People v. Garcia

Filed 8/25/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S045696
v. )
)
RANDY EUGENE GARCIA, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. BA077888
____________________________________)

A Los Angeles jury found defendant Randy Eugene Garcia guilty of crimes
stemming from two home invasions committed the night before Mother‟s Day,
1993, in the same neighborhood in Torrance. The most serious incident, in which
the victims — a married couple with children — were home during the burglary,
resulted in convictions for the first degree murder of Joseph Finzel (Pen. Code,
§ 187, subd. (a)),1 and the attempted premeditated murder of his wife, L. (§§ 187,
subd. (a), 664.) Related convictions involved burglary (§ 459), robbery (§ 211),
attempted forcible rape (§§ 261, subd. (a)(2), 664), and forcible oral copulation
(§ 288a, subd. (c)). The jury also sustained special circumstances providing that
the Finzel murder occurred in the commission of burglary, robbery, attempted
rape, and oral copulation. (§ 190.2, subd. (a)(17).) Additional findings were that

1 All further statutory references are to the Penal Code except as otherwise
stated.

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defendant was armed with and personally used a handgun (§§ 12022, subd. (a)(1),
12022.5, subd. (a)), and that he personally inflicted great bodily injury on L.
(§ 12022.7). In the other incident charged in this case, defendant was convicted of
burglarizing the home of a second couple, the Kozaks, who were vacationing out
of town at the time. (§ 459.)
After a penalty trial, the jury fixed the penalty at death. The trial court
declined to grant a new trial (§ 1179 et seq.), and denied the automatic motion to
modify the death verdict (§ 190.4, subd. (e)). The court pronounced a death
judgment for the special circumstance murder. Sentence also was imposed and
stayed on the noncapital felony counts, including life with the possibility of parole
for attempted murder. This appeal is automatic. (Cal. Const., art. VI, § 11, subd.
(a); § 1239, subd. (b).)
We find no prejudicial error at defendant‟s trial. The judgment will be
affirmed in its entirety.
I. GUILT EVIDENCE

A. Prosecution Case
1. Events Surrounding the Charged Crimes
On May 8, 1993, the day before Mother‟s Day, defendant and his friend,
Edward “Bruce” Pierce, drove in Pierce‟s car from Portland, Oregon to Torrance,
California. In Torrance, they planned to stay with George Aguirre, another friend
of defendant‟s, and to buy marijuana for sale later in Oregon. Pierce testified at
trial that the trio sampled “Mexican weed” in Aguirre‟s apartment that day.
Aguirre confirmed this account.
According to Pierce and Aguirre, defendant announced between 9:00 and
10:00 that night that he wanted to do “a job,” meaning he wanted to steal
something. Aguirre offered to drive defendant, using Pierce‟s car. Defendant put

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on a black turtleneck shirt, and wore jeans and black Nike shoes. He also carried a
fanny pack around his waist. The fanny pack contained a small chrome handgun
and a pair of black gloves.
A short time later, Aguirre dropped defendant off about one mile from the
apartment. Aguirre waited 15 minutes and then drove home. On the way, he saw
defendant walking on the street, carrying something he did not have before — a
multicolored leather-like bag that closed with a rope. Defendant entered the car
and said the bag held “a bunch of change.”
Aguirre drove several blocks and defendant exited the car again, leaving the
bag behind. This time, he jumped over a wall at a dead end on 180th Street.
Aguirre went home with an uneasy feeling, arriving no more than one hour
after he left with defendant. There, Aguirre spoke with Pierce about “cops all
around.” Pierce said he would leave for Oregon alone if defendant did not return
to the apartment by 3:30 a.m.
2. The Kozak Burglary
Prosecution evidence established that between the time defendant first left
the car and the time Aguirre saw him carrying the multicolored bag of “change,”
defendant burglarized a nearby home belonging to Archie and Winona Kozak.
The Kozaks had locked the house and left for Las Vegas on May 6, 1993. Mrs.
Kozak testified that when they returned late on May 9, Mother‟s Day, the house
had been ransacked. The police found no fingerprints — only glove marks and
fabric particles.
Various items were missing, including jewelry, collectable coins, and a
multicolored bag that pulled closed on top. Mrs. Kozak identified these items at
trial. As we discuss below, they were found, along with other stolen property, in
defendant‟s possession in Oregon, where he was arrested a few days after the
charged crimes.

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 3. The Finzel Crimes
Around 11:15 p.m. on May 8, 1993, L. was in the master bedroom of her
home on 180th Street, not far from where Aguirre last saw defendant exit the car
and jump over a wall. L. was dozing in bed, after having turned the lights off and
left the bedroom television set on. The window blinds were closed. L. testified,
however, that anyone standing in the backyard could see into the bedroom through
gaps in the blinds.
L.‟s husband, Joseph, was socializing elsewhere with a friend and was
expected to return home soon. The only other person in the house was the
couple‟s infant daughter, Brinlee, who was sleeping in a bassinet at the foot of the
bed near L. Joseph‟s son from a prior marriage, Garrett, lived with the Finzels,
but was spending time elsewhere with his mother.
Awakened by a banging noise, and sensing movement nearby, L. looked up
and saw defendant standing in the doorway, holding a small silver gun. She
positively identified him at trial. His face was clearly visible in the available light.
Without warning, defendant grabbed the bassinet and told L. not to scream
because he had an armed accomplice outside, and because he would “hurt the
baby.” Defendant wore dark clothes, black gloves, and a fanny pack. He carried a
pack of Camel cigarettes in his pants pocket and smelled of cigarette smoke.2
In the first of two such episodes, defendant forced L. to engage in sex acts.
He made her remove her shorts and orally copulate him while she sat on the bed.
He then told her to stand and insert his penis into her vagina from behind. She
tried to comply but could not do so, because he did not have an erection. When he
asked if “it [was] in,” she said “yes.”

2 Aguirre testified that defendant smoked cigarettes, and that he had Camels
in his possession on May 8, 1993.

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 Next, defendant grabbed L.‟s arm and took her into the hallway. There, he
opened the door of Garrett‟s bedroom, and was told by L. that the room belonged
to her stepson, who was not home. When they returned to the master bedroom,
defendant told L. to remove her shirt and expose her “titties.” He attempted a
second act of sexual intercourse from behind. As before, L. pretended to place his
penis, which was not erect, into her vagina. Throughout the ordeal, defendant
either held the gun in his hand or placed it visibly within his reach on the bed.
According to L., subsequent events became more frenetic and deadly.
Defendant demanded access to the “money,” “jewelry,” “safe,” and “gun.” L. said
there was no money or safe, but told him where to find her gold watch and
jewelry. She also said that her wallet and credit cards were located in Brinlee‟s
diaper bag. Though L. sought to prevent defendant from finding her husband‟s
.357 Magnum handgun, and falsely said it was not on the premises, defendant
nonetheless found the weapon in a bedroom drawer. At that point, he stuffed a
sock into L.‟s mouth and tied a pillowcase around the gag. He also used a pair of
nylons to bind her wrists and feet together behind her back.
Defendant then shifted his focus and asked L. about her husband‟s
whereabouts. L. indicated (once her gag was loosened) that Joseph was at a local
restaurant. Defendant partially closed the bedroom door so that only a five-inch
opening remained. The next thing L. heard was Joseph‟s truck outside the house.
She estimated the time at 11:30 p.m.
Once inside, Joseph opened the bedroom door, turned on the light, and
looked at L. lying bound and nude on the bed facing him. Defendant stood
slightly behind her, apparently holding the .357 Magnum pistol in his hand.
Suddenly, Joseph and L. each screamed, followed by gunfire. L. saw blood
flowing from Joseph‟s abdomen, and then felt pain in her stomach and arm. She
too had been shot. Defendant fled the room as L. begged him not to “leave us like

5
this.” Brinlee cried in her bassinet. L. testified that defendant shot across and
over the baby to hit Joseph.
Defendant stayed in the Finzel home for two or three hours after the
shootings. He reentered the master bedroom three times. First, he disabled the
phone when L. tried to dial 911. The second time, as she pretended to be dead, he
tapped her on the head. During his third visit, he raised and then dropped L.‟s
arm, saying “she‟s dead.” Meanwhile, according to L., she pressed down on her
bullet wounds to slow the bleeding. The bed — a waterbed — was leaking. She
moved her head to prevent water from entering her nose.
By the time defendant left the house, L. had loosened the nylon wrist ties
and pulled the gag away from her face. Dizzy and weak, she crawled over her
husband, and stumbled through the house and yard to the neighbor‟s porch. She
knocked on the door and collapsed.
The neighbors, the Nevilles, testified that they heard noises, possibly
gunshots, around 11:00 p.m., and found L., nude and bleeding, on their porch
around 2:00 a.m. She told them about the robbery and shooting, and about Brinlee
and Joseph next door. The Nevilles called 911.
When police and paramedics arrived a short time later, L. was in shock and
near death. She was rushed to the hospital. At the Finzel home, Joseph was found
dead on the bedroom floor, his body partially blocking the door. His pants pockets
had been turned inside out. Brinlee was unharmed. Her bassinet was resting on
Joseph‟s leg, between his feet.
4. Investigation of the Murder Scene
The Finzels‟ home, which was neat before the crimes, was in disarray
afterwards. Torrance police officers found cabinets, closets, and drawers open in
various rooms. L.‟s purse was on the living room floor, its contents strewn
nearby. The back door stood ajar. A diaper bag was in the backyard. Gates in a

6
side yard were open. One set of car keys was found on the ground near the
garage. Another set was in the ignition of the Finzels‟ Corvette. The car battery
was dead.
The investigation disclosed that a bullet fired from inside the master
bedroom passed through the door and became lodged in a living room cabinet.
Two expended bullets rested on or near the bed. In the hallway near the master
bedroom, the police tested for fingerprints, and found only glove marks. There
were two Camel cigarette butts — one on the back porch, and the other at the rear
of the property, near footprints and crushed weeds.
Property missing from the Finzels‟ home included L.‟s gold watch and
other jewelry, and Joseph‟s truck. Police later found the truck parked near
Aguirre‟s apartment, where defendant was staying at the time. Credit cards
belonging to the Finzels were found inside the truck. Police retrieved a Camel
cigarette butt from beneath the driver‟s door.
5. Defendant’s Return to Aguirre’s Apartment
Between 3:00 a.m. and 3:30 a.m., Aguirre and Pierce heard defendant enter
the apartment. Defendant said he was “going straight to hell.” Aguirre recalled
defendant also saying that he “shot two people,” while Pierce thought that the
word “killed” might have been used. Defendant displayed a .357 Magnum
handgun, attributed it to his “second job,” and expelled empty casings onto the
floor. He was carrying a woman‟s purse and another cloth bag. He dumped
jewelry from the purse onto a coffee table.
Defendant and Pierce left for Oregon the same night, leaving by 4:00 a.m.
Aguirre testified that he declined defendant‟s request to dispose of the .357
Magnum handgun. Hence, defendant included the gun in the items he packed for
the trip. He also took the woman‟s purse, jewelry, and the .25-caliber gun that he
carried in his fanny pack. Pierce testified that defendant tossed the purse onto a

7
Los Angeles freeway. He kept the other items. They included a gold watch,
which defendant put in the glove compartment of Pierce‟s car.
6. Aguirre’s Cooperation with Police
While watching a television newscast on May 9, Aguirre realized that
defendant might be linked to the Finzel crimes. He contacted the Torrance Police,
and began cooperating with the lead investigators, Detectives Mason and Nemeth.
Though reluctant to admit he had driven defendant around town the night of the
crimes, Aguirre gave police all relevant information and physical evidence in his
possession. Such items consisted of those left in Aguirre‟s apartment by
defendant when he departed for Oregon, including bullets and expended casings,
black clothing items (turtleneck shirt, gloves, and Nike shoes), and Camel
cigarettes.
7. Defendant’s Return to Oregon
While driving with Pierce to Oregon in the early morning hours of May 9,
defendant described the shootings that he had admitted before to both Pierce and
Aguirre. Defendant said he shot the male victim because he saw defendant‟s face,
and that he shot the female victim because she “freak[ed] out.” In Oregon,
defendant gave the .357 Magnum handgun to Pierce. Pierce gave it to his mother.
On May 10, defendant contacted his friend, Antoin Jackson, in Oregon, and
stayed overnight at Jackson‟s house. On May 11, defendant communicated with
someone by page and phone. Afterwards, he seemed nervous, and made
incriminating statements to Jackson. Defendant said he was going “to hell” and to
prison for “life” because he had “killed someone.” The victims were a “bitch”
who “scream[ed] too loud”, and a man who “walked in” while defendant was
burglarizing a house. Defendant told Jackson that he stayed in that house for “a
few hours,” and was “real high” at the time. Defendant identified the murder

8
weapon as the .357 Magnum handgun he gave to Pierce, and admitted trying to
steal a car during the crime.
Meanwhile, on May 11, sheriff‟s detectives in Washington County, Oregon
learned that an arrest warrant had issued in the present case, and that the Torrance
Police sought help in apprehending defendant. Hence, that same day, the Oregon
detectives contacted Pierce, who cooperated in the investigation. Pierce disclosed
defendant‟s incriminating statements. Pierce also helped retrieve the gold watch
and the .357 Magnum handgun he had obtained from defendant. All such
evidence was given to the lead investigators in Torrance.
Through Pierce, Oregon detectives contacted defendant‟s friend, Suely
Caramelo. She gave them items she had received from defendant after his
Torrance trip — items that were given, in turn, to the Torrance Police. They
included a woman‟s gold and diamond ring and a multicolored cloth bag with
coins inside. Caramelo also said that defendant was at Jackson‟s house.
Defendant was arrested a short time later at Jackson‟s house. Items found
in his possession included a fanny pack with a small chrome pistol inside, and a
bag of jewelry. Defendant was wearing a gold and diamond ring at the time.
After being told about the murder warrant in Torrance, and read his
Miranda rights (see Miranda v. Arizona (1966) 384 U.S. 436), defendant
remarked that he was the “wrong guy,” that he became involved with the “wrong
people,” and that they had “threatened” him. During the drive to the sheriff‟s
station, defendant made similar statements that “four Mexican gang members”
forced him to “take the gun and jewelry” near the spot where “two people” were
killed. Defendant denied knowing anything about the victims, including gender,
and could not explain how Pierce and Aguirre might have acquired such
information. When told that the female victim had survived and identified him as
the lone intruder, defendant turned pale, breathed deeply, and said, “Shit.”

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 8. Physical Evidence
Property recovered in Oregon had been stolen not only during the Kozak
burglary, as noted above, but also during the capital crime. The ring defendant
wore when arrested was Joseph Finzel‟s wedding ring. It was on Joseph‟s finger
when he was shot. The ring defendant gave Caramelo was L.‟s. L. identified
other items seized by arresting officers, including the gold watch that defendant
left in Pierce‟s car.
Based on ballistics tests, a criminalist with the Los Angeles County
Sherriff‟s Department determined that the expended casings found in Aguirre‟s
apartment were fired from the .357 Magnum handgun retrieved from Pierce in
Oregon. The witness reached a similar conclusion as to the expended bullets
found in the Finzels‟ bedroom.
9. Medical Testimony
Dr. Carlos Donayre testified that emergency surgery was required to save
L.‟s life after the shooting. One bullet entered the side of her body, penetrated
several vital organs, and exited through the arm. Another bullet entered and exited
the back, grazing the spine. Because L.‟s weak state prevented the use of general
anesthesia, she received only mild narcotics during the three-hour procedure. L.
confirmed that she “wasn‟t numb” on the operating table, and that the pain of
surgery seemed “worse than being shot.”
Dr. Susan Selser, the medical examiner who performed the autopsy on
Joseph, testified that he sustained two gunshot wounds, each of which entered the
chest and exited through the back. One struck the lung and aorta, and the other
pierced the heart. Both were fatal.

B. Defense Case
Defendant presented no evidence at the guilt phase.

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 II. PENALTY EVIDENCE

A. Prosecution Case
1. Prior Felony Conviction
In 1989, before he committed the capital crime, defendant was convicted in
Oregon as an adult of a felony, theft, also known as receiving stolen property.
2. Circumstances of the Capital Crime
George Aguirre testified that one month before defendant and Pierce drove
to Torrance on May 8, 1993, when the capital crime occurred, defendant visited
Aguirre there alone. While smoking marijuana one night, defendant said, “I
wonder what it would be like to rape a woman at gunpoint.” He seemed serious at
the time. Nothing more on the topic was said.
The only other prosecution witness at the penalty phase was L., who
described the effects of the capital crime, as follows: When the murder occurred,
her daughter, Brinlee, was about two months old, and Joseph‟s son, Garrett, was
seven years old. Joseph was 29 years old when he died. He was an only child.
His death devastated his parents.3
L. and Joseph met in March 1990, fell deeply in love, and married in May
1992. They enjoyed outdoor activities together. To prepare for marriage, they
attended an “engagement weekend” with other couples. At trial, L. read a letter
that Joseph wrote during that event.
L. testified that she and Joseph enjoyed spending time with Garrett.
Together, the couple sometimes walked Garrett to and from school. Garrett

3 Consistent with a prior ruling of the trial court, L. held Brinlee in her lap on
the witness stand while identifying her to the jury. Immediately thereafter, L.
evidently handed Brinlee (who said “bye-bye”) to the prosecutor, who was
standing nearby. It appears the child was then promptly given to someone else
located in the spectator section of the courtroom.

