIU, J.

30
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion People v. McDaniel
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted

__________________________________________________________

Opinion No. S171393
Date Filed: August 26, 2021
__________________________________________________________

Court: Superior
County: Los Angeles
Judge: Robert J. Perry

__________________________________________________________

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders,
under appointments by the Supreme Court, Peter R. Silten and Elias
Batchelder, Deputy State Public Defenders, for Defendant and
Appellant.

Molly O’Neal, Public Defender (Santa Clara), and Michael Ogul,
Deputy Public Defender, for California Public Defenders Association
and Santa Clara County Public Defender as Amici Curiae on behalf of
Defendant and Appellant.

Phillips Black and John Mills for Hadar Aviram and Gerald Uelman as
Amici Curiae on behalf of Defendant and Appellant.

Shilpi Agarwal, Summer Lacey and Brian W. Stull for American Civil
Liberties Union, American Civil Liberties Union Foundation of
Northern California, American Civil Liberties Union Foundation of
Southern California and American Civil Liberties Union Foundation as
Amici Curiae on behalf of Defendant and Appellant.

U.C. Berkeley School of Law, Elisabeth Semel and Erwin Chemerinsky
for Governor Gavin Newsom as Amicus Curiae on behalf of Defendant
and Appellant.

Keker, Van Nest & Peters, Steven A. Hirsch, Jo W. Golub and Jason
George for Vicente Benavides Figueroa and Manuel Lopez as Amici
Curiae on behalf of Defendant and Appellant.

Arnold & Porter Kaye Scholer and Steven L. Mayer for George Gascón;
Natasha Minsker for Gil Garcetti; Diana Becton, District Attorney
(Contra Costa), Chesa Boudin, District Attorney (San Francisco),
Jeffrey F. Rosen, District Attorney (Santa Clara), and Tori Verber
Salazar, District Attorney (San Joaquin), as Amici Curiae on behalf of
Defendant and Appellant.

Kamala D. Harris, Xavier Becerra and Rob Bonta, Attorneys General,
Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys
General, James William Bilderback II, Assistant Attorney General,
Dana M. Ali, Jaime L. Fuster and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.

Kent S. Scheidegger and Kymberlee C. Stapleton for Criminal Justice
Legal Foundation as Amicus Curiae on behalf of Plaintiff and
Respondent.

Mark Zahner, Robert P. Brown, Chief Deputy District Attorney and
Philip P. Stemler, Deputy District Attorney, for California District
Attorneys Association as Amicus Curiae on behalf of Plaintiff and
Respondent.

Hogan Lovells US, Christopher J. Cox, Gurtej Singh, Rupinder K.
Garcha, William M. Regan, Allison M. Wuertz, Daniel J. Petrokas and
Peter W. Bautz for Janet C. Hoeffel, Rory K. Little, Emad H. Atiq and
James Q. Whitman as Amici Curiae.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Elias Batchelder
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607
(510) 267-3300

John Mills
Phillips Black, Inc.
1721 Broadway, Suite 201
Oakland, CA 94612
(888) 532-0897

Dana M. Ali
Deputy Attorney General
300 S. Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6067