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played a key role in their wedding ceremony. L. had many fond memories of that
day. Wedding photos were introduced at trial.
According to L., she and Joseph planned to have more children and to
move to the country where they could ride horses and motorcycles. Meanwhile,
Joseph worked for a computer company, and L. was a homemaker. They ran a
small business bringing pets and a pony to children‟s birthday parties.
Photographs of these events were introduced.
L. described the support Joseph provided during her pregnancy, including
his presence in the delivery room when Brinlee was born. The umbilical cord was
wrapped around Brinlee‟s neck, requiring medical treatment. Joseph surprised L.
afterwards with 100 red roses. One month later, the family, including Brinlee,
went camping together. Photos of family trips and outings were introduced.
L. recalled the terror she felt during the capital crime. While hospitalized
afterwards, she had tubes in her throat and could communicate only by writing
notes, She read the notes in court.
After the murder, L. and Garrett became estranged. L. has no permanent
home and lives with different relatives. Medication and therapy have not eased
her fear, guilt, and grief.
L. testified that she visits Joseph‟s grave twice a week. The cemetery is
near other special places, such as the hotel where the couple spent their wedding
night. She described markings on the headstone, as well as the various mementos
that were buried with Joseph or placed on his grave later.
Following L.‟s testimony, the jury watched an 11-minute 45-second
videotape. The videotape shows L. from the shoulders up, talking in front of a
plain gray backdrop. Her voice also is heard describing video clips and still
photographs that appear on the screen. Both the narration and images concern the
joy L. and Joseph shared as a couple (e.g., getting married, raising children,

12
relaxing at home, and enjoying the outdoors), and the loss she experienced from
his death (e.g., emotional turmoil, estrangement from Garrett, and a gravesite visit
with Brinlee on Christmas Day).
The videotape departs from the foregoing format in only two respects.
First, at the beginning, white lettering silently appears on a black screen, referring
to an “intruder” who entered L. and Joseph‟s home on Mother‟s Day 1993, and
who forever “altered” their lives and the lives of family and friends. Second, at
the end of the videotape, a song plays softly in the background for 80 seconds,
with lyrics about a “hero [who] goes free” and a “villain [who] goes to jail.” More
images of the Finzels appear at that time, including one of Joseph as a boy
sleeping with a puppy.

B. Defense Case
Various relatives, friends, juvenile justice officials, and mental health
professionals testified on defendant‟s behalf. He did not take the stand.
1. Family History
Defendant‟s mother, Suszanne, married Adolpho “Rudy” Garcia when she
was 18 years old. Defendant was one of three boys born in fairly quick succession
during the marriage. However, defendant and his older brother, Fred Garcia, are
not related by blood to Rudy, and were each fathered by different men. Only the
youngest boy, Teodi Garcia, is Rudy‟s biological son. Defendant, who was born
in 1970, did not learn this fact until age 13.
By the time defendant started kindergarten, Suszanne and Rudy were
divorced. Though Rudy had legal custody of the three children, Suszanne decided
to keep them with her. She and the boys moved several times over the next few
years, living in Idaho, Texas, Alabama, and Washington. Suszanne had a series of

13
romantic partners during this time, including her second husband, Frank Poleta.
Defendant‟s younger brother, Teodi, testified that Suszanne was a loving mother.
After defendant finished the third grade, Suszanne left the children in
Georgia at the home of her first husband, Rudy, who “they thought was their
father.” They lived with Rudy and his new wife, Cecelia, for two years. Teodi
and Fred testified that Cecelia punished all three boys harshly. She made
defendant, who wet the bed at night, stand outside wearing his soiled underpants
on his head, holding a sign stating that he was a bed wetter. Once, when
defendant accidentally hit Cecelia‟s hand with the car door, she slammed the door
on his hand.4
As a fifth or sixth grader, defendant left Rudy‟s home in Georgia and
reunited with his mother, Suszanne. She lived in Oregon and had a new partner,
Randy Newton. Suszanne testified that defendant developed learning problems
and became disruptive in class. The drug Ritalin eased his hyperkinetic symptoms
and improved his school performance.
Before defendant entered the seventh grade, Suszanne met Tim Tugg, who
became her third husband. Tim had no interest in raising defendant, Fred, or
Teodi, and doted on his own children, including a son, Matthew, whom he had
with Suszanne. Suszanne testified that Tim was “physically and emotionally
abusive to me and my kids.” Tim and Suzanne used marijuana and cocaine at
home, and gave drugs to the children. Tim drank alcohol every day. Tim told

4 On cross-examination, Fred Garcia noted that Rudy and Cecelia were both
Filipino, but that Rudy was raised in the United States and Cecelia was not. Fred
opined that “upbringing or culture” may have explained their disparate parenting
styles, with Cecelia being “the one with the backbone.”

14
defendant that Rudy Garcia was not his biological father. That night, defendant
stole property and was arrested.
Defendant‟s biological father, Patrick Grandchampt, testified that he
became acquainted with defendant during the capital case. Grandchampt read two
letters from defendant seeking to develop a father-son relationship. The witness
testified that he cared about defendant, and chose not to disclose his true identity
earlier for fear of “destroy[ing] everything.”
2. Juvenile Delinquency
Beginning in 1983, when he was 13 years old, defendant came under the
authority of the juvenile justice system in Oregon. A probation officer, Larry
Tomanka, testified that defendant‟s home life was dysfunctional, that family
counseling was not likely to succeed, and that placement outside the home
eventually occurred.5 Steven Walker, a probation counselor, testified that
defendant behaved well while confined in a juvenile facility in 1987. However, he
was estranged from his family, and his bedwetting continued. Joan McCumby, a
court counselor, found the family to be guarded and tense, especially around Tim
Tugg. She believed the children had been mistreated while living with Rudy
Garcia and Cecelia in Georgia. McCumby knew of no medical cause for
defendant‟s bedwetting problem, and learned that he had been treated for

5 On cross examination, Tomanka disclosed certain criminal acts that
defendant allegedly committed as a juvenile. Some of these allegations were
dismissed following defendant‟s favorable performance on probation (e.g.,
burglary, unauthorized use of a motor vehicle, and possessing alcohol). Others led
to adjudications of guilt (e.g., theft, assault, criminal trespass, and being a
runaway). Penalty instructions prevented the jury from considering evidence of
any crime in aggravation unless it either involved force or violence or resulted in a
prior felony conviction. (See § 190.3, factors (b), (c).)

15
hyperactivity as a child. An updated evaluation disclosed that the latter condition
had dissipated and that medication was unnecessary.
3. Mental Condition
Dr. Arthur Kowell, a neurologist, performed a brain electrical activity
mapping (BEAM) study of defendant before trial. Defendant‟s performance in
two areas, involving visual and auditory responses, showed abnormality in the
frontal and temporal lobes. Both regions affect impulse control, among other
things. These test results were consistent with attention deficit hyperactivity
disorder (ADHD).
Dr. Nancy Kaser-Boyd, a psychologist, interviewed defendant and various
family members, conducted psychological tests, and reviewed school, medical and
probation records. In her opinion, defendant was a highly manic person,
predisposed as an adult to committing criminal acts and suffering from mental
illness and drug abuse. Dr. Kaser-Boyd determined that defendant suffered from
ADHD as a child (evidenced, in part, by his bed-wetting), that the condition was
likely inherited from his parents (including Patrick Grandchampt), and that he
suffers from an adult version of the disorder (attention deficit disorder residual).
Other risk factors for adult dysfunction included mental and physical abuse, as
well as sexual molestation, as a child. On the latter point, Dr. Kaser-Boyd testified
that she was told by Fred Baumgarte, defendant‟s grandfather, that Rudy Garcia
had “touched” defendant‟s genitals “in a sexual way” when defendant was three or
four years old. Rudy was married to Fred‟s daughter, Suszanne, at the time.6

6 Dr. Kaser-Boyd alluded to another sex act that Rudy Garcia allegedly
committed against defendant as a child. Offering few details, she noted that the
incident differed from the one reported by Fred Baumgarte, that it involved oral
copulation, and that it was disclosed to her by defendant‟s uncle, Reginald
Baumgarte. Reginald did not testify at trial.

16
 C. Prosecution Rebuttal
Fred Baumgarte confirmed that he saw a sexual fondling incident similar to
the one that Dr. Kaser-Boyd described. However, as discussed further below, both
Fred and his wife, Dorothy Baumgarte, testified that they did not remember
discussing the matter with Dr. Kaser-Boyd. Amy York, a defense paralegal,
prepared a report before trial indicating that defendant‟s older brother, Fred
Garcia, told her that Tim Tugg physically abused only his wife Suszanne — not
defendant and his brothers, Fred and Teodi.
III. PRETRIAL ISSUES

A. Grand Jury Selection Process
Defendant contends that the judicial nomination process long used in Los
Angeles County to select prospective grand jurors — a process that led to the
random draw of the grand juries that indicted defendant and, presumably,
countless other persons — involved intentional and invidious discrimination, and
resulted in the substantial underrepresentation of women and Hispanics in the
grand jury pools. The claim is based upon the equal protection clause of the
Fourteenth Amendment of the United States Constitution. Defendant seeks
automatic reversal of the indicted counts, including capital murder. In our view,
no constitutional violation or reversible error occurred.
1. Trial Court Proceedings
On June 3, 1993, the Grand Jury of Los Angeles County returned an
indictment, which was filed in superior court, charging defendant with the Finzel
crimes.7 In a separate superior court case, an information was filed on November

7 The indictment contained seven counts and related allegations. The first six
counts ultimately produced the guilty verdicts we have described: first degree
murder of Joseph Finzel with special circumstances (count I), attempted
premeditated murder of L. (count II), burglary of the Finzel residence (count III),
(footnote continued on next page)

17
30, 1993, charging defendant with burglary of the Kozak residence. Both cases
were consolidated for trial on May 12, 1994.
On May 23, 1994, defendant moved in writing to dismiss the indictment.
At the hearing on November 4, 1994, defendant argued that the grand jury
selection process discriminated against women and Hispanics, and thus violated
the equal protection guaranteed by the Fourteenth Amendment of the United
States Constitution, as set forth in Castaneda v. Partida (1977) 430 U.S. 482
(Castaneda). Defendant claimed he had made a prima facie case, which the
People did not rebut, by showing that both groups were substantially
underrepresented in Los Angeles County Grand Jury pools over time, and that the
nominating process was “highly subjective” and “susceptible of abuse as applied.”
(Id. at p. 497.) The prosecutor replied that to the extent the two cases conflict,
Castaneda had been “superseded” by Duren v. Missouri (1979) 439 U.S. 357
(Duren), which prohibits “systematic” exclusion in violation of the Sixth
Amendment right to an impartial jury drawn from a fair cross-section of the
community. (Id. at p. 364.) The prosecutor insisted, however, that nothing in
Duren affected Castaneda‟s requirement that, for equal protection purposes, “the
defense actually has the burden of proving intentional discrimination.”
Extensive evidence was admitted at the hearing through (1) live witness
testimony, (2) documentary exhibits, and (3) other voluminous materials that the

(footnote continued from previous page)

robbery of L. (count IV), attempted forcible rape of L. (count V), and forcible oral
copulation of L. (count VI). Count VII of the indictment alleged an additional act
of forcible oral copulation against L. The latter count was dismissed at the
People‟s request at trial.

18
court judicially noticed from the record in an unrelated criminal case.8 First and
foremost, two superior court employees, Gloria Gomez and Juanita Blankenship,
testified about the Los Angeles grand jury selection process, as follows:9
Unlike trial jurors, who are randomly summoned from Department of
Motor Vehicle lists and voter registration rolls, grand jurors perform a voluntary
public service and are not, in Blankenship‟s word, “draftees” of the court. A full-
time commitment is involved. Grand jurors serve for one year.10 They meet four
or five days a week. The pay is $25 a day, plus mileage costs.
Blankenship alluded to certain statutory eligibility requirements for grand
jury service. Some, she noted, also apply to trial jurors (e.g., being a citizen age
18 or older, knowing the English language, and having no felony convictions).
However, only grand jurors have a one-year county residence requirement, and
cannot hold elective office.
According to both witnesses, all grand jurors are first nominated by a
superior court judge. At the time of Blankenship‟s testimony, there were 238
judges on the Los Angeles County Superior Court. Each judge is allowed to

8 The judicially noticed items are included in the instant record on appeal.
They consist of 19 volumes, or nearly 5,000 pages, of transcribed testimony and
documentary exhibits from People v. Vallarino, et al., Super. Ct. L.A. County,
1992, No. BA027100. Such items (which include no trial court findings) were
generated over a 14-month period from February 1992 through April 1993.
9 Gomez personally testified in this case that she worked as the manager of
juror services for the Los Angeles County Superior Court, and was familiar with
the manner in which both grand and trial jurors were selected. She had held that
post for about two and one-half years before the hearing. Gomez‟s predecessor,
Blankenship, ran the court‟s juror management division from 1988 through 1992.
Blankenship‟s testimony was admitted in transcribed and judicially noticed form.
10 The one-year period in Los Angeles County runs from July 1 through June
30. Defendant was indicted on June 3, 1993, during the 1992-1993 grand jury
term.

19
nominate up to two persons a year. However, nothing prevents any judge from
nominating only one person or making no nomination at all.
Blankenship made clear that there are two ways to be nominated: (1) “be
known to the judge or make yourself known to the judge and ask to be nominated”
(direct nominees), or (2) “volunteer to be a candidate for a nomination” (volunteer
candidates). Either way, the person completes the same standard application,
which the nominating judge eventually signs. It gives applicants the option of
disclosing race or ethnicity, and seeks a brief biographical statement. The jury
commissioner hands or mails an application to every person who requests one. It
can be returned by mail or in person.
For volunteer candidates (as opposed to direct nominees), submission of an
application triggers a formal interview process. The person meets, at random,
with one of the judges serving on the court‟s grand and trial juror committee
(Committee). The interview concerns statutory requirements and qualifications
for grand jury service, as set forth in written guidelines promulgated by the
Committee.11 Blankenship testified that the guidelines, in addressing technical

11 Defendant introduced two sets of Committee guidelines in the present case.
The first document, called “Guidelines [for the] Selection of Grand Jury
Nominees,” lists the statutory eligibility requirements for grand jury service,
including a criminal background check. These guidelines also describe the time
and service commitments required of grand jurors, such as the restriction on
personal involvement in political campaigns during their term, the need for a
written release from any employer if job demands would conflict with grand jury
duties, the inability of grand jurors to take extended vacations or to miss any
meetings in July, and the modest fee and mileage costs paid for such attendance.
The last item in this document describes groups whose nomination would appear
to raise a conflict of interest (e.g., relatives of any nominating or sitting judge,
county employees, and active peace officers).
The second document, “Guidelines for Interviewing Prospective Grand
Jurors,” advises that candidates be told about the time, service, and pay standards
(footnote continued on next page)

20
and clerical skills, do not seek to exclude applicants who lack office jobs or
college degrees. Gomez noted that administrative skills bear on the grand jury‟s
“civil function.” After the interview, the interviewing Committee judge assigns a
rating, and notes it on the form, as the guidelines provide.
Copies of all applications submitted by volunteer candidates are distributed
for nomination purposes to every judge on the superior court. As with direct
nominees, a volunteer candidate is nominated when any one judge signs the form.
A tentative list of grand jury nominees is published in the newspaper, and
circulated to the entire superior court to lodge any objection. In Blankenship‟s
experience, such objections are rare, and typically involve conflicts of interest,
such as when a nominee is related to a sitting judge. (See ante, fn. 11.) Once this
process is complete, a final list of nominees is compiled, filed, and published.
According to Blankenship, the grand jury pool typically consists of 150 to 175
nominees. Many are volunteer candidates.12
The next step is a random blind draw from a jury wheel of the names of 40
prospective grand jurors and 10 alternates. The sheriff‟s department conducts
criminal record checks of these 50 individuals. The names of those nominees who

(footnote continued from previous page)

for grand jurors, and about the criminal background check. It further suggests
questions on the candidate‟s knowledge of the grand jury function, past experience
and level of responsibility in community affairs, special interest in or qualification
for grand jury service, and specific skills (e.g., accounting, communications, report
writing, and interviewing). The interviewer is asked to rate the candidate, and to
note the rating on the application (i.e., “exceptionally well qualified,” “well
qualified,” “qualified,” and “uncertain”).
12 For instance, every volunteer candidate who applied for the 1990-1991
term (excluding those who later withdrew or missed the interview) was nominated
as a grand juror. That year, such volunteers comprised 40 percent of the pool.

21
survive this check are again placed in the jury wheel. Another random blind draw
then occurs to select the actual grand jury. Gomez testified that there are 23 grand
jurors and four alternate jurors in Los Angeles County.
Both Blankenship and Gomez described the superior court‟s ongoing
campaign to recruit grand jurors from a broad cross-section of Los Angeles
County residents. In Blankenship‟s words, “substantial affirmative efforts” are
made to attract Hispanics and members of other minority groups. Every year, a
press release circulates to over 100 newspapers and media organizations, including
most Spanish-language outlets. Public service announcements run in both English
and Spanish on television and radio stations. Recruitment letters are sent to
community groups, public officials, and consulates countywide. Judges personally
consult with Hispanic community groups on the issue.13
In a related vein, the record includes a sample “Nomination Form.”
Consistent with Blankenship‟s testimony, the form asks grand jury applicants to
disclose their race or ethnicity (e.g., “Caucasian,” “Black,” “Hispanic,” “Asian,”
or “Other Minority”), and states that such information is “optional” and
“voluntary.” The following explanation appears nearby: “Recent Supreme Court
decisions place added emphasis on the ethnic makeup of the pool from which
Grand Jurors are drawn. Your answer will assist the Judges of the Court in

13 Regarding these outreach efforts, the trial court admitted into evidence,
among other things, a photocopy of a newspaper announcement titled County
Seeks Grand Jurors, dated Monday, November 27, 1989. The item invites
qualified persons to apply for the upcoming grand jury term, lists the basic
conditions of service, and describes how to obtain an application. In addition, the
then-Presiding Judge of the Los Angeles County Superior Court is quoted as
seeking a grand jury pool that “ „reflect[s] the diverse makeup‟ ” of the county,
and urging interested “ „[B]lack, Hispanic or Asian‟ ” citizens to volunteer.

22
establishing full compliance with these decisions.” On an adjacent line, applicants
are asked to specify whether they were “Male” or “Female.”
In addition to information about the nominating process, defendant
introduced statistical evidence. Regarding women in the grand jury pool, one
chart indicated that, based on the 1990 Census, women comprised 50 percent of
the population of Los Angeles County 18 years and older. Another chart showed
the gender of grand jury nominees from the 1986-1987 term through the 1993-
1994 term. The percentage of women in the pool ranged from a low of 34 percent
one year, to a high of 50 percent another year. However, for five of the other eight
years, grand jury nominees were 40 to 45 percent female. At the hearing, defense
counsel used an “absolute disparity” measure, which calculated the difference
between the percentage of adult women in the population and the percentage of
women in the grand jury pools. Such disparity ranged from zero to 16 percent at
each extreme, and otherwise hovered mostly in the 5 to 10 percent range.
Finally, demographic testimony by three experts was admitted, in
transcribed and judicially noticed form, concerning Hispanics in the grand jury
pool. Relying on the 1990 Census and other sources, the witnesses used different
assumptions, methodologies, and measures, and their calculations produced
varying results. Notably, Dr. Nancy Bolton found an absolute disparity of 9.7
percent between the percentage of adult Hispanic citizens in Los Angeles County
and the average percentage of Hispanics in the county‟s grand jury pools over a
five-year period between 1986 and 1991. Dr. Bolton also found that 73 percent of
the Hispanic volunteer candidates who were interviewed by superior court judges
were nominated, compared to only 46 percent of their White counterparts. She
inferred that the judges were “enriching” the Hispanic pool of nominees.
By comparison, certain absolute disparity figures gleaned from the
testimony of Dr. William Clark — 10.5 percent — and Dr. Dennis Willigan —

23
11.4 percent — were similar to, but somewhat higher than, Dr. Bolton‟s figure.
Dr. Clark and Dr. Willigan based these results on the percentage of the Los
Angeles County population who were Hispanic voting age citizens and who spoke
English “well” (as opposed to those who spoke only “some” English or who spoke
English “very well”). Both of these witnesses also used the six-year period from
1986 through 1992 to calculate the average percentage of Hispanics in Los
Angeles County Grand Jury pools. Dr. Willigan opined that the various disparities
might be attributable to judges not knowing, and therefore not nominating, persons
from “certain racial or ethnic groups.” He admitted, however, that “whatever goes
on in the nomination process,” or “how or why it does, I don‟t know.”
After considering the foregoing evidence, the trial court rejected the grand
jury challenge on the ground defendant had not presented a prima facie case of
unconstitutional discrimination. In describing the principles and authorities used
to make this decision, the court explicitly “agreed with the People‟s position.”
Based on the above described arguments of the parties, the court apparently
believed that Duren, supra, 439 U.S. 357, “superseded” Castaneda, supra, 430
U.S. 482, to some extent, but that the defense retained the burden of proving
“intentional” discrimination under the latter case. In any event, after
acknowledging that women and Hispanics were distinctive groups entitled to
constitutional protection, the court declined to decide whether there was a
meaningful difference between the percentage of women and Hispanics nominated
as grand jurors, and the percentage of women and Hispanics in the population
eligible for such service. Instead, under the “third prong” of the test being applied,
the court found no evidence of “any discriminatory system in place by the superior
court.” Hence, the motion to dismiss the indictment was denied.

24
 2. Analysis of Constitutional Claim
On appeal, defendant renews his argument that the judges of the Los
Angeles County Superior Court violated equal protection guarantees by
purposefully discriminating against women and Hispanics in selecting nominees
for the pool from which his grand jury was drawn. We first summarize the
statutory scheme which regulates this process, and which gave rise to the
challenged procedures. The grand jury scheme, which codified prior law, has
been in effect for decades. (See § 888, et seq., added by Stats. 1959, ch. 501, § 2,
p. 2443; see also id., § 20, p. 2458; People v. Superior Court (1973 Grand Jury)
(1975) 13 Cal.3d 430, 436 & fn. 5 (1973 Grand Jury).)
Each county must have at least one grand jury drawn and impaneled every
year. (§ 905; see Cal. Const., art. I, § 23.) The grand jury consists of “the
required number of persons returned from the citizens of the county before a court
of competent jurisdiction,” and sworn to inquire into both “public offenses” within
the county and “county matters of civil concern.” (§ 888; see § 888.2 [specifying
“required number” of grand jurors based on county size]; see also §§ 904.4-904.8
[authorizing “additional” grand juries depending on county size].) This general
authority over both criminal and civil matters involves three functions: (1)
weighing criminal charges and deciding whether to present indictments (§ 917),
(2) evaluating misconduct claims against public officials and deciding whether to
formally seek their removal from office (§ 922), and (3) acting as the public‟s
“watchdog” by investigating and reporting upon local government affairs.
(§§ 919-921, 925 et. seq.; see McClatchy Newspapers v. Superior Court (1988) 44
Cal.3d 1162, 1170 (McClatchy).) In counties with a single grand jury, that one
body performs all three functions. (See 76 Ops.Cal.Atty.Gen. 181, 182 (1993)

25
[concluding that any additional grand jury authorized by statute is restricted to
criminal matters and may not perform civil oversight functions].)14
In California, unlike other jurisdictions, the grand jury most often plays the
civil oversight role. (McClatchy, supra, 44 Cal.3d 1162, 1170; see 1973 Grand
Jury, supra, 13 Cal.3d 430, 436, fn. 4 [distinguishing federal grand juries insofar
as they do not report on public affairs].) Many statutes identify specific topics of
inquiry.15 In performing its functions, the grand jury operates in secret. (E.g.,
§§ 915, 924.2, 939; see § 911 [oath].) It may retain auditors, appraisers and other
experts (§ 926), and has subpoena power (§ 939.2; see § 921 [access to public
records]). At the end of its term, the grand jury must issue a final report to the
presiding judge of the superior court (§933, subd. (a)), documenting all findings
therein. (§ 916; see 1973 Grand Jury, supra, 13 Cal.3d 430, 434 [interim report].)
As shown by the testimony here, grand jurors must be citizens age 18 or
older and have resided in the county for at least one year immediately before their
service begins. (§ 893, subd. (a)(1).) A person who serves on this body also must
have sufficient knowledge of the English language to perform the grand jury
function (id., subd. (a)(3)), and be “in possession of his natural faculties, of
ordinary intelligence, of sound judgment, and of fair character” (id., subd.

14 Gomez, who managed jury services for the superior court when the instant
hearing occurred, testified that Los Angeles County did not, at that time, maintain
a “second,” or additional, grand jury under statutes providing that option.
15 For instance, the grand jury investigates and reports on operations,
accounts, and records of county departments and districts (§ 925), housing
(§ 914.1), unindicted prisoners (§ 919, subd. (a)), prison conditions (§ 919, subd.
(b)), land transfers (§ 920), cities and joint powers agencies (§ 925a), salaries of
county officials (§ 927), and the administrative needs of county offices (§ 928).

26
(a)(2)).16 The county pays grand jurors a modest daily fee, and reimburses
mileage costs, upon the order of the superior court. (§§ 890, 890.1.)
The Legislature has vested the superior court with responsibility for
selecting grand jury members. (See 1973 Grand Jury, supra, 13 Cal.3d 430, 438
& fn. 8 [noting close statutory relationship between grand jury and convening
court].) Shortly before the county fiscal year begins, the court makes an order
estimating the number of grand jurors required for that year. (§ 895.) Thereafter,
“the court shall select the grand jurors required by personal interview for the
purpose of ascertaining whether they possess the qualifications prescribed by
subdivision (a) of Section 893.” (§ 896, subd. (a).) If, “in the opinion of the
court,” these qualifications are met, the person selected must sign a statement
declaring that he “will be available” for the “number of hours” required of grand
jurors in the county. (Ibid.) The court makes a “list” of the prospective grand
jurors it has selected, and gives it to the jury commissioner. (§ 896, subd. (b).)
After receiving and filing the list of prospective grand jurors, the jury
commissioner publishes it in a newspaper of general circulation, along with the
name of the judge who selected each person on the list. (§ 900.) The jury
commissioner then randomly draws the names from the “ „grand jury box,‟ ” using
one of two methods. (Id., subds. (a) [folded slips of paper], (b) [numbered
markers].) Once drawn, the grand jury is “certified and summoned” (§ 906), and

16 Conversely, someone is not eligible to act as a grand juror if he or she is
serving as a trial juror, has been discharged as a grand juror within the preceding
year, has been convicted of a felony or other specified offense, or is serving as an
elected public official. (§ 893, subd. (b).) Certain exemptions and excuses also
apply to grand jury service similar to those regulating trial jurors. (§ 894; see, e.g.,
Code Civ. Proc., § 219 [restrictions on peace officers as jurors].)

27
the grand jury is impaneled. (§ 905; see § 909 [before “accepting” anyone drawn
as grand juror, court must be satisfied that they are “duly qualified”].)17
Against this statutory backdrop, and based on the evidentiary record,
defendant contends the trial court erred in concluding that he failed to present a
prima facie case that the grand jury nomination process violated federal equal
protection guaranties. He insists all essential elements were present under
Castaneda, supra, 430 U.S. 482, to wit, substantial underrepresentation of a
distinct class (women and Hispanics) in the grand jury pool over time, and a
highly subjective nominating process that was susceptible of abuse. Defendant
argues that whether or not any “overt racism” was shown, the evidence he
presented below raised an inference of purposeful and intentional discrimination,
which the People did not rebut. We now consider Castaneda in some detail.
In Castaneda, defendant Partida was indicted and convicted of a felony in
Hidalgo County, Texas, near the Mexican border. In seeking a new trial in state
court, he claimed his federal equal protection rights had been denied because of
the historical underrepresentation of Mexican-Americans on grand juries in the
county when he was indicted in 1972. Besides testifying about racial

17 An “alternate” grand jury nomination procedure exists. (4 Witkin &
Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Criminal Procedure,
§ 32, p. 48.) In this system, the jury commissioner, applying written standards
adopted by a majority of the superior court, furnishes the judges annually with “a
list of persons qualified to serve as grand jurors.” (§ 903.1.) From this list, a
majority of judges may select persons who, “in their opinion,” should serve as
grand jurors, provided they are “suitable and competent,” as required by law.
(§ 903.3) However, the judges “are not required to select any names from the list
returned by the jury commissioner.” (§ 903.4.) Rather, they may, “if in their
judgment the due administration of justice requires, make all or any selections
from among the body of persons in the county suitable and competent to serve as
grand jurors.” (Ibid.)

28
discrimination in the area, Partida introduced evidence from the 1970 Census
showing that 79.1 percent of the county‟s population was Mexican-American, and
that the group was underprivileged by various socioeconomic measures. Partida
also showed that the average representation of Mexican-Americans on grand jury
lists over an 11-year period, from 1962 to 1972, was 39 percent. In rebuttal, the
state offered no evidence to show that the alleged underrepresentation and
discrimination had not occurred. Ultimately, the motion for a new trial was
denied, and the conviction was affirmed on appeal. (Castaneda, supra, 430 U.S.
482, 485-489.)
Partida renewed his equal protection claim on habeas corpus in federal
district court. This time, the state outlined some of the procedures used to select
grand juries in Hidalgo County, as follows: A state district court judge appointed
from three to five jury commissioners. The commissioners, in turn, selected 15 to
20 persons to comprise the list from which the actual grand jury was drawn.
When 12 persons on the list appeared by summons in court, the state district judge
determined whether they were statutorily qualified to serve, examining them under
oath on issues such as citizenship, voting age, literacy, mental soundness and
moral character, and criminal record. As soon as the court found 12 qualified
persons, they were impaneled as the grand jury. (Castaneda, supra, 430 U.S. 482,
484-485.) Also, the state district judge who applied these rules — called a “key
man” system — testified that in appointing the commissioners (including a greater
number of Mexican-Americans than persons from other ethnic groups), he advised
them on the qualifications and exemptions related to grand jury service. However,
there was no evidence in any form, including from the commissioners themselves,
on the manner in which they compiled the grand jury list. (Id. at pp. 490-491.)
The federal district court declined to grant habeas corpus relief on grounds
the prima facie case of discrimination was weak, and sufficient rebuttal had

29
occurred. The court surmised that the statistical evidence overstated the racial
imbalance on the grand jury lists, and that it ignored the role of Mexican-
Americans as a local “governing majority” who held prominent posts in the
community. (Castaneda, supra, 430 U.S. 482, 491-492.) The latter theory
referred to the fact that, at the relevant time, a large percentage of Mexican-
Americans served, among other things, as jury commissioners, prospective grand
jurors, actual grand jurors, and trial jurors in Partida‟s case.
However, the federal circuit court of appeals rejected this analysis and
reversed the district court‟s decision. The court of appeals placed little weight on
the “governing majority” approach, and otherwise found that Partida‟s prima facie
showing of a constitutional violation had not been adequately rebutted by the
State. (Castaneda, supra, 430 U.S. 482, 491-492.)
The United States Supreme Court granted a petition for certiorari by the
State of Texas, through the Sheriff of Hidalgo County, challenging the equal
protection theory on which Partida had prevailed in the federal court of appeals.
In a five-to-four decision, accompanied by three dissenting opinions, the Supreme
Court upheld the lower court ruling invalidating the state‟s grand jury selection
process. (Castaneda, supra, 430 U.S. 482, 492, 501; see id. at p. 504 (dis. opn. of
Burger, C. J.); see also id. at p. 507 (dis. opns. of Stewart, J. and Powell, J.).)
At the outset, Castaneda embraced the venerable notion that equal
protection precludes a defendant from being tried under an indictment issued by a
grand jury from which persons “ „of his race or color‟ ” have been excluded
“ „because of that race or color.‟ ” (Castaneda, supra, 430 U.S. 482, 492.)
Reviewing its prior decisions, the court observed that such conduct “is not
unconstitutional solely because it has a racially disproportionate impact.” (Id. at
p. 493, italics omitted.) Rather, the equal protection clause of the Fourteenth
Amendment targets discrimination that is “purposeful” and “ „intentional‟ ”

30
(Castaneda, supra, 430 U.S. at p. 493), and that selects grand jurors in a “ „racially
non-neutral‟ ” way. (Id. at p. 494.)
In evaluating how the key-man system was applied in Hidalgo County,
Castaneda set forth the requirements that a criminal defendant must meet in order
to establish a prima facie equal protection violation. “The first step is to establish
that the group is one that is a recognizable, distinct class, singled out for different
treatment under the laws, as written or as applied. [Citation.] Next, the degree of
underrepresentation must be proved, by comparing the proportion of the group in
the total population to the proportion called to serve as grand jurors, over a
significant period of time. . . . Finally, [the court noted], a selection procedure that
is susceptible of abuse or is not racially neutral supports the presumption of
discrimination raised by the statistical showing.” (Castaneda, supra, 430 U.S.
482, 494.) Once the requisite showing has been made, and a prima facie case of
discriminatory purpose appears, “the burden then shifts to the State to rebut that
case.” (Id. at p. 495.)
Under this test, Castaneda held, Partida had presented a prima facie case.
First, Mexican-Americans were “a clearly identifiable class.” (Castaneda, supra,
430 U.S. 482, 495.) This conclusion rested on the common use of Spanish
surnames in the group, and on the socioeconomic disadvantages its members had
long endured.
Second, Castaneda found the statistical showing clearly sufficient for prima
facie case standards. Partida had established a 40 percent disparity between the
percentage of Mexican-Americans in the county‟s population and the average
percentage of Mexican-Americans summoned as prospective grand jurors over an
11-year period before he was indicted. (Castaneda, supra, 430 U.S. 482, 495-
496.) The court further indicated that the constitutional significance of the
disparity would not change to the extent the relevant population could be limited,

31
based on the available statistical evidence, to persons who were statutorily eligible
to serve as grand jurors. (Id. at pp. 486, fn. 6 [noting that exclusion of noncitizens
resulted in only a “negligible” 3 percent decrease in the number of Mexican-
Americans in the county population], 488, fn. 8 [finding a 26 percent disparity
between Mexican-Americans 25 years or older who have “some schooling,” and
are presumably literate, and Mexican-Americans in grand jury pools].)
Third, the substantial underrepresentation of Mexican-Americans in grand
jury pools did not end the inquiry. Castaneda proceeded to address the final factor
it had identified as bearing on the establishment of a prima facie case — the nature
of the grand jury selection process itself. The court noted that, as a general
proposition, the key-man system was not inherently unconstitutional, and that it
had repeatedly been upheld against facial challenge. However, referring to the
Texas system in particular, the court characterized it as both “highly subjective”
and “susceptible of abuse as applied.” (Castaneda, supra, 430 U.S. 482, 497.) In
context, such criticisms seemed directed at evidence the court had previously
described indicating that no known methods or standards regulated the manner in
which the commissioners compiled the grand jury lists. (Id. at pp. 490-491.) In
any event, without further discussion, the court found that an inference of
intentional discrimination arose, which the state was required to dispel. (Id. at
pp. 497-498.)
In the final analysis, Castaneda determined that the state did not rebut the
showing of intentional discrimination that Partida had made. The court
emphasized the “barren” state of the record as to both the “motivations and
methods of the grand jury commissioners.” (Castaneda, supra, 430 U.S. 482,
499.) In light of the gross underrepresentation of Hispanics on the grand jury lists,
the court indicated that proper rebuttal required some explanation as to how the
commissioners determined “the other qualifications for grand jurors prior to the

32
statutory time for testing qualifications” in state district court. (Id. at p. 498.) Nor
did the governing majority theory devised by the federal district court fill the
evidentiary gap. The high court was not willing to assume that members of one
definable group would never discriminate against other persons in the same group.
It likewise did not matter to the court that certain local officials or prominent
persons in Hidalgo County were Mexican-American. (Id. at p. 499.) For all these
reasons, Castaneda concluded that there had been a denial of equal protection in
the selection of the grand jury in Partida‟s case.
The United States Supreme Court has referred to Castaneda, supra, 430
U.S. 482, sparingly in the 35 years since it was decided, and has had no occasion
to apply its equal protection analysis to a “key man” system under circumstances
other than those at issue there. Nevertheless, the high court has reaffirmed, in
closely related contexts, that Castaneda involved the Fourteenth Amendment‟s
prohibition against purposeful and invidious discrimination. Thus, in Vasquez v.
Hillery (1986) 474 U.S. 254, 260-264, the court declined to adopt a harmless error
standard where the grand jury had been selected in violation of equal protection
guaranties. Consistent with a long line of cases, the court observed that such a
fundamental structural flaw in the proceedings compelled reversal of the
conviction. Few constitutional errors were as grave, the court said, as the state
engaging in the “intentional” exclusion of grand jurors because of their race. (Id.
at p. 262; see Rose v. Mitchell (1979) 443 U.S. 545, 551-559 [similar analysis].)18

18 As noted, Castaneda echoed older cases that required a defendant asserting
an equal protection claim to show that the challenged procedure resulted in the
substantial underrepresentation in the grand jury pool “of his race or of the
identifiable group to which he belongs.” (Castaneda, supra, 430 U.S. 482, 494.)
However, under Campbell v. Louisiana (1998) 523 U.S. 392, this limitation no
longer seems to apply. In Campbell, a White defendant found guilty of second
(footnote continued on next page)

33
 Against this backdrop, we are not entirely certain of the elements of a prima
facie equal protection violation sufficient to shift the burden of proof from the
defense, and to require rebuttal from the state. On the one hand, Castaneda,
supra, 430 U.S. 482, speaks broadly of the “presumption,” or inference, of
discriminatory intent raised by the constitutionally significant underrepresentation
of a distinct group over time (id. at p. 494), of the underlying “support[ ]” for such
inference provided by a selection process that is “susceptible of abuse” or “not
racially neutral” (ibid.), and of the “highly subjective” and malleable nature of the
Texas key-man system in particular (id. at p. 497). Read in its most literal and
absolute manner, such language arguably implies that mere statistical disparity,
coupled with some official discretion in the selection of grand jurors, is always
sufficient, without more, to raise a prime facie case of intentional discrimination.
On the other hand, it is difficult to conceive of a grand jury selection
system — including one less unfettered and more objective than Castaneda‟s — in

(footnote continued from previous page)

degree murder challenged his conviction on the ground that the grand jury
foreman, and the grand jury venire from which he came, were the product of
intentional discrimination in violation of equal protection guaranties and
Castaneda, supra, 430 U.S. 482. The defendant argued, and the state did not
dispute, that no Black person had served as a grand jury foreperson over a long
period even though a substantial minority of registered voters in the community
were Black. Reversing the state court, the high court held that the defendant had
standing to raise an equal protection challenge to discrimination against persons of
another race in the selection of his grand jury. The court said that “whether [or
not] a white defendant‟s own equal protection rights are violated when the
composition of his grand jury is tainted by discrimination against black persons,”
he could invoke “the well-established equal protection rights of black persons not
to be excluded from grand jury service on the basis of their race.” (Campbell,
supra, 523 U.S. at p. 398.)

34
which no meaningful discretion guides the nominating process, and which would
survive constitutional scrutiny under the foregoing view, assuming the requisite
statistical showing was made. As reflected by the statutory requirement of
personal interviews for grand jury nominees, and by the individualized screening
process that the county used here, it seems inherent in the grand jury itself, and in
its civic oversight role and strict schedule, that persons nominated and selected to
that body not only be eligible and qualified to serve, but that they also be willing
and able to do so. For this pragmatic reason, perhaps, Castaneda recognized that
key-man systems are not unconstitutional per se, absent any evidence or inference
of discriminatory intent “as applied.” (Castaneda, supra, 430 U.S. 482, 497.)19

19 We also cannot ignore intervening developments that could complicate
application of Castaneda‟s prima facie test here. As noted by the trial court in this
case, the high court held in Duren, supra, 439 U.S. 357, two years after
Castaneda, supra, 430 U.S. 482, that the Sixth Amendment fair-cross-section rule
prevented Missouri from allowing women to automatically exempt themselves
from trial jury service. The test for establishing this prima facie Sixth Amendment
violation, which arose and was not rebutted in Duren, was similar in all but one
respect to Castaneda‟s test for establishing a prima facie equal protection violation
for grand juries. Specifically, as to the third prong, the automatic and
disproportionate exclusion of women from trial juries was deemed a “systematic”
flaw inherent in state law, requiring no showing of discriminatory intent. (Duren,
supra, 439 U.S. at p. 364; see id. at pp. 366-367 & fn. 26, 368.)
In deciding whether the latter element exists under the Sixth Amendment
and Duren, this court has declined to “infer[ ]” or “speculate[ ]” from a mere
statistical showing of substantial underrepresentation in trial jury venires, plus
identification of a feature of the selection process that might have produced the
disparity, that a constitutional flaw affected the selection process or caused such
disparity. (People v. Bell (1989) 49 Cal.3d 502, 528 (Bell); see id. at pp. 524, 529
[hardship excusals granted on gender- and race-neutral grounds].) Here, however,
for reasons stated above, we need not face the apparent anomaly of indulging in
such speculation in the equal protection context, and thereby making it easier to
show, prima facie, intentional and invidious discrimination in nominating grand
jurors than it is to show merely systematic exclusion under the Sixth Amendment.
(See People v. Burney (2009) 47 Cal.4th 203, 222-227 [assuming that 6th Amend.
(footnote continued on next page)

35
 We now determine whether defendant‟s motion to dismiss the indictment
was properly denied. We begin by noting the parties‟ agreement that women (see
Duren, supra, 439 U.S. 357, 364), and Hispanics (Castaneda, supra, 430 U.S.
482, 495), each qualify as a distinct class for equal protection purposes. Hence,
the first prong of Castaneda‟s “prima facie” test is met.
Regarding Castaneda‟s second “prima facie” prong, as to which
considerable evidence was admitted below, the significance of defendant‟s
statistical showing is less clear. Here, as under the Sixth Amendment, the United
States Supreme Court “has not yet spoken definitively on either the means by
which disparity may be measured or the constitutional limit of permissible
disparity.” (Bell, supra, 49 Cal.3d 502, 527-528.) The exhibits showed various
absolute disparities comparing adult women in the population to women in grand
jury pools in Los Angeles over several years. While the difference spiked at one
point, it otherwise was either zero or ranged between 5 and 10 percent. Likewise,
there was no expert consensus concerning the absolute disparity between
Hispanics in the county population and Hispanics in grand jury pools, with each
witness defining and measuring such groups for statistical purposes differently.
(See id. at p. 526, fn. 12 [defendants must use available “jury-eligible population”

(footnote continued from previous page)

fair-cross-section requirement applies in grand jury context]; People v. Carrington
(2009) 47 Cal.4th 145, 177-178 [same].) It appears the high court has declined to
engage in similar speculation under circumstances much like those in Bell, supra,
49 Cal.3d 502. (See Berghuis v. Smith (2010) __ U.S. __, __ [130 S.Ct. 1382,
1395] [finding no prima facie case under Duren, supra, 439 U.S. 357, where
defendant merely assumed that a “laundry list of factors” might have been the
“ „systematic‟ cause[ ]” for the underrepresentation of African-Americans in jury
venires in the county‟s lone felony court, including hardship excusals and the
alleged “ „siphoning‟ ” of African-Americans to misdemeanor courts].)

36
figures in fair-cross-section cases].) Some of the more relevant absolute disparity
figures for Hispanics ranged from 9.7 percent to 11.4 percent.
At bottom, none of the disparities shown for either women or Hispanics in
this case approaches the 40 percent mark in Castaneda, supra, 430 U.S. 482. Nor
do they show substantial underrepresentation over time outside the more modest
limits that courts have assumed are constitutionally permissible. (See Bell, supra,
49 Cal.3d 502, 528, fn. 15 [reviewing cases that deemed absolute disparity of 4.5
to 11.49 percent “insufficient,” and that “seemingly” reached opposite result as to
14 percent disparity]; see also People v. Burgener (2003) 29 Cal.4th 833, 856-857
[declining to decide effect of 10.7 percent disparity on fair-cross-section claim].)
However, we need not resolve these statistical issues. The same is true as
to whether defendant has met Castaneda‟s third “prima facie” prong by showing
that the grand jury selection procedure was “not racially neutral” (Castaneda,
supra, 430 U.S. 482, 494), or was “highly subjective” and “susceptible of abuse as
applied” to women and Hispanics (id. at p. 497). The reason is that even assuming
a prima facie case exists under Castaneda, the evidence admitted and considered
by the trial court is more than sufficient to “dispel [any] inference of intentional
discrimination” and to show that no equal protection violation occurred (Id. at
pp. 497-498.)
To recap the process, grand jurors are randomly selected from a group of
persons nominated by the judges of the Los Angeles County Superior Court. The
original pool of applicants for nomination includes both volunteers from the
community and individuals personally known to the judges. The superior court
determines “by personal interview” whether prospective grand jurors meet the
eligibility requirements under section 893, subdivision (a). (§ 896, subd. (a).)
Section 893, subdivision (a) ensures that such persons have, among other things,
the basic capacity to perform the grand juror function. Elsewhere, the scheme

37
defines such function in terms of the responsibility to conduct criminal and civil
inquiries, most of which concern investigating and reporting on the financial,
administrative, and legal affairs of government agencies and officials. The
relevant statutes further assume that this service, which is largely uncompensated,
demands a high level of personal commitment from those sworn to perform it.
Thus, in addition to determining eligibility and qualification to perform the grand
jury function, the court must ensure that nominees can and will work the necessary
hours. (§ 896, subd. (a).) These statutory requirements are neither uncommon nor
inherently unconstitutional. (See Carter v. Jury Commission (1970) 396 U.S. 320,
331-337; 1 Wharton‟s Criminal Procedure (14th ed. 2010) § 4:4, pp. 4-30 to 4-42.)
The evidence in this case showed that the Los Angeles County Superior
Court had adopted standard procedures and written guidelines to implement the
foregoing rules. The jury commissioner gave the same application to all persons
who wanted to serve as grand jurors, whether or not they were known to any
judge. Similarly, the interview system used to nominate grand jurors was not
limited to persons known to the judges, but was extended to everyone who
volunteered to apply. To ensure that all applicants and interviewees were
evaluated in a uniform and proper manner, the court used written guidelines
focusing on statutory eligibility rules, relevant background and experience, and
time and service requirements. Nominating responsibility was shared by the entire
superior court bench, which consisted at the relevant time of 238 judges serving in
courthouses located in different communities throughout Los Angeles County.
Contrary to defendant‟s view, nothing in these rules or procedures
authorized, encouraged, or established that the judges nominated grand jurors in a
manner that discriminated against women, Hispanics, or any other distinct group.
Rather, the criteria used to select nominees were gender- and race-neutral, and
clearly sought to test qualifications without reference to any impermissible

38
subjective factor. Far from seeking to exclude members of minority groups from
the pool of nominees, the superior court operated under a pro-diversity policy. It
engaged in a widespread campaign to recruit grand jury volunteers from all
segments of the county population. These efforts targeted Hispanics and other
minority groups. (See People v. Burney, supra, 47 Cal.4th 203, 227 [rejecting 6th
Amend. fair-cross-section challenge to Orange County Grand Jury pool where
superior court made “exhaustive efforts” to “invite Asian-Americans to apply”].)
In a related vein, the neutral selection criteria used by the Los Angeles
Superior Court, consisting of statutory requirements and its own guidelines, were
rationally related to the grand jury function. The pool of persons who were
eligible, qualified, and willing to serve as grand jurors was not unlimited. Hence,
in evaluating nominees, the court considered any traits, skills, and experience that
would assist the grand jury in conducting its investigations and preparing its
reports. The testimony indicated that these standards were broadly inclusive and
did not seek to eliminate persons based on occupation or education. (See People
v. Brown (1999) 75 Cal.App.4th 916, 927 [rejecting equal protection challenge to
selection of grand jury foreperson where presiding judge in San Francisco
Superior Court used “race-neutral,” “job related” factors to make decision].)
Finally, in implementing the screening process, the Los Angeles Superior
Court was evidently aware of its constitutional duties in selecting grand jurors,
including the requirement that no one be excluded “ „because of [their] race or
color.‟ ” (Castaneda, supra, 430 U.S. 482, 492.) Such awareness can be inferred
from the written form given to all grand jury applicants, and distributed (at least in
the case of volunteer candidates) to the entire court, announcing “full compliance”
with the law in this regard. Further, it appears that any racial or similar
background information voluntarily provided on the form was used in a manner
consistent with the diversity policy and outreach efforts we have described.

39
Indeed, the evidence showed that the application and interview process was not
used to eliminate Hispanic volunteer candidates, because they were nominated at a
higher rate than Whites who were screened in the same manner.
Thus, unlike Castaneda, on which defendant so heavily relies, the present
record is filled with — not devoid of — evidence of the nondiscriminatory
“motivations and methods” of the judicial officers who selected the grand jury
pool. (Castaneda, supra, 430 U.S. 482, 499.) Accordingly, we conclude that the
Los Angeles County procedure for the nomination of prospective grand jurors
neither allowed, nor produced, purposeful or intentional discrimination against
women and Hispanics. We therefore reject defendant‟s claim that his indictment
violated the Fourteenth Amendment, and that the motion to dismiss was
erroneously denied.

B. Trial Jury Selection Process
Defendant maintains the trial court erred by excusing, for cause, a
prospective juror who expressed “pro-life” views, and by rejecting his claims that
the prosecutor‟s peremptory excusals of three female prospective jurors were
improperly motivated by gender bias. All such contentions lack merit.
1. Overview
We summarize the process used to select the trial jury in this case —
context that defendant fails to provide in challenging such procedures on appeal.
The process began with 160 prospective jurors. After a preliminary screening,
which resulted in numerous excusals on hardship grounds, a pool of 75
prospective jurors remained. All 75 persons completed an 18-page questionnaire,
which they were required to sign under penalty of perjury. The written questions
were the product of substantial collaboration between the court and counsel.
About 25 percent of the questions concerned the death penalty.

40
 Voir dire began with 18 prospective jurors inside the jury box, representing
the 12 persons needed for the actual jury and the six persons needed as alternate
jurors. The court examined each panelist at length. Counsel on both sides asked
follow-up questions. Except for sensitive personal matters, voir dire occurred in
open court.20 At the bench, the parties exercised challenges for cause, followed
by peremptory challenges.21 When only 11 people were left in the jury box, the
court called more names to create a new 18-person panel. This process occurred a
total of seven times to select the 12-person jury. A similar procedure involving
four panels of five persons each was used to choose the six alternate jurors.
2. Challenge for Cause
Defendant claims the trial court erred in granting the prosecution‟s
challenge for cause to D.G., who was one of the first 18 persons to undergo voir
dire. He argues here, much as he did below, that the ruling violated Wainwright v.
Witt (1985) 469 U.S. 412 (Witt), and thereby deprived him of due process, an

20 At the time of trial, Code of Civil Procedure section 223 stated: “In a
criminal case, the court shall conduct the examination of prospective jurors.
However, the court may permit the parties, upon a showing of good cause, to
supplement the examination by such further inquiry as it deems proper . . . . Voir
dire of any prospective jurors shall, where practicable, occur in the presence of the
other jurors in all criminal cases, including death penalty cases.” (Added by Prop.
115, as approved by voters, Primary Elec. (June 5, 1990).) Effective January 1,
2001, the statute was amended to give counsel for each party an expanded, though
not unlimited, right to examine prospective jurors through direct oral questioning.
However, the provision regarding group voir dire remained unchanged. (Code
Civ. Proc., § 223, as amended by Stats. 2000, ch. 192, § 1, p. 2216.)
21 Here, as in other capital trials, defendant was “entitled to 20 and the people
to 20 peremptory challenges.” (Code Civ. Proc., § 231, subd. (a); see id., § 234
[allowing each side “as many peremptory challenges to the alternate jurors as there
are alternate jurors called”].) As indicated below, neither party exhausted its
allotment of peremptory challenges in choosing the actual and alternate jurors.

41
impartial jury, and a fair and reliable penalty determination under the Sixth,
Eighth, and Fourteenth Amendments of the federal Constitution, and under
parallel provisions of the state Constitution. We disagree.
The record discloses that D.G. expressed personal opposition to capital
punishment on her questionnaire. She indicated that she “strongly agree[d]” with
the statement that “[a]nyone who commits murder, attempted murder and sexual
assaults should never get the death penalty.” She explained her answer to this and
other questions — including one soliciting her general views on the death penalty
— by writing, “I do not believe in the Death Penalty.” She also wrote that no one
“should die at the hands of the Death Penalty,” and that her preferred outcome in
cases involving violent crimes was “jail for life.” When asked to identify cases in
which the death penalty was not appropriate, she wrote, “all cases.” Consistent
with this view, she listed no case, and left the answer blank, when asked to
identify circumstances in which the death penalty was appropriate.22
On voir dire, the trial court first inquired whether D.G. held strong views on
punishment. Echoing her questionnaire, D.G. said, “Right. I just don‟t believe in
the death penalty.” When the court noted that D.G. had circled “NO” in response
to written questions about rejecting death or life imprisonment without parole in

22 Less adamant were certain written responses showing how D.G. might
apply her sentencing views in a capital case. For instance, she answered “no”
when asked if she would “always” vote either for life imprisonment without parole
or for the death penalty, regardless of the evidence, in a first degree murder case
involving a felony-murder special circumstance. She indicated that she should
consider all of the circumstances of the case before deciding between the two
available penalties, and that she could not see herself rejecting the death penalty
or, conversely, life imprisonment without parole “in the appropriate case.” D.G.
gave no answer when asked to identify significant or meaningful factors in
deciding the appropriate penalty.

42
appropriate cases, she exclaimed, “Oh, I can vote for life.” The court next asked
whether there were “any circumstances you can imagine that you think death
might be appropriate.” D.G. replied— again, tracking her questionnaire — “no.”
An exchange then occurred in which the trial court explored possible
exceptions to D.G.‟s apparent refusal to impose death in any case. When the trial
court mentioned “Charlie Manson, serial killer,” D.G. acknowledged hearing
about the case on television, but twice said, “I don‟t know” in response to the
court‟s question about the appropriate punishment. D.G. was also asked whether
she could vote to impose the death penalty on Jeffrey Dahmer, another notorious
serial killer who sexually assaulted and tortured his victims, among other things.
D.G. indicated that she was familiar with the Dahmer case, but replied “No, I
couldn‟t [impose death]. I am just one that don‟t [sic] believe in the death
penalty.” The court then posed its final inquiry along these lines, asking whether
it was “possible” to reject life imprisonment without parole and vote for death if
the aggravating evidence substantially outweighed the mitigating evidence. D.G.
essentially answered in the negative, as follows: “It would be hard for me to, you
know, vote that way. But again, I just don‟t believe in the death penalty. That is
just my belief. I believe that we are put here on this earth to remain here unless
otherwise, you know, from an illness or some other act we are taken away from
here. I just can‟t see it. I just don‟t believe in it.”
Defense counsel‟s follow-up examination consisted of a series of “yes” or
“no” questions. At the outset, D.G. answered affirmatively when asked if she
understood that defendant was entitled to jurors who held a diversity of views, that
the law did not require any juror to vote for death in a given case, and that jurors
must set aside their personal views and apply the law consistent with the court‟s
instructions. Thereafter, D.G. continued to say “yes” when counsel asked whether
she could follow the court‟s instructions to set aside her personal opinions and

43
render an impartial verdict under the law, and whether she could consider the
death penalty and follow the law if instructed to do so in certain cases. However,
midway through this exchange, D.G. interjected the following remark: “I would
follow the law, although I still would — don‟t believe in the death penalty.”
The prosecutor posed only a few questions. All of them confirmed D.G.‟s
personal feelings that she could not vote for the death penalty regardless of the
circumstances of the case. At a sidebar conference, the prosecutor challenged
D.G. for cause. Defense counsel objected on the ground D.G. gave appropriate
answers to, i.e., “walked through,” counsel‟s questions about following the law
and instructions, and considering the death penalty. The trial court disagreed,
saying “I don‟t think she walked through it. She was carried through it . . . . Even
[so], she slipped out a little burst of independent thought there that she was not in
favor of the death penalty. [¶] I think her feelings are clearly strong enough to
interfere with following the court‟s instruction.” The challenge for cause to D.G.
was granted as a result.
Based on the foregoing developments, defendant contends that D.G.
showed no disqualifying bias, and should not have been excused for cause,
because her personal opposition to the death penalty would not have prevented her
from imposing death “under any circumstances.” Defendant relies heavily here, as
below, on defense counsel‟s examination of D.G.
In Witherspoon v. Illinois (1968) 391 U.S. 510, the high court held that a
death sentence cannot constitutionally be imposed by a tribunal “organized to
return a verdict of death” (id. at p. 521), that is, by a jury that excluded veniremen
for cause “simply because they voiced general objections to the death penalty or
expressed conscientious or religious scruples against its infliction.” (Id. at p. 522
& fn. 21 [suggesting it must be “unmistakably clear” the person would
“automatically” reject death].) In Witt, supra, 469 U.S. 412, 424, the court

44
“clarif[ied]” Witherspoon, and held that a prospective juror may be excluded for
cause because his views on capital punishment would either “ „prevent or
substantially impair‟ ” the performance of his duties under the instructions and the
oath. Thus, under Witt, persons opposed to the death penalty may serve as jurors
only if they “state clearly that they are willing to temporarily set aside their own
beliefs and follow the law.” (People v. Avila (2006) 38 Cal.4th 491, 529, citing
Lockhart v. McCree (1986) 476 U.S. 162, 176.) In other words, such persons must
“persuasively demonstrate an ability to put aside personal reservations, properly
weigh and consider the aggravating and mitigating evidence, and make that very
difficult determination concerning the appropriateness of a death sentence.”
(People v. Stewart (2004) 33 Cal.4th 425, 447.)
In a related vein, trial court findings regarding a prospective juror‟s views
on capital punishment are entitled to substantial deference on appeal. (People v.
Avila, supra, 38 Cal.4th 491, 529.) Hence, where answers given on voir dire are
“equivocal or conflicting,” the trial court‟s evaluation of the person‟s state of mind
is generally binding on the reviewing court. (People v. DePriest (2007) 42 Cal.4th
1, 21, and cases cited.) The trial court is in the “unique position of assessing
demeanor, tone, and credibility firsthand — factors of „critical importance in
assessing the attitude and qualifications of potential jurors.‟ ” (Ibid., quoting
Uttecht v. Brown (2007) 551 U.S. 1, 9.) As noted in Witt itself, the trial judge may
be left with the “definite impression” that the person cannot faithfully and
impartially apply the law even though he has not expressed his views with
absolute clarity. (Witt, supra, 469 U.S. 412, 425-426.)
Applying this deferential standard here, we find ample evidence to support
the trial court‟s determination that D.G.‟s opposition to the death penalty would, at
the very least, “ „substantially impair‟ ” the performance of her duties as a juror.
(Witt, supra, 469 U.S. 412, 424.) At every phase of voir dire, whether her answers

45
were given orally or in writing, and whether they were solicited by the court or
counsel, D.G. repeatedly stated, in almost talismanic form, that she did “not
believe in the death penalty.” She also communicated with remarkable clarity in
her questionnaire and during voir dire that the death penalty was inappropriate in
all cases, and that she could conceive of no case in which she could or would
reach a different result. The latter principle evidently held true no matter how vile
the circumstances of the crime or how strong the evidence in aggravation.
Contrary to what defendant implies, D.G. never “state[d] clearly,” in her
own words, that she was willing or able to set aside these personal views and
reject a sentence of life imprisonment without parole. (People v. Avila, supra, 38
Cal.4th 491, 529.) Nor does the record otherwise “persuasively demonstrate” an
ability to follow the law and consider imposing a death sentence. (People v.
Stewart, supra, 33 Cal.4th 425, 447.) Rather, after counsel led her through a series
of “yes” or “no” questions on sentencing, and she seemed to accept the notion of
following the law and instructions, D.G. lapsed into her repeated refrain, “I still
. . . don‟t believe in the death penalty.” Upon hearing D.G.‟s voice and seeing her
demeanor, the trial court found this view to be sincere, strong, and unyielding.
As in prior cases, where the prospective jurors‟ answers arguably seemed
more equivocal and less absolute than those at issue here, we decline to second-
guess the trial court‟s finding on appeal. (See, e.g., People v. Solomon (2010) 49
Cal.4th 792, 831 [upholding excusal for cause based on prospective juror‟s
statements that though she “ „[t]heoretically‟ ” opposed the death penalty, she
could “ „probably‟ ” vote for death in some cases, but would find it “ „extremely
difficult‟ ” to do so]; People v. Friend (2009) 47 Cal.4th 1, 61 [same result where
one prospective juror admitted being “ „slightly schizophrenic‟ ” and unsure about
voting for death, while another prospective juror apologized for “ „vacillating‟ ”

46
on penalty and likewise did not know whether she could impose death].)
Accordingly, in our view, no error in excusing D.G. for cause occurred.
3. Wheeler/Batson Claim
Defendant insists the trial court erred in denying his motion for a mistrial
after the prosecutor allegedly displayed gender bias by using her first three
peremptory challenges against female prospective jurors. He argues here, as
below, that such conduct violated the state constitutional right to a representative
jury (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)), and the federal
constitutional guaranty of equal protection of the laws. (Batson v. Kentucky
(1986) 476 U.S. 79 (Batson); see J. E. B. v. Alabama ex rel. T. B. (1994) 511 U.S.
127, 129; People v. Jurado (2006) 38 Cal.4th 72, 104.)
As noted, after the 75 members of the jury pool completed their
questionnaires, the court called 18 of them into the jury box. During the ensuing
voir dire, the parties stipulated to excuse one woman, K.M., based on her past
experience with violent crime and the court system. The prosecutor also
dismissed another woman for cause, D.G., as discussed above. The parties then
took turns exercising peremptory challenges against the 16 prospective jurors left
on the panel. Critical here is the prosecution‟s use, at that time, of peremptory
challenges against M.E., T.B., and N.F. — all three of whom were women.
Defense counsel, in turn, struck one male and one female prospective juror. Seven
more people were called into the box. The court and counsel questioned one of
them, G.C., who answered mostly at the bench, outside the hearing of other jurors.
Immediately after G.C. returned to the jury box, and shortly before the
court session ended for the day, defendant moved for a mistrial. Citing Wheeler,
supra, 22 Cal.3d 258, defense counsel simply said, “The three peremptories that
were exercised by [the prosecutor] were all women.” However, as urged by the
prosecutor, the trial court denied the motion because “no prima facie showing”

47
had been made. The court noted that while it usually “invite[d] the People to state
their reasons for the record” in such cases, no action was “appropriate” on this
occasion, apparently because the time to adjourn for the day had arrived. The
court then dismissed the prospective jurors and ordered them back in the morning.
When voir dire resumed the next day, the court and counsel continued
questioning the panelists who had been newly seated in the jury box near the end
of the prior session, including G.C. During this process, the parties stipulated to
the excusal of one female prospective juror, and a female replacement was called
and questioned in the box. The court also acted on several challenges for cause.
Once peremptory challenges against the remaining panelists began, defendant
excused a woman. The prosecutor exercised the next peremptory challenge — her
fourth overall — against M.D., who was a man.
Defense counsel responded by “renewing” his Wheeler motion from the
previous day, and by also invoking Batson, supra, 476 U.S. 79. When the court
noted the gender difference between M.D. and the three women who were the
subject of the prior strikes, counsel replied that M.D., like one of those women,
was Hispanic, i.e., belonged to a “cognizable group[ ].”
As before, the trial court found no Wheeler/Batson violation because there
“clearly [was] no prima facie case.” However, consistent with its prior comments
about handling such motions, the court invited the prosecutor to “list [her]
reasons” for the disputed strikes anyway. As discussed further below, the
prosecutor complied with this request as to two of the women, M.E. and N.F., and
as to the Hispanic male, M.D. However, regarding the third woman in the excused
group, T.B., no reasons were given for her peremptory challenge. The prosecutor
explained that she left her notes from the previous day “upstairs,” and that she
could not independently recall why she had excused T.B. The court denied
defendant‟s motion for “lack of a prima facie case.”

48
 Defendant renews his Wheeler/Batson claim on appeal. He maintains that
by using “all of her early peremptory challenges against women,” the prosecutor
created a “statistical” scenario amounting to a prima facie Wheeler/Batson case.
Because the trial court reached a contrary conclusion, and found no grounds for
soliciting or analyzing the prosecutor‟s reasons for all of the disputed strikes,
defendant insists we must either reverse the judgment outright, or remand the case
to the trial court to conduct such further proceedings. However, no error occurred,
and no remedial step of any kind is warranted.23
At issue are the requirements for establishing a prima facie case of group
bias in the use of peremptory challenges. In this first stage of any Wheeler/Batson
inquiry, the defendant must show that “ „the totality of the relevant facts gives rise
to an inference of discriminatory purpose.‟ ” (Johnson v. California (2005) 545
U.S. 162, 168, quoting Batson, supra, 476 U.S. 79, 96; accord, Wheeler, supra, 22
Cal.3d 258, 280-281.) To clarify, this is not a case in which, after a prima facie
violation is found, the prosecution must offer permissible nondiscriminatory

23 Though not mentioned in his briefs on appeal, defendant made six other
Wheeler/Batson motions, all but one of which involved selection of the 12-
member jury rather than the six alternate jurors. Such motions concerned the
prosecutor‟s peremptory challenge of persons with various ethnic backgrounds,
including V.D., whom defense counsel described as coming “from a Baltic state.”
Each time, the trial court denied the motion after finding no prima facie case. At
one point, the prosecutor complained about the numerous males excused by the
defense, including Asian and Hispanic men. The court viewed the latter comment
as a “warning” about a possible Wheeler/Batson motion by the prosecutor — a
motion that was never made. (See Wheeler, supra, 22 Cal.3d 258, 282, fn. 29 [the
People have the same right as a criminal defendant to contest the misuse of
peremptory challenges and to obtain an impartial jury drawn from a fair cross-
section of the community].) Defendant used 16 peremptory challenges in
selecting the actual jury (10 against men and six against women), plus two more
challenges in choosing alternates (one against a man and one against a woman).

49
reasons for the strikes (i.e., the second stage of a Wheeler/Batson challenge). Nor
must the trial court decide whether the defendant has carried his burden of
showing the discriminatory use of such strikes (i.e., the third Wheeler/Batson
stage). (See Johnson v. California, supra, 545 U.S. at p. 168.) Rather, as the trial
court correctly assumed below, the prosecutor was not required to disclose reasons
for the excusals, and the court was not required to evaluate them, until a prima
facie case was made. (People v. Carasi (2008) 44 Cal.4th 1263, 1292; People v.
Zambrano (2007) 41 Cal.4th 1082, 1104-1105 & fn. 3.)
Other core principles guide the manner in which we review a finding that
no prima facie case arose under Wheeler/Batson. First, in Johnson v. California,
supra, 545 U.S. 162, the United States Supreme Court reversed People v. Johnson
(2003) 30 Cal.4th 1302, in which we confirmed that the relevant California
standard — even if it sometimes had been expressed as a “ „reasonable
inference‟ ” (People v. Johnson, at pp. 1312-1313) — was to show that it was
“more likely than not” that purposeful discrimination had occurred. (Id. at p.
1318.) The high court disapproved this exacting standard for federal constitutional
purposes, and said that a prima facie burden simply involves “producing evidence
sufficient to permit the trial judge to draw an inference” of discrimination.
(Johnson v. California, supra, 545 U.S. at p. 170.) Where, as here, it is not clear
which standard the trial court used, we independently decide whether the record
permits an inference that the prosecutor excused jurors on prohibited
discriminatory grounds. (People v. Carasi, supra, 44 Cal.4th 1263, 1293; People
v. Zambrano, supra, 41 Cal.4th 1082, 1105.)
Second, in conducting this independent review and determining whether
such an impermissible inference exists, we have the benefit of “the entire record”
created on voir dire. (People v. Yeoman (2003) 31 Cal.4th 93, 116.) Under settled
law, several interrelated circumstances are relevant in this regard, as follows.

50
 Contrary to what defendant contends, no prima facie case arose based on
the sheer number of peremptory challenges underlying the present Wheeler/Batson
claim. Here, as elsewhere, the “ „absolute size of th[e] sample‟ ” undergoing such
scrutiny is “ „small.‟ ” (People v. Bonilla (2007) 41 Cal.4th 313, 342-343
(Bonilla), quoting People v. Bell (2007) 40 Cal.4th 582, 597-598.) While no
prospective juror may be struck on improper grounds, we have found it
“ „impossible,‟ ” as a practical matter, to draw the requisite inference where only a
few members of a cognizable group have been excused and no indelible pattern of
discrimination appears. (Bonilla, supra, 41 Cal.4th at pp. 342-343 [upholding
finding of no prima facie case where prosecutor excused two African-Americans,
leaving none in the 78-person pool], quoting Bell, supra, 40 Cal.4th at pp. 597-598
[same result where prosecutor excused two of three African-American women in
the 47-person pool].) Similar concerns prevent us from rejecting the instant ruling
simply because the prosecutor excused three women at the start of jury selection.
A broader statistical view also undermines the present Wheeler/Batson
claim. We recently declined to disturb a ruling that no prima facie case arose
where our review of the entire record showed that the percentage of prosecutorial
strikes in issue did not exceed the percentage by which the relevant group was
represented either in the jury pool or on the actual jury that was impaneled. (See
Bonilla, supra, 41 Cal.4th 313, 344 [finding “no basis at all to infer
discrimination” against Hispanics, in general, or Hispanic women, in particular,
where prosecutor excused all three Hispanic women from jury pool, and where
“Hispanics comprised approximately 10 percent of the pool (eight of 78), the
prosecution used 10 percent of its challenges on Hispanics (three of 30), and the
final jury was roughly 10 percent Hispanic (one of 12)”].) Indeed, ultimate
inclusion on the jury of members of the group allegedly targeted by discrimination
indicates “ „good faith‟ ” in the use of peremptory challenges, and may show

51
under all the circumstances that no Wheeler/Batson violation occurred. (People v.
Ward (2005) 36 Cal.4th 186, 203 [reaching similar conclusion as to numerous
prosecutorial strikes against African-American women where “five out of the 12
sitting jurors were African-Americans, and four out of those five jurors were
women”]; accord, People v. Turner (1994) 8 Cal.4th 137, 168 [same, where
prosecutor used four of six peremptories against African-Americans, but “accepted
a jury” that, as “ultimately impaneled,” included five African-Americans].)
Here, the prosecution‟s approach to the cognizable group (females) seems
even more favorable than in the foregoing cases. Women comprised 56 percent of
the jury pool (42 of 75). They also represented 72 percent of the first panel called
into the jury box (13 of 18), and 68 percent of the same panel after challenges for
cause occurred (11 of 16).24 By comparison, the prosecutor used a substantially
smaller percentage of peremptory challenges against women when choosing the
actual jury — seven of 14, or 50 percent. Most telling, however, is that the vast
majority of the final jury was female, to wit, 10 of 12, or 83 percent. This figure
exceeds female representation at any other stage in the process. Thus, the ultimate
composition of the predominantly female jury, along with the relatively modest
number of prosecution strikes used against women throughout jury selection,
makes it difficult to infer purposeful discrimination under Wheeler/Batson.25

24 Women also outnumbered men on all but one of the other six panels called
into the jury box to undergo voir dire. At the high end were the fifth and sixth
such groups, which each started with 12 women and six men. At the other end of
the spectrum was the third 18-person group, which held an equal number of
women and men, i.e., nine each. Men never outnumbered women on any panel.
25 Not surprisingly, the panel of six alternate jurors was also largely female.
Four of the six, or 66 percent, were women. Like the defense, the prosecution
exercised two peremptory challenges in selecting the alternate jurors, only one of
(footnote continued on next page)

52
 Finally, the record contains gender-neutral reasons supporting each of the
three peremptory challenges contested on appeal. In explaining her dismissal of
M.E., a young Hispanic woman, the prosecutor noted that M.E. disclosed, both
orally and in writing, that numerous friends had been killed in violent gang
activities; that other friends were confined at the time on serious charges stemming
from drive-by shootings, including attempted murder; that her ex-boyfriend was
jailed on pending drug charges; and that her brother had been falsely accused by
the police of drug possession and was eventually acquitted by a jury of the crime.
Such potentially negative contacts with the criminal justice system gave the
prosecutor ample reason to excuse M.E. without regard to her gender. (See People
v. Lewis and Oliver (2006) 39 Cal.4th 970, 1010-1011 [prosecutor expressed race-
neutral grounds for dismissing African-American male whose half brother had
been incarcerated, and who reported being stopped by police on false pretenses].)
We likewise see nothing discriminatory in the prosecutor‟s stated reasons
for excusing N.F., a 57-year-old Caucasian woman. This prospective juror stated
on voir dire, consistent with her questionnaire, that she had previously served on a
jury that deadlocked over “intent” in a felony case. She acknowledged that she
was one of the persons responsible for the hung jury, that she felt harassed by
other jurors during deliberations, and that she learned from that experience to
avoid being swayed by the views of others. When asked by the trial court about
imposing the death penalty, N.F. indicated that “intent” could again play a key role
in her decision. N.F. further indicated that it might be “easier” to vote for life

(footnote continued from previous page)

which involved a woman. Thus, as with the actual jury, the prosecution used only
half of its peremptory challenges against female prospective alternate jurors.

53
imprisonment than for death even where aggravating evidence outweighed
mitigating evidence. In short, we see no gender bias in the prosecutor‟s express
concern about N.F.‟s possible close-mindedness and reluctance to impose the
death penalty. (See, e.g., Bonilla, supra, 41 Cal.4th 313, 349 [upholding dismissal
of female prospective juror who previously served on deadlocked jury, who said
she “would adhere to her views” if faced with the same situation again, and who
was generally unsure when a death sentence should be imposed].)
We reach a similar conclusion as to T.B., the prospective juror whose
peremptory challenge the prosecutor had no chance to explain. (See Bonilla,
supra, 41Cal.4th 313, 346-349 [finding gender-neutral reasons in the record for
the excusal of numerous female prospective jurors where prosecutor explained
only one such strike and trial court found no prima facie Wheeler/Batson case];
People v. Panah (2005) 35 Cal.4th 395, 439-442 [same].) On her questionnaire,
T.B. identified herself as a young Caucasian woman with a high school diploma
who worked in a nonmanagerial job in a bank. She wrote that she was neither
“totally” for or against the death penalty, and that she was “not sure” what
punishment was appropriate for defendants who “hurt people.” T.B. told the trial
court that despite any uncertainty reflected in her written answers, she was “okay”
with deciding the appropriate penalty in a capital case. However, when the court
asked what factors might affect that decision, T.B. said she “couldn‟t say.” When
the prosecutor asked whether she could ever impose the death penalty, T.B.
replied, “Well, I‟m not — I wouldn‟t say that I would never say no. So, I would
leave it open that I could say yes to that.” We have found no group bias where the
person‟s views on penalty were as mixed and vague as T.B.‟s. The prosecutor
could readily have seen her as “a wild card,” and used a peremptory challenge “for
reasons unconnected to [her] sex.” (Bonilla, supra, 41 Cal.4th at p. 348.)

54
 In light of all these factors, including the nondiscriminatory reasons elicited
on voir dire, the trial court properly denied the Wheeler/Batson motion linked to
the peremptory challenges exercised against M.E., T.B., and N.F. As framed both
at trial and on appeal, such claim is “particularly weak as it consist[s] of little more
than an assertion that a number of prospective jurors from a cognizable group had
been excused. Such a bare claim falls far short” of what the law requires to
establish a prima facie case. (People v. Panah, supra, 35 Cal.4th 395, 442.)
IV. PENALTY ISSUES

A. Victim Impact Evidence
Defendant claims the trial court erred in admitting victim impact evidence.
He asserts violations of his rights to due process, effective representation, and a
fair and reliable penalty determination under the Sixth, Eighth and Fourteenth
Amendments of the federal Constitution, and under parallel provisions of the state
Constitution. No error occurred.
In January 1995, after the guilt verdict was returned and before the penalty
trial began, defendant moved orally and in writing to limit victim impact evidence
on constitutional grounds similar to those raised on appeal. He also claimed the
evidence was unduly prejudicial under Evidence Code section 352. At the hearing
on the motion, which occurred at various times on different days, the proffered
evidence underwent review. The court and counsel watched the entire videotape,
which was prepared by L. around January 1994. Certain parts were then rerun
frame by frame. The prosecutor also described, in detail, the testimony,
photographs, and documents she sought to present through L. on the stand.
After considering argument on both sides, the trial court denied the motion.
The court disagreed with defendant that the victim impact evidence was irrelevant
and inflammatory because it was not limited to circumstances occurring “right

55
after the event.” The court also rejected defendant‟s claim that L.‟s testimony and
the videotape were cumulative. Focusing on specific features in the videotape, the
court encountered only two instances of “dramatization,” namely, an echo effect
heard during the Finzels‟ wedding ceremony (when Joseph says, “until death do us
part”), and the background song about a “hero” and “villain” that played at the end
of the videotape. However, the court found that the videotape was not
substantially more prejudicial than probative, noting that it seemed “less
emotional” than L.‟s testimony at the guilt phase. When asked to reconsider its
ruling later, shortly before the prosecution began presenting evidence in its case-
in-chief, the court declined to do so.
In Payne v. Tennessee (1991) 501 U.S. 808, 830 (Payne), the United States
Supreme Court overruled Booth v. Maryland (1987) 482 U.S. 496, insofar as
Booth barred the admission of victim impact evidence in death penalty cases.
Payne explained that the state could properly conclude that the jury could not
meaningfully assess the defendant‟s “moral culpability and blameworthiness”
unless it was aware of the “specific harm” he had caused. (Payne, at p. 825.)
Payne reasoned that the state has a legitimate interest in “ „counteracting the
mitigating evidence which the defendant is entitled to put in, by reminding the
sentencer that just as the murderer should be considered as an individual, so too
the victim is an individual whose death represents a unique loss to society and in
particular to his family.‟ ” (Ibid.) Thus, the federal Constitution bars victim
impact evidence only if it is so unduly prejudicial as to render the trial
fundamentally unfair. (Ibid.)
State law is consistent with federal law in this regard. “Unless it invites a
purely irrational response from the jury, the devastating effect of a capital crime
on loved ones and the community is relevant and admissible as a circumstance of

56
the crime . . . .” (People v. Lewis and Oliver, supra, 39 Cal.4th 970, 1056-1057,
citing People v. Edwards (1991) 54 Cal.3d 787, 835-836.)
Defendant first challenges the penalty testimony and related evidence
presented by L. because it was not limited to the “ „immediate injurious impact‟ ”
of the capital crime, or to effects “known or reasonably apparent” to defendant at
the time it was committed. Under this view, any victim impact evidence that
exceeds such bounds is impermissible, particularly where the events occurred
“many years before or after the victim‟s death.”
We have rejected similar claims before and do so again here. (People v.
Lewis and Oliver, supra, 39 Cal.4th 970, 1057, and cases cited.) The People are
entitled to present a “ „complete life histor[y] [of the murder victim] from early
childhood to death.‟ ” (People v. Zamudio (2008) 43 Cal.4th 327, 365.) Such
evidence, which typically comes from those who loved the murder victim, shows
“how they missed having [that person] in their lives.” (People v. Boyette (2002)
29 Cal.4th 381, 444; see People v. Verdugo (2010) 50 Cal.4th 263, 296-299 [many
witnesses testified about vibrant lives of two teenage murder victims, and jurors
heard songs that one victim finished recording the day she died]; People v. Taylor
(2010) 48 Cal.4th 574, 645-647 [many witnesses described effects of elderly
victim‟s death on four generations of her family and on community groups with
whom she had volunteered]; People v. Hamilton (2009) 45 Cal.4th 863, 923-927
[many witnesses described emotional toll of murder on victim‟s surviving spouse
and children over the long 16-year period preceding penalty retrial].)
In the present case, the challenged evidence was presented by a single
witness, L. — a direct surviving victim of defendant‟s violent acts. She
summarized the positive traits, favorite pastimes, close relationships, and future
aspirations of her murdered spouse. In portraying Joseph as a “unique” individual
(Payne, supra, 501 U.S. 808, 825), L.‟s testimony and videotaped evidence took

57
no more than three hours to present, compared to the multiple days covered by the
defense case in mitigation. The victim impact evidence was not irrelevant or
excessive in our view.
We also disagree that certain details were too inflammatory and prejudicial
to include in any valid victim impact presentation. For instance, L. could properly
describe the concern Joseph showed in the hospital during Brinlee‟s birth,
including any complications that arose at that time. Such evidence showed the
nature of the family bond, and the corresponding loss of Joseph as a husband and
father. (See People v. Hartsch (2010) 49 Cal.4th 472, 508-509 [allowing evidence
of extreme hardship experienced by murder victim earlier in his life].) Nor was
the trial court required to exclude evidence concerning Joseph‟s burial and
gravesite. These circumstances, which paled in comparison to mourning process
evidence allowed in other cases, shed permissible light on the family‟s grief. (See
People v. Brady (2010) 50 Cal.4th 547, 570, 579-581 [testimony and videotape of
slain police officer‟s memorial and funeral services, including flag-draped casket
in church, attendance by 4,000 uniformed police officers and other mourners,
motorcade that stretched for miles, and bagpipe procession to gravesite]; People v.
Verdugo, supra, 50 Cal.4th 263, 296-297 [testimony and photographs of funeral
service of two teenage murder victims, including the release of two doves and a
child‟s act of kissing the coffin]; see id. at p. 297 [photographs of birthday
observance for slain teenage victim at cemetery several months after murder].)
Finally, defendant claims the trial court erred in admitting the videotape
because such evidence contained “special effects” that prejudiced the jury against
him. He complains on appeal, much as he did at trial, about “repeated flashbacks
to scenes from Jo[seph] and L[.]‟s wedding, a photo montage, including pictures
of Jo[seph] as a young boy, one with him fast asleep on a couch next to a sleeping
puppy; music; lyrics; echo effects; and voiceovers.”

58
 Videotapes may be used for victim impact purposes in capital penalty trials.
We have said, however, that trial courts must take care in admitting such evidence,
because “the medium itself may assist in creating an [undue] emotional impact
upon the jury.” (People v. Prince (2007) 40 Cal.4th 1179, 1289.) Under this case-
by-case approach, we have had little difficulty upholding videotaped tributes to
murder victims. (E.g., People v. Bramit (2009) 46 Cal.4th 1221, 1240-1241
[depicting victim‟s humble upbringing in Mexico].) Some took more time to play
than the present one. (E.g., People v. Zamudio, supra, 43 Cal.4th 327, 363-368
[14-minute videotape spanning lives of elderly married couple from childhood to
gravesite]; People v. Kelly (2007) 42 Cal.4th 763, 794-799 (Kelly) [20-minute
videotape showing female victim from infancy through age 19, when she died].)
Kelly seems highly relevant here. There, the defendant was convicted of
robbing, raping, and murdering a 19-year-old woman, Sara, who was a Native
American and who had been adopted as an infant into a Caucasian home. At the
penalty phase, Sara‟s mother described Sara‟s life and the pain her death had
caused family and friends. Over defendant‟s objection, the prosecution also
played a 20-minute videotape that Sara‟s mother had prepared. It consisted of
video clips and still photographs spanning Sara‟s life, with the voice of her mother
calmly narrating events in the background. The music of Enya played through
most of the video, but the volume was soft and the lyrics were faint. On screen,
Sara was seen singing with a school group, including the song, “You Light Up My
Life.” Other images showed her swimming, horseback riding, and interacting with
family and friends. Near the end of the videotape, Sara‟s mother stated that she
does not dwell on the “terrible crime.” (Kelly, supra, 42 Cal.4th 763, 797.) The
video ended with a view of Sara‟s gravestone, followed by a clip of people riding
horseback in Alberta, Canada — the “kind of heaven” in which Sara was said to
belong. (Ibid.)

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 Rejecting the defendant‟s contrary claims, Kelly held that that because the
presentation was relevant and not unduly emotional, it was permissible. (Kelly,
supra, 42 Cal.4th 763, 797.) We noted that even though the mother‟s testimony
and the videotape covered similar ground, they supplemented, rather than
duplicated, one another. The reason was that the videotape “humanized” Sara in a
way that live testimony could not do. (Ibid.) “In particular, the videotape helped
the jury to see that defendant took away the victim‟s ability to enjoy her favorite
activities, to contribute to the unique framework of her family . . . and to fulfill the
promise to society that someone with such a stable and loving background can
bring.” (Ibid.)
At most, only two questionable elements emerged — the background music
by Enya and the horseback-riding scene from Canada. Kelly made clear that such
sentimentality is not impermissible as long as it helps show “what [the murder
victim] was like.” (Kelly, supra, 42 Cal.4th 763, 798.) We acknowledged that the
challenged features seemed to play a mostly “theatric” role in Sara‟s case because
they imparted little “additional relevant material.” (Ibid.) However, there was no
reason to decide whether the trial court abused its discretion in admitting the
videotape with these features intact, because any such error was harmless beyond
a reasonable doubt. In making this point, Kelly relied on the routine use of music
and special effects in videotapes, the factual nature of Sara‟s videotape overall,
and the aggravating nature of the penalty evidence as a whole. (Id. at p. 799.)
No different result is warranted here. After reviewing the videotape, we
agree with the trial court, which conducted its own careful analysis, that there is
nothing objectionable about the manner in which the videotape was edited and
prepared. The “flashbacks” to which defendant objects “were simply photographs
being shown,” in the words of the trial court. The complained-of “voiceover” is L.
speaking in a somber, almost flat, tone about scenes from her everyday life with

60
Joseph. For the reasons discussed above, the images themselves are factual and
relevant. Though L. is seen wiping tears away while describing some of these
events, she never loses her composure on tape.
As noted, two audio features caught the trial court‟s attention — the echo
effect accompanying the phrase “until death do us part” in the Finzels‟ wedding
ceremony, and the “hero/villain” song that played during the photo montage at the
end of the videotape. Though more dramatic than factual, these features seem
fairly unobtrusive in context, and do not fundamentally alter the subdued tone of
the presentation. In any event, we need not decide whether the contrary is true,
because any error was clearly harmless. For the reasons set forth in Kelly, supra,
42 Cal.4th 763, and described above, there was “no reasonable possibility these
portions of the videotape affected the penalty determination.” (Id. at p. 799.)26

B. Request for Continuance
Defendant contends the trial court erred in denying him a continuance near
the end of the penalty trial to present surrebuttal testimony by Dr. Kaser-Boyd. He
claims violations of his right to counsel, to present evidence, to due process and a
fair trial, and to a reliable penalty determination under the Sixth, Eighth, and

26 As noted, Brinlee briefly appeared on the witness stand when L. began
testifying at the penalty phase. (See ante, fn. 3.) Defendant argues here, as he did
unsuccessfully below, that there was no need for Brinlee to be seen in court, and
that her presence was unduly prejudicial. However, we see no reasonable
possibility that this fleeting event affected the verdict. Nothing supports
defendant‟s claim that the prosecutor “cradl[ed]” Brinlee in an ostentatious way.
Also, the prosecution showed through testimony, photographs, and videotape
evidence that Brinlee was one of two young children whom Joseph, the murder
victim, would never be able to see grow up, thus depriving him of the challenges
and joys of parenthood. The jury could not have discerned anything from seeing
Brinlee in person that it could not otherwise have inferred from the evidence.

61
Fourteenth Amendments of the federal Constitution, and under parallel provisions
of the state Constitution.27 We will reject the claim.
1. Background
During the People‟s case-in-chief, and outside the jury‟s presence, the trial
court denied the prosecutor‟s request to prevent Dr. Kaser-Boyd from testifying
that defendant was sexually fondled as a child by his mother Suszanne‟s first
husband, Rudy Garcia. Contrary to what the prosecutor claimed, the court found
sufficient evidentiary support for this incident, namely, information Dr. Kaser-
Boyd had obtained from defendant‟s grandfather, Fred Baumgarte, who saw the
fondling. The court explained that prosecutorial concerns over the details of the
incident, and the circumstances under which it was conveyed to Dr. Kaser-Boyd,
merely affected “the weight,” not the admissibility, of her testimony, and could
serve as “ammunition” to challenge her expert opinions in court. The prosecutor
confirmed during the hearing that she planned to “get the grandparents here,”
meaning, to call both Fred Baumgarte and his wife, Dorothy, as rebuttal witnesses.

27 The Attorney General argues that defendant never asserted any violation of
the federal or state Constitution in seeking a continuance at trial, and therefore has
failed to preserve such claims on appeal. Based on settled law, we disagree. Here,
as in certain other instances in this case, it appears that either “(1) the appellate
claim is of a kind (e.g., failure to instruct sua sponte; erroneous instruction
affecting defendant‟s substantial rights) that required no trial court action by the
defendant to preserve it, or (2) the new arguments do not invoke facts or legal
standards different from those the trial court itself was asked to apply, but merely
assert that the trial court‟s act or omission, insofar as wrong for the reasons
actually presented to that court, had the additional legal consequence of violating
the Constitution. To that extent, defendant‟s new constitutional arguments are not
forfeited on appeal.” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17, citing
People v. Partida (2005) 37 Cal.4th 428, 433-439.) On the merits, no separate
constitutional discussion is needed, or given, where rejection of a claim that the
trial court erred on the issue presented to that court necessarily leads to rejection of
any constitutional theory raised for the first time here.

62
 As noted, Dr. Kaser-Boyd testified for the defense that child sexual abuse
heightened the risk of criminality and dysfunction in defendant as an adult. She
reported being “told” by Fred Baumgarte that defendant was “touched in a sexual
way” by Rudy Garcia at age three or four. On cross-examination, Dr. Kaser-Boyd
admitted that she had prepared no written report for defense counsel, and that her
testimony was based on her memory of interviews with various persons and on her
handwritten notes. The witness recalled speaking with the Baumgartes twice —
once in person in the presence of their daughter, Suszanne, in August 1994, and
once over the phone in December 1994. Dr. Kaser-Boyd also elaborated on the
incident that Fred described, namely, its location (at the Baumgartes‟ home during
a visit by defendant‟s family), its nature (defendant stood on a table while Rudy
touched defendant‟s genitals), and Fred‟s immediate reaction (a “funny feeling”).
Dr. Kaser-Boyd testified that Fred Baumgarte said nothing about Rudy preparing
defendant for a bath, and that Fred “is hard of hearing, so interviewing him on the
telephone was very difficult.”
During the cross-examination of Dr. Kaser-Boyd, the trial court expressed
concern over scheduling and the length of the trial. Outside the jury‟s presence,
the court noted that “our time estimate originally is way off, we have lost two
alternates, we are down to four . . . [and there is] a lot of restlessness [and]
squirming on the part of the jury.” The court promised to clear its calendar and to
prevent further delay. Counsel were told that jury deliberations should begin soon,
preferably that same week.
After Dr. Kaser-Boyd was excused as a witness, the defense rested its case.
The prosecutor indicated that she was prepared to begin her case in rebuttal. The
trial court expressed its preference for a “short” presentation. After a 10-minute
recess, the prosecutor called her first rebuttal witness, Fred Baumgarte.

63
 When asked about the fondling incident described by Dr. Kaser-Boyd, Fred
Baumgarte testified that he saw defendant at age three or four standing on a table
without any underpants, while Rudy held defendant‟s penis between his thumb
and finger. Rudy may have been preparing defendant for a bath, and Fred did not
think the touching was sexual at the time. Fred realized that Rudy‟s conduct was
wrong only years later, after listening to media reports about child sexual
molestation. Also, Fred recalled that the incident occurred when he and his wife
visited defendant‟s family in their trailer home, rather than when the family visited
the Baumgartes‟ house. Fred further testified that he remembered meeting
personally with Dr. Kaser-Boyd in the presence of his wife and daughter, but did
not recall talking to the doctor about the fondling incident either in person or on
the phone — a point he repeated on redirect examination. On cross-examination,
after Fred confirmed he had a hearing problem, defense counsel asked, “Your wife
talked to you and then your wife talked back to the doctor?” Fred said, “Yes.”
The prosecution‟s next rebuttal witness was Dorothy Baumgarte, Fred‟s
wife and defendant‟s grandmother. After the defense sought an offer of proof, the
prosecutor stated outside the jury‟s presence that Dorothy would testify that “she
doesn‟t remember talking to Dr. Kaser-Boyd on the phone.” Defense counsel
replied that the matter was not in serious dispute and that it would be difficult to
return Dr. Kaser-Boyd to court. Nevertheless, Dorothy was allowed to testify that
she, along with her husband and daughter, met with Dr. Kaser-Boyd in person
before trial, but that Dorothy did not recall ever talking to the doctor about Fred
seeing Rudy touch defendant‟s penis. On cross-examination, Dorothy noted that
she suffered anxiety attacks and “wasn‟t supposed to be on the stand” that day.
After another witness testified on a different matter, the prosecution rested
its rebuttal case. Outside the jury‟s presence, defense counsel sought an
unspecified amount of time to locate Dr. Kaser-Boyd to confirm that her

64
conversations with the Baumgartes did occur. Otherwise, counsel argued, “every
single underpinning” of Dr. Kaser-Boyd‟s testimony and credibility was in doubt.
The trial court denied a continuance to the extent it would “shut down the
trial.” The court noted that, at most, the jury would infer that “we have two
elderly people who really don‟t remember the conversations.” The court also
observed that Dr. Kaser-Boyd was on the stand for several days, and that she was
thoroughly examined by both parties about her conversations with everyone
involved in the case. The court saw no reason to delay trial to rehash what the
witness “has already stated.”
A discussion then ensued over exhibits and instructions. In the process,
defense counsel said he believed that Dr. Kaser-Boyd was present in the
courthouse and that he needed time to locate her so that she could testify on
surrebuttal. The court did not reject the request. Instead, the court urged counsel
to “find her, get her back in here” before closing arguments began.
After a brief recess and further discussions about other matters, counsel
conceded that he had been unable to find Dr. Kaser-Boyd and that he again sought
a “slight delay” in order to do so. The court declined to grant a continuance, but
noted that “if at some point you find her, you can let me know and we will see
where we are and if there is something we can do.”
After the jury received its instructions, and before the prosecutor finished
presenting her closing remarks, the court granted a defense request to admit into
evidence Dr. Kaser-Boyd‟s handwritten notes of her interviews with the
Baumgartes. The notes, which appeared on a single sheet of paper, bore the
Baumgartes‟ names, their telephone number, and the date of the telephone call.
Dorothy‟s name was circled, and Fred was said to be hard of hearing. Consistent
with the testimony of both Dr. Kaser-Boyd and Fred Baumgarte, the notes further
indicated that Fred reported seeing defendant, at age three or four, standing naked

65
on a table while Rudy Garcia touched his private parts. Thereafter, closing
arguments resumed, and the case was submitted to the jury for a penalty decision.
2. Analysis
Defendant claims the trial court erred in not granting his request for more
time to find and call Dr. Kaser-Boyd as a witness, after she was excused by the
defense, to rebut the Baumgartes‟ testimony concerning their contact with her
before trial. Defendant insists he was denied the opportunity to “rehabilitate” Dr.
Kaser-Boyd on this issue, and that her credibility suffered as a result.
A criminal trial may be continued only for good cause (§ 1050, subd. (e)),
and the trial court has broad discretion in handling the request. (People v. Doolin
(2009) 45 Cal.4th 390, 450.) In determining whether a continuance was properly
denied, the reviewing court examines the specific circumstances, including the
benefits and burdens of postponing a trial that is already underway. (People v.
Barnett (1998) 17 Cal.4th 1044, 1125-1126.) In reality, such challenges rarely
have merit or cause reversal of the judgment on appeal. (People v. Beames (2007)
40 Cal.4th 907, 920.) For several reasons, these standards were not violated here.
First, the trial court did not act arbitrarily in managing the proceedings.
The defense was never barred from returning Dr. Kaser-Boyd to the stand.
Instead, the court merely declined to grant an open-ended continuance after it
became clear that the end of testimony was near, and that the jury was anxious to
deliberate. As defense counsel predicted, between the time that Fred and Dorothy
Baumgarte each testified for the prosecution, Dr. Kaser-Boyd could not be located,
and no surrebuttal testimony was forthcoming within a reasonable period of time.
Second, no dispute ever arose in connection with the requested continuance
as to the substance of the information that Dr. Kaser-Boyd relayed at trial. The
Baumgartes‟ testimony, along with Dr. Kaser-Boyd‟s notes, confirmed her
account that Rudy Garcia touched defendant‟s genitals when he was a young boy,

66
that Fred Baumgarte witnessed the event, and that Dr. Kaser-Boyd consulted with
the Baumgartes in preparing such testimony. Any impeachment of Dr. Kaser-
Boyd concerned purely collateral matters as to the circumstances under which the
fondling information was conveyed, and the nature of peripheral details that Fred
described at the time. Thus, while the prosecutor questioned in closing argument
whether the act Fred saw amounted to “sexual molestation,” no claim was made
that Dr. Kaser-Boyd exaggerated or fabricated their conversations.
Third, and for similar reasons, no prejudice occurred. Jurors would have
understood that even if Dr. Kaser-Boyd misremembered or misstated certain
aspects of her conversations with the Baumgartes, the substance of the information
she obtained therein and relayed at trial was never in dispute. We find no basis for
defendant‟s sweeping claim that the collateral matters about which he now
complains would have fundamentally undermined her credibility about child
sexual abuse or about any other matter to which she testified at trial. Hence, even
if the trial court had granted a continuance to permit surrebuttal testimony of the
kind urged here, there was no possibility of a more favorable penalty verdict.

C. Prosecutor’s Closing Argument
Defendant argues that the prosecutor committed misconduct in closing
argument, and thereby violated his due process and confrontation rights, and his
right to a fair and reliable penalty determination. These claims rest on the Sixth,
Eighth, and Fourteenth Amendments of the federal Constitution, and on parallel
provisions of the state Constitution. We disagree.
1. “Animal” References
The prosecutor spent much of closing argument asking the jury to focus
rationally on the aggravating evidence, which she said was “overwhelming”, and
to impose death because no meaningful basis for mercy in defendant‟s background

67
or character was shown. After asking jurors to dismiss any suggestion that
defendant was not the “worst of the worst” compared to other capital offenders,
and reminding them of defendant‟s calculated violence against the Finzels, the
prosecutor insisted he should be held accountable for his “animalistic action.” The
prosecutor, who was nearing the end of her argument, referred a few more times to
defendant as an “animal” and a “predator” who pursued “sadistic passions.”
Meanwhile, defense counsel objected twice at the bench that such argument was
“improper” and constituted “misconduct.” Both objections were overruled.
Defendant now insists the prosecutor improperly waged a “personal attack”
against him. The challenged remarks allegedly served no purpose other than to
“denigrate and degrade” defendant before the jury.
The claim lacks merit. Prosecutorial argument “may include opprobrious
epithets warranted by the evidence. [Citation.] Where they are so supported, we
have condoned a wide range of epithets to describe the egregious nature of the
defendant‟s conduct.” (People v. Zambrano, supra, 41 Cal.4th 1082, 1172
[defendant is “ „evil,‟ a liar, and a „sociopath‟ ”]; see People v. Friend, supra, 47
Cal.4th 1, 84 [defendant is an “ „insidious little bastard,‟ with „no redeeming social
value,‟ and being „without feeling‟ ” or “ „sensitivity‟ ”]; People v. Farnam (2002)
28 Cal.4th 107, 199-200 [defendant is a “ „monster,‟ an „extremely violent
creature,‟ and the „beast who walks upright‟ ”].)
Here, defendant broke into the Finzel home late at night, while armed with
a gun. One month earlier, he had expressed an interest in raping a woman at
gunpoint. The evidence suggested that he stood in the backyard, smoking, and
peered through gaps in the bedroom blinds before entering the house. After
seeing, perhaps, that L. was the lone adult inside, he waited until her most
vulnerable moment to strike — while in bed with a baby by her side. After
sexually assaulting and hogtieing L., defendant positioned the bedroom door to

68
ensure that Joseph, whom defendant knew might be arriving soon, would be shot
by surprise with his own gun. Defendant then shot L. to prevent her from
summoning help. He stayed in the house for hours collecting valuables,
repeatedly checking on her condition and waiting for her to die. The property he
stole from the couple included the wedding ring on Joseph‟s finger and anything
else found in his turned-out pockets as he lay dead or dying on the floor.
The epithets used by the prosecutor were not unreasonable or unfair in light
of this evidence. We therefore conclude no misconduct occurred.
2. Victim “Letters”
Near the end of closing argument, the prosecutor referred to defense
evidence at the penalty phase showing that defendant had “two fathers” — his
“stepfather,” Rudy Garcia, and his “real father,” Patrick Grandchampt — with
whom he could communicate. Jurors were reminded that defendant had deprived
Garrett and Brinlee, as youngsters, of the same benefit by murdering their father,
Joseph. The prosecutor asked the jury to consider the emotional pain Garrett felt
after his father‟s murder. Referring to the letters that defendant wrote during trial
to Patrick Grandchampt, the prosecutor also asked jurors to imagine how Garrett
might describe such pain “if he could write a letter” to his father. Defense counsel
sought a bench conference, and insisted that any reference to a hypothetical letter
from Garrett was improper. The court overruled the objection, and prosecutorial
argument resumed.28 The prosecutor then asked jurors to consider what Brinlee

28 The hypothetical Garrett letter was delivered, in full, as follows: “Dear
Dad, I love you very much. I miss you so very much. I know some day I‟ll see
you again. But in the meantime, I remember how you were my best buddy, how
you tucked me in at night, how we played together, camped together, and how you
wanted to ride motorcycles together with me, and how you and Mom included me
in everything. I remember the wedding. And I remember Christmas‟s [sic] with
(footnote continued on next page)

69
might say if she “could write” a similar letter to Joseph, whom she had never
known.29
On appeal, defendant complains that the prosecutor served only to stir the
passions of the jury by asking them to place themselves in the position of the
murder victim‟s children and to judge defendant harshly. He also suggests that

(footnote continued from previous page)

you. I remember when you and Mom took me to my first day of school. You
were always there, Dad. Then Randy Garcia took you away from me one
weekend when I was visiting my real mother. I never got to say good-bye to you,
Dad. That hurts real bad. My heart aches so much I think it‟s worse than any pain
I will ever know. Now you will never take me to school again. You will never
come and watch any games I play, baseball, basketball, soccer, football. You will
never see me graduate from elementary school, junior high school, high school, or
college. I won‟t have you to give me the kind of advice a dad gives his son while
growing up. How will I talk to my mother about girls and boys kind of stuff?
You will never be able to meet the woman that I marry. She won‟t even know
you. And that breaks my heart, Dad. And it hurts so badly that my children will
never know their grandfather. And what a wonderful grandfather you would have
been. But the thing that hurts the worst, and it hurts every day and I cry every day,
I will never see you during my life here on earth, a life that could be very long. I
will miss you, Dad, and I‟ll think of you every day. I know you know how much I
miss you because I know you miss me in the same way. So until we meet, Dad, I
love you with all my heart.”
29 The hypothetical Brinlee letter was delivered, in full, as follows: “Dad, I
am so sorry that I never even got to know you. I will only get to know you from
photographs and stories that Mom and other people tell me about you. I will only
know you from videos and things that Mom had saved, but I know how much you
loved me. I can tell from those stories and from those photographs. Mom‟s made
it clear how much you loved me. I wish I even had one hour with you that I could
remember. But I have no memories at all because Randy Garcia took your life as I
lay by you in my bassinet. I will never have you to walk me to school at all. I will
never have you to walk me down the aisle and to give me away at my wedding.
You will never know my children. Dad, why does Randy Garcia get to meet his
dad and have a relationship with him when I‟ll never get that same opportunity?”

70
jurors were thereby invited to speculate about irrelevant future events, and to
consider matters outside the trial record.
In closing argument, prosecutors have wide latitude in asking jurors to draw
reasonable inferences from the evidence. (People v. Lewis and Oliver, supra, 39
Cal.4th 970, 1061.) Along these lines, “it is proper at the penalty phase for a
prosecutor to invite the jurors to put themselves in the place of the [murder]
victims and imagine their suffering.” (People v. Slaughter (2002) 27 Cal.4th
1187, 1212; see People v. Dykes (2009) 46 Cal.4th 731, 793-794 [jurors asked to
consider how murder victim felt in having “ „a hot piece of lead tear through his
chest, go through his heart, his lungs, his liver and come out his back‟ ”].) The
same principle extends to the “unique pain” experienced by family members who
are left to grieve the murder victim‟s death and to experience the loss of that
person in daily life. (People v. Stitely (2005) 35 Cal.4th 514, 568 [prosecutor
encouraged jurors to empathize with both the murder victim, who was a “wife and
mother,” and with the family who survived her].)
We do not necessarily condone the particular tactic used by the prosecutor
here. But, under relevant law, no constitutional error or prosecutorial misconduct
occurred. The prosecutor made clear that the words and thoughts attributed to
Garrett and Brinlee had not actually been written or uttered by them. Instead, the
“letters” presented orally in court were obviously being used as a rhetorical device
to highlight what the children “could write” about the capital crime.
Moreover, the substantive point being illustrated was permissible under the
victim impact principles set forth above. Jurors were simply asked to draw
reasonable inferences from evidence of the family‟s close relationship and favorite
activities about the long-term effects of Joseph‟s murder on his children. Indeed,
having threatened Brinlee in her bassinet and peered into Garrett‟s bedroom,
defendant knew about both children when he fatally shot their father and tried to

71
kill their mother. The “letters,” which were not particularly artful, contained no
information that could not otherwise have been properly conveyed to the jury.
Hence, we reject the present misconduct claim.

D. Victim Impact Instruction
Defendant argues that the trial court erred in failing to instruct sua sponte
on the proper use of victim impact evidence. He alleges violations of his rights to
due process and a reliable penalty determination under the Sixth, Eighth, and
Fourteenth Amendments of the federal Constitution, and under parallel provisions
of the state Constitution. No error occurred.
At the penalty phase, the trial court gave standard instructions defining the
aggravating and mitigating factors (CALJIC No. 8.85), describing the process of
weighing such factors in order reach an appropriate penalty verdict (CALJIC No.
8.88), and prohibiting jurors from being influenced by bias or prejudice against the
defendant or swayed by public opinion or public feelings. (CALJIC No. 8.84.1.)
Relying solely on out-of-state cases, defendant insists the trial court should
have given an additional instruction on its own motion, as follows: “Victim
impact evidence is simply another method of informing you about the nature and
circumstances of the crime in question. You may consider this evidence in
determining an appropriate punishment. However, the law does not deem the life
of one victim more valuable than another; rather, victim impact evidence shows
that the victim, like the defendant, is a unique individual. Your consideration must
be limited to a rational inquiry into the culpability of the defendant, not an
emotional response to the evidence. Finally, a victim-impact witness is precluded
from expressing an opinion on capital punishment and, therefore, jurors must draw
no inference whatsoever by a witness‟s silence in that regard.”

72
 However, we have previously considered similar claims regarding a
substantially similar instruction, and have concluded that it need not, and should
not be given. (People v. Zamudio, supra, 43 Cal.4th 327, 368-370; accord, People
v. Tate (2010) 49 Cal.4th 635, 707-708; People v. Carrington, supra, 47 Cal.4th
145, 198; People v. Bramit, supra, 46 Cal.4th 1221, 1244-1245.) Several reasons
exist. First, to the extent it accurately describes victim impact evidence as a
relevant circumstance of the capital crime and allows its consideration in the
penalty decision, the proposed instruction “would not have provided the jurors
with any information they did not otherwise learn” from standard penalty
instructions properly given by the court. (People v. Zamudio, supra, 43 Cal.4th at
p. 369.) Second, the proposed instruction is misleading and “incorrect” insofar as
it suggests that the jury may not consider, or be affected by, sympathy for the
murder victim and bereaved family members. (Ibid.) Third, the rest of the
proposed instruction, advising jurors that the law does not deem one victim‟s life
more valuable than another and cautioning them against drawing any inference
from a victim impact witness‟s silence on capital punishment, is “not necessary to
the jury‟s understanding” of the case. (Id. at p. 370.)
We adhere to these principles and authorities, and reject defendant‟s
instructional claim.

E. Constitutional Challenges to Death Penalty Law
Defendant raises numerous challenges to the death penalty law under the
Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and to the
manner in which it was applied to him. He mainly seeks to preserve and litigate
such issues later. (See People v. Schmeck (2005) 37 Cal.4th 240, 303-304.) As
defendant concedes, we have rejected all such claims before. We do so again
here, as follows:

73
 Section 190.3, factor (a), allowing consideration of the circumstances of the
capital crime, does not license the arbitrary and capricious imposition of the death
penalty. (People v. Gamache (2010) 48 Cal.4th 347, 406, and cases cited.)
The death penalty law, and standard instructions based thereon, are not
flawed insofar as they fail to require proof beyond a reasonable doubt as to
whether (1) aggravating factors were present, (2) the aggravating factors
outweighed the mitigating factors, (3) the aggravating factors were so substantial
as to warrant a death sentence, or (4) death is the appropriate penalty. Nor were
written findings or unanimity as to aggravating factors required. High court
decisions, such as Blakely v. Washington (2004) 542 U.S. 296, Ring v. Arizona
(2002) 536 U.S. 584, and Apprendi v. New Jersey (2000) 530 U.S. 466, do not
undermine these conclusions. (People v. Bell, supra, 40 Cal.4th 582, 620, and
cases cited; People v. Anderson (2001) 25 Cal.4th 543, 589, and cases cited.)
There is no constitutional requirement to instruct either on any burden of
persuasion regarding the penalty determination, or on any presumption that life
without the possibility of parole is the favored or appropriate penalty. (People v.
Taylor, supra, 48 Cal.4th 574, 662, and cases cited.)
Standard instructions are not flawed insofar as they allow a death verdict if
aggravation is “so substantial” compared with mitigation, such that death is
“warranted.” (People v. Russell (2010) 50 Cal.4th 1228, 1273.) A jury so advised
need not also be told that life without parole is (1) mandatory if mitigation
outweighs aggravation, or (2) permissible even if aggravation outweighs
mitigation. (People v. Tate, supra, 49 Cal.4th 635, 712, and cases cited.)
Under the relevant law and instructions, the trial court did not err insofar as
it failed to (1) delete assertedly inapplicable sentencing factors, (2) instruct as to
which sentencing factors are aggravating and which are mitigating, or (3) instruct
that the absence of mitigation in certain statutory categories was not aggravating.

74
(People v. Stitely, supra, 35 Cal.4th 514, 574, and cases cited.) Use of the terms
“extreme” and “substantial” to describe certain mitigating factors is not
impermissible. (People v. DePriest, supra, 42 Cal.4th 1, 60, and cases cited.)
California‟s automatic appeals process is constitutional even though it
affords no intercase proportionality review. (People v. Anderson, supra, 25
Cal.4th 543, 602.) Equal protection does not require that capital defendants be
afforded the same sentence review as other felons to whom the determinate
sentencing law applies. (People v. Brady, supra, 50 Cal.4th 547, 590.)
Elimination of capital punishment in California is not required under international
law or norms. (People v. Solomon, supra, 49 Cal.4th 792, 844, and cases cited.)

F. Cumulative Error and Prejudice
Defendant complains about the cumulative effect of alleged errors at his
penalty trial. We have individually rejected his claims of error and/or have found
any assumed error to be nonprejudicial. Such claims are no more compelling or
prejudicial when considered together, even assuming (as defendant does) that the
beyond-a-reasonable-doubt standard in Chapman v. California (1967) 386 U.S.
18, applies. We will not reverse the death judgment on this ground.

75
 V. DISPOSITION
The judgment is affirmed in its entirety.

BAXTER, J.

WE CONCUR:
CANTIL-SAKAUYE, C.J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
KANE, J.*

_________________
* Associate Justice, Court of Appeal, Fifth Appellate District, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.

76
 CONCURRING OPINION BY KENNARD, J.

I join in affirming defendant‟s judgment of death. I write separately
because, although I agree with the majority that defendant‟s challenge to the grand
jury selection process lacks merit, I reach that conclusion by using a somewhat
different analysis.
In June 1993, the Grand Jury of Los Angeles County returned an
indictment charging defendant with, among other things, the murder of Joseph
Finzel. Thereafter, defendant moved in superior court to dismiss the indictment,
alleging that the process used to select the grand jurors discriminated against
women and Hispanics in violation of the equal protection guarantee of the federal
Constitution‟s Fourteenth Amendment. The trial court held a hearing at which
both the prosecution and defendant submitted evidence, after which the court
denied the motion. On this appeal, defendant argues that the trial court erred in so
ruling.
Although the prosecutor argued in the trial court that defendant‟s equal
protection claim is controlled by the United States Supreme Court‟s decision in
Duren v. Missouri (1979) 439 U.S. 357, in this court the Attorney General has
conceded that the controlling authority is the high court decision in Castaneda v.
Partida (1977) 430 U.S. 482 (Castaneda). I agree that Castaneda controls, as
does the majority.

1
 Under Castaneda, a defendant raising an equal protection claim regarding
the selection of grand jurors must make a prima facie case of purposeful
discrimination. “The first step is to establish that the group is one that is a
recognizable, distinct class, singled out for different treatment under the laws, as
written or as applied. [Citation.] Next, the degree of underrepresentation must be
proved, by comparing the proportion of the group in the total population to the
proportion called to serve as grand jurors, over a significant period of time.
[Citations.] . . . [A] selection procedure that is susceptible of abuse or is not
racially neutral supports the presumption of discrimination raised by the statistical
showing. [Citation.] Once the defendant has shown substantial
underrepresentation of his group, he has made out a prima facie case of
discriminatory purpose, and the burden then shifts to the State to rebut the case.”
(Castaneda, supra, 430 U.S. 482, 494-495.)
Here, the majority says it is “not entirely certain of the elements of a prima
facie equal protection violation.” (Maj. opn., ante, at p. 34.) Because of this
uncertainty, the majority declines to determine whether defendant made a prima
facie case of purposeful discrimination as to either women or Hispanics. (Id. at
p. 37.) I do not share the majority‟s uncertainty about the elements of a prima
facie case. As the quotation in the previous paragraph shows, the prima facie case
has two elements — the existence of a distinct, identifiable class, and a statistical
showing of substantial underrepresentation over a significant period of time.
(Castaneda, supra, 430 U.S. 482, 494-495.) Proof of these two elements raises a
presumption of discriminatory purpose, thereby shifting the burden of proof to the
prosecution. Evidence that the selection procedure is “susceptible of abuse” or
“not racially neutral,” although not required as an additional element of the prima
facie case, “supports the presumption of discrimination raised by the statistical
showing.” (Id. at p. 494.)

2
 Both women and Hispanics form distinct, identifiable classes for purposes
of equal protection analysis, so it is undisputed that defendant here established the
first element of the prima facie case. (See maj. opn., ante, at p. 36 [stating that
“the first prong of Castaneda‟s „prima facie‟ test is met”].) Regarding the second
element, the statistical showing of underrepresentation, the majority does not
decide whether defendant presented sufficient evidence. (Id. at p. 37.) I conclude
that defendant‟s statistical showing was sufficient as to Hispanics but not as to
women.
Regarding women, the record shows that from 1986 to 1994, 41.2 percent
of the grand jury nominees in Los Angeles County were women, while women
constituted 50.6 percent of the population. This translates to an absolute disparity
of 9.4 percent, which is insufficient to raise an inference of purposeful
discrimination. (See Swain v. Alabama (1965) 380 U.S. 202, 208-209 [“We
cannot say that purposeful discrimination based on race alone is satisfactorily
proved by showing that an identifiable group in a community is underrepresented
by as much as 10%.”]; see also People v. Ramos (1997) 15 Cal.4th 1133, 1156
[citing numerous decisions finding similar absolute disparities insufficient].) For
this reason, I conclude that defendant failed to establish a prima facie case of
purposeful discrimination against women in the selection of grand jurors in Los
Angeles County during the relevant time period from 1986 to 1994.
Regarding Hispanics, the record shows that from 1986 to 1992, only 6.6
percent of the grand jury nominees in Los Angeles County were Hispanics, while
voting-age Hispanic citizens who spoke at least some English constituted 19.1 to
19.4 percent of the population. These numbers reveal an absolute disparity around
12.7 percent and a comparative disparity around 60 percent. Considering both
absolute and comparative disparities (see Berghuis v. Smith (2010) __ U.S. __
[130 S.Ct. 1382, 1393] [recognizing that both tests are “imperfect”]; People v.

3
Burgener (2003) 29 Cal.4th 833, 860 [considering both absolute and comparative
disparities]), I conclude that defendant made a sufficient statistical showing to
raise a presumption of discriminatory purpose.
This presumption was supported by evidence that, when the grand jurors
who returned the indictment against defendant were selected, Los Angeles County
used a grand juror selection system that was “susceptible of abuse” (Castaneda,
supra, 430 U.S. 482, 494) in the sense that the judges who nominated the grand
jurors were given complete discretion and were not required to explain or justify
their nominating decisions. Persons wanting to serve on the grand jury were
required to fill out an application that asked them to identify their gender and their
“race or ethnic derivation.” Applicants were then interviewed and rated by a panel
of trial judges. After reviewing the applications, which revealed which applicants
were Hispanic, and the ratings of the interview panel, each trial judge had
complete discretion to nominate two persons who met the minimum statutory
requirements. Using this system, had they been so inclined, any or all of the
judges could have purposefully discriminated against Hispanics or members of
other racial or ethnic groups.
Nevertheless, despite the potential for abuse inherent in the system, I agree
with the majority that the prosecution adequately proved that the
underrepresentation of Hispanics on the grand jury did not result from any
purposeful discrimination. Particularly persuasive is the evidence that
(1) substantial efforts were made to persuade members of the Hispanic community
to apply for grand jury service; (2) from 1986 to 1991, the percentage of Hispanic
applicants was identical to the percentage of Hispanics nominated for the grand
jury, showing that the nomination process did not reduce Hispanic representation;
and (3) during the same period, trial judges nominated 73 percent of the
interviewed applicants who identified themselves as “Hispanic,” compared to only

4
46 percent of interviewed applicants who identified themselves as “Caucasian.”
Thus, I agree with the majority that the trial court did not err in denying
defendant‟s motion to quash the indictment.
On this basis, I concur in affirming the judgment.

KENNARD, J.

5
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Garcia
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S045696
Date Filed: August 25, 2011
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Jacqueline A. Connor

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Peter R. Silten,
Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon, John R. Gorey,
Sharlene A. Honnaka and Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Peter R. Silten
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Russell A. Lehman
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2